CHOW TAI LOI v. LEUNG KAM HUNG &ANOTHER

HCPI 320/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 320 OF 2002

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ASSESSMENT OF DAMAGES

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1. This is an Assessment of Damages under RHC order 37. A Writ of Summons was issued by the Plaintiff against the 1st and 2nd Defendants on 22nd April, 2002, almost three years after the relevant accident. This was served, together with the Statement of Claim and a Statement of Damages, on the Defendants, and on 6th May 2002 and 8th May 2002 respectively the 1st and 2nd Defendants filed Acknowledgments of Service of the Writ. However, no Defence was served by the Defendants, and on 27th September 2002, interlocutory judgment was entered against both the 1st and 2nd Defendants in favour of the Plaintiff. Neither Defendant has raised any dispute over the default judgment. I am satisfied that the Defendants were given notice both of the judgment, and of this hearing for assessment of damages, and have chosen not to participate in the proceedings.

2. No Defence has been served by either Defendant. No response to the assessment of damages has been served by either Defendant, and neither participated in the hearing. No issue over failure to mitigate has been raised by either Defendant.

3. The Plaintiff appeared before me by Counsel, Mr. Khaw. I am grateful both to Mr. Khaw and his instructing solicitor, Ms. Ng for their work in putting this case in better order for the hearing, despite numerous errors and inconsistencies in the pre-hearing pleadings and evidence, and for dealing very fairly with the matters before me, despite of the absence of any opponent.

BACKGROUND

4. On 13th May 1999, the Plaintiff, who carried on a self-employed business of hiring vehicles to transport goods, was working at Unit 503, 5th Floor, No. 18, Container Port Road South, HIT No. 4 Hong Kong International Distribution Centre, Kwai Chung, New Territories, Hong Kong. During the course of his work, the Plaintiff was hit by a forklift truck from behind. The accident caused a minor injury to the Plaintiff's chest, and his left foot was rolled over by the wheels of the forklift truck. At the time of the accident, the forklift truck was driven by the 1st Defendant, who was employed by the 2nd Defendant.

5. After the accident, the Plaintiff was taken to the Accident & Emergency Department of Princess Margaret Hospital. Physical examination revealed tenderness over his left lower rib and swelling over his left foot. X-ray showed fracture at the base of the 2nd metatarsal and a chip fracture of the base of the 1st metatarsal of the Plaintiff's left foot. A plaster cast was applied for about three weeks. During the period between 20th May 1999 and 23rd July 1999, the Plaintiff experienced swelling and residual pain over his left foot, and received follow-up treatment at the Accident & Emergency Follow-up Clinic of Princess Margaret Hospital. The Plaintiff was then referred to the specialist clinic of Princess Margaret Hospital.

6. During the period between July and September 1999, the Plaintiff received physiotherapy treatment at the Prince of Wales Hospital and follow-up treatment at the specialist clinic of Princess Margaret Hospital. He also consulted private practitioner, Dr. Arnold Cheng, and a number of bonesetters, for treatment of his left foot injuries.

THE PLAINTIFF'S INJURIES

7. The Plaintiff's injuries and condition can be summarised as follows:-

(1)	the Plaintiff has suffered a fracture of 2nd metatarsal, and a chip fracture of the base of 1st metatarsal of his left foot and minor injury to his chest. His foot injuries were treated conservatively by a short leg plaster cast, which he wore for about three weeks.
(2)	the Plaintiff received follow-up treatment in Princess Margaret Hospital and physiotherapy in the Prince of Wales Hospital. He has also consulted bonesetters for his left foot problem.
(3)	The fractures have healed satisfactorily. Dr. Cheng describes the fracture healing as in a perfect anatomical position. However, the Plaintiff claims to be experiencing residual pain in his left foot.
(4)	Permanent impairment of the Plaintiff's foot has been assessed to be 5%, which accounts for 2% permanent impairment of the whole person.
(5)	The chest injury was minor and healed quickly and completely.

8. The Plaintiff gave evidence on the current condition of his left foot. He states that he still experiences some pain in his left foot from time to time, particularly after he stands for a long period. He says he cannot run or lift heavy objects, which would exert pressure on his left foot.

PAIN, SUFFERING AND LOSS OF AMENITY

9. Mr. Khaw drew my attention to a number of authorities on similar injuries. In particular Chan Kui v Lee Fai (trading as Fai Kee Timber), unrep., HCPI No. 126 of 1995; Leung Chung Ngar v Yeung Man Wai & Anor, HCPI No. 63 of 1999; Ho Sik Tung v Lau Kin-sun trading as E & J Engineering Company, HCPI No. 408 of 1999; Ho For San v Lau Sun choi v Anor, HCPI No. 584 of 2001; and Lee Sze Wai v Law Chi Kin, DCPI No. 44 of 2001.

10. The Plaintiff was clear in his evidence that he is suffering still to some extent from his injuries and has not made a complete recovery. The injuries were relatively minor, although it appears are now unlikely to recover any further. This is supported by medical evidence, in particular from Dr. Cheong and from Dr. Cheng. Dr. Cheng also believes that the Plaintiff is not under any disadvantage or disability in returning to his previous employment. Dr. Cheng says the Plaintiff is under no handicap in the labour market. I deal with this further in connection with loss of earnings and earning capacity. Mr. Khaw suggested that the doctor may not have fully understood the nature of the Plaintiff's work, and I take some note of this. The medical evidence is an important part of the evidence, although not conclusive. It must be weighed up with everything else. The Doctor does not seem, however, to have been quizzed on this, or to have had a chance to comment on Mr. Khaw's point: no follow up correspondence or report was offered. I do not believe that just because the medical evidence is that the Plaintiff can return to work, means that he is not suffering any residual pain.

11. There is a suggestion in the medical evidence that the Plaintiff should take up swimming to alleviate his injuries, as a form of physiotherapy. He said in evidence he did not have time to do this, despite being unemployed, or only part-time employed for long periods. This is not a credible reason. He claimed in evidence, in response to counsel's questions, to have been a kick-boxer, and to be unable to continue this after the injury. I do not see this referred to in the pleadings or submissions before the hearing. If this was a material matter, it would have been raised earlier and in some detail. No details were given at the hearing. I treat this with some scepticism. His statement refers to insomnia, but this was not pursued.

12. Plainly the Plaintiff has suffered injury, and the medical evidence of his initial injury and treatment is clear, and has not been contested. There was some confusion in the written evidence, and in the oral evidence given at trial, as to how long the plaster cast had been applied. The Plaintiff claimed in evidence that this had been three months, but I prefer the contemporaneous written medical record and the original statement of damages which shows only three weeks.

13. Taking account of these matters, and by reference to the awards made in the cases cited to me, allowing for the passage of time, I award HK$225,000 for pain, suffering and loss of amenity. Counsel suggested HK$250,000, but looking at the nature of the injuries, the medical evidence, and lower awards in the cited cases which seem to me to be similar, even when brought up to date, HK$225,000 seems to be the better approach.

LOSS OF EARNINGS

14. The Plaintiff was born on 9th March 1964. At the time of the accident he was 35 years old and was in good health, and he was running his own business of hiring vehicles to transport goods.

15. According to the Plaintiff's evidence, presented at trial, his pre-accident work was carried out in the following manner:-

(1)	His customers, who were mainly garment factories, placed orders with him for transportation of goods. The Plaintiff would be required to collect the goods and transport them to the designated container ports or warehouses, or to/from the Mainland.
(2)	The Plaintiff's work involved manual handling and lifting of cartons of goods. The Plaintiff often had to engage other workers in order to carry out all the assignments. Those workers worked with him and he described the arrangement as 'his partners'. It may be that they were contractors rather than partners, in a legal sense, but this does not affect the damages. The Plaintiff shared his income with those workers. In the normal course of events, the Plaintiff's own share was about 30% of the total income.
(3)	Expenses for hire-purchase, rentals, maintenance and insurance of vehicles together with fuel and petrol that had to be consumed were in the estimated sum of HK$25,000 per month.

16. The Plaintiff gave evidence that he had started his business about 3-4 years before the accident. Owing to the nature of the business, his income varied from month to month. The Plaintiff produced at trial some records in support of his pre-accident income. However, such records were limited to a few months only. Almost no evidence was produced before the hearing. The Plaintiff has not produced any accounts or records in respect other periods of time. Further, the records for October and November 1998 are not complete.

17. The limited records which were produced do not speak for themselves. They require interpretation and calculation. The Plaintiff's own evidence at the hearing on this matter was confused, and considerable assistance from counsel was needed before the Plaintiff gave the explanation which counsel then adopted in his closing argument. The records for many months are missing, or have not been produced. I note, in particular, that the Plaintiff's tax records were not produced: no explanation for this was given, and it seems to me this would be a good record of what the Plaintiff actually earned himself from his business. A significant leap is therefore required to deduce from the available material the income figures for which counsel contented.

18. I was also concerned to see, over the period in question, a general decline in the business. The Plaintiff gave evidence of some seasonal variations, which can be seen, but nevertheless I am not satisfied that the Plaintiff has met the burden of proof that his business would have continued at, or about, the pre-accident level, in the absence of his injuries. The explanation given to me as to why the Plaintiff could not resume business after the accident, even if doing less of the physical labour himself, and therefore using more contractors, was unclear.

19. The Plaintiff gave, as a result of extensive questioning in chief from counsel, and questions from the bench, what appears finally to be a full account of his employment record and earnings after the accident. The various statements and written submissions put in during the course of the proceedings before the hearing were misleading and incomplete. The Plaintiff disclosed in his witness statement his work at a noodle shop, but omitted, inter alia, the fact that he was driving a taxi at the time of his statement (September 2002), and had done so earlier that year. The account of the Plaintiff's post injury employment developed significantly during the course of the case, and the full details were only brought to light during the assessment hearing itself. In particular, the Plaintiff had not disclosed that he lost his job as a taxi driver because he was convicted of motor offences and lost his driving licence. I note these matters, but on the basis of my judgment below that the Plaintiff could return to work, they would not directly affect the quantum of damages. They do affect the Plaintiff's credibility generally.

20. I am not persuaded that the Plaintiff has lost his business as a result of his injuries, as opposed to other economic factors. In light of the medical evidence in particular, I am not persuaded that the Plaintiff would be unable to resume his business, or an equivalent employment, on medical grounds, following his injuries.

21. The figure submitted to me by counsel, after significant extrapolation from the limited records available, suggests an average income in the region of HK$22,309 per month. Counsel suggested that both the highest and lowest figures should be taken out, whereby the average becomes approximately HK$24,747. I am not persuaded that that would be either a proper step to take, nor one which is numerically sound. I am prepared for the purposes of this calculation to accept an average figure of HK$22,309. Given what seems to be a general decline in the Plaintiff's business, well before the accident, I believe this is a generous approach.

22. Sick leave was granted for the period between 13th May, 1999 and 1st November, 1999. Dr. Cheng also expressed the view that sick leave of about six months would be reasonable. I am prepared to accept that. Counsel submitted that, on the basis of various authorities, the Court might allow an additional period of a few months after the formal period of sick leave ended for a plaintiff's additional recuperation, or for him to look for alternative employment. Counsel drew my attention to Cheng Lai Kuen v Nan Fung Textiles Ltd [1998] 2 HKC 730; and Iau Kau Ih v Wan Kei Geotechnical Engineering Co Ltd & Ors [2002] 4 HKC 76). Counsel submitted that, in the light of this, an additional period of three months should be allowed. I accept the principle. In view of my finding that the Plaintiff could have returned to his pre-accident employment, I do not accept that such an allowance should be made in this case.

23. Dr. Cheng is of the view that the Plaintiff should be able to return to his pre-accident work. Nevertheless, I accept that the Plaintiff still suffers some pain which could have some effect on his working capacity. I accept that Dr. Cheng's assessment of the permanent impairment of the Plaintiff's left foot, and the whole person, must have been made on the basis of some residual pain experienced by the Plaintiff. I am therefore of the view that the Plaintiff should have been able to return to his pre-accident job, but with a reduced capacity caused by his residual pain. That is very difficult to calculate, but I accept counsel's estimate in the region of HK$2,000 per month. This is one approach which counsel himself suggested to me in closing and I adopt this.

24. Counsel submitted that, with respect to future loss of earnings, a multiplier of 13 was appropriate. I accept this.

25. Accordingly, the Plaintiff's loss of earnings can be assessed as follows:

(1) 6 months sick leave at HK$22,039 per month = HK$132,234.00;

(2) Pre-assessment loss of earnings at 44 months x HK$2,000 per month = HK$88,000; and

(3) Post-assessment loss of earnings at 13 years x 12 months at HK$2,000 per month = HK$312,000.

26. Accordingly, the pre and post-assessment loss of earnings are HK$532,234.00.

27. The Plaintiff was self-employed, and in the light of this the claim originally made to loss of MPF was withdrawn at the hearing.

LOSS OF EARNING CAPACITY

28. In view of my conclusion that the Plaintiff is able to return to his pre-injury employment, I do not accept that the Plaintiff will have difficulty in finding further employment, or that his choice of occupation will be limited. Dr. Cheng found 'no handicap in the labour market'. The evidence was that he had in fact taken on a range of occupations since the injury, and was now working again as a taxi driver, following reinstatement of his driving license. I do not therefore think it is right to make any award for loss of earning capacity.

SPECIAL DAMAGES

29. The Plaintiff claims the following miscellaneous items expenses and damage:-

(1)	Medical expenses in the sum of about HK$11,004.
(2)	Bonesetter's fee and tonic food in the sum of HK$4,500.
(3)	Travelling expenses
	(a)	For his 9 visits to Princess Margaret Hospital, he for most of time took a taxi for transposition. One return journey cost about HK$300.
	(b)	For his 2 visits to Prince of Wales Hospital, the cost of taxi fare for each return journey was about HK$150.
	(c)	For his consultations with Dr. Arnold Cheng, the cost of taxi fare for each return journey was about HK$300.
	(d)	For treatment at St. Teresa's Hospital, the cost of taxi fare for each return journey was about HK$300.

30. The Plaintiff in evidence was unclear about a number of details of these items, including how many taxis he took and how many buses. There is no written evidence to support the bonesetter visits or fees, or that these visits were all necessary or even helpful. The Plaintiff was unclear on exactly what visits there had been and at what cost. No receipts or other evidence supports the tonic food claim, although the sum claimed is small, and well within the normal range. I should also make due allowance for the fact that details of every hospital/bonesetter visit and journey will be very difficult to remember after this lapse of time. I am therefore prepared to allow these items in the total sum of HK$20,000.00.

INTEREST

31. I allow interest at 2% p.a. from the date of the issue of the Writ to the date of assessment on general damages; and at half judgment rate from the date of the accident to the date of assessment.

SUMMARY

36. The Plaintiff should have his costs of the proceedings against the Defendants, together with legal aid taxation in accordance with Legal Aid regulations, Certificate for Counsel.