Lui Sheung Lok v. Wah Wah Travel Services Ltd.

HCPI No. 1188 of 1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1188 OF 1999

_______________________

Assessment of Damages

_______________________

Introduction

1. Following the defendant's failure to give notice of intention to defend, the plaintiff, a former driver aged 54 at the time of the accident giving rise to these proceedings and now 58 years of age, obtained default judgment on 24 November 1999 for damages to be assessed.

2. At all relevant times, the plaintiff was employed as a private car driver of the defendant. His responsibility was to take tourists on sightseeing and shopping trips around Hong Kong and to and from the airport. On 26 October 1996 whilst en route to collect some tourists from their hotel, his vehicle broke down. As he lifted the hood of the vehicle to ascertain the cause of the breakdown upon instructions from the office, the engine suddenly caught fire causing significant burns to his person. He was sent unconscious to Tang Siu Kin Hospital, but regained consciousness following his transfer to Ruttonjee Hospital on the same day.

3. The plaintiff now seeks quantification of his loss and damage. The nub of his case is that he is no longer able to work, given his significant residual disability and the lack of any reasonable prospects of obtaining alternative employment in view of his age and the state of the employment market.

4. At the hearing before me, the plaintiff was the sole witness. Although his evidence was brief, his witness statement having been adopted as his evidence in chief, I found him forthright and not given to exaggeration. I wholly accept his testimony.

The Facts

5. Except for a period of working as factory worker, the plaintiff's had principally earned a living from driving. Between 1979 and 1981, he was a driver for Kowloon Motor Bus Limited. In June 1996 he commenced working for the defendant until his dismissal on 15 March 1997.

6. In 1997, Employees' Compensation proceedings were instituted under ECC No. 199 of 1997. The suit was subsequently compromised with the parties agreeing compensation at $165,000. Unfortunately for the plaintiff, not a penny of that agreed sum has been handed over by the defendant who did however pay $2,356 towards the plaintiff's medical expenses. Upon review, the Employees' Compensation (Ordinary Assessment) Board ruled that the plaintiff had sustained a 17% loss of earning capacity. Quite independently, Dr. Ian Nicholson ("Dr. Nicholson"), the plaintiff's medical expert, had arrived at a similar finding.

The plaintiff's injuries, treatment and prognosis

7. The following matters were clearly established on the plaintiff's own evidence and from the medical findings.

8. On the day of the accident, the plaintiff was admitted with severe burns to his head, neck and both upper limbs involving 15% of his body surface. His wounds were debrided and dressed. Two painful skin graft operations were conducted in November 1996. Upon discharge from hospital, he received outpatient follow-up treatment, and was re-admitted on 6 December 1996 for debridement of an infected wound on his right arm. He was discharged after two days and was given more follow-up treatment. In January of the following year, pressure garment therapy followed in an attempt to control excessive scarring. He had to wear pressure garments on his right arm until May 1998 and on his neck until March 1998. On 23 April 1997, he was re-admitted to hospital for Z plasty operation for burn scar contracture of the neck. Another plastic and reconstructive surgery has been scheduled for the 18th of this month at Ruttonjee Hospital. I fully accept that the plaintiff has undergone lengthy and painful treatment and the process will continue for a period. A modest provision is sought for future medical care and related travelling expenses, a reasonable enough request in the circumstances.

9. Four years on and the plaintiff still has extensive scars on his neck, right arm and hand and right leg, a constant source of itching, discomfort and embarrassment to him. To avoid being stared at, he often wears long sleeve shirts with collars. He continues to experience tightness in the scars of his neck. Swimming has become less pleasurable on account of the awkward looks he receives from tactless members of the public. His right arm and hand are weak as flexibility has been significantly reduced. He is unable to carry heavy objects. With the loss of dexterity and increasing pain in his right hand after working for long hours, he has found it difficult to resume his driving career. I am satisfied that the plaintiff has made genuine efforts to return to work in the past. He testified that he had obtained work as a mini-bus driver after the expiry of sick leave, but had to give that up after a few days on account of the restricted movement of his right arm and hand. That he is no longer able to return to his pre-accident job as a driver is beyond peradventure on the evidence of the plaintiff, a fact amply corroborated by the opinion of Dr. Nicolson in his supplementary report. I am satisfied that the plaintiff has suffered considerable loss of amenities.

10. In his findings, Dr. Nicolson opined that the plaintiff has permanent cosmetic disability as a consequence of his burns. The unsightly scarring is considered permanent and not amenable to any significant improvement through plastic surgery. Permanent cosmetic disability has been assessed at 5%. Loss of earning capacity from injuries to his right arm and neck amounts to 17%. He continues to attend out-patient clinic for follow-up.

PSLA

11. Counsel for the plaintiff contended that the injuries sustained by the plaintiff should be regarded as falling slightly below the 'serious injury' category as set out in Lee Ting-lam v Leung Kam-ming [1980] HKLR 657. With that I agree. In light of the more recent decisions in Chan Tak Chi v Wong Siu Tao [1998] 4 HKC 16 and Leung Tak Yan v Yip Kan Shing, HCPI 1161 of 1998, the lower end of the 'serious injury' category now attracts damages of $480,000.

12. Counsel has very helpfully summarised a large number of burn related cases on quantum, all of which I have read in full. As often stated, none is by the nature of things, directly on all fours with the instant case, but instructive and useful they are nonetheless. These authorities included Kan Kit Yuk v Chung Kwok Chuen, PI No. 536 of 1995, Chui Wing Lai v Chung Dok Restaurant Ltd & Pang Heung Lin, HCA No. A3177 of 1989, and Lau Ming Wah v Yau Ka Fai, HCA No. A6171 of 1986.

13. Having considered the lasting impact of the injuries on the plaintiff, I am persuaded that an award of $500,000 under this head is fully justified, and I so order.

Loss of earning capacity

14. For reasons to be stated later, damages for loss of earning capacity are entirely inappropriate.

Pre-trial loss of earnings

15. The uncontroverted evidence disclosed that the plaintiff was earning about $13,000 pm at the time of the accident. There were several components to his salary. As chauffeur for the defendant, he was paid a basic wage of $2,500 a month. He would also receive allowances from his employer for journeys undertaken and tips from tourists and shops visited by the tourists he sent. Details of his income have been furnished in his witness statement that was adopted in evidence. I have no reason to doubt his veracity in this regard. As previously noted, he was dismissed on 15 March 1997. He was granted sick leave from 26 October 1996 until 17 December 1997 and except for several days of work as a minibus driver, had effectively throughout been unemployed. No information has been forthcoming as to his earnings during his very brief return to work, but his earnings would have been inconsequential at best. I propose to ignore any earnings that he might have received at the time.

16. Some 46 months and 17 days have elapsed since the accident to the date of the hearing. In that time, the plaintiff had attempted to secure employment that did not require driving with no success. Dr. Nicolson observed that the plaintiff was fit for office duties such as messenger or caretaker. The reality is sadly different for no one would hire him on discovery of his injuries and inability to lift things with his right arm. There can be no doubt that he is unfit for heavy work on the medical evidence. Given his age and residual impairment, he is unlikely to obtain paid employment in a very competitive market that is yet to make full recovery from the economic turmoil of recent years. Quite realistically, his future employment prospect is abysmal on any view.

17. In calculating accrued loss of earnings, I shall deduct the sick leave pay received in the sum of $20,003.40 as suggested by counsel. Loss to date is as follows:

Period from date of accident to date of dismissal, namely 26/10/96 - 15/3/97:

($13,000 pm x 4 months) + ($13,000 pm divided by 30 days/month x 21 days) less sick leave pay of $20,003.40 = $41,096.60

Period from date after dismissal, namely 16/3/97 to present:

($13,000 pm x 41 months) + ($13,000 pm divided by 30 days/month x 26 days = $544,266

Total: $585,362.60

Loss of prospective earnings

18. For the purpose of this assessment, I have found that the plaintiff's working life has through no fault of his own and despite efforts to find alternative employment been prematurely brought to a close. He is therefore entitled to recompense for earning loss in the future.

19. In determining the appropriate multiplier, my attention was drawn by counsel to 7 pertinent cases. They are Chu Suen, HCA No. 3524 of 1984, Lee Chan Wing, HCA No. 2475 of 1987, Ho Wing-chu, HCA No.A1267 of 1987, Fok Por, HCA No. A2555 of 1992, Chau Kui, HCA No. PI 126 of 1995, The Kang Oh, PI No. 791 of 1995 and Chui Kit, HCA No. 7692 of 1982. It does seem that a multiplier of 6 would be entirely apt in the circumstances.

20. Adopting a multiplicand of $13,000 pm and applying the chosen multiplier produces future loss under this head of $936,000. This sum is awarded.

Special damages

21. These comprise travelling expenses for the plaintiff and his family on medical visits of $6,800, net medical expenses of $3,851 and a modest amount for tonics over nearly 4 years of $20,000. These claims partly supported by receipts are allowed without deduction as the expenditure was either necessary or reasonable.

Cost of future medical care and travelling

22. As the plaintiff continues to require medical attention with incidental travelling, I propose to allow a further sum of $10,000 to cover these costs.

Summary of awards

PSLA	$500,000
Past earning loss	$585,362.60
Future earning loss	$936,000
Future medical and travelling	$10,000
Specials	$30,651
Sub-total:	$2,062,013.6
Less ECC award	$165,000
Total damages:	$1,897,013.60

Conclusion

23. Damages are assessed at $1,897,013.60. There shall be interest at 2% p.a. from the date of the writ on general damages and at 5.99% p.a. on special damages from the date of the accident to the date hereof. The plaintiff shall additionally have his costs of the assessment, taxed if not agreed and his own costs to be taxed in accordance with the Legal Aid Regulations. A certificate for counsel is granted.