WONG SHUN CHI v. THAI EAST TEXTILE CO. LTD. AND ANOTHER

1982, No. 5073

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The plaintiff was injured in a traffic accident on the 17th September 1981. At the time of the accident the plaintiff was aged 46 years and was employed as a chamber maid at the Miramar Hotel.

2. Interlocutory judgment was entered on the 2nd of September 1983. For some inexplicable reason this hearing was not set down until the 27th September last.

3. The parties agreed a number of items. Pain suffering and loss of amenities were agreed at $50,000 and a number of small items of special damages were agreed at $1,983. Interest on the general damages was agreed at $2,375.

4. In the original statement of claim there was no claim for loss of earnings or loss of future earnings. Mr Chan sought to amend the statement of claim before the assessment to include such claims. Mr Yu did not oppose and I allowed such an amendment.

5. It was in fact this last minute addition that was in dispute between the parties. Mr Yu must have contemplated (or knew) of the intended amendments because he was well prepared to deal with it.

6. Dr. Wedderburn gave evidence for the plaintiff. He produced two reports. The first was prepared in October 1982 and the second in May of this year. The first report revealed that the plaintiff suffered a fracture of both tibiae and fibulae bones of the lower leg. After three weeks the fracture of the right tibiae was secured by a bone plate and screws and of the tibiae by insertion of an intramedullary nail. She was discharged from hospital at the end of January and required the use of crutches for 6 months and a stick for one month. At the time of Dr. Wedderburn's first examination, the plaintiff complained of discomfort in her right calf and of numbness in her left foot after walking for five to ten minutes. Dr. Wedderburn considered it was appropriate to have the bone rail removed as soon as possible. He was of the opinion that if this was done the` pain and numbness the plaintiff experienced when walking would disappear after about six to eight weeks. He also concluded that the numbness of the foot experienced by the plaintiff would completely recover. He considered she would be fit to resume her type of work 6 months after the removal of the metal plates.

7. However, the report of May 1984 reveals that the numbness in the left foot following five to ten minutes of walking still persisted. Dr. Wedderburn said that this was because of arterial damage. Consequently, upon the muscles of the foot being used for walking there was insufficient blood to supply the oxygen required by the muscles. He observed the plaintiff walking across a compound and considered she had a very mild limp. He also considered that the plaintiff could walk twice as long as she claimed and that, typically for such cases, she was prone to exaggerate her difficulties. He felt she was no longer capable of working as a maid in an hotel but that she was capable of sedentary work or work that required intermittent walking. Indeed in his evidence in chief he said :- "She could do factory work involving sitting or standing occasionally such as work in a garment factory, toy factory or an electronics factory. She could be an amah in a house because she could stop when walking and do something else; she could do something standing like doing the dishes......"

8. The plaintiff also gave evidence. She detailed the period she spent in hospital and the fact that she was on crutches or a stick until the end of October 1982. She also stated that following the removal of the plates in February 1983 she walked with great difficulty for up to a month after the operation. She stated that she had made no effort since the accident to look for work. She said this was because her leg was too painful, that she suffered gripping pains in her leg and she "wasn't in the mood to look for a job.'"

9. The final witness for the plaintiff was the personnel officer of the Mirama Hotel. He gave details of the plaintiff's earnings at the time of the accident. He also gave particulars of what she would have earned if she had been able to continuing working in a similar position.

10. Mr Chan conceded that the plaintiff was capable of doing some work. He further conceded that she had made no effort to find work. He submitted that the plaintiff was entitled to full loss of earnings from the date of the accident until the end of September 1982. From then until her second operation in February 1983 she was capable of some work. Then she was entitled to a full months loss of earnings. Mr Chan submitted that after the plaintiff's recovery from this second operation there was still a loss of future earnings. He accepted her potential to work but said she would be unable to earn as much as an hotel maid and therefore there was a partial loss of earning. He said, despite his own witness Dr. Wedderburn's evidence, that she was able to do factory work or domestic work in a house, the reality was no-one would employ her in such work. This was because of her age and disability, although these were factors that the doctor undoubtedly took into account. Mr Chan submitted that she could earn around $1,000 p.m. and this figure should be used to assess her partial loss of income. To support this proposition he cited the decision of Mr Commissioner de Basto, Q.C. (as he then was) in Lau Chow-tan v. Fung Mong-yan HCA 4716/79 and a decision of mine :- Lam Yuen v. Wat it trading as International Beading & Embroidery Manufactory HCA 7602/81. Mr Chan submitted that in both these cases plaintiffs were unable to find work although the evidence was they were capable of light work or sedentary work. In both cases it was held that the plaintiff ought to be able to earn at the rates of $850 and $1000 per month respectively. Therefore, he said it was appropriate to adopt this figure in the present assessment. In the Law Journal report of Lau Chow-lan v. Fung Mong-yan (Supra 1) it states :- "There was medical evidence that the plaintiff was fit to work as a watchman provided he did not have to negotiate more than two floors. Whilst there was no evidence of the earning capacity of watchmen, the learned commissioner found that it was notorious that watchmen, and in particular those who were elderly or incapacitated, were badly paid, and he assessed, having regard to the plaintiff's physical condition and age a potential earning capacity of $850 p. m."

11. Mr Chan also referred me to the following passage in Lam Yuen v. Wat Kit trading as International Beading & Embroidery Factory :- "In this regard I am placed in some difficulties as there is no real evidence before me as to what the plaintiff can earn. He has not been able to obtain any light work he is capable of. However, carefully considering the matter I accept Miss Mok's submission that the appropriate figure is $1000 p.m. giving a multiplicand of $1,846. "

12. However, Mr Chan's submission ignores some important factors. In the first case cited Mr Commissioner de Basto made and assessment of what a watchman could earn. In the second case cited Mr Chan completely ignored Page 4 of the judgment. The plaintiff in that case had registered with the Labour Department Selective Placement Division. He had attempted to find work as a caretaker on a construction site without success. There was evidence of what he might be expected to earn in such work.

13. The present case is completely different. The plaintiff has made no effort to find work. The expert witness called on her behalf states she is capable of factory Work. In contradiction her counsel submits that she is only capable of some undefined type of light work where she could earn $1,000 p.m. I am satisfied Dr. Wedderburn is correct and she is perfectly capable of factory work. There was no evidence to show such work would result in a lower income. It is for the plaintiff to prove her loss of future earning capacity. She has failed to discharge that onus.

14. However, it is quite clear that the plaintiff is entitled to full compensation for the periods she was unable to work. The first period is from the date of the accident to the end of September 1982. The second period was when she was operated on to remove the bone plates. Mr Yu said this second period should be one month. However this overlooked the contents of Dr. Wedderburn's first report which said ".......but six months after the removal of the metal the impairment will be reduced to a 3% impairment of the whole man. At that time Madam Wong may find that she is fit to resume her type of work......" I consider she is entitled to 6 months compensation.

15. The award therefore is:

16. There will be interest on the loss of earnings at 6.75% p.a. from the date of the accident to judgment. Costs to the Plaintiff to be taxed failing agreement. Certificate for Cousel.