LAI CHI MING v. NG PAK CHUEN AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1085 OF 1999

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J U D G M E N T

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Introduction

1. This is an assessment of damages following the entry of interlocutory judgment on liability in favour of the plaintiff against the 1st and the 2nd defendants on 17 April 2000.

2. The plaintiff, now 33 years of age and 30 at the time of the accident, on 11 November 1997 was injured in a traffic accident on Tuen Mun Road. At all material times he was driving a vehicle which collided with another vehicle driven by the 1st defendant negligently and owned by the 2nd defendant. As a result of that mishap, the plaintiff received certain injuries, the particulars of which will be referred to in due course in my judgment.

3. It is of note to mention that all the evidence have been agreed between counsel for the parties. In point of fact, even the damages have been agreed between them. It is, however, necessary for me to make an independent assessment of the quantum of damages justifiably payable by the defendants in this case as counsel for the defendants, Mr Cheung, has indicated that formal instructions to agree quantum could not be obtained. It is not necessary that I should go into the reasons therefor.

The Facts

4. Consequent upon the accident, the plaintiff sustained fractures to his lower right leg, more particularly fractures of his right tibia and fibula bones, and laceration to that foot. Substantial scarring of the lower leg which has improved considerably over time but still requiring cosmetic intervention in the future can be seen in the photographs which have been produced by consent in the bundles.

5. On 11 November 1997, the date of the accident, the plaintiff was admitted to the Accident & Emergency Department of the Tuen Mun Hospital where the fractures were treated operatively by close reduction and intramedullary nail fixation. During the same operation, the foot laceration received suturing. That was to be the first of three operations that the plaintiff has had to undergo. These surgical procedures could not have been pleasant on any view and there is no doubt that the plaintiff has suffered considerable pain both as a result of the immediate effects of the accident and post-operatively as well.

6. On 24 November 1997, quite unfortunately the right foot wound turned gangrenous and a further operation ensued involving debridement and partial skin graft. He was discharged from hospital after about 20 days of hospitalisation.

7. From 1998 right up to February 2000, the plaintiff attended in all 136 times of physiotherapy and occupational therapy treatments. I am informed that such treatment is now at an end.

8. The medical evidence revealed that initial recovery was quite swift but is not unexpectedly slowed down as healing obviously took time. At one point the plaintiff has had to wear a pressure garment over his injuries.

9. In April of this year, the plaintiff was admitted for the third time into hospital and this was for the purpose of removing the interlocking screws in his right leg which hitherto had caused him considerable discomfort owing to the length of the screws used to hold the fractured bones together.

10. He was finally discharged in May 2000 from hospital and his next follow-up appointment, I understand, will occur on 17 October 2000.

11. The medical evidence from Dr Brian Chan, an orthopaedic surgeon, Dr Sik-kuen Chow, a plastic surgeon, and Dr Danny Tsoi, the defendants' orthopaedic surgeon is not contentious.

12. Dr Brian Chan opined that the plaintiff has suffered a 3 per cent permanent impairment of the whole person. This was a 2 per cent reduction from his initial assessment. Dr Brian Chan has furnished two medical reports. There is no need to go over all the medical reports in great detail; suffice it to say that they have been read as indeed the cases and quantum that have been put in quite usefully by Mr Chan for the plaintiff.

13. As a result of the scarring on the plaintiff's lower right leg, Dr Sik-kuen Chow has added an additional 5 per cent to the figure for permanent disability.

14. In arriving at his assessment of 4 per cent permanent impairment of the whole person, Dr Danny Tsoi for the defendants had clearly not taken into account the cosmetic element of the plaintiff's injuries and the same could also be said of the plaintiff's own doctor, Dr Brian Chan.

15. I am quite content to hold that the total figure for permanent disability should stand at about 10 per cent.

16. Cosmetic surgery will have to be undertaken at some time in the future to reduce the ugliness of the scarring, and that should provide some solace to the plaintiff who has, since the accident, refrained from his usual sporting activities such as swimming and playing football on account of the embarrassment caused by the scarring. Scars are ugly on any person, male or female. In this case, permanent residual scarring will no doubt remain, but over time I am sure the plaintiff would overcome this problem which he now perceives to be of great consequence. That is understandable. Scarring would, by the nature of things, over time become less hideous. It is fortunate that they were confined to the lower limb rather than to the face.

17. Prior to and at the time of the accident, the plaintiff was earning a living as a driver-cum-delivery worker. As a result of the accident, he is no longer able to carry heavy weights and, therefore, is not in a position to undertake any work requiring manual labour. He can of course return to driving and he proposes to do so. The evidence certainly indicates that there is no impediment thrown in his way in regard to returning to the workforce as a driver. That is one form of employment that is clearly open to him on the evidence and he wholly accepts that he will be returning to gainful employment.

18. There has been loss of amenities to the extent that the plaintiff is no longer able to squat. He said in the past he avoided sporting activities because of the ugly scars. I am sure that with effluxion of time, this loss of amenities will become much reduced and largely insignificant. Of course, his inability to squat will probably stay with him for some considerable time, if not permanently.

19. He has been on sick leave ever since the date of the accident. Sick leave expires on 17 October 2000. That incidentally is the date of his next follow-up appointment.

Pain Suffering and Loss of Amenities

20. The plaintiff's injuries and present circumstances have already been adequately covered. Upon the basis of the medical and other evidence, Mr Chan for the plaintiff drew support from a number of cases on quantum. These are Lee Kwan-tong v Liu Yee-lim & Anor [1997] 2 HKLRD 444, Chan Kui v Lee Fai [1997] 2 HKLRD 444, Luk Chi-yin v Wong Fung-shing [1998] 2 HKLRD 337, Cheung Ping v Pak Kee Transportation Limited & Anor [1999] HKLRD 588, and Wong Tung-ying v Kwok Chiu-hung & Others [2000] 1 HKLRD C16. As is apparent in all assessment cases, no case is on all fours with the facts of any case under review. They do usefully provide, however, some indication of how damages should be assessed.

21. I am satisfied on the evidence that the plaintiff's injuries do fall within the serious injury category, albeit towards the lower end, a matter with which counsel for both parties have agreed. They have also agreed that damages for pain suffering and loss of amenities in this case should attract a figure of $574,000. In my view, the suggested quantum is about right. That is the figure that I shall award for pain suffering and loss of amenities in this case.

Pre-Trial Loss of Earnings

22. At the time of accident the plaintiff was earning $14,973 per month, inclusive of double pay and meal allowances. This figure has been agreed. He has been on sick leave for a considerable period as we have noted. During that time he received sick leave pay of $225,599 from his employer. That would have to be taken into account when assessing damages for pre-trial loss of earnings to date, a total period of 34 1/2 months. The computation for loss under this head would therefore be $14,973 x 34.5 months, less sick leave pay of 225,599. That produces a figure of $290,930. This sum will be awarded to the plaintiff.

Future Loss of Earnings

23. It has been accepted that the plaintiff will be able to resume working, for example, as a driver. I have been invited to accept that in that position he should be able to earn, on average, $12,500 per month. The government statistics which have been included in the bundle suggest that drivers earn in a range between $10,000 and $14,000 per month. I accept the median figure of $12, 500 per month. In view of his age, a multiplier of 14 has been suggested and that multiplier has been agreed.

24. It has been accepted that he will, from today onwards for the rest of his useful working life, continue to suffer from reduced earnings. He clearly is unable to resume his former work as heavy manual work involving lifting of weights is no longer open to him.

25. For post-trial loss of earnings, I calculate his loss as follows: $14,973 per month, less $12,500 per month x 14 years x 12 months. That produces a figure of $415,464. This is the figure that I shall award him for post-trial loss of earnings.

Loss of Retirement Benefit

26. It is accepted that this will be a loss that the plaintiff has sustained under the Mandatory Provident Fund scheme, calculated at the rate of 5 per cent of his future loss of earnings. The calculation is straightforward and simple, and it is essentially $415,464 x 5 per cent or $20,773. This is the amount I shall award under this head, which incidentally has also been agreed. The plaintiff has quite rightly abandoned the claim for loss of earning capacity and no more shall be said about that.

Special Damages

27. These comprise medical and travelling expenses. The sum agreed stands at $17,820. This amount I shall allow.

Future Medical Care

28. It is patent that the plaintiff will have to undergo cosmetic surgery as advised by Dr Sik-kuen Chow in the near future at a cost of $73,000 approximately. That figure has also been agreed and is awarded in the present exercise.

29. There shall be interest on general damages at the rate of 2 per cent from the date of the service of the writ until today. A calculation has been provided by Mr Chan and agreed by Mr Cheung for the defendants. General interest, therefore, on PSLA works out at $11,480 or $574,000 x 2 per cent x 1. Specials, of course, attract interest at 5.99 per cent per annum from the date of the accident to today. Interest payable on special damages will be $53,177 or $290,970 plus $17,820 x 5.99 per cent x 34.5 / 12.

30. In summary, I therefore award the following damages: (1) PSLA, $574,000; (2) pre-trial loss of earnings, $290,970; (3) prospective loss of earnings, $415,464; (4) loss of retirement benefits, $20,773; (5) specials, $17,820; (6) future medical expenses, $73,000; (7) interest, (a) PSLA, $11,480; (b) specials, $53,177. Total damages to be awarded: $1,456,684.

31. The plaintiff will also have his costs of the assessment, taxed if not agreed, with certificate for counsel.