CHIU TAK SANG v. KWAN HON LAM

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Delivery of Decision on Assessment: 28 November, 1996

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ASSESSMENT OF DAMAGES

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1. On 15 July, 1993, the Plaintiff was travelling as a passenger in a goods vehicle owned and driven by the Defendant. In carrying out an overtaking the Defendant collided with another vehicle. The Plaintiff received injuries in the accident. The Defendant was subsequently convicted of careless driving.

2. The Writ was issued on 10 May, 1994. Interlocutory Judgement in default of giving notice of intention to defend was entered on 24 June, 1994. The Defendant has taken no part in these proceedings. Nor did he do so in Employees Compensation Case No. 401 of 1994, which was heard by His Hon. Judge Caird on 18 July, 1995.

3. Doctor David T. Lee was called to give evidence before me and he identified 2 medical reports he had given about the Plaintiff in April, 1995, and in October this year. The Plaintiff also gave evidence.

4. Pain Suffering and Loss of Amenities.

5. As described by Doctor Lee, the injury suffered by the Plaintiff was a compound dislocation of the right subtalar joint, which is located between the heel bone and the shin bone. X-ray examination in October this year showed that the Plaintiff has developed quite advanced post traumatic osteo-arthritis. The joint cartilage has been badly worn to the extent that it is now almost bone rubbing on bone. This causes the Plaintiff pain when walking or lifting heavy objects. The doctor told me that this condition will get continually worse, and he estimated that within 5 years the Plaintiff will ask for a fusion operation, which will free him of pain, but with the sacrifice of mobility. The doctor's conclusion is that the Plaintiff is now incapable of doing strenuous labouring work, so that it is not possible to return to his work before the accident as a lorry attendant. The doctor's view is that in future the Plaintiff will be able to do such jobs as a watchman or as a messenger:

6. Mr. Clement asked that I assess the injury to the Plaintiff in the "serious" category as defined by the Court of Appeal in Lee Ting Man, being "a disability which mars general activities and enjoyment of life but allows reasonable mobility to the victim for example ... bad fractures leaving recurrent pain". I accept that this is the proper category in which to place the Plaintiff's case. The Lee Ting Man awards have been most recently revised by Cheung J. in Chan Pui Ki, and confirmed by the Court of Appeal, giving a range for the "serious" category from $400,000 to $540,000. Mr. Clement submitted that the. Plaintiff's case comes within the middle of the range and that a proper figure for PSLA is $470,000. I accept this submission and that is the sum I shall award as general damages.

Special Damages.

7. The Plaintiff asks for an award of medical expenses in the sum of $2,000 and travelling expenses for visits to the hospital in the sum of $470. I award those sums.

8. His Honour Judge Caird accepted that at the time of the accident the Plaintiff's daily wages were $550 and that he worked 24 days per month. The Plaintiff was granted sick leave from 15 July, 1993, until 24 May, 1994. It is Doctor Lee's view that after that the Plaintiff could have worked in such a job as a security guard. Mr. Clement suggests that it would have been reasonable for the Plaintiff to have taken a further 1 1/2 months to find such a job, and requests that the Plaintiff should be awarded 12 months loss of earnings after the accident at the rate of $550 per day for a 24 day month.

9. Although, for not very clear reasons, the Plaintiff still hasn't started work, Mr. Clement accepts that from then onwards the Plaintiff could have worked in such a job as a watchman. Government statistics had been obtained as to the average wages for the type of job the Plaintiff was doing at the time of the accident until 15 July, 1995, showing wages of $615.10 per day. For the same 12 month period, the statistics showed that for the first 8.5 months the wages of a watchman were $6,069 per month, and for the last 3.5 months, $6,713 per month.

10. For the period 16 July, 1995, to 15 July, 1996 the wages for the Plaintiff's job were $678.80 per day. For the first 8.5 months the watchman's wages were $6,970 per month, and for the last 3.5 months $7,119 per month.

11. As to the period from 16 July, 1996, until assessment on 11 November, Mr. Clement requests an uplift to $730 per day for the Plaintiff's job, being an increase of 7.3% on the previous year, which I agree is reasonable. The watchman's pay for the same period would have been $7,119 per month.

12. I accept these suggested figures. They produce loss of wages from the date of the accident until assessment as follows:

Loss of Future Earnings.

13. Mr. Clement produced to me a voluminous schedule of awards of damages for future loss of earnings to persuade me that the proper multiplier for future loss of earnings is 16. My immediate reaction to the schedule was that that figure is clearly on the high side. Mr. Clement thereupon conceded that perhaps 14 was nearer the right figure. Having now had the opportunity to study the schedule carefully I am satisfied that a figure of 13 is slightly on the generous side, but that is the multiplier I shall adopt.

14. Present yearly loss is [($730x24) -$7,119]x12 = $124,812.

15. The sum I award for future loss of earnings is, therefore, ($124,812x13) $1,622,556.

16. Mr. Clement asked for a further award of damages in respect of disadvantage on the labour market, based upon Doctor Lee's opinion that the pain from the osteo-arthritis will deteriorate over time, and that this means there is a real possibility that the Plaintiff will be disadvantaged in the labour market as a watchman. He asked for an award of one year's salary as a watchman. Doctor Lee was never asked in evidence by Mr. Clement about this aspect of the claim. Against Mr. Clement's submission is the Doctor's opinion that although the pain will get worse, that can be solved by an operation, although this would result in some loss of mobility. I am not persuaded that this would affect the Plaintiff's situation in the job market and I make no award under this head of damages.

Summary of Award.

Interest.

17. Interest on the general damages will be at 2% from the date of the Writ until this assessment, and on the special damages at 5% from the date of the accident until assessment.

18. The Plaintiff must give credit for the sum of $712,200 awarded in the employees' compensation case.

19. Costs of the assessment to the Plaintiff. The Plaintiff's own costs to a be taxed in accordance with the Legal Aid Regulations.