KWONG YUI HUNG v. WONG FAT KAN

HCPI 336/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.336 OF 2001

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J U D G M E N T

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1. The plaintiff claims damages for injuries sustained by him as a result of a road accident. Liability is now admitted. The quantum of the plaintiff's claims for pain, suffering and loss of amenity, loss of earning capacity and special damages other than loss of earnings is agreed. In issue before me are the claims for pre-trial and future loss of earnings.

The accident

2. Since liability has been admitted I have heard no evidence, but from the plaintiff's case it appears that this was another accident caused by the dangerous overtaking and lane-cutting which are endemic to Hong Kong. On 21 March 1998 at about 7.50 a.m. the plaintiff was driving his employer's container lorry, registered number HE8749 on the outer lane of a two-lane carriageway of the Tai Po Road, heading towards Kowloon. The defendant, who was driving a private car, registered number GX7781, passed the plaintiff's vehicle on the inner lane then suddenly cut into the outer lane ahead of it. The plaintiff braked and swerved right but was unable to avoid collision with the rear of the defendant's vehicle. The plaintiff's vehicle then crossed the double white lines on to the opposite carriageway and collided head-on with another container truck, registered number DW3123 which was travelling towards the New Territories.

The plaintiff's injuries

3. The plaintiff suffered severe injuries. He was taken to the Prince of Wales Hospital. He was found to be suffering from abdominal injury, head injury with facial lacerations and a right tibial plateau fracture.

4. In brief and simple terms the abdominal injuries consisted of tearing and bruising of the bowels, with internal bleeding, which required an emergency laparotomy and a temporary colostomy. The facial lacerations required surgical repair. The tibial fracture required an operation for reduction with internal fixation and bone grafting. The plaintiff remained in Prince of Wales Hospital until 23 April 1998 when he was transferred to the Cheshire Home at Shatin for rehabilitation. He was returned to the hospital for repair of the temporary colostomy which was carried out on 13 May 1998 and was then transferred back to the Cheshire Home on 20 May 1998. He remained there until he was discharged home on 19 June 1998. In all he was an in-patient for three months.

5. The plaintiff says that he continues with out-patient treatment and suffers from continuing orthopaedic, abdominal and other disabilities including loss of memory. Various medical reports are in evidence. The plaintiff was assessed as suffering from 7% impairment of the whole person due to the orthopaedic injuries. He was assessed as suffering from 1% permanent disability due to the abdominal injuries, with a 1% probability of developing intestinal obstruction from post-operative adhesions. He was assessed as suffering a 2% impairment of the whole person due to head injuries and loss of memory, as well as a 2% loss of earning capacity.

Agreed quantum

6. At the start of the trial I was advised that, in addition to liability, the following were agreed :-

(1) The award for pain, suffering and loss of amenity at $400,000.00;

(2) The award for special damages other than loss of earnings, at $30,000;

(3) The award for loss of earning capacity at $72,000;

(4) The multiplier to be applied in respect of future loss of earnings at 8.5;

(5) The plaintiff has received $456,000.00 under the Employees Compensation Ordinance; and

(6) Interest should be awarded on the general damages at 2% from the date of the Writ and on the special damages at half the judgment rate from the date of the accident.

Loss of earnings

7. It is not in dispute that the plaintiff was at the time of the accident working for King Fortune Corporation Ltd as a container truck driver. His job was to collect and deliver containers in Hong Kong. After the accident, he was granted sick leave until 30 April 1999. He cannot now work as a container truck driver but he accepts the medical opinion of Dr C.K. Lam that he could work as a professional driver of lighter vehicles. The parties agree that the plaintiff could earn $12,000 per month for such work. However, the plaintiff says that he has been unable to find work of any sort since his sick leave ended.

8. What is in dispute is the pre-accident earnings. The plaintiff relies in support of his evidence on his bank pass-book which he says shows all the payments received by him from King Fortune Corporation Ltd and his previous employer. The defendant relies on work records for January, February and March 1998 which the employer disclosed in the Employees Compensation proceedings. Unfortunately the defendant has been unable to bring anyone from the employer to give evidence as to the earnings or generally about these records but there has been no objection to their production. There is also a tax return for the plaintiff for the year ending 31 March 1998.

9. The plaintiff said that he started working for King Fortune Corporation Ltd in early October 1997. Later he said he started on 15 October. His job was to collect and deliver containers. He earned $140 per trip. Previously he had worked for another company called Tin Cheung, where he had done the same work for $130 per trip.

10. The plaintiff says that he worked on any day when his employer had work for him to do. He was paid monthly but did not have a regular pay day. He was paid by cheque for the number of trips he had done in the month and he always deposited the cheque into his bank account. The payment he received by cheque would, in addition to the fees for the trips, contain a payment of $800 for telephone charges and $960 for three fixed penalty parking tickets at $320 each. If he received less than three tickets, he kept the money; if he received more than three, he had to pay for the extra ones himself. It appears that there were other charges, such as tunnel charges and clearance charges which the plaintiff paid but he says that the employer reimbursed these to him in cash.

11. The plaintiff says that he was capable of doing 165-180 trips per month and that his average earnings would therefore be $24,000.00 to $25,000.00. In fact worked out arithmetically the lower figure would be $23,100.00 and the higher $25,200.

12. The plaintiff's bank account shows the following deposits which the plaintiff says represent payments by King Fortune Corporation Ltd :-

17 November 1997	$22,124.50
20 December 1997	$36,170.00
3 January 1998	$3,000.00
18 February 1998	$21,469.00

13. He says that the employer advanced him $20,000 so that he could buy a motor cycle, to be sent to the Mainland; this was done by cash cheque and not put through the bank account. The figure of $3,000 represents the balance which the employer paid for December; so he received $23,000 for that month. The pass book also shows a deposit of $31,198 on 20 October 1997; the plaintiff originally said that that came from King Fortune Corporation Ltd but later said that he could not now remember if it had come from that company or from his previous employer Tin Cheung. It seems most likely that it did come from Tin Cheung, if he only started working for King Fortune Corporation Ltd on 15 October, and I take it that this is the true position.

14. The average, including the $20,000 advance, of the four payments from November to March is $25,690.88. If one takes off the figures for telephone charges and fixed penalty tickets the average would be $23,930.88.

15. The employer's records, however, show a somewhat different picture. These are trip record sheets which the plaintiff compiled himself. They show the trips done in each day with details of the starting point and destination, the serial number of the container moved, and any extra charges such as tunnel charges. Someone other than the plaintiff has totalled the trips on each set of sheets and multiplied by $150, rather than $140 and on the basis of these figures the employer filed in the Employees Compensation proceedings a list of earnings showing :-

Income in January 1998 : $150 x 97 trips	=	$14,550.00
Income in February 1998 : $150 x 112 trips	=	$16,800.00
Income in March 1998 : $150 x 77 trips	=	$11,550.00

16. The average earnings, therefore, leaving aside the telephone charges and fixed penalty tickets would be $14,300 per month.

17. In addition, the employer produced records in respect of another driver, Tang Wan Yin, which show that he was doing about 120 trips per month. However these records relate to May and June 1999, December (the year is not clear) and January to March 2001. Insofar as they are intended to cast doubt on the plaintiff's claim that he did 165-180 trips per month pre-accident, I think they have to be disregarded because they do not relate to the same period.

18. Looking at the actual trip records which the plaintiff himself wrote, it appears that he worked 20 days in January, 19 days in February and 15 days in March 1998. He met with the accident on 21 March so that explains the number of days worked in that month. He said in answer to cross-examination that he took 11 or 12 days' holiday at the Lunar New Year; since the entries start on 10 February that would account for nine missing days plus some days in January. It is not clear if there are any records missing for January. Nor is it clear in the absence of evidence from the employer how the payments were worked out so that he was paid $21,469 on 18 February. Presumably this payment would relate to some days from both January and February. But overall, if one averages out the trips per month according to the work records it produces an average of 95 trips for a month and an average of 18 days per month. If one accepts that in a normal month, with no holidays and no accidents, the plaintiff could work for 30 days, applying this figure to a 30-day month would mean that he could do 158 trips in that month and thereby earn just over $22,000. To this one would have to add the telephone and fixed penalty ticket payments to produce a figure of $23,760 which approximates to what the plaintiff says he would be paid and indeed to the average from his bank pass book.

19. The plaintiff's tax return for the year 1997/1998 shows a personal income of $178,850. He says that he did not fill in a tax return; the figures were given directly by Tin Cheung to the Inland Revenue Department. If one adds up the figures in the pass-book which the plaintiff identifies as salary payments, those from May to October total $183,421.00. This does not include a payment in April but there is no evidence, with Tin Cheung as with King Fortune Corporation Ltd, as to the actual periods of work covered by the payments. In any event the figure is not too far off the figure accepted by the Inland Revenue Department. The average for the same period according to my calculations comes to $26,203; Mr Wong for the plaintiff says it is $25,462. I do not know if we are using the same figures. But in any event, these figures appear to show that the plaintiff in comparable previous employment with another employer was earning about the same as he says he was earning with King Fortune Corporation Ltd.

20. The plaintiff appeared an honest enough witness and there was nothing to contradict him. I do not think he is exaggerating the figures much when he says he could make $24,000 or so per month though $25,000 is too optimistic. The figure of $24,000 should be what he received. I think that the telephone charges, which are essentially reimbursements, should not be counted. The fixed penalty tickets are more fluid; sometimes he would have to pay them and sometimes not. I think the safest course is to put the figure for pre-accident earnings at $23,000.

21. The plaintiff was granted sick leave until 30 April 1999, a period of 13 months and 11 days, i.e. 13.35 months. There is no dispute that he is entitled to full compensation for that period, i.e. $23,000 x 13.35 = $307,050. His counsel says that he should have a further six months to allow for a reasonable period for looking for work. I think that is too much. He says that he applied for a lot of jobs but with no success. His age and the state of the market are against him. If he had been able to get work at all, he would have got it within three months and I will allow that further period on full compensation of $23,000 per month, i.e. $69,000 to 31 July 1999.

22. It is agreed that the plaintiff could work as a driver, if he could find such work, and earn $12,000. So his continuing loss would be $11,000 per month. The remainder of the pre-trial loss of earnings is $11,000 per month from 1 August 1999 to 12 March 2002, i.e. 31.4 months x $11,000 = $345,400. The total pre-trial loss is therefore $345,400 + $307,050 + $69,000 = $721,450.

Future loss

23. The multiplicand is $11,000 and the agreed multiplier 8.5. The future loss is assessed at $11,000 x 12 x 8.5 = $1,122,000.00

Summary

24. The plaintiff's damages are assessed as follows :-

PSLA	$ 400,000.00
Pre-trial loss of earnings	$ 721,450.00
Future loss of earnings	$ 1,122,000.00
Loss of earning capacity	$ 72,000.00
Other special damages	$ 30,000.00
	$2,345,450.00
Less : EC Award	$ 456,000.00
Total	$1,889,450.00
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25. There will accordingly be judgment in favour of the plaintiff for $1,889,450.00 with interest on the general damages at 2% from the date of the Writ, and on the special damages at half the judgment rate from the date of the accident to the date of judgment, and thereafter at the judgment rate until payment, and costs to be taxed if not agreed. The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.