CHOW SHUN TAK v. CHEUNG HO and CHENG KIN FUNG AND OTHERS (Third Parties)

1996 P.I. No. 386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

____________

____________

_______________

J U D G M E N T

_______________

1. This is a claim for personal injuries arising out of a traffic accident. I first heard the action between the Plaintiff and Defendant. At the conclusion of that hearing, I found the Defendant to be liable to the Plaintiff for reasons which I gave at the time.

2. I also gave reasons for allowing

(1) Pain, suffering and loss of amenities at $275,000.00.

(2) Pre-trial and future loss of earnings on the basis that the Plaintiff is not able to resume his former employment as a transportation worker.

(3) A multiplier of 15 in assessing future loss.

(4) Special damages at $2,632.00.

3. I also rejected a claim for loss of earning capacity.

4. I said I would reduce my assessment of loss of earnings into writing.

5. It is not in dispute that the Plaintiff was employed as a transportation worker earning $5,200.00 per month at the time of the accident in June 1991. By September 1997, with annual increases he would have been earning $9,212.00 per month. I reject, however, the claim that he would have received a 5% increase since then. That seems most improbable having regard to the economic climate in Hong Kong since last year. The Plaintiff's gross loss of earnings to date, therefore, is ($5,200.00 + $9,212.00)÷2 x 86 = $619,716.00.

6. From this must be deducted the Plaintiff's actual earnings since June 1992 when he was first able to resume work. The Plaintiff worked for Fiorri Creation Records Company from June 1992 to April 1994. He earned $125,900.00.

7. Between May and July 1994, the Plaintiff was a waiter at the Miramar Hotel and earned $21,000.00.

8. From August 1994 to March 1995, the Plaintiff was a part-time waiter earning $175.00 on 6 days per week, a total of $4,200.00 per month. However, he advanced no good reason for leaving the Miramar Hotel. In my judgment, the Plaintiff could have continued to earn $7,000.00 per month as a full-time waiter. For this period of approximately 7 months, therefore, $49,000.00 should be deducted.

9. Between March and August 1995, the Plaintiff was unemployed. While I accept that the Plaintiff could not find the job during this period, the mischief stems from his leaving the Miramar Hotel. In my view, the Defendant should not be liable for this. I find that a further $7,000.00 per month should be deducted for this period of 5 months, a total of $35,000.00.

10. From August 1995 until May 1996, the Plaintiff worked at the Guangdong Hotel at $7,800.00 per month. For this period of 9 1/2 months, $74,100.00 must be deducted.

11. The Plaintiff then left that hotel because he fell out with his superior. He was unemployed until August 1996. Again, I see no reason why the Defendant should be penalised for this. $7,800.00 should be allowed for this period, a total of $23,400.00.

12. Since September 1996, the Plaintiff has been employed in the decoration trade earning $7,000.00 per month until October 1997 and an average of $8,000.00 per month since November 1997. A period of 14 months at $7,000.00 per month = $98,000.00. A period of 11 1/2 months at $8,000.00 per month = $92,000.00.

13. Total deductions therefore are $518,400.00.

14. Pre-trial loss of earnings = $101,316.00.

15. Future loss of earnings = ($9,212.00 - $8,000.00) x 12 x 15 = $218,160.00.

16. Damages therefore amount to:

(1) Pain, suffering and loss of amenities:	$275,000.00
(2) Pre-trial loss of earnings:	$101,316.00
(3) Special damages:	$2,632.00
(4) Future loss of earnings:	$218,160.00
Total:	$597,108.00

17. From that sum must be deducted an employee's compensation payment of $74,544.00.

18. Total damages are therefore $522,564.00. I give judgment for that sum.

19. I should mention that that sum is less than the indication I gave to the parties during the subsequent Third Party hearing (which was settled). I had overlooked the Plaintiff's earnings for the period of September 1996 to October 1997.

20. I will hear the parties on interest and costs.