WONG HUNG FAN v. TSE HON SHING

1988 No. A7480

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Assessment of Damages

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1. On 25th February, 1986, the female plaintiff who was then aged 34, was using a zebra crossing at the junction of Nathan Road and Argyle Street, when she was knocked down by a car driven by the defendant. She suffered fractures of the right first second and third ribs, right scapula, right tibia and fibula, as well as lacerations to her scalp, face, right ear left ankle, and hands.

2. She was admitted to the neurosurgical ward of Kwong Wah Hospital where she was under observation for the head injury until 6th March, when she was transferred to the orthopaedic unit. The fractured scapula and ribs were treated conservatively, and her right leg fracture treated by open reduction an internal fixation on the 10th March.

3. She was discharged on 24th March, 1986, with follow up at the orthopaedic outpatients^-department and a course of physiotherapy and occupational therapy.

4. She was again admitted to hospital on 29th February 1988 for the removal of the plate from her leg, and was finally discharged on 18th March 1988.

5. Interlocutory judgment was entered on 10th February 1989. At the hearing for the assessment of damages on 26th July, the defendant appeared in person. Medical reports and other documents, totalling l7 in number, were produced pursuant to a notice under Section 47 of the Evidence Ordinance and 0.38 RSC.

6. At the hearing, Dr. Fali Shroff gave evidence and referred to two reports dated 10th May 1989 and 7th July 1989. He concludes that there is a 20% permanent loss of earning capacity as a result of the head injury, with an appreciable loss of hearing in both ears (a 10dB loss in the left ear and a 20dB loss in the right ear). Romberg's test was positive. This test involves having the patient stand with feet together and eyes closed; if the patient sways the test is positive. Rased on the duration of post-traumatic amnesia, Dr. Shroff was of the opinion that she had suffered a severe head injury.

7. Prior to the accident the plaintiff had worked as a masseuse at Sun Hing Court massage. Two masseuse who worked at the same place gave evidence as to earnings. The first said that she was 49 and hoped to continue in her employment until 55. Her evidence as to her actual earnings was vague, and I do not rely on it. The second witness - aged 30 - said that in 1986 she had earned $5,000 - 6,000 per month for an eight-hour day; she now earns $7,000 - 8,000 per month for an 8 hour day. To earn a monthly bonus of $1,200 she must work 26 days per month. Her work as a masseuse includes finger pressure hand pressure and back-treading. She said also that the hourly rate varied depending on the number of hours worked in a ten-day period. She did not often receive tips, but was allowed to retain those received. I accepted the evidence of this witness on current earnings.

8. The plaintiff's present employer was called and said that he employed the plaintiff as a telephone operator at a wage of $2,500 per month. He said that she often has days off because of headaches and other "discomforts".

9. The plaintiff gave evidence, saying that she had carried out all types of massage including back-treading. In 1986 she had earned an average of $200 per day, usually working 26 days per month. She noted that the Certificate from Sun Hing Court was for the period 1st January to 25th February 1986; during that period he had taken 15 - 16 days holiday at Chinese New Year. She said that she usually worked from 2 p.m. to 10 or 11 p.m. In 1986 she was paid a $600 monthly bonus, for an 8-hour-day 26-day-month. On average, in 1986 she had earned $5,800 per month, being 26 days at $200, together with the $600 bonus.

10. The plaintiff said that her tips would vary from $1, 000 - 2, 000 per month in the winter, to $3,000 - 5, 000 per month in the summer holidays.

11. As a result of the injuries she sustained she could no longer do massage work. She said she could "understand" the interpreter provided she listened and could afso see her lips. Since the accident she was bad-tempered and she and her husband have separated, the one child of the marriage living with her husband. She presently earns $2, 500 p.m. and, although she loses 1 or 2 days per week, her employer accepts this. She has scarring on the top of the scalp running on to the forehead near the hairline, on her right ear, and a large keloidal scar on the front of the right leg, as well as scars on the right hip as a result of a bohe graft, on the knuckles of her right hand, her buttocks and her back. She has restricted movement of her right arm, and she demonstrated that she could only raise her right arm to  just above shoulder height. Prior to the accident she would go to the cinema with her daughter, go swimming and each year had a trip. Now she does not like to be seen in a swim suit and she feels self conscious in a dress because of the leg scar. She can't watch television as before because after about ten minutes she experiences double-vision. She also used to enjoy shopping and going to restaurants, but she seldom goes out now because her friends and former colleagues might notice and comment on her changed appearance, and she is nervous of crowded places because she fears being overcome by dizziness. In this regard, Dr. Shroff notes that such attacks of dizziness suggest amage to the vestibular labyrinth of the ear resulting in post-concussional dysequilibrium. Blows to the occipital and temporal regions of. the head are known to cause this kind of damage. The damage is permanent". On neurological examination, he also noted weakness of the sixth right cranial nerve resulting in an inability to move the right eye to the extreme lateral position.

12. The plaintiff appeared to be a strongly built woman, whose previous life style has been altered as a result of the accident, now leading a much less active life. She underwent a long recovery period, receiving treatment up to 30/9/87, some 19 months after the accident, with removal of the plate and screws in her leg in March 1988.

Pain Suffering & Loss of Amenities

13. On the head of damages for pain, suffering and loss of amenities counsel referred the court to LAU Che-ping and Hoi Kong Ironwares Godown Co. Ltd. (1988 2 HKLP p.650) and YIP Wan-chun and Jim Non-tak and Anr. (1982 No 16640). In the latter case the female plaintiff sustained a cut on her left temple, her left collarbone was fractured and she became almost totally deaf. There was some difference of medical opinion as to the cause of the deafness, but on the balance of probability Deputy Judge Barnett (as he then was) found the deafness to have been caused hip the accident. The plaintiff there suffered tinnitus and giddiness. The Court noted that there is little authority on quantum for deafness and took guidance from the then most recent' case. of Ashley Middleton & Anr. and Cheng King-ying &Anr. (HKLJ (1982) 389), where the plaintiff was awarded $50,000 in 1982 for pain, suffering and loss of amenities. Noting that the plaintiff before him had suffered more severe injury resulting in greater changes to her way of life, Deputy Judge Barnett assessed damages under this head at $200,000 in 1985.

14. In that case, the Court noted that the plaintiff was almost totally deaf and as a result was cut of. socially and was unable to assist her husband at his stall in the way that she had done previously. The plaintiff in this case has a less severe loss of hearing and is able to work at another occupation. She has obvious scarring of the leg, her hands and her ear. The forehead scars are noticeable, and she wears her hair to mask them. She is clearly self conscious of the changes in her appearance.

15. Taking into account the plaintiff's injuries, her long treatment and recovery period, the scarring, the dizziness and loss of hearing, and the changes wrought in her life as a result, I assess damages for pain, suffering and loss of amenities at $175,000.

Loss of Earning Capacity

16. Under this head, counsel invited the Court to award $50,000. The case of Moeliker v. A.Reyrolle & Co. Ltd (1977) I WLR p.132 sets out the approach to betaken. The Court must examine the evidence before it to see if it establishes that there is "a risk, at some future date during the claimant's working life, he will lose employment and will then suffer financial loss because of his disadvantage in the labour market."

17. The wage of $2,500 per month that the plaintiff now earns is low, and there is evidence to demonstrate that the plaintiff's employer accepts the fact that the plaintiff is absent from her post on a regular basis. I conclude from this that it does not appear that the plaintiff will be thrown onto the labour market in the future. Nevertheless, if she were so thrown, I am of the view that she would be able to obtain employment at $2,500 per month and would not suffer financial loss. For these reasons I do not make an award of damages under this head.

Pre Trial Loss of Earnings

18. The certificate from Sun Hing Court relates to the period 1/1/86 to 25/2/86 and showed a figure of $6,327. The plaintiff took about 15 days off during Chinese New Year, and this figure would approximate a month's wages. The plaintiff said that she normally worked 26 days per month at $200 per day with a bonus of $600 per month, being $5,800 per month. PW2 said that she now earns $7,000 to 8,000 per month, together with a $1,200 bonus for a 26-day month.

19. In assessing loss of earnings I take into account the evidence as to earnings of the plaintiff of $58,00 at the time of the accident and of PW2 as to her earnings ass. masseuse now, that is $8,200 to 9,200, as well as the differences in earning capacity between the slightly younger masseuse and the plaintiff. I also take into account the evidence, unsubstantiated, as to tips. Having done so, I assess that the appropriate figure for the plaintiffs pre-accident earnings should be $6,100 per month, and that her current earnings in the same employment would be $9,000 per month. I therefore assess the pre-trial loss at an average of $7,550 per month, that is, ($6,100 + $9,000)/2.

Total Loss of Earnings

25.2.1986 - 14.3.1989

(i) 25.2.1986 - 28.2.1988

    (24 months sick leave)

(ii) 1.3.1988 - 14.3.1989

     (jobless period 12.5 months.)

$6,100 + $9,000/2 x-36.5 months = $275,575.00.

Partial Loss of Earnings

15.3.1989 - 13.9.1989 (6 months)

$7,550 - $2,500 x 6 months =	$30,300.00.
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	$305,875.00.
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Future Loss of Earnings

20. Counsel submitted that the plaintiff could expect to work as a masseuse until she was 55, being 18 years, and submitted that a multiplier of 12 would be appropriate. In this regard he referred the Court to several recent cases. I accept that 12 is the appropriate multiplier. Future loss would therefore be as follows: -

$7,550 - $2,500 x 12 x 12 = $727,200.00.

Special Damages

21. Special damages totalling $18,539 are set out in the schedule prepared by plaintiff's counsel, and were agreed by the defendant. They included the sum of $6,241 for customary tonic food and chinese herbal medicines.

22. Noting the authorities of Yu Ki and Chin Kit Lan and Anr. [(1981) HKLR 419] and Mui Ling-kwan and Wong Yin-wah (1973) HKLR 465, and bearing, in mind the injuries and period of recuperation, I am satisfied that such expenditure was appropriate and reasonable. I allow the special damages as claimed.

In summary,

23. Interest on the general damages for pain suffering and loss of amenities will run at the, rate of 2% from the date the writ was issued to the date of this assessment. There will be no interest on the award for future loss of earnings. Interest on the pre-trial loss of earnings of $305,875 and special damages of $18,539 will run at the rate of 4% from the date of accident to the date of this assessment.

24. The defendant shall nay the plaintiff's costs which shall be taxed if not agreed and the plaintiff's own costs shall be taxed in accordance with the Legal Aid Regulations. There will be a certificate for counsel.