MA CHI FU v. LAW TIT WING AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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ASSESSMENT DAMAGES

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1. In January 1978 the Plaintiff was struck on the back by an iron bar which fell on him as a result of the Defendants' negligence. At that time the Plaintiff was aged 50 and employed as a night watchman earning $750 a month. He had been so employed for about 10 months.

2. The writ in this action was not issued until May 1981. After certain vicissitudes an order giving directions was made in March 1983. By virtue of that order the action should have been set down for trial by June that year. It was not set down, but in May 1985 interlocutory judgment was entered by consent. Eight months later the present appointment was sought. The eight years which have elapsed since the accident have inevitably affected the quality of the evidence before me.

3. Medical reports have been agreed and record the course of the Plaintiff's recovery over the years. I will not set the reports out in extenso but summarise them :-

"

He (the Plaintiff) has pain over the back persisting up to the present. The pain is mild and the (sic) is aggravated by prolonged standing.

       Some improvement is expected regarding the back pain but he will be left with some permanent residual disability.

They are : -

	(1)	A small degree of forward curvature of the back
	(2)	Structural weakness of the back at the site of the fracture
	(3)	Back pain on prolonged standing
	These will result in a loss of earning capacity of 20%"

"        The intervertebral disc space is also obliterated and the surgical treatment of spondylosisthesis is to fuse L5 to the sacrum and this has taken place spontaneously by a natural process so he will have no pain or discomfort from the condition and on examination there is no evidence of any nerve pressure or disc lesion."

"      Although he may have had same discomfort at that time I do not think it would have been sufficiently severe to have prevented him from working as a caretaker. I certainly think that from 1982 when the fusion process must have been well advanced that he would have been fully capable of working as a caretaker. He would not have been fit for work which required constant bending, regular carrying of heavy weightsor negotiating steep slopes"

4. Thus the result of the accident is that the Plaintiff suffered some years of discomfort but has made a spontaneous recovery leaving a comparatively minor degree of disability.   There is no suggestion his condition will deteriorate and Dr. Wedderburh, at least, appears to doubt whether the injury was ever sufficiently severe to preclude the Plaintiff working as a caretaker.

5. In his evidence the Plaintiff told me that after the accident he went back to work but was discharged after a month. He was not sure why but said "it could be I was not walking naturally or was not as strong." Not unexpectedly, after so long a time, no evidence was given by his farmer employer so I cannot really know why he lost that job. I accept, however, it more likely than not to have been a result of the accident.

6. Mr. Ma then explained in some detail his unsuccessful efforts to find employment as a caretaker or watchmen ever since. Mainly he replied to newspaper advertisements only to find the position already taken or to be told that, being then over 50, he was too old.

7. This evidence fell somewhat short of persuading me Mr. Ma was pursuing employment with any real determination. My doubts were reinforced by the further evidence that during this period he was assisting his wife in running a small stall whilst his children all contributed to the family income. At the time only the oldest child was working; but since then the remaining three have left school, gone to work, and combine to support the family.

8. Having heard all the evidence I find that a reasonable period for the Plaintiff to have remained unemployed, giving him the benefit of whatever residual doubts I may have, is six months. I also find he is left with a very small reduction of earning capacity.

9. At the time of the accident the Plaintiff was earning $750 per month. Allowing six months unemployment, therefore, I assess his loss of earnings as $750 x 6 = $4,500.00.

10. As the only work the Plaintiff tells me he has tried to get is that of caretaker or watchman his remaining disability is scarcely a handicap.  He, himself, says it is his age that is the main drawback. Nevertheless there is some loss of earning capacity and I include it in my assessment for pain, suffering and loss of amenities.

11. The plaintiff gave evidence that following the accident he did take special food and medicinal herbs. He also incurred extra travelling expenses and hospital fees.

12. Apart from the hospital fees, where he produced receipts, his evidence was once more understandably less than precise as a result of the passage of tine. However I am satisfied such expenses ware incurred and assess an overall figure of $1,000 to include them all.

13. This leaves damages for pain, suffering and loss of amenities.

14. I have been referred to a number decisions to assist me, the most useful being that of Mantell, J., in Li Yee-yuen v. Tam Wing - keung & anor. (HCA No. 9964 of 1982) where an award of $35,000 was made in 1985.

15. In that case the plaintiff suffered a whiplash injury and had to wear a surgical collar for a year. I find this is a less serious case and that the proper figure is $30,000.

16. My assessment is summarised : -

Special damagas

There will be interest on the general damages at the rate of 2% per annum from the date of service of the writ to the date of this assessment.

17. There will be interest on the special damages at the rate of 3.8% per annum for the same period.

18. I make a provisional order that the Plaintiff's costs be paid by the Defendant on the District Court upper scale with a certificate for Counsel. The Plaintiff's own costs are to be taxed pursuant to the Legal Aid Regulations.