HONG YAU KAI v. CHAN CHOI SHUN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. On the 26th of July 1983 the Plaintiff was driving his car towards Tsuen Wan along the road known as Route Twisk. He was driving uphill on his correct side of the road which was divided by double white lines.

2. As he approached a bend, a light goods vehicle driven by the 1st Defendant and approaching from the Tsuen Wan direction crossed the double lines and collided into the off-side front portion of the Plaintiff's car.

3. As a result of the accident the Plaintiff was injured and suffered a laceration to the scalp and a bruised left knee.

4. He was taken by ambulance to Princess Margaret hospital where he was detained. His laceration was sutured and on the following day he was discharged from hospital. The Plaintiff admits that at the time of the accident he was not wearing a seat belt.

5. The Defendants do not dispute liability for the accident but seek a reduction in any damages awarded to the Plaintiff by reason of his not having worn a seat belt.

6. The Plaintiff was 51 years of age at the time of the accident and was employed by a Construction Co. known as Gammon Ltd, in the capacity of a daily paid motor vehicle mechanic.

7. In his evidence he claimed that he had not returned to his work at the construction company after the accident and has since been unemployed.

8. I find on the evidence that he did in fact return to his work in Gammon on the day following his discharge from hospital, and that he resumed work on a daily basis until the 15th August 1983. The Plaintiff explained that he no longer felt well enough to perform his work as a mechanic. He said that since the accident he suffered headache and dizzyness whenever he bent his head or worked under a vehicle. He described this dizzyness as being a sensation of a swelling orballooning effect in his head.

9. He said that within a month of the accident he began to lose his sense of smell and eventually was without any sense of smell whatever.

10. He was examined by Dr. MA of the Surgical Unit of Princess Margaret hospital on the 16th January 1984 and again by Dr. Wedderburn at St. Teresa's hospital on the 7th August of that year.

11. In November of 1984 he was examined by Dr. Peter Wu who by then had the medical reports of both Dr. MA and Dr. Wedderburn before him.

12. Dr. Wu diagnosed anosmia or total loss of smell which he found to be due to an injury to the olfactory nerve .He further diagnosed vascular hypertension and cervical spondylosis. In his report he commented that the damage to the olfactory nerve and the loss of the sense of smell resulted from the accident of the 26th July 1983.

13. He further commented that it was not unusual for a man suffering from cervical spondylosis and hypertension to experience dizzyness and headache whenever he stretches his neck under a car.

14. Fifteen months later in February of 1986 Dr. Wu again examined the Plaintiff. His examination revealed stiffness of the neck with a limitation of lateral movement.

15. He found post-traumatic anosmia to be still present and noticed a deterioration in the condition of cervical spondylosis. He also discovered signs which indicated pressure on the cervical spinal cord and further noted some spasticity in the Plaintiff's arm which resulted in his being less dexterous.

16. It was his opinion which he repeated in evidence that the cervical spondylosis and hypertension were not caused by the accident of the 26th July 1983 the condition having been present before the accident.

17. It was his view that this condition was aggravated by the excessive flexion and extension of the neck at the moment of the accident. In his report of the 26th February 1986 he expressed the opinion that it was this injury to the neck which caused the Plaintiff to experience headache and dizzyness whenever he worked under a car and extended his neck.

18. He was of the view that unless Homg's cervical spondylosis were properly cured it would be very unlikely that he could ever again work as a motor mechanic.

19. In May of 1987 Dr. Fung an E.N.T. specialist also examined the Plaintiff. He was of the opinion that it was unlikely that the loss of smell was attributable to the blow sustained by the Plaintiff in the accident.

20. He gave as his reason for this view the fact that the loss of smell did not become noticeable until some time after the accident. He said that usually where the loss of smell results from such a blow it occurs at the time of the accident or very soon afterwards. He conceded though the condition could progress gradually and could possibly have been attributable to the accident.

21. I found the Plaintiff a difficult witness to assess. He appeared to be at pains to minimize the damage to his neck.  He said that it was not the pain which troubled him, indeed he felt no pain.

22. His complaint was that he was quite unable to work because of the feeling of dizzyness and the unpleasant ballooning sensation inside his head whenever he bent down to examine a vehicle. He said that although his sense of smell had gone completely he could still taste. Dr. Wu though mentioned that the Plaintiff had complained of being unable to detect the sour taste of duck soup which had turned bad.

23. I find the Defendant to be a convincing witness when he describes his disabilities.

24. He also complained of some loss of memory and told of one occasion when he had forgotten to replace the brake linings of a car he was repairing.

25. He said that his poor memory caused him to feel incompetent to work as a car mechanic.

26. This complaint of the Plaintiff was put to Dr. Wu who expressed the view that it was part and parcel of the result of the blow to the head.

27. Having considered the Plaintiff's version in the light of the evidence before me I find it to be more likely than not that the loss of memory is attributable to the accident.

28. His condition of anosmia too I find on balance to have resulted from the trauma sustained in the accident.

29. In my view it would be altogether too much of a coincidence for this disability which on the evidence had never been present before the 26th July 1983, to be unrelated to the accident.

30. Essentially then I accept the Plaintiff's evidence relating to his inability to work as a motor mechanic.

31. I find that having regard to his disabilities, the Plaintiff can neither perform the quality nor the amount of work which he did before the accident and that as a result he has suffered a permanent loss of earnings and that his earning capacity is clearly diminished.

32. His evidence relating to other matters such as the amount of his earnings I found to be less than truthful.

33. I was satisfied that he did return to his work at Gammor on the day following his discharge from hospital. In fairness to the Plaintiff it may well be that his memory was at fault in relation to that matter and I prefer to regard him as an unreliable rather than an untruthful witness when he speaks of not returning to work.

34. I came now to the question of loss of earnings.

35. The Plaintiff's evidence was that apart from receiving an average monthly wage of $2,000 odd from Gammon he also earned some $4,000 per month from a garage proprietor, a Mr. Yeung of the New Territories.

36. I do not accept for one moment that the Plaintiff earned $4,000 p.m. from Mr. Yeung or indeed anything approaching that sum.

37. A Mr. Wong, a personnel officer of Gammon produced from the company's records details of the Plaintiff's earnings in 1983. The figures show that during a 6 month period from the 15th March 1983 to the 16th August 1983 his basic pay totalled $9,517 thus averaging $1,586 p.m. His overtime pay in the same period came to $3,928, making a monthly average of $654.

38. Thus excluding transport allowance his average monthly wage amounted to $2,240.

39. Looking at the period from 10/6/83 to 26/6/83 it can be seen that his earnings from overtime exceeded his basic wage.

40. In the light of this evidence I simply do not accept that the Plaintiff could have found the time or indeed the energy to have undertaken sufficient work for Mr. Yeung to earn $4,000 a month.

41. Nor do I accept the evidence of Mr. Yeung on this matter.

42. In his lighthearted response to a Social Welfare enquiry as to the Plaintiff's earnings from work done for him, Yeung in completing the social welfare form supplied a figure of $200 per day as the sum paid by him to the Plaintiff.

43. This I found to be nonsense. Indeed Mr. Yeung conceded in cross examination that the Plaintiff was paid for work done and not on a daily basis. He said that the payments averaged $3,000 - $4,000 p.m. and that he had simply supplied a figure of $200 per day because it all amounted to the same thing, as it represented 20-25 days of work per month.

44. Simple arithmetic would show that on that calculation the earnings would have averaged from $4,000-$5,000 p.m.

45. Further Mr. Yeung conceded that in some years the Plaintiff only worked some 2-3 months in the year.

46. Clearly Mr. Yeung's evidence is unreliable as to the Plaintiff 's earnings.

47. However I accept that the Plaintiff did do part-time work for Yeung on a fairly regular basis and doing the best I can on the evidence before me I would estimate these earnings to have averaged $1,000 per month.

48. The next question I must deal with is whether the Plaintiff has mitigated his loss. The short answer to that must be - no. The evidence has shown that he made no attempt to seek re-employment with Gammon in some other type of work.

49. Mr. Wong said that his company took pride in the fact that they were good employers and always endeavoured to accept back into the company workers who had been disabled. Some job he said could have been found for the Plaintiff had he wanted it.

50. Nor has the Plaintiff taken any steps to find any other type of work. I am satisfied that in spite of his disabilities he could have found some employment. Although Mr. Wong did not say how much a re-employed disabled person could earn with his company I think it reasonable to believe that the Plaintiff could have found work either with Gammons or elsewhere as a caretaker or watchman and that such work could provide a wage of some $2,000 p.m.

51. Putting the figures together then I assess the Plaintiff's loss of earnings from Gammon and Mr. Yeung to total $3,240 p.m. The Plaintiff has not mitigated his loss so this sum must be reduced by $2,000.

52. Thus under the heading of special damages his loss of earnings from 26/7/83-26/10/87 (51 months) would be $1,240 x 51 totalling $63,240. The agreed special damages relating to attendance at hospitals and clinics and visits to China amount to $2,435. From these sums must be deducted sick leave pay of $2,413.50. Earnings as substitute worker January 1984 - April 1984 - $2,800. Earnings as a substitute worker for the period of January to March 1985 totalling $4,207. Thus special damages total $56,255.

General Damages

Pain, Suffering and the Loss of Amenities

53. Under this head and leaving aside for the moment the award in respect of the anosmia, I would award only $10,000. I take into account the fact that the Plaintiff spent only one day in hospital and returned to his work on the following day.

ANOSMIA I can find no Hong Kong authority relating to awards for this condition.

54. I do not find the English cases of much assistance. In the case of Patel v. Merton & Bailey a 1981 case a man of 29 was awarded £7,050 (December 1982 value $8,200) and in other cases relating to loss of smell and taste similar awards have been made.

55. I agree with Mr. Ozario that UK awards are generally recognized as being much higher than Hong Kong awards.

56. I think though that it is not unreasonable to recognize the fact that people in Hong Kong generally very much enjoy their food. Eating out is a popular pastime and very much a way of life for people of all walks of life. Restaurants are numerous and there are prices to suit all pockets.

57. For a Chinese in Hong Kong, to be without a sense of smell and a diminished sense of taste must be regarded as a significant deprivation.

58. Doing the best I can in the absence of suitable authorities I would award $50,000 in respect of the anosmia. Thus the total sum for pain, suffering and loss of amenities comes to $60,000.

Loss of future earnings.

59. The Plaintiff is now 54 years of age and I think a multiplier of 6 is appropriate.

60. Projecting the sum of $1,240 p.m. and multiplying by 12 and by 6 gives a figure of $89.280 and I award that sum.

Plaintiff - not wearing seat belt at time of accident

61. Mr. Ozario submits that the Plaintiff's failure to wear a seat belt at the time of the accident should result in a reduction of his damages.

62. With respect I do not agree. The burden of proving that the failure to wear a seat belt has contributed to the injuries rests firmly on the Defendants.

63. Dr. Fung's evidence in my view falls short of raising a probability that the use of the seat belt would have avoided or mitigated the injury to the head. I find support for this view in the decision of Nazareth J. in Dominga Elizabeth Ibiromke and Wu Wing Tat and Another HC Action 3641 of 1983.

64. To surmarize, than general damages total $149,280, special damages total $56,255.   

65. I therefore enter judgment for the Plaintiff against the Defendants in the sum of $205,535.

66. I will hear counsel on the matter of costs.