BOU KWOK LEUNG TIMOTHY v. YUEN MING SUN

1987, No.A2706

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The Plaintiff was travellino in a vehicle driven by the Defendant at the junction of Salisbury Road and Mody `Road on 5tb October 1985 when an accident occurred involvino his vehicle and a taxi. The Plaintiff sustained injuries as a result of the accident and commenced these proceedings against the Defendant on 9th May 1987. Interlocutory judgment for damages to be assessed was entered by consent on 21st September 1988.

2. Various hearsay notices and counter-notices were served by the parties on each other. Documents, the subject matters of the said notices, were eventually produced without objection at the assessment save a letter dated 12th February 1988 from a former employer of the. Plaintiff, one Messrs. Jolly Rogers Restaurant and Lounge. The Plaintiff called a total of 7 witnesses including himself and 3 doctors. The Defendant called a total of 3 witnesses, one of whom is a doctor.

3. The Plaintiff was, and still is, a professional organist playing in lounges and restaurants during the afternoon and evening sessions. He was aged 24 at the time of the accident in 1985. As a result of the accident he was diagnosed on admissions to hospital to have sustained multiple abrasions over his forehead, face, left side of back, chest and right arm; as well as fractures of the cervical snipe (at C2), left clavicle, left scapula and left pubic bone. He complained of rain in his left shoulder, neck and left hip. He was put on conservative treatment and cervical traction for 6 weeks, and was discharged from hospital almost 7 weeks later, i.e. on 23rd November 1985. He had to wear a clavicular brace for half a year. He attended hospital until October 1986.

4. Despite the initial divergence of medical evidence as to the nature, cause and effects of the injuries is sustained by the Plaintiff, the doctor ultimately found at the end of the day that apart from some comparatively minor disagreements, the only real live disputes were over the degree and extent of the residual pain. In May 1987, over 1½ years after the accident, the Plaintiff complained to Mr. Mao (P.W.7) of interference with the movements of the arm, especially on raising the left arm. He said be could not sit for longer than 2 hours when he had to stand up and walk about. He had also gained weight (20 1bs) allegedly due to a lack of exercise. He weighed 190 1bs. at that time, and 210 1bs. at the time of assessment. X-ray revealed the said old fractures and a loss of the normal cervical lordosis Dr. Mao opined, at that time, he had an impairment of 2% due to the cervical injury and 5% due to the fractured pelvis and deformity to C2, making a total of 7%. The Plaintiff gave evidence that he suffered back pain as early as about half a year after accident when be attempted to work again. But it was only discovered in December 1988, over 3 years after the accident, that there was a wall-healed compression fracture of the body of L1 in the lumbar spine. As the heavy weight of the body would but undue stain on his back, especially the lower back i.e. the site of this newly discovered fracture, an additional 3% impairment (making a total of 10%) was assessed by Dr. Mao. He was also of the view that loosing weight, and/or the use of a sacro-lumbar jacket to prop his back may bring about a possible improvement to his condition. It is to be noted that there is no evidence that the Plaintiff ever took heed of this advice and try out any of Dr. Mao's suggestions.

5. Dr. Lee (D.W.1), though agreeing to the existence of the fracture at L1 of the lumbar spine, doubted whether this was caused by the accident. His donut was solely based on the fact that no complaint relating to pain in that area of the back was ever male by the Plaintiff prior to the end of 1988 to any of the several doctors that examined him. Dr. Mao explained this may be due to the fact that that would not have been the dorminant pain at that time, or that the accident had caused a weakness to the bone which then developed into a compression fracture with the gatning of body weight. He explained in detail the great force regained to cause such a fracture. On a balance of probabilities,  I find the compression fracture to L1 of the lumbar spine to have its origin from the accident in question.

6. Dr. Lee also opined that the condition of the fractures ought not to have caused the sort of sever pain the Plaintiff is complaining of. He said it was a mild condition. Dr. Mao's view was otherwise. It is agreed that pain is a mayor of subjective feeling. Some may be more tolerant to pain and others not. Also the degree of pain would depend on the Plaintiff's, posture and the degree of movement of his body be plays the keyboard as well as his tolerance of pain. I accent the Plaintiff's evidence and find that he would suffer severe pain after sitting for long periods, like 2 hours or mores, when be need to get up and walk about for relief. I am satisfied that this disability has its origin in the accident. However, I also find that by loosing weight the severity of the pain would probably be reduced.

7. I find no merits in the compaint that as the medical evidence tends to suggest that immediate physiotherapy after the accident would have helped the recovery in L1, this would be a break in the chain of causation. I am not satisfied that the failure to discover the fracture at an early stage was a result of anyone's fault. Nor would it amount to nova causa interveniens. Furthermore, the available medical evidence failed to establish the extent or precise benefit such physiotherapy may have in respect of the residual disability, as distinct from the assistance to the recovery process.

8. The Plaintiff weighed about 160 - 170 lb. prior to the accident. He used to exercise regularly at health clubs. He said he cannot do that now. Medical evidence suggests he can still swim if be so wishes. P.W.4, a friend of the Plaintiff, described how the Plaintiff has changed from a cheerful young man the much less happy person after the accident. The Plaintiff is left with scars over his arms and elbows.

9. Mr. Chant's approach the quantum for pain, suffering and loss of amenities was to refer me to various authorities on similar but individual sole injury to the shoulder, neck and hip respectively and to ask we to add all the awards in those cases to come up to a total for the injuries the Plaintiff suffered. I am unable to accent this to be an appropriate approach to the Plaintiff's situation. After adding up all the individual awards, he suggested a sum of $60,000.00. Mr. Merry submitted the sum of $110.000.00 is appropriate after referring me to Fu Chu Kong v. Shun Fai Construction Co. Ltd. HCA No. A1247 of 1988. The Plaintiff in that case suffered from somewhat more severe disabilities and pain than the present ca so though a 10% impairment was also found in that case. I find the Plaintiff's situation to fall short of the serious injury category Lee Tina Lam Lung Kam Ming [l980] HKLR 657.With the adjustment laid down by Lau Che Pino v. Hoi Kong Ironwares Godown Co Ltd. CA No 12 of 1988 in mind, I find $100,000.00 to be an appropriate the award under this head.

10. The Plaintiff said he earned a total of $9,000.00 per month playing the keyboard at 2 lounges at the time of the accident. He worked from 9.00 p.m. to 5.00 a.m. Though the Plaintiff's evidence as to his working hours at Library Lounge is inconsistent with the evidence of P.W.3, the general managor of Library Lounge, his pay of $3.000.00 was sustantiated by P.W.3. There is no independent evidence on the $6.000.00 the Plaintiff alleged to come from Jolly Rogers Restaurant and Lounge. The letter dated 12th February 1988 from that establishment could not be admitted due to a failure to call the maker of the document despite being served with an appropriate counter-notice. I accept the plaintiff's pre-accident earnings to be $9,000.00 as he testified.

11. The Plaintiff alleged that he can only earn about $3,000.00 now. He said he would only play as a substitute now on casual basis. He would be paid by the organist he is substitute for, not by the establishment, about $60.00 per set. Each set is an hour with 45 minutes of play and 15 minutes of rest. The Plaintiff returned to full-time employment with the pre-accident establishments in about April or May 1986 for about 1½ months and earned the same income of $9,000.00 per month. He alleged he then cease doing than as his back condition would hotallow him to do so. P.W.4, the personal friend of the Plaintiff, also gave evidence to support that the Plaintiff worked less after the accident. The Plaintiff was cross-examined in great detail as to his alleged earnings and ability to work after the accident. D.W.2, a private investigator, gave evidence that the Plaintiff could still play the keyboard at Dino's Lounge in August 1988. Though it appeared that the Plaintiff was under investigation and observation for 3 months, the only evidence adduced related only to one evening's observation at Dino's Lounge. He was observed to have played 3 sets that night i.e. 10.30 p.m. to 11.30 p.m., 12.00 midnight to 1.00 a.m. and 1.30 a.m. to 2.30 a.m. He rested for 30 minutes in between the 3 sets. D.W.3, a litigation clerk of the Defendant's solicitors, also gave evidence that the Plaintiff gave a statement on 18th February 1986 in which he said that he suffered "no decrease in salary since resumption of job in 12.1.1985." The Plaintiff denied ever telling D.W.3 that. At the material time the Plaintiff was unofficially represented by his present solicitors and D.W.3 did seek their consent to the interview on the ground of obtaining evidence to defend the Defendant in the criminal prosecution for reckless driving, of which he was convicted in November 1986. The Plaintiff's solicitors never consented to D.W.3 obtaining a statement from the plaintiff on anything but for the said purpose nor was the Plaintiff warned by D.W.3 of the consequences before he was asked on his earning capacity at the conclusion of the statement. Such evidence has been obtained unfairly and in breach of the understanding between the respective legal representatives. I attach no weight at all to such evidence. The Plaintiff admitted he caused his family to lie to P.W.2, a labour officer, in order not to take up a job as an office assistant in March 1989. That job allowed freedom to the Plaintiff to sit or walk as he like while working. The salary was $2,800.00 a month. He never actually explained why he refused to accept the said job apart from agreeing that he thought he was not up to it. Though P.W.2 told the Plaintiff to obtain a medical referral, she never did receive one. The Plaintiff said he had attended the doctor for obtaining the medical referral but he was not given any copy after that.

12. The Plaintiff's evidence on his post-accident income is evasive and unsatisfactory. There is no explanation given as to why he could only work a substitute, apart from the fact that be could not sit for more than 2 hours without getting up and walk about to relief his back pain. He said he could not resume his pre-accident routine of 8 hours of play. He said he did not go back to work as a substitute in Jolly Rogers after he ceased full-time employment, i.e. 11/2 months after April/May 1986, because since be was no longer working there it was not necessary to go there to work as substitute". There is no evidence that he was discriminated against by any establishment because of his condition i.e. that ho needed a rest every 2 sets or so. There would he a usual 15 minutes rest every set in any event. He was allowed to rest 30 minutes after each set in Dino's. There is no evidence that he is unemployable as a full-time organist because be could not play more them 2 or 3 sets in a row. He was able to work as a full-time organist in Library Lounge playing only 2 sets before the accident. He was seen last year playing 3 sets in Dino's. I am not satisfied on the evidence before me that the fact that the Plaintiff is working as a substitute only is due to his back condition. It appears to me that probably it is due to his negative attitude towards work after he sustained the injuries. Furthermore, his evidence on the amount of his income after the accident as a substitue is unsatisfactory. He was most evasive about the extent of his said income. He said in chief that after the accident he only worked for Library Lounge and Jolly Rogers as substitute. He only admitted working for various other lounges then the names of those lounges were put to him in cross-examination. Then he said what he meant to say in chief was that he only worked for the said 2 lounge full-time, the others were as substitute. I am unable to accept his alleged income of $3,000.00 as being his actual income after the accident. In the promises, the Plaintiff fails to establish any loss of future income.

13. However, I do accept that the Plaintiff would not be able to resume his pre-accident work while he was wearing the clavicular brace. In. the promise, he is entitled to loss of income for the period after the accident until be resumed work in April/May 1986. He claimed the sum of $44,820.00 in the schedule of damages (i.e. 6 months at the rate of $9,000.00 less tax). Though there is no evidence as to what his tax liability would be, the Plaintiff has conceded in his schedule to have the full standard rate tax deducted. He is thus awarded the said sum of $44.820.00 as claimed.

14. Mr. Merry also submitted that the plaintiff should be compensated for his handicap in the labour market i.e. loss of earning capacity.  It was held in Moeliker v. Reyrolle & Co. Ltd. [1977] 1WLR 132 and Li Ping sum v. Chan Wai Tong [1985] HKLR 176 that there must be evidence of a real risk of the Plaintiff loosing his present employment in future before such an award can be made. The Plaintiff said be had no other skill apart from playing the kevboard and guitar. He received education only up to form 4 level. His back pain would eliminate his choice of jobs involving heavy manual labour or requiring long continuous hours of sitting. In view of the nature of his job, I am prepared to accept that security of tenure is not likely to be of an enduring nature. It is by no means certain that lounges would continur to be in fashion for an indefinite period. The once very popular Chinese songs theatres had been phased out and replaced by the discothegues, thereby destroying numerous jobs for musicians. In Moeliker v. Reyrollo co. Ltd., supra, a sum equivalent to 6 months wages was awarded where the chances of the plaintiff loosing his job was found to be "very remote indeed". In Lau Che Ping v. Hoi Kong Ironwares Ltd., supra, the Court of Appeal recognised the real risk of loosing one's job in the volatile economy in Hong Kong and awarded 3 1/2 months wages to a plaintiff who has 15 years of future working life. In the premises a further 6 months wages (at the increased rate of 20%) will be awarded to the Plaintiff under this head i.e. $64,800.00 (6 months x $10,800.00).

15. Other items of damages agreed in the sum of $6,730.00 will also be awarded. In the premises, damages are assessed in the total sum of $216,350.00. There will be interest at the rata of 2% per annum on $100,000.00 from the date of writ to the date of this assessment. Interest at the rate of 4% per annum will run on the sum of $51,550.00 ($44,820.00 + $6,730.00) from the date of the accident to the date of this assessment. There will be an order nisi for costs of this assessment to the Plaintiff with certificate for counsel.

16. Dated this 9th day of June, 1989.