LAM KWAI YIP v. YUEN YUN KUI

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Decision on Assessment of Damages

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Background

1. This action arose out of injuries sustained by the Plaintiff as a result of an assault committed by the Defendant. The incident occurred on 21.2.1993 at about 7:30 p.m. at a fruit stall known as Kwai Chai Fruits Stall in Pak Tin Shopping Centre, Pak Tin Upper Estate, Shek Kip Mei, Kowloon. The Plaintiff, who was then 30 years old, was a part-time employee of the fruit stall. The Defendant operated another fruit stall nearby. At the material time, the Plaintiff was working on the metal roof of his stall, which was about 7 or 8 feet high. A quarrel ensued between him and the Defendant over the paper boxes on the roof. At the heat of the argument, the Defendant threw an abandoned water heater at the Plaintiff. He also hit the Plaintiff's head with a broken porcelain tube and gave him a push. As a result, the Plaintiff lost balance and fell onto the ground from the roof. The Defendant was subsequently ordered by the North Kowloon Magistracy to be bound over in the sum of $3,000 to be of good behaviour for 18 months.

2. The Plaintiff commenced these proceedings on 13.12.1994. In default of notice of intention to defend, interlocutory judgment was entered on 6.1.1995 for damages to be assessed and costs to be taxed.

3. At the hearing of the assessment for damages, only the Plaintiff gave evidence. His evidence was not challenged by the Defendant. Neither was the medical evidence. All the Plaintiff's documents were produced by consent and the Defendant called no evidence.

4. The quantum of the Plaintiff's claim for special damages is agreed, save the calculation for the pre-trial loss of earnings. The quantum for the agreed items is $48,700. Apart from the pre-trial loss of earnings, the Defendant also takes issue with the quantum for (1) pain suffering and loss of amenities; (2) future loss of earnings of the Plaintiff and (3) loss of earnings of the Plaintiff's wife.

The Plaintiff's Injuries

5. The Plaintiff is married with three young children. Before the incident, he worked full time in a restaurant making dim-sum and part time in the fruit stall in question. His wife also worked as a factory worker.

6. As a result of the assault, the Plaintiff was admitted into Caritas Medical Centre. He stayed with the Surgical Unit between 21st and 23rd February 1993 and subsequently with the Orthopaedic Ward until 28th February 1993. In total, he was hospitalised for 8 days. He sustained a 4 cm parietal laceration which had to be sutured. His right foot was swollen with a fracture in the calcis. The fracture was treated with plaster. After his discharge, he attended follow-up treatment at the Orthopaedic Outpatient Clinic of Caritas Medical Centre until November 1993. He also received Chinese bone-setter treatment for about 6 months. He had to walk with the aid of crutches for several months.

7. According to the report of Dr. H.P. So of Orthopaedic Unit, Caritas Medical Centre, by 4.8.1993, the fracture to the right calcis had healed and the range of movement of the right ankle was nearly full.

8. The Plaintiff was granted 177 days sick leave. The Employees' Compensation (Ordinary Assessment) Board assessed him to suffer 1% loss of earning capacity. According to Dr. Brian Choa, on whose report the Plaintiff relies, the permanent impairment to his person was 5%.

9. In his witness statement which he adopted at the hearing for assessment of damages, the Plaintiff complained that he still felt pain in his right leg and that he could not walk for more than 45 minutes. He had to rest after walking for a period of time. He mentioned that even after he could walk without crutches, he had to remain indoor. He said that in 1995, he fell while he was on a staircase as his right leg was weak. The Plaintiff further complained that he had occasional headache and dizziness and also suffered from deteriorated memory.

10. Dr. Brian Choa, in his medical report dated 29.10.1994, observed that the fractured ankle will be a long term problem and there is the possibility of developing accelerated arthritis. On the other hand, he considered that the pain in the ankle might be remediable by surgery. He further pointed out that with successful orthopaedic treatment, it is possible for the Plaintiff to return to his previous profession, although he will not be able to manage two jobs. It is unclear from the evidence adduced at the assessment whether the Plaintiff had already undergone any remedial surgery or whether he is expected to have one in future.

11. Other than the injury to the ankle, Dr. Choa was unable to find evidence of a significant head injury as the results of the brain scan and test show no abnormality or impairment to his brain nor memory ability. In his opinion, the complaint of poor memory is more a depressive reaction to the incident.

Pain Suffering and Loss of Amenities (PSLA)

12. Miss Tang for the Plaintiff submitted that the Plaintiff's injuries fall within the category of serious injury recognised in Li Ting Lam v. Leung Kam Ming [1980] HKLR 657. Alternatively, she submitted that the injuries are slightly below the category of serious injury and that the award should at least be $365,000, relying on the case of Tsang Chin Keung v. Lo Tat Kong t/a Hung Kwong Glass Works & Anor. P.I. Case No. 806/95.

13. Mr. Shek for the Defendant, on the other hand, submitted that the award should only range between $150,000 and no more than $200,000. He relied on the cases of Mak Chi Cheung v. Cheng Kwai Yui HCA No. A1864/86 and Wong Sam Mui v. Fan Yiu Sum t/a Fan's Stevedores HCA No. A1817/94.

14. In this case, the major injury suffered by the Plaintiff was the fracture to the heel bone of the right foot. The fracture had healed satisfactorily. The objective medical evidence does not show that the Plaintiff has been left with a disability which mars his general activities and enjoyment of life. I do not accept that his injuries either fall within or come close to the "serious injury" category. The injuries suffered by the plaintiff in Tsang Chin Keung case are far more serious than those sustained by the Plaintiff in the present case. Similarly, the injuries in this case are in no way comparable to those in the cases relating to heel injury contained in the Plaintiff's List of Authorities.

15. The cases cited by the Defendant are also not of direct assistance as they do not relate to heel injuries.

16. In my view, having regard to the period of hospitalization, the medical treatment received, the fact that the Plaintiff had to walk with crutches for several months and the possibility of developing accelerated arthritis in future, an appropriate award for PSLA is $250,000.

Pre-trial Loss of Earnings

17. Before the incident, the Plaintiff earned $10,000 per month from his full time job as a dim-sum maker and $104 per day from his part-time job with the fruit stall. Miss Tang, in her final submission, accepted that the Plaintiff would not work on Sundays, so that the monthly income from his part-time job was $2,704, being $104 x 26 days.

18. The Plaintiff ceased both employment since the incident. He remained unemployed at the hearing of the assessment of damages. The Plaintiff said that this was due to his injuries, but he had not elaborated on the matter. No evidence had been adduced as to any attempt by him to work or to find work. This is despite Dr. Choa's observation in October 1994 that he should be fit to do sedentary job, such as a watchman or caretaker, even without further treatment to his ankle.

19. Mr. Shek submitted that, commencing from the end of October 1994, the Plaintiff's pre-trial loss of earnings should be deducted by the income that a watchman or caretaker may be able to fetch. He suggested that the monthly income of a watchman or caretaker would be $5,000.

20. Having regard to the evidence, I do not consider that the Plaintiff has established on a balance of probabilities that since November 1994, his injuries had prevented him from taking up any employment. While I accept that he would not be able to return to his previous profession or to perform work which requires him to stand for long hours, the Plaintiff has not demonstrated why he has not been able to take up jobs which are physically less demanding. The evidence adduced does not support a case for assessing the entire pre-trial loss of earnings on a 100% basis. The calculation should take into account income the Plaintiff would be able to make if he were to take up sedentary work as suggested by his doctor. Dr. Choa had observed that there would be an at least 50% loss of earning if he were to be so employed. Considering this, Mr. Shek's suggestion of a monthly deduction of $5,000 seems reasonable in that it represents a 50% loss on the full time job and a 100% loss on the part-time job. This is in line with Dr. Choa's observation and his other observation that the Plaintiff could no longer manage 2 jobs.

21. The Plaintiff's pre-trial loss of earnings, assuming a 10% annual increase in salary, is to be calculated as follows:-

	Periods	Loss from Full Time Job	Loss from Part-time Job
(1)	22.2.93 - 21.2.94	$10,000. x 12 months = $120,000	$2,704 x 12 = $32,448
(2)	22.3.94 - 21.2.95		$32,448 x 110% = $35,692.80
	22.2.94 - 21.11.94	$10,000 x 110% x 9 months = $99,000
	22.11.94 - 21.2.95	($10,000 - $5,000) x 110% x 3 months = $16,500
(3)	22.2.95 - 21.2.96	($10,000 - $5,000) x 110% x 110% x 12 months = $72,600	$35,692.80 x 110% = $39,262.08
(4)	22.2.96 - 19.12.96	$726,000 x 110% x 301/365 days = $59,870.14	$39,262.08 x 110% x 301/365 days = $32,377.77
		_________________	_________________
		$367,970.14	$139,780.65

Total Loss:

$367,970.14 + $139,780.65 = $507,750.79

22. As the Plaintiff had received employee's compensation from Kwai Chai Fruits Stall in the sum of $53,462.93, the amount should be deducted. The actual pre-trial loss of earnings is $454,287.86, rounded up to $454,288.

Post-trial Loss of Earnings

23. Relying on the assessment of Dr. Choa that the Plaintiff would suffer a 25% loss of earnings after a successful orthopaedic treatment to his ankle, the Plaintiff claims his future loss of earnings on a 25% basis. This is not challenged by the Defendant.

24. The Plaintiff was 30 years old at the time of the incident and is now aged 34. Miss Tang adopts a multiplier of 12 in calculating this head. Again, the Defendant does not dispute that.

25. The only point of contention under this head is the amount of monthly income from the Plaintiff's part-time job. Miss Tang had initially used 30 days for her calculation. She had, however, in the course of her submission accepted that 26 days would be appropriate as there is no evidence that the Plaintiff also worked on Sundays.

26. The calculation for the future loss of earnings is therefore as follows:-

(1)	The Plaintiff's annual income at the incident is 12 x ($10,000 + $104 x 26 days) is: $152,448
(2)	The Plaintiff's annual income at the hearing of the assessment, assuming a 10% annual rise in salary is: $152,448 x 110% x 110% x 110% = $202,908.28
(3)	The Plaintiff's loss of future earnings on a 25% basis and at a multiplier of 12 is: $202,908.28 x 25% x 12 = $608,724.84 rounded up to $608,725.

Loss of Earnings of the Plaintiff's Wife

27. The Plaintiff claims loss of earnings of his wife on the basis that she had to give up her work to look after the Plaintiff. His wife was previously a factory worker earning $5,123.50 a month. The Defendant opposed this head of claim in total, submitting that the need for the wife to stop working so as to care for the Plaintiff had not been established. Mr. Shek pointed that the Plaintiff was assaulted on 21.2.1993 and he was discharged from hospital on 28.2.1993. His wife, however, did not cease working until 24.6.1993. He submitted that it was illogical that while the Plaintiff did not require the full time attention of the wife immediately after the incident, his condition after 4 months necessitated full time care by the wife.

28. The Plaintiff's evidence on this head is extremely scanty. There is only the assertion that his wife gave up her work so that she could look after him and the children of the family in the activities of the daily living. Other than saying that he could not walk without crutches, he had not elaborated on why the wife had to give up her job and to be home full time. It is also not explained why she only stopped working some 4 months after the Plaintiff met with his injuries. There is further no reason given for the wife not to resume working even at the time of the trial, since the Plaintiff was no longer on crutches several months after the incident. The Plaintiff has not, in my view, demonstrated on a balance of probabilities that the Plaintiff's injuries had prevented his wife from working and/or that it was reasonable for his wife to cease working since June 1993. The case of Cunningham v Harrison [1973] 1 Q.B. 942 referred to by Miss Tang does not assist the Plaintiff. Although the English Court of Appeal recognised in that case that a gravely injured husband is entitled to damages for the value of the services rendered by his wife in attending to his daily needs, it remains for the Plaintiff to prove that his condition was of such gravity as to necessitate the full time attention of his wife so that the Defendant should compensate for her loss of earnings. The Plaintiff has simply failed to discharge the burden of proof and I disallow this head totally.

Deduction

29. Up to the hearing of assessment of damages, the Plaintiff had already received $10,000 from the Defendant as compensation and that should be deducted from the award.

Conclusions

30. The amount of damages that the Plaintiff is entitled to recover from the Defendant is made up as follows:-

(A)	General Damages

	(1)	PSLA	$ 250,000
	(2)	Post-trial loss of earnings	$ 608,725
			_________
			$ 858,725

(B)	Special Damages

	(1)	Pre-trial loss of earnings		$454,288
	(2)	Hospital charges and fees for X-ray examination, follow-up & physiotherapy treatment	$1,571
	(3)	Rental for crutches	$90
	(4)	Chinese bone-setter fee	$29,800
	(5)	Chinese medicine, medicated wine and ointment	$5,143
	(6)	Tonic food	$6,600
	(7)

	Less:
		Compensation paid by the Defendant	$ 10,000
			________
			$ 492,988
			_________

	Total Award:	$1,351,713
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31. I therefore enter judgment for the Plaintiff's loss and damages in the amount of $1,351,713. The amount of general damages will carry interest at the rate of 2% p.a. from the date of the service of the Writ, i.e. 16.12.1994 until the date of this judgment. The amount of special damages will also carry interest at 5% p.a. from the date of the incident until the date of this judgment. Thereafter, both awards will carry interest at judgment rate until full payment.

32. I also make an order nisi that the Plaintiff shall have the costs of the assessment of damages, to be taxed if not agreed. Such costs to include the costs of Dr. Choa in attending the hearing at the assessment on 19.12.1996, since the Defendant had initially required his attendance for the purpose of cross-examination. The Plaintiff's won costs is to be taxed in accordance with the Legal Aid Regulations. The costs order nisi is to be made absolute upon the expiration of 14 days from the handing down of this judgment.