LAI YUN TAI v. CHAN KIN HONG AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The Plaintiff, who was 21 years of age, was injured in a motor accident on 26 April 1983 when she was struck from behind by a motor van after alighting from a bus at a bus stop on Route Twisk, near Kam Tin, New Territories. The van involved in the accident was owned by the 2nd Defendant and was being driven with his consent by the 1st Defendant in the course of his employment with the 3rd Defendant. At the date of the accident the said motor van was insured with Bedford Insurance Co. Ltd.

2. Judgment was entered against the 1st Defendant on 12th February 1986 upon admissions contained in his Statement of Defence. Interlocutory judgment was entered on 26th February 1986 against the 2nd and 3rd Defendants when no notice of intention to defend had been given. In both cases judgment was entered subject to damages to be assessed.

3. At the assessment of damages Mr. Lavington, Counsel for the Plaintiff, relied on a Bundle of 14 Documents including 11 medical and dental reports comprising a total of 27 pages of documents. The Defendants took no exception to the production of these documents under Section 47 of the Evidence Ordinance and Order 33 R.S.C. A summary ofthe injuries sustained by the Plaintiff in this motor accident are outlined in Dr. R.G.M. Wedderburn's report dated 19th March 1986 as item 12 in the Plaintiff's Bundle of Documents. A summary of the Plaintiff's injuries are as follows:

4. The only witness called was the Plaintiff, who confirmed that she lost consciousness from injuries received in this accident and that she only recovered full consciousness a couple of weeks later in Hospital. She gave evidence that she still suffers from severe headaches once or twice a month which last for about a day or so at a time and that she consults a doctor for medication in the form of pills to control the headaches. Furthermore, the Plaintiff suffers pain from her teeth in eating tough food and that she has no sense of smell since the accident. She also mentioned some difficulty in breathing through her nasal passages when she is in a polluted environment. The Plaintiff said she now suffers no pain from her fractured left collarbone or fractured pelvis which according to the medical evidence produced have both united in excellent alignment without any impairment. However, due to a decrease in her pelvic inlet, the Plaintiff has been advised to seek medical advice in any future pregnancy because of possible difficulty with labour which could result in a Caessarean section.

5. The Plaintiff gave evidence that she resumed employment about 9 months after the accident by helping her brother prepare and serve food and tea to workers on a construction site. She earned $80 a day over 20 days in a month in this work as compared to $95 a day over 26 days a month which she was earning as a labourer on construction sites prior to the accident. The job of preparing food for construction site workers lasted for 6 months until the construction was completed. Thereafter, she took employment as a casual dishwasher earning $50 a day over 20 days a month which lasted for about 4 months. The Plaintiff has tried to resume her former employment as a construction site labourer but was put off after a few days as being unsuitable for this work because of her lack of strength in lifting heavy objects. She was tried working in a plastics factory but her breathing was adversely affected. She is illiterate so that she would not be able to take up sewing work in a garment factory. The Plaintiff is presently unemployed and her only prospect of future employment appears to be restricted to casual dishwashing or other domestic work. The Plaintiff confirmed that she would now be paid $100 a day exlusive of overtime if she was employed as a labourer on construction sites. The 1st Defendant had no questions to put to the Plaintiff and did not give evidence or call any witnesses on the assessment of damages.

6. Relying on Dr. Wedderburn's total impairment figure of 9%, (being 3% for post-concussional symptoms, 3% for loss of sense of smell, and 3% impairment for her fractured jaw), Counsel for the Plaintiff submitted that the Plaintiff's injuries placed her at the lower end of the serious injury category so that she should be awarded between $130,000 - $140,000 for her pain, suffering and loss of amenities. Taking full account of the Plaintiff's testimony and the medical evidence adduced, the Plaintiff's disablement from this accident does come within the lower end of serious injury category as set out by the Court of Appeal in Lee Ting-lam v. Leung Kam-ming (1980) HKLR 657. After due allowance for the Plaintiff's recurring headaches from post-concussional symptoms, her loss of sense of smell, her dental problems, her cosmetic appearance, and the possible difficulty from any future pregnancy, the appropriate award under this head would be $135.000 allowing for 60% inflation over 6 years since the above decision. Turning to the award for past loss of earnings the Plaintiff earned $95 a day or $2,470 over a 26 day month prior to the accident as a construction site labourer. The evidence is that in the 3 years and 1 month since the accident the Plaintiff has only been employed for 6 months earning $80 a day over a 20 day month and for 4 months earning $50 a day over a 20 day month. The evidence is accepted that she has taken all reasonable steps to obtain suitable employment since she recovered from her injuries received in this accident. Therefore, the damages under this head will be assessed as follows:

37 months @ $2,470.00 a month being $91,390.00, less 6 months @ $1,600.00 a month being $9,600.00, and less 4 months @ $1,000.00 a month being $4,000.00, leaving a balance of $77,790.00.

7. The award for future loss of earnings in this case must be more speculative where the Plaintiff is now unemployed and her prospects of future employment are not encouraging. Counsel for the Plaintiff suggested that a multiplier of 16 would be appropriate as the Plaintiff is now 24 years of age. A multiplier of 15 would seem more appropriate in this case and is adopted. As to the appropriate multiplicand to adopt there is evidence that the Plaintiff would be earning $100 a day or $2,600 a month if she was still employed as a construction site labourer. Although there was evidence that Plaintiff had earned $80 a day over a 20 day month ($1,600 per month) helping her brother provide food and tea to construction site labourers there is nothing in the evidence to suggest that this work is still available to her. The only other work that the Plaintiff has been able to obtain since the accident is as a casual dishwasher earning $50 a day over a 20 day month ($1,000 per month). The Plaintiff's potential earning capacity is therefore assessed at the median of these two figures, namely, $65 a day over a 20 day month ($1,300 per month). The multiplicand is therefore calculated as the sum the Plaintiff would have been earning but for the accident, that is, $100 a day or $2,600 a month. less the sum she is capable of earning in the future, in this case fixed at $65 a day or $1,300 a month. The Plaintiff's future loss of earnings is assessed as $1,300 a month (multiplicand) x 11 years 11 months (balance of multiplier) = $185.900.00

8. Taking into account that the Plaintiff is illiterate with restricted opportunities of employment and is now unemployed and has been so for some months, this is an appropriate case to make an award for loss of earning capacity to reflect the Plaintiff's handicap in the labour market from her 3% permanent impairment arising from post-concussional symptoms and the possibility of epilepsy in the future. In the circumstances where the impairment is comparatively small, a nominal award of $15,000 would seem appropriate.

9. Finally, the special damages in this case are considered. In the Bundle of Documents produced op behalf of the Plaintiff is a report from a dental surgeon. Robert C. M. Bong, in which he outlines the treatment required by the Plaintiff to repair her dental injuries. The cost of the recommended dental treatment, which the Plaintiff has yet to have performed, is assessed to be $28,500 and this sum will be allowed. The other special damages set out below were agreed to by the 1st Defendant and will be allowed as reasonable even though no receipts were available to produce in evidence:

SUMMARY OF ASSESSMENT OF DAMAGES AWARDED

10. Interest on the non-economic lose for pain, suffering and loss of amenities is allowed at the usual rate of 2% per annum from the date of the writ until the date of this assessment. There will be interest on the special damages including the award for past lose of earnings @3.5% per annum from the date of the accident. There will be no interest allowed on the awards for future loss of earnings and loss of earning capacity.

11. The Plaintiff's costs of this assessment of damages to be paid by the 1st, 2nd and 3rd Defendants to be taxed if not agreed. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.