HO KWAI KONG v. CHEUNG KOK

HCPI 93/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 93 OF 2002

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ASSESSMENT OF DAMAGES

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Introduction

1. This action commenced by the Plaintiff is for loss resulting from personal injury arising from an attack by the Defendant on the Plaintiff. As a result of the attack the Plaintiff suffered injuries on his left arm and wrist and he took out the writ in this action on 30 January 2002.

2. The Defendant, having failed to file and serve any Defence, had interlocutory judgment entered against him on 12 June 2002, with assessment of damages to be heard in this court. At the hearing the Defendant failed to turn up. I am satisfied that proper service had been effected on the Defendant and therefore I proceed with the hearing for assessment of damages.

Evidence

3. In the absence of the Defendant Mr. Chan, counsel for the Plaintiff, called the Plaintiff, Mr. Ho Kwai Kong, to give evidence. Together with the testimony of Mr. Ho, the Plaintiff, I have also the benefit of the evidence in the medical report compiled by Dr. Patrick Wong Kwok Shing dated 8 September 2001, whose evidence, pursuant to the order of Master Kwan dated 23 August 2002, was to be received by me without calling Dr. Wong.

4. The statement of Mr. Ho, the Plaintiff, was received as evidence-in-chief and the Plaintiff also explained to this court in the course of his testimony as to how the injury affected his previous work as the sole proprietor of his pork meat shop; as to how it affected his ability to play music, both Chinese and Western. He also told me when he went back to try to work in his shop and how he taught Mr. Leung, his wife's younger brother, to take over all his duties in the shop. In the circumstances he ceased going back to assist earlier this year. I have heard the evidence of the Plaintiff with care and I accept everything that he told me, and I also accept the evidence given by Dr. Wong in his medical report.

Plaintiff's Injury, Treatment and Disability

5. Turning now to the different heads of damages, as a matter of finding of fact I accept that the Plaintiff was born on 25 August 1940 and he was 59 years of age at the time of the incident, which took place on 30 March 2000, and he is now 62 years of age.

6. The Plaintiff's injury was mainly on the left arm and wrist. He was admitted to the Princess Margaret Hospital right after the incident. It was discovered that he sustained a 5 cm oblique chop wound at his distal left forearm, and the X-ray revealed that there was a cortical break at distal left radius, the arm bone. One emergency operation, namely exploration of the left forearm wound was done on the same day of the incident and as it revealed there were multiple extensor tendons cut on the left forearm, and superficial branch of radial nerve was also cut. In the course of the operation the tendon and the nerve were repaired and the Plaintiff was fitted with a splint on his left wrist with thumb in extension on the same day after the operation. The Plaintiff was discharged the next day, that is, 1 April 2000.

7. The splintage which handicapped the Plaintiff's movement on the left arm lasted for four weeks and the Plaintiff attended outpatient physiotherapy treatments and follow-up consultation. It was said by Dr. Wong that the recovery process of the Plaintiff's injury was uneventful. The Plaintiff complains of numbness, pain when being pressed on the area of the wound, stiffness, tightness on the part of his injured left arm and also, of course, it effected his movement of the fingers.

8. Dr. Wong advised the Court that the Plaintiff suffered a 13.5 per cent loss of earning capacity and 18 per cent impairment of the upper extremity. It is also the opinion of Dr. Wong, which I accept, that the plaintiff would not be able to return to his previous manual work as Chinese roast meat worker and he could not hold the raw body of the pig, which required a lot of strength in his left arm.

9. The Plaintiff demonstrated to me in open court, when he gave evidence, as to the way he would hold the pig when he roasted it, and the way he would need to hold on to the heavy meat with his left hand when he used his right hand to hold the chopper and chop the meat. I accept all this evidence. It is impossible for the Plaintiff to return to the manual part of his work as a "sifu" in pork raw meat shop, although the Plaintiff is basically a right-handed person.

10. I also accept the evidence of the Plaintiff that he would be handicapped in not being able to play the previous music which he did, such as erhu, Chinese Violin, banjo and pipes. And that deprived him of his basic and main enjoyment as a matter of hobby.

Damages (Pain, Suffering and Loss of Amenities)

11. Now, having found as above, I come now to the different heads of damages. For pain, suffering and loss of amenities of life I take into account the one operation done on the Plaintiff, the pain that he has suffered as a result of the chop on his arm. In the recovering process, there must be pain and inconvenience, although as of today he is not that much inconvenienced in his daily life and he could take care of himself.

12. I also take into account the loss of amenities in terms of the Plaintiff's loss of the enjoyment in playing music, which I believe he did well in the past.

13. I was assisted by Mr. Chan when he gave me four different cases for this purpose, namely, Lee Ting Lam v. Leung Kam Ming [1980] HKLR 65, Chan Kai Wing v. Leung Fat Kee Engineering Factory Company Limited (HCPI 1163/1999 unreported judgment of Master Lo on 13 November 2000), Tsang Chong Wan v. Lee Ming & Others (HCPI 1063/1996 unreported judgment of Deputy Judge Suffiad dated 11 February 1998), Ching Kam v. Au Wing Keung & Others (HCPI 765/1995 unreported judgment of Master Kwan dated 16 December 1998), lastly, Tsang Ching Keung v. Lo Tak Kong (unreported judgment of Master O'Donnell in HCPI 806/1995 on 9 October 1996).

14. Each case turns on its own facts. I would only say that this case falls below the serious category. And having considered all the previous authorities cited to me, which are comparable to the present case, I would make an award of $380,000 under this head.

Damages (Special Damages)

15. On special damages I am satisfied on the evidence that the following award should be made: for hospital expenses $2,071, physiotherapy treatment $704, private consultation $490, bonesetters fees $1,800.

16. The more difficult head would be for special damages for tonic food and Chinese herbs. It is well established that the Court has a discretion as to how much the Court should award under this head. The benefit derived from these tonic foods and Chinese herbs are relevant and the amount, of course, must be reasonable. I accept that tonic food and Chinese herbs should be recovered in the circumstances of this case and I make an award of $25,000.

17. Although the travelling expenses are not substantiated by any receipts which is normal and usual, I allow the travelling expenses at the sum of $5,000.

18. Therefore the special damages would come up to a figure of $35,065.

Damages (Loss of Pre-trial Income)

19. For loss of earnings, this case is special in the sense that the Plaintiff used to operate a pork shop, a small business entity, and he told me it was his business since 1990. That means he has been operating before the incident for almost 10 years. In the past, before the incident, the Plaintiff's wife would assist at times and the Plaintiff employed Mr. Leung, the younger brother of his wife, as a full-time worker.

20. For pre-trial loss of earnings I was assisted by the tax returns for the year 2000 to 2001 and also for the year 2001 to 2002. There was a comparison, of course, between the pre-incident income and the post-incident income. For this part of pre-trial loss Mr. Chan claims for the Plaintiff for the period from 30 March 2000 to 29 February 2001, a sum of $116,600, represented by the loss of the business income, $10,600 per month times eleven months. I accept that figure and compensation claimed for that period.

21. However, for the other pre-trial period, that is, from 1 March 2001 onwards until today, I find from the latest tax return and profit and loss account, page 55A of the trial bundle submitted to this Court this morning, that the plaintiff actually employed his own wife at the rate of $9,000 per month for that fiscal year, and I find that that is the loss suffered by the Plaintiff as a result of his injury for that period. And therefore the award for that period, from 1 March 2001 to today, will be $9,000 times 20 months, amounting to $180,000.

22. The figure for the whole period of pre-trial loss of earnings would be $296,600.

Damages (Loss of Post-trial Income)

23. For the same reason that the Plaintiff's post-trial loss would be the extra worker that he had to engage to substitute himself as a result of the injury and by reason of the fact that he could not go back to work. Therefore the award under this head: the multiplicand would be $9,000, for the multiplier I took into account the three cases cited to me by Mr. Chan, Lui Sheung Lok 3 HKLJ 2000, where a multiplier of six was adopted for a person aged 58 at the time of trial, Chan Kui [1996] HKLD 444, a multiplier of four for a person aged 61 at the time of trial, and finally the case of Te King O [1997] HKLD 445, where a multiplier of four was adopted for a person aged 61 at the time of trial.

24. Here the Plaintiff is aged 62 at the time of trial, 59 at the time of the incident, and therefore I will adopt a multiplier of 4. The net figure for this head would be 9,000 times 12 times 4, which is equivalent to $432,000.

Damages (Loss of Earning Capacity)

25. The next head is loss of earning capacity. Loss of earning capacity, according to the law, represents the handicap of the Plaintiff in the labour market. Which means that if the Plaintiff was out of a job he would have more difficulty than others to regain a job, and at the same time while a Plaintiff had a job it might be more difficult for him to maintain a job. But in this particular case where the Plaintiff was operating a sole proprietorship as his own business, the business has all along been maintained, albeit at the expense of an extra hand, the intention of the Plaintiff is to keep the shop for good; therefore there is no question of the Plaintiff being handicapped in the labour market. And for that reason I would make no award under this head.

Damages (Interests)

26. The rest will be interest. So the interest would follow on special damages, that means the pre-trial loss of earnings and the special damages, at the rate of 4.06 per cent, that is half the judgment rate, for the period from the date of incident to today. And on general damages, that is, on pain, suffering and loss of amenities of life, there would be two per cent for the period from the date of issue of writ to today.

27. Interest on general damages would be $5,700. Interest on special damages would be $34,741.

Damages (Total)

28. The total amount of damages including interests should be $1,184,106.

Conclusion

29. Judgment would be in the sum of $1,184,106 and there will be interest on this judgment sum at judgment rate from today until payment.

30. Costs of the assessment will be to the Plaintiff, to be taxed if not agreed.