YEUNG WAI MING v. TSUI MA SING, WONG WING HO AND OTHERS

HCPI 561/2007

IN THE HIGH COURT OF THE

HONG KWONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 561 OF 2007

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ASSESSMENT OF DAMAGES

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1.  At the time of the accident, the Plaintiff was the sole proprietor of a transportation company trading as Wai Ming Transportation Company.  His business involved delivering goods for various customers and the Plaintiff was both the driver and delivery worker.  Occasionally, he would engage part-time delivery worker to assist him.  On other days, he was a one man firm.

2.  On 16 July 2004, the Plaintiff delivered a bag of flour to the Defendants’ shop.  He carried the bag on his shoulder.  When he entered the shop, he slipped and fell on the step and landed on his right knee.  He was taken to Alice Ho Miu Ling Nethersole Hospital (“the Hospital”).  X-ray examination showed that he suffered comminuted fracture of his right patella.  Open reduction and internal fixation was performed on 20 July 2004 by the Hospital.  The Plaintiff was discharged on 24 July 2004.

3.  According to the medical report from the Hospital dated 20 April 2005, the Plaintiff received out-patient physiotherapy upon discharged.  On subsequent follow-up, the Plaintiff complained of persistent right knee pain on flexion of his right knee.  The Plaintiff was admitted on 26 August 2004 for in-patient physiotherapy treatment and he was discharged on 8 November 2004.

4.  The Plaintiff was admitted to the Hospital again on 5 January 2005 for removal of implant from healed right patella fracture.  After the operation, intensive physiotherapy started again.  His right knee pain was reduced and the range of knee motion increased.  The Plaintiff was discharged on 21 January 2005.

5.  The Plaintiff was allowed by the Hospital to resume his pre-accident work on 8 February 2005.  When he attended the Hospital again on 19 April 2005, the Plaintiff complained of dull pain and claimed that he could not return to his pre-accident work.  He planned to change his job.  He last visited the Hospital on 12 July 2005.

6.  The present proceedings was instituted by the Plaintiff against the Defendants to recover damages for his injury.  The Defendants defaulted in filing a Defence, and interlocutory judgment on liability was entered against the Defendants on 12 February 2008 with damages to be assessed.  The matter came before me for assessment of damages. 

7.  Notice of today’s proceeding has again been served by substitute service on the Defendants and the relevant affirmation of service has been filed into Court.  The Defendants did not attend the hearing and I proceed on ex-parte basis.

8.  In the Revised Statement of Damages dated 23 February 2008, the Plaintiff claimed the following heads of damages: -

9.  The bundle rests on the Plaintiff to prove his loss. There is only one witness for the Plaintiff, namely, the Plaintiff himself.  He has one medical expert, Dr. Lee Po Chin and leave was granted by Master Kwan for his medical report dated 29 February 2008 to be produced without oral evidence.  I would first deal with the loss of earnings of the Plaintiff.

10.  I note that the Plaintiff did not claim any pre-trial loss of earning.  When I made enquiry with his counsel, Mr. Ko confirmed that the Plaintiff would not seek amendment to claim the loss.  Hence, the only loss claimed would be his future loss of earnings. 

11.  The Plaintiff stated in his witness statement dated 9 May 2008, which he adopted as his evidence in chief, that prior to the accident, he could take orders, drive and deliver goods himself.  After the accident, he could not drive the delivery van because the constant stopping and starting of the vehicle caused pain and therefore made it difficult to carry out his pre-accident work.

12.  At the hearing, the Plaintiff further explained that as the delivery vehicle weights 5 ½ tons, and with the goods, it was very heavy.  He could not manage the brake and could not drive.  He also said that he could not carry heavy goods.  As a result, he had to engage a driver and a casual worker to do the job that he used to do.

13.  The Plaintiff claimed that before the accident, he could take home on average HK$40,000 per month.  After the accident, since he had to engage additional driver and worker, his income was reduced to $4,000 - $5,000 per month.

14.  At the hearing, Mr. Ko clarified with the Plaintiff that the $40,000 mentioned in his statement was not his net income.  It was the gross income before deducting the various expenses of his business, such as rental for the vehicle, wages for the part-time workers, and other outgoings.  The Plaintiff produced his profit tax computation for years 2002/03 and 2003/04.  It shows that his net profit for these 2 years is $176,437 and $153,741 respectively.

15.  Mr. Ko agrees that his earning before the accident is not $40,000.  If I take the average of the 24 months covered by these 2 period of assessment, the average income of the Plaintiff would be $13,757.41.  Giving there would be up and down in business, I would assess his pre-accident earning at $12,000.

16.  I was puzzled at the formula set out in the Revised Statement of Damages to assess the Plaintiff’s future loss of earnings.  The formula reads [($20,000 - $8,000) x 16 x 12] = $2,304,000.  At the closing, Mr. Ko is no longer relying on that formula.  Since the Plaintiff said his earning after the accident was reduced to $4,000 - $5,000, after he made the alternative arrangement to engage helpers, his loss per month should be $12,000 less $5,000. 

17.  The Plaintiff age 33 today.  Mr. Ko submitted that I should adopt a multiplier of 16.   He relied on “Personal Injury Tables Hong Kong 2003, with Neville Sarony QC, SC as the Editor.”  In addition, he relied on the following cases –

(a)       Leung Lai Yin v Yeung Kei Chi (trading as Shung Hing Furniture Decorating Construction) & Another, HCPI 317/1999, unreported dated 7 April 2000.  A multiplier of 14 was adopted for a Plaintiff aged 36 at the date of trial; and

(b)       Gurung Netra Bahadur v Hip Hing Construction Co. Ltd, HCPI 633/2000, unreported dated 21 October 2002, a multiplier of 13 was adopted for a Plaintiff aged 36 at the date of trial.

18.    Having considered all the submissions, I found that a multiplier of 15 is appropriate and the loss of future earnings is [($12,000 – $5,000) x 15 x12] = 1,260,000.

19.  On PSLA, Mr. Ko submitted that the Plaintiff was 28 years old at the time of the accident.  He could not drive after the accident.  And he had a long history of treatment with 2 operations.  His sick leave was granted by the Hospital from 16 July 2004 to 8 February 2005.  Frequent physiotherapy was required. 

20.  The Plaintiff used to pay football, basketball, swimming, jogging and cycling.  He cannot play the games after the accident.  He has pain after walking or standing for a long period of time.  Mr. Ko submitted the loss should be assessed at $300,000.  He relied on the following 2 cases to support his submission –

(a)         Luk Chi Yin v. Wong Fung Shing [1998] HKLRD (Yrbk) 337; and

(b)        Lee Chun Fat v. Chan Kin Wo & Anor [2002] HKLRD (Yrbd) 403.

21.  I accept Mr. Ko’s submission and assess the loss of PSLA at $300,000.

22.  On the claim for loss of earning capacity, Mr. Ko submitted that the Plaintiff would suffer a deficiency in the labour market.  He submitted that an award for $100,000 is reasonable. 

23.  I consider the figure on the high side.  An award of $50,000 is fair.

24.  I award the Hospital fees, tonic food expense, and travelling expense as claimed.

25.  Dr. Lee Po Chin took the view that a surgery of osteotomy would be required in the future and the cost is around $60,000 to $70,000.  I allow a sum of $65,000.

26.  In summing up, I make the following award to the Plaintiff: -

27. For general damages, there will be interest at the rate of 2% per annum for the date of writ herein to the date hereof.  As the special damages, interest will be calculated at half of the judgment rate on date of accident to the date hereof.

28. I also give an order nisi that the Plaintiff do have costs of this action including all costs reserved, to be taxed if not agreed.  There will be certificate for Counsel for today’s hearing.  The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.