POON ON LAM v. CHAN SHU CHOI

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. At the time of assessment the plaintiff was aged 55 years. On the 3rd October 1978 he was injured in a traffic accident. At that time he was employed as a nightwatchman.

2. Proceedings were bought by his next friend on the 1st October 1981 and interlocutory judgment was entered on 7th May 1984.

3. Three medical reports were agreed. The first of these was by Dr P. Tse of Princess Margaret Hospital. This revealed that the plaintiff suffered a degloving injury of the right foot. Debridement and split thickness skin graft was done. He was transferred to Caritas Hospital in December 1978 and finally discharged from hospital on the 12th January 1979. He attended South Kwai Chung Clinic for a period thereafter.

4. There were 2 reports from Mr R.G.M. Wedderburn. The second of these dated the 15th April 1983, gives the most up to date information on the plaintiff. It is apparent from this report that due to a birth injury the plaintiff is, in lay terms, a spastic. Mr Wedderburn then detailed the injuries suffered by the defendant and there treatment. Of his present day condition Mr Wedderburn said that there is a 8" x 6" flat scar on the right thigh, this being the donor site for skin grafts. On the front of the ankle there is a well healed scar which extends from the front of the ankle to within ½" of the toes. It then c6ntinues over the side of the hindfoot and round the heel, close to the ankle, on the lateral side of the foot.

5. The problem today is the situation under the heel. The normal pad of soft tissue is absent and the undersurface of the calcaneus is only covered by a layer of inefficient skin. If the plaintiff walks any distance the skin breaks down, and indeed, Mr Wedderburn observed obvious healing areas.

6. The plaintiff has some restriction of movement of the left ankle but this is due to his spastic situation. However, there is also a loss of movement in the right foot. In measuring this Mr Wedderburn compared it to the plaintiff's left foot and not that of a normal person. On his left foot the plaintiff has 30^o inversion and eversion movements of the foot. On the right inversion is 10^o and eversion is non-existent. He has also lost 50% of the movement of his right toes. Considering the matter overall Mr Wedderburn considered there was a 12% impairment of the leg which gave a 5% impairment of the whole man.

7. Of crucial significance in this case, however, is the following extract from Mr Wedderburn's report :-

"Although the impairment is relatively slight, it resulted in him losing his work, and such a man could only perform very simple forms of work of the type he was doing. As a result of the accident he has lost the source of income. "

8. It is quite clear from the agreed medical reports that although the degree of impairment may be small, the effect on this particular plaintiff was very great indeed. Prior to the accident he was capable of simple work, he was mobile and he could care for himself, albeit in a relatively rudimentary way.

Pain Suffering and Loss of Amenities

9. Miss Sze submitted that the effect of this accident was such that it bought this particular plaintiff into the lower category of Lee Ting-lam v Tsang Kam Ming [1980] HKLR 657. She submitted that the effect of this plaintiff's disability meant there was a no longer reasonable mobility and there was a general marring of the general activities and enjoyment of life. On the other hand the effect of Mr Fan's submission was that the plaintiff should be treated the same as any other person who suffered this degree of impairment. His argument traversed a number of areas but this was the real effect of it. I accept Miss Sze's submission. It is true the degree of impairment is small but it is quite apparent that the effect of that impairment on this particular plaintiff was to place him in the lowest category of Lee Ting Lam (supra). In my view he is at the lower end of that category. Accordingly taking into account the inflationary effect of Li Ping Sum v Chan Wai Tong CA 83/1983. I award $90,000 under this head.

Loss of Earning - Accident to Trial

10. Mr Fan conceded that Miss Sze's submissions under this head were correct. Accordingly, I adopt her submissions and award $16,707.

Loss of Future Earnings

11. The only disagreement was whether the multiplier should be 2 or 3. Mr Fan conceded that Miss Sze's submission that the multiplicand should be $483 p.m. was correct. I consider the correct multiplier to be 3 years. Therefore I award

$483 x 12 x 3 = $17,388.

Nourishing Food

12. No receipts were produced but applying the usual formula I consider the plaintiff's claim reasonable. Accordingly, I award $3,480.

Travelling Expenses

13. These were agreed in the sum of $130 and this sum I award.

Medical Expenses

14. Mr Fan quite properly conceded the medical expenses in relation to Caritas Hospital and South Kwai Chung Clinic even in the absence of a receipt. However, the balance of the medical expenses related to visits to private doctors. No justification for this was advanced in evidence. Accordingly, I award the fees relating to Caritas and South Kwai Chung Clinic in the sum of $188.

Maid's Wages

15. This was for a maid to prepare nourishing food and take it to the plaintiff. Miss Sze submitted that as the relatives of the plaintiff were elderly and lived in different parts of Hong Kong this was reasonable. Mr Fan, however, said this could have been easily done by the relatives and should be disallowed. I agree with Mr Fan and there will be no award under this head.

Summary

16. I award interest on the award for pain suffering and loss of amenities at the rate of 2% p.a. from the date of the service of the writ to the date of judgment. There will be interest on the special damages at the rate of 6.75% p.a. from the date of accident to judgment. There will be no award of interest on the award for loss of future earnings.

17. There will be an order for costs to the plaintiff against the defendant to be taxed if not agreed. The plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations. There will be a certificate for counsel.