LEE TAT HUNG v. AMIGO ENTERPRISES LTD

1984 No. 1257

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGE

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1. On the 23rd of March 1981 the Plaintiff suffered an eye injury in the course of his employment. The Writ of Summons was filed on the 24th of February 1984. This was amended on the 21st day of August 1984. The Statement of Claim was eventually filed on the 25th of September 1984. Interloctury judgment was entered on the 22nd of November 1984. The notice of appointment for assessment of damages was filed on the 19th March 1985.

2. At the hearing I was advised that the only matter in dispute was pain, suffering and loss of amenities.

3. The following items were agreed :

4. Pursuant to S:47 of the Evidence Ordinance and 0:38 of the Rules of Court the following documents were produced :-

1.    Medical Reports of Dr. Heffernan dated 27.6.84 and 24.4.84

2.    Medical Report of Dr. C.M. Lam dated 27.3.84

                3.    Medical Assessment dated 30.10.81

                4.    Letter from Wing Kwong Watchcase Factory Ltd. dated 13.3.84

                5.    Letter from Hung Hing Restaurant and Bakery dated 31.3.84

                6.    Letter from Ka Wo Watch Case Factory Ltd. dated 13.3.84

                7.    Receipt from the Optical Shop Ltd. dated 7.12.81

                8.    6 sick leave certificates dated from 21.4.81 to 14.7.81

5. The medical assessment was dated the 30th October 1981. It is quite clear that the Plaintiff's eye injury was stabilised by this time. It is unclear why reports were not obtained from Dr. Heffernan until 1984.

6. It is clear from the medical reports that the Plaintiff suffered a severe injury to his right eye. The medical assessment board considered that the Plaintiff suffered a 28% loss of earning capacity. Immediately after the accident the Plaintiff received treatment at the Yaumatei Ophthalmic Clinic. Due to the injury, he developed a cataract which was surgically removed in September 1981.

7. Dr. Huffernan states that with the aid of a corneal contact lens, distance vision is corrected to near normal. Apparently, however, the eye has lost the flexibility associated with a normal eye with a normal lens. Dr. Heffernan gave an example of the effect this would have on the Plaintiff. He said " ....despite his age he is unable to automatically change his focus from a distance (sic) to a near object. As a consequence, the Right Eye requires a spectacle lens for reading." Dr. Heffernan stated that the defect would make it difficult for the Plaintiff to continue in his employment as a watch repair technician.

8. It is self evident that such an injury would cause major problems to someone working as a watch technician. What is unclear is the effect it has on the Plaintiff's daily life. His ability to read, watch television, participate in sport, drive a motor vehicle are but a few of the things to be considered under the head of loss of amenities. The Plaintiff's adviser chose not to call him to give evidence. This places the Court in an extremely difficult position when considering the pain, suffering and loss of amenities head of damage. There may be some cases where it is unnecessary to call the Plaintiff to give evidence to support a claim under this head but it seems self evident to me that they will be rare. I am left in this case to try and assess damages under this head based on a rather incomplete medical report & a pro forma assessment of the Plaintiff's loss of earning capacity. This is far from satisfactory when attempting to assess a category of damages as important as loss of amentities.

9. However, I must do the best I can based on the material presented to me.

10. Mrs. Lauder referred me to a number of cases which she submitted were similiar. They were :-

11. Chu Wing Fai v. Lau Yuk Kuen & Anr HCA 3003/79

12. There was total loss of vision in the left eye. Permanent disability and loss of earning capacity were both assessed at 30%. In December 1981 Master McClelland (as he then was ) awarded $70,000 for pain, suffering and loss of amenity.

13. Lee Hoi Yin v. Li Chi Shing (Deceased) OJA 2037,/7,6

14. Amongst a number of serious injuries the Plaintiff suffered deep lacerations to her right eye. As a result she suffered double vision in her right eye. Her total impairment was assessed at 31% and her loss of earning capacity was assessed at 30%. In July 1977 Li, J. (as he then was) awarded $80,000 for pain, suffering and loss of amenities.

15. Au Leung v. Yip Yim Choi 2432/84

16. The Plaintiff was left with a 1000 functional disability of the right eye. He also lost his sense of smell. In January 1985 Master Crawshaw awarded $130,000 for pain, suffering and loss of amenities, on the basis that the injuries were at the upper end of the serious category in Lee Ting Lam [1980] HKLR 657.

17. Chan Chi Nun v. Cheung Wai Cheng HCA 3839/81

18. The Plaintiff suffered 90% loss of peripheral vision in his right eye. He also suffered memory loss, headaches and changed behaviour. In September 1983 Deputy Judge Chang, Q.C. awarded $65,000 for pain, suffering and loss of amenities.

19. Yick Bing v. Sze Kwong Fai HCA No. 132/79

20. The Plaintiff suffered a 780 loss of vision in the right eye. The impairment was said to be 1590. In April 1980 Power, J. awarded $40,000 for pain, suffering and loss of amenities.

21. Wong Hon v. Cheng Wai CJA 3117/75

22. The Plaintiff had a total loss of vision in his right eye. This was assessed as a 25% impairment of the visual system and a 24% disability of the whole man. In March of 1976 Master Barnett awarded $43,000 under this head.

23. Based on these cases and allowing for the fall in the value of money Mrs. Lauder submitted that the appropriate award for pain, suffering and loss of amenities should be in the range of $80,000 to "100,000.

24. On the other hand, Mr. Dissanayake submitted that almost all these cases dealt with injuries that were much more serious than the Plaintiff's. He said the cases cited where the disability was assessed at around 30% involved complete loss of vision in the eye. (See for example Tsang Kei Lung v. Lee Wing Shun [1980] HKLR 715). He said in this case the Plaintiff's vision had been corrected to a very large degree. He said the awards in most of the cases cited by Mrs Lauder were twice what was applicable here.

25. Unfortunately, neither party cited Fok Shu Woon v. Katherine Peon Ling Yee HCA 290/78. of all the reported personal injury assessments this seems to me the most relevent. It is reported in Martin v. Rhodes at Page 134 so I am surprised it was not cited. In that case the Plaintiff suffered a ruptured left eyeball. This was treated but after his discharge from hospital a cataract developed. The Plaintiff had lost the sight of his left eye but there was a fairly high chance that the operation to remove the cataract would be successful and he would regain some sight which could be improved with contact lenses. However, his ability to focus would be lost (as in the present case) and his eye would be subject to irritations such as itchiness and glare. His residual disability was assessed at between 25% to 30%. Master Barnett awarded $55,000 in May 1978.

26. This case is very similiar. The Plaintiff was treated at hospital and discharged. Later a cataract developed which was surgically removed in September in 1981. He has lost the ability to focus automatically. Master Barnett's award is an appropriate measure in assessing this Plaintiff's pain, suffering and loss of amenities. His award must be updated to allow for the fall in the value of money. (See Lee Ting Lam v. Wong Wai Tong & Anr). Allowing for this I award $90,000 under this head.

Summary

27. There will be interest on the special damages (i.e. $9,970) at 5.75% p.a. from the date of the issue of the writ to judgment. There will be interest on the award for pain, suffering and loss of amenities at the rate of 2% p.a. from the date of issue of the writ to judgment. There will be no award of interest on the award for loss of future earnings. There will be costs to the Plaintiff to be taxed failing agreement. The Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.