FUNG YIU v. CHEUNG SIU PING

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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ASSESSMENT OF DAMAGES

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1. On 28 June 1983 the Plaintiff was seriously injured in a motor accident. The Defendant was driving a public light bus which collided with a motor-cycle which in turn struck the Plaintiff and other pedestrians on the pavement. The Defendant, who was refused legal aid, filed an acknowledgement of service stating that he wished to contest the proceedings. However, when no defence was filed by the Defendant, interlocutory judgment was entered on 9 October 1985 with damages to be assessed.

2. At the assessment the Defendant consented to the following items of special damages claimed :

Counsel for the Plaintiff produced a list of 12 documents under Section 47 of the Evidence Ordinance and Order 38 R.S.C. These documents included receipts for medical expenses. certificate and statement from the Plaintiff's employer as to his earnings at the date of the accident, and medical reports including Dr. R.E.M. Wedderburn's report dated 25.1.85 and Dr. K. Singer's report dated 16.4.85.

3. A summary of the Plaintiff's condition caused by the injuries sustained in the accident on 28 June 1985 is set out on page 2 of Dr. K. Singer's report and listed hereunder :

Dr. Singer assessed the Plaintiff's permanent incapacity as 100% and commented that if his wife predeceased him the Plaintiff could have to be institutionalised.

4. The Plaintiff gave evidence that he would be 60 years of age this year. He had retired in 1982 after 31/2 years as a conductor with the KMB Co. Since then the Flaintiff had been employed as a supervisor and watchman in a garment factory earning approximately as $1,500 per month. He gave evidence that his health was good before this motor accident and that he spent 6 months in hospital recovering from his injuries. The Plaintiff said he now has a poor memory and cannot walk properly because of his crippled right leg. He is not now able to cook food, take a bath or walk in a crowded street without his wife's assistance. Although Plaintiff can dress himself and perform normal functions of personal hygiene, he would not be able to care for himself properly if he lived alone. The Plaintiff admits that since the accident he is bad-tempered and becomes annoyed easily. He is required to take 3 different types of medication in form of pills to control his condition. The Plaintiff was unable to resume his former position and would not now be able to hold down a job. He said that he is now unable to concentrate hen reading the newspaper or watching T.V., that he is unable to make calculations, and that he often feels drowsy in the daytime and sleeps for an hour or so at a time.

5. The Plaintiff's wife also gave evidence and said she was now 65 years of age and that despite having had a colonistomy in the past her latest medical reports were favourable. She was able to corroborate the Plaintiff's evidence as to those things which he was able to do before the accident but which he cannot do now. She stated that she normally accompanies the Plaintiff if he has to cross the roadway or walk any distance in the crowded street. Further, that if her husband goes shopping for 3 or 4 items for her, he Will forget at least 1 item as he cannot remember properly. The Plaintiff's wife confirmed that his personality has now changed so that he is often bad-tempered and quarrels with his mother over when or not to put on the T.V. She also gave evidence that she visited the Plaintiff qt least once a day and sometimes twice a day for most of the time he was in hospital and took him nourishing food to eat which she had prepared at cost of $50-$60 a day. She said she either travelled to the hospital by taxi at cost of $26 a return trop or by public transport it cost of $2 return.

6. The Defendant did not cross-examine the Plaintiff or his wife to any extent and elected not to give or to call any evidence. The Defendant submitted that he is now unemployed apart from casual work 10 days a month from which he earns $1,500-$2,000 per month. The Defendant said he was married with 2 dependant children. Even though his wife earns $600-$700 per month as knitter on part-time basis in a factory, their combined income is only sufficient to support the family. The Defendant stated that he was dismissed from his position as a public light bus driver after this accident and cannot afford to pay any damages awarded on this assessment. In this respect the motor vehicle in question was insured with an insurance company which is now defunct and the plaintiff should be able to recover his damages against the special fund being set out for this purpose.

7. The first head of damages considered was for loss of past earnings prior to this assessment. By taking the median between the sun of $1,500.00 per month, which Plaintiff was earring at the date of his accident, and the sum of $1,700 per month, which he would most likely be earning if he was still in this employment, the monthly figure for loss of past earnings is arrived at as $1,600. As there were exactly 32 months between the date of the accident and the date of this assessment the sum to he awarded is $1,600 x 32months = $51,200.00.

8. Turning to the claim for loss of future earnings, Counsel for the Plaintiff, submits that an appropriate multiplier for a 60 year old man is 4 years and that the appropriate multiplioand is $1,700 per month as the Plaintiff is now unable to work. There seems no reason to quibble with the formula but forward so that loss of future earnings is assessed at $1,700 x 12 months x 4 years - $81,600.00.

9. General damages for pain, suffering and loss of amenities is now considered. Mr. R. Pritchard, Counsel for the plaintiff referred me to 5 similar cases reported over the last 12 months where the awards ranged from $90,000 for injuries within the "serious injury" category to $240,000.00 for injuries at the top of the "gross disability" category.  After consideration of the medical reports of Dr. Singer and Dr. Wedderburn and taking account of the oral evidence from the Plaintiff and his wife, the Plaintiff's injuries sustained in this accident should be placed at the upper end of the "substantial injury" category as set out in LEE Ting Lam v. LEUNG Kam Ming [1980] HKLR 657. Allowing 60% for inflation since that decision in 1980 the sum of $160,000 will be awarded under this head.

10. Counsel for the Plaintiff submitted that an award should be made in this case for loss of expectation of life on the basis that the Plaintiff's injuries have resulted in his expectation of life being reduced by 3-5 years according to Dr. Wedderhurn's medical report. Counsel suggested that the conventional award for a deceased Plaintiff be reduced in proportion to the Plaintiff's loss as against the normal life expectancy for a person of his age. Mr. R. Pritchard was able to refer to one recent case where an award had been made under this head to a living Plaintiff. As this head of damages is still available in Hong Kong, there can be no objection in principle to a pro rata award of the conventional sum to a living Plaintiff where there is evidence as in this case, of loss of expectation of life. Accepting the normal life expectancy of a 60 years old male in Hong Kong to be 16 years and that the plaintiff's life expectancy has been shortened by 4 years an award will be made on the basis of one fourth of the conventional award of $20,000, that is, $5,000.00.

11. A claim has also been made for the cost of supervision or care provided to the Plaintiff in the general management of his affairs for the rest of his life. According to Dr. Pinger's report this supervision can be given by his wife but that in her absence the Plaintiff would need a guardian or supervisor to see him several times a week averaging 4 hours a day. In the absence on such supervision Dr Singer concluded that the Plaintiff would require to be institutionalised. In this case, the duties undertaken by the Plaintiff's wife in caring for the Plaintiff are not so onerous in addition to her normal role as a spouse, that she should be compensated for same. Furthermore, taking into account that the Plaintiff's wife is now in good health and that at 65 years of age she has a normal life expectancy in Hong Kong of 17 years there is no reason to believe she will predecease the Plaintiff. For this reason and because of difficulty of quantifying any claim on the evidence adduced, there will be no award of damages under this head.

12. The only remaining claims are the items of special damages for the wife's travelling expenses to and from hospital at $1,100 and nourishing food at $3,000 Provided to the plaintiff both in hospital and for a period after his discharge. Although the evidence from the Plaintiff's wife was somewhat sketchy on these claims they will be allowed as reasonable expenses incurred over the 6-7 months that the plaintiff was in hospital.

13. A summary of the awards made on this assessment follows :

14. General Damages

15. Special Damages

16. Interest on the general damages for pain, suffering and loss of amenities will be allowed at the usual rate of 2% per annum from the date the writ was issued until the date of assessment. There will be no interest allowed on the awards for loss of future earnings and the loss of expectation of life. There will be interest on all the items of special damages at 3.8% per annum from the date the writ was issued.

17. The Plaintiff's costs on this assessment to be met by the Defendant to be taxed if not agreed. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations. There will be a certificate issued for Counsel.