|
HCPI001341/1996
|
H.C.P.I. No. 1341 of 1996 |
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 1341 OF 1996
-----------------
| BETWEEN |
|
|
|
KWOK WING MING |
Plaintiff |
|
AND
|
|
|
WONG LIN LUNG |
1st Defendant |
|
WONG IOK CHAN trading as UNI-DRAGON EXPRESS CO. |
2nd Defendant |
-----------------
Coram: Master A. Chung in Court
Date of Hearing: 16 October 1998
Date of Handing Down Judgment: 22 October 1998
---------------------------------------------------
JUDGMENT ON ASSESSMENT
---------------------------------------------------
Introduction
1. The Plaintiff was employed by the 2nd Defendant as a delivery worker in May, 1995. On 2 May, 1995, the Plaintiff was travelling as a passenger inside a lorry driven by the 1st Defendant while in the course of his employment. When the said lorry arrived at a slip road in Lung Cheung Road leading to Po Kong Village Road, it crashed through the guard railing onto the pavement and overturned. The Plaintiff suffered injuries as a result. He sued the 2 Defendants in negligence in this action. The claim against the 2nd Defendant was settled in March, 1998. Interlocutory Judgment with damages to be assessed was entered against the 1st Defendant on 15 January, 1997.
Plaintiffs Personal Background
2. The Plaintiff was born in December, 1960. He was therefore 34 years old at the time of accident and 37 years old at the time of the assessment. He was educated up to Form 3 level. After he left school, the Plaintiff worked as a cleaning worker for about 6 to 7 years. After that, he started to work for the 2nd Defendant as a delivery worker. Before the accident, he used to play basketball about once a week but afterwards he only did so once every 2 to 3 weeks.
3. The Plaintiff ceased to be a delivery worker after the accident and now works as a decoration worker on a casual basis. When the Plaintiff was working for the 2nd Defendant, he earned $9,092 per month. After the accident, he resumed work in November, 1995. His average income since then up to the date of hearing ranged from about $6,000 to $8,000 per month.
Plaintiff's Injuries and Treatment
4. The Plaintiff was medically examined by Dr. Chun Siu-yeung on 18 July, 1996. In his medical report dated 19 July, 1996, Dr. Chun recorded the following findings.
5. The Plaintiff sustained the following injuries on 2 May, 1995:-
| (a) |
small lacerations of the left arm and front of the right chest wall below the nipple. The lacerations healed with mild scarring and there was no functional disability from these; |
|
| (b) |
fracture of the left patella. The fracture was reduced and fixed with wires and has since united. The post-operation course was uneventful. However, there was residual stiffness of the knee, pain and muscle wasting of the thigh. On X-ray examination, there was evidence of lateral hyper-pressure causing symptoms of pain on going up and down slopes and stairs; |
|
| (c) |
he underwent physiotherapy for about a month. There was also follow-up treatment until 16 July, 1996. Sick leave was granted to him until 27 October, 1995. |
|
6. When the Plaintiff was examined by Dr. Chun, he complained that there was stiffness in his left knee and he could not squat fully or work as a goods delivery worker. There was a complaint of pain at the front of the left knee on walking and this became worse on going up and down stairs and slopes.
7. Dr. Chun made the following medical findings:-
| (a) |
the Plaintiff was healthy and strong on appearance. He was walking normally without limping. He could perform unilateral standing on one leg with equal stability and walk on toe-tip and on heels. However, he could only squat down to about ¾ full; |
|
| (b) |
there was a scar on the lateral aspect of the upper left arm and a small scar below the right nipple; |
|
| (c) |
there was wasting of the quadriceps and the calf muscles and a surgical scar longitudinally on the front of the knee joint; |
|
| (d) |
the patella felt enlarged and the lateral undersurface of the patella was tender to pressure; |
|
| (e) |
removal of the wires was recommended. The operation was a minor one and required one-day hospitalization with minimal risk involved. After this, an intensive course of static quadriceps exercise should be given to re-build the muscle bulk of the thigh. The pain on the front of the knee would be reduced or cured. The stiffness may also improve; |
|
| (f) |
however, the undersurface of the patella, especially the lateral facet, was roughened. Degenerative arthritis of the patello-femoral compartment of the knee joint is likely to take place. Despite a consistent static quadriceps program, his knee pain may gradually worsen in future. |
|
8. He assessed the residual stiffness of the knee, degenerative arthritis of the patello-femoral compartment and wasting of the muscle to amount to a 19% impairment of the lower extremity and an 8% impairment of the whole person. Loss of earning capacity was assessed to be 15%.
Findings of Fact
9. I accept the matters stated under the headings "Plaintiff's Personal Background" and "Plaintiff's Injuries and Treatment" to be the facts of this case.
|
Pain and Suffering and Loss of Amenities |
10. Mr. Lam for the Plaintiff referred me to the following cases:-
| (a) |
Liu Hung Fai v. Sandvik Hong Kong Ltd. P.I. No. 934 of 1995 (date of Judgment in April, 1997): $400,000 was awarded to a 69-year old lady for her left knee injury. After the accident, she still suffered pain and walked with a limp, could not squat or climb up to a height; |
|
| (b) |
The Kang On v. Wong Yik Fai, P.I. No. 791 of 1995 (October, 1997): $440,000 was agreed for multiple injuries including cracks to the patella cartilage; |
|
| (c) |
Chan Kui v. Lee Fai, P.I. No. 126 of 1995 (February, 1997): $350,000 was awarded for a minor head injury and fractures to the left tibia and right fifth metatarsal bone base; |
|
| (d) |
Poon Man Chun v. Li Sau Yee, H.C.A No. 2294 of 1992 (April, 1994): $250,000 was awarded for a large open wound over the right knee and leg area. The knee cap was found to be fractured with residual pain and stiffness. There were also other injuries to the shoulder and finger. The learned Judge categorized the injuries as falling within "serious injury". |
|
11. He submined that the Plaintiff's injuries fall into three-quarters of the lower end of the "serious injury" category as defined in the lee Ting Lam case. He further submitted that the present award for the "serious injury" category should be $450,000. The award to be made in this case should therefore be $360,000.
12. I agree entirely with Mr. Lam's submissions and therefore award $360,000 to the Plaintiff under this head of claim.
|
Pre-Assessment Loss of Earnings |
13. Mr. Lam submitted that the pre-assessment loss of earnings should be $171,172.50. This is based on the following:-
| (a) |
pre-accident income of $9,092 per month; |
|
| (b) |
notional present day income (based on an annual increment of 8%) is $11,453 per month; |
|
| (c) |
the notional income up to the date of assessment is therefore:- |
|
| (d) |
the Plaintiff resumed work since November, 1995 and his actual income since then up to the date of hearing was :- |
|
|
(1) $6,000 x 3 months = 18,000; |
|
|
(2) $6,500 x 2 months = 13,000; |
|
|
(3) $7,000 x 29 months = 203,000; |
|
|
(4) $8,000 x 2 months = 16,000. |
|
|
Total of (1) to (4) is $250,000; |
|
| (e) |
net loss is therefore $421,172.50 - 250,000 = 171,172.50. |
|
14. I also agree with him and award $171,172.50 under this head of claim.
Future Loss of Earnings
15. Mr. Lam invited me to adopt a modest multiplier of 12 for the Plaintiff relying on the following cases:-
| (a) |
Lo Chun Bun v. Leung Wah Kwan, P.I. No. 984 of 1997 (March, 1998); |
|
| (b) |
Lai Chi Pon v. Toto Stell & Lron Works Ltd. P.I. No. 1149 of 1995 (July, 1997); |
|
| (c) |
Mak Yiu Keung v. Ho Cheung Kat [1995] H.K.L.Y. 529; |
|
| (d) |
Tse Yin Cheong v. Wong Man Ping [1986] H.K.L.Y. 423; |
|
| (e) |
Ty Kwei-sang v. Fong Sui-hoi (1981) 11 H.K.L.J. 413; |
|
| (f) |
Lo Chun v. Ng Kwok-ming (1978) 8 H.K.L.J. 104; |
|
16. I agree with Mr. Lam and also adopt the multiplicand he proposed, that is, $3,453 ($11,453 - 8,000). The post-assessment loss is therefore $3,453 x 12 x 12 = 497,232.
Future Expenses
17. I accept Dr. Chun's recommendation to remove the wires to be a reasonable one. Mr. Lam very fairly invited me to make a small award of $500 being the medical expenses to be charged by the public hospitals. He also asked me to compensate the Plaintiff for a 10-day loss of earning ($400 x 10 = 4,000) taking into Dr. Chun's testimony it would take about 10 days for the surgical wound to heal.
18. A total of $4,500 is therefore awarded under this head of claim.
Other Expenses
19. The Plaintiff has incurred a total of $5,800 for various expenses which are usually found in personal injuries cases including medical and travelling expenses. I will allow this amount under this head of claim.
Deductions
20. The Plaintiff has been paid $182,029.62 being the employees' compensation payment and $33,000 being the settlement payment from the 2nd Defendant. These sums should be deducted from the total sum awarded.
Interest
21. I also allow interest to be charged at 2% per annum from the date of Writ for the award made for "Pain and Suffering and Loss of Amenities" and at 6.5% per annum from the date of accident for "Other Expenses" and "Pre-Assessment Loss of Earnings".
Costs
22. There is no reason why a costs order nisi should not be made pursuant to R.H.C. Ord. 42 r. 5B(6) or why costs should not follow the event. There will be an order nisi that the costs of the assessment be paid by the 1st Defendant to the Plaintiff to be taxed if not agreed.
23. A total of 4 bundles of documents were produced at the hearing. However, only a small number of documents were useful for the assessment. Mr. Lam informed me that these bundles were prepared for the scheduled trial between the Plaintiff and the 2nd Defendant (which proved unnecessary subsequently). I do not consider that the 1st Defendant should be wholly responsible for these costs. In relation to the costs of the bundles of documents (some 180 pages), only 50 pages are allowed.
|
(Andrew Chung) |
|
Master of the |
|
Court of First Instance |
Representation:
Mr. Johnson Lam i/s by Messrs. Vincent T.K. Cheung, Yap & Co. for the Plaintiff 1st Defendant acted in person and was absent
|