FOHG PAK LAM v. CHAN TAT TRADING AS TAI YUEN AND THE OFFICIAL RECEIVER AND TRUSTEE OF CHAN TAI TRADING AS TAI YUEN, A BANKRUPT

1984 No. 2279

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. The Plaintiff, who was 25 years of age, at the date of the accident, received an injury to his left eye while working as a stone mason in a confined area for the Defendant on 7th November 1981. The Defendant was declared bankrupt on 18th May 1984 but leave of the High Court was obtained on 8th November 1984 to carry on the proceedings. Although the Defendant filed a notice of intention to defend these proceedings, no Defence was filed so that interlocutory judgment was entered on 22nd August 1985 with damages to be assessed.

2. The Official Receiver on behalf of the Defendant did not attend this assessment of damages and advised by letter that he had no objection to raise at this assessment. Mr. Mak for the Plaintiff produced a bundle of 7 documents pursuant to a notice under Order 38. These documents were 4 medical reports, 2 memoranda from Commissioner of Census and Statistics and 7 receipts for medical fees. These medical reports confirmed that the Plaintiff, following a perforating injury to his left eye, had suffered a 100% visual disability to the left eye. Dr. W.J. Heffernan, in his second report dated 17th June 1986, stated that the eye defect was permanent and constituted a 25% defect in the visual system and a 24% defect in the Whole Man. The medical evidence is not challenged and must be accepted.

3. The only evidence called was from the Plaintiff himself. He gave evidence that at the date of the accident he was being paid $110.00 a day working 6 days a week. The Plaintiff said he attended Queen Elizabeth Hospital the date following the accident when the injury caused intense pain to his left eye overnight. He was admitted to Hospital for 10 days and discharged on sick leave with follow-up treatment at the Yaumati Eye Clinic. The Plaintiff was re-admitted to Queen Elizabeth Hospital in April 1982 for an operation to his left eye following which he spent approximately 40 days in Kowloon Hospital recuperating. The Plaintiff's evidence as to his travel expenses and medical fees for attending Hospital and for out-patient treatment and the cost of food while in hospital is accepted as correct, even though he was only able to produce a total of 7 receipts for medical fees. Furthermore, it is accepted that Plaintiff spent approximately $500.00 on special tonic food while recovering in Hospital after his eye operation, and that he spent a total of $488.00 to purchase contact lens and sun glasses.

4. The Plaintiff gave evidence that he cannot see at all with his left eye and this causes inconvenience in his work as a stone mason or decoration worker making it difficult for him to retain a job. Because his field of vision is restricted, an employer soon becomes aware of his sight disability. The Plaintiff produced a detailed schedule of his earnings since July 1982 showing that he has had many different jobs with different employers since that date. He says he is only employed as a relieving or odd-job worker because of his sight defect. The Plaintiff experiences difficulty in working outdoors because of the glare from the sun and, therefore, he prefers to work indoors. In his occupation as a stone mason, he says about 50% of the work is performed outdoors. The Plaintiff gave evidence that his total earnings are now $180.00 a day and that he works approximately 20 days a month. Since last June, the Plaintiff has been employed by his elder brother doing masonary work in decorating premises. The Plaintiff says he is embarrassed about the injury to his left eye which is noticeable when others are within a few feet of him.  He considers his prospects of getting married have been reduced because of his eye injury and its effect on his earning capacity in the future.

5. Mr. Mak for the Plaintiff produced a list of authorities and submitted that the appropriate award for pain, suffering and loss of amenities should be $120,000.00. The awards in these authorities cited ranged between $90,000.00 and $120,000.00 and were all made in 1984 or earlier. In taking acount of inflation since those decisions were given and that the Plaintiff spent 60 days in hospital and was on sick leave for 96 days, the appropriate award under this head would be $130,000.00. The Plaintiff's pre-assessment loss of earnings will be assessed by deducting his actual earnings between the date of the accident and the date of assessment (according to the schedule of earnings produced) from the earnings a stone mason with full eyesight could have expected to earn over that period. There was evidence from Commissioner of Statistics that the average daily wage of a mason engaged in government building and construction projects was $153.80 in November 1981 and had increased to $194.30 by February 1986. It was the Plaintiff's evidence that he was paid at the daily rate of $110.00 working 26 days a month at the date of the accident and that he was now paid $180.00 80.00 a day working on 20 days a month.

6. Plaintiff's annual earnings at date of accident were $110.00 x 26 x 12 = $34,320.00.

7. Plaintiff's annual earnings now are $180.00 x 20 x 12 = $43,200.00. On the basis that with full eyesight the Plaintiff would be employed on 26 days in the month his present annual salary would be $180.00 x 26 x 12 = $56,160.00.

8. Taking the median of the November 1981 salary ($34,320.00) and the present salary for full employment ($56,160.00) as $45,240.00 over the period of 5 years and 5 months (between the date of the accident on 7th November 1981 and the date of this assessment on 3rd April 1987) the pre-assessment loss of earnings is $245,020.00. From this figure must be deducted the Plaintiff's actual earnings over the same period being $165,940.00 (according to the schedule of earnings produced by the Plaintiff) to leave a balance $79,080.00 as the Plaintiff's total pre-assessment loss of earnings.

9. As for the post-assessment loss of earnings, this is clearly a case where only a lump sum or global award should be made for loss of future earning capacity. The authorities cited by Counsel for Plaintiff awarded sums between $10,000.00 and $150,000.00 under this head. Taking into account that the Plaintiff is now 30 years of age with a long working life ahead of him, that his visual disability is permanent, that he is unlikely to retain full-time employment in future and the increased risk of injury in his present occupation with his defective eyesight, the award for loss of future earning capacity is assessed at $90,000.00.

10. A summary of awards made are as follows:

11. There will be interest on the general damages at the rate of 2% per annum from the date of the writ to the date of this assessment. There will be no interest on the award for loss of future earning capacity, but the other special damages will have interest at the rate of 3.5% per annum from the date of the accident to the date of assessment.

12. The Defendant shall pay the Plaintiff's costs on this assessment, which shall be taxed if not agreed, and Plaintiff's own costs shall be taxed in accordance with Legal Aid Regulations.