SO SHU KEUNG SAMMY v. TAM TAK FONG AND ANOTHER

HCPI 575/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 575 OF 2004

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ASSESSMENT OF DAMAGES

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Application

1. This is an application for assessment of damages by the Plaintiff against the Defendants for the personal injuries suffered by him in a traffic accident.

Background

2. The Plaintiff was born on 30 August 1963.  After completing the Form 3 education, he started and continued to work as a truck driver thereafter for more than 20 years.

3. On 5 July 2001, at about 9:25 a.m., when the Plaintiff, together with 2 deliverymen, unloaded goods from a truck, he was negligently hit by a private car owned by the 1^st Defendant and driven by the 2^nd Defendant.  The Plaintiff was trapped between the truck and the car.  He was injured and sent to Queen Elizabeth Hospital immediately.  According to the medical report dated 12 December 2001 issued by the Hospital, it was said that:

“…Examination showed multiple abrasions and bruises over both lower limbs and pelvic region, and tenderness over the right subcostal region and the right groin.  Radiographs showed fractured right superior and inferior public rami, and fractured right 6th, 7th and 8th ribs.  Mr. So [the Plaintiff] was treated conservatively with analgesics and physiotherapy.  He was discharged on 14th July 2001 as the pain decreased.

Mr. So was then follow up in our specialist clinic regularly.  The superficial wounds healed uneventfully, and serial radiographs showed satisfactory bone union.  Mr. So was last seen on 23rd October 2001.  He complained of mild residual pain at the fracture site. Hw was advised to resume his original duty.

Mr. So has been granted sick leave from 5th July 2001 to 23rd October 2001.  The exact extent of permanent disability should be assessed by the Medical Assessment Board.”

4. The Employee Compensation Board reviewed the injury of the Plaintiff on 24 July 2002 and found that:

“(i) INJURY OF RIGHT CHEST RESULTING IN PAIN; (ii) FRACTURED RIGHT PELVIS RESULTING IN RESIDUAL PAIN AND STIFFNESS AND SCARRING OF BOTH THIGHS (i) 右胸部受傷引致疼痛; (ii) 右盆骨折骨引致殘餘的疼痛及僵硬及雙大腿結疤”

Further, the loss of earning capacity permanently caused by the injury was assessed at 8%.  Thereafter, under the related employee compensation proceedings in District Court, the Plaintiff received a sum of $154,178.74.

5. At the time of the accident, the Plaintiff was at the age of 37 and he was married with a daughter of 7 years old.

6. Later, upon advice of his own doctor, the Plaintiff resumed his job.  After a period of about 21 months, he was dismissed in February 2003.  Since then, the Plaintiff has been left unemployed except performing a part-time worker in April and May 2006. The job required him to prepare tools and to buy raw materials for interior decoration working.  He thereby earned $250 a day for about 10 days a month.

7. On 14 September 2004, the Plaintiff commenced the present proceedings against the Defendants.  Liability was entered by consent on 12 July 2005.  Hence, the only issue left is the appropriate damages to be assessed for the Plaintiff by this Court.

8. The matter was fixed before me for 2 days on 17 and 18 May 2006.  Mr. Simon Lam of Counsel acted for the Plaintiff while Mr. John Hemmings of Counsel represented for the Defendants.  Upon hearing from both parties, I reserved my decision to be handed down which I now do so.

Ruling

PSLA

9. With the assistance from both learned Counsel, pain suffering and loss of amenities were agreed at $350,000.

Pre-trial loss of earnings

10. Mr. Lam, by paragraph 16 of his closing submission, revised the Plaintiff’s case as follows:

“1^st period: $15,400 x 3.5 = $53,900 [sick leave]

 2^nd period: $(15,400 – 13,677) x 9 + $(15,400 – 14,553) x 12 + $(15,400 – 10,509) x 11:

$15,507 + $10,164 + $53,801 = $79,472 [loss of overtime]

3^rd period: $15,400 x 28 - $3,000 x 18 = $377,200 [loss of income]

The additional sum for dismissal is $44,438 [severance payment received by the Plaintiff upon being dismissed]”

11. Mr. Hemmings agreed only in principle the loss of sick leave for the 1^st period of 3.5 months.  However, he adopted a basis of only $14,500.  Hence, the Defendant agreed to pay only $51,800.  The other claims under this head were denied.

12. To start with, I am of the view that the basis of the Plaintiff’s monthly salary for the purpose of the assessment of damages herein should be $15,240, that is the average salary (including double pay only) earned by him for the period of 12 months immediately before the accident.  The major difference between the Plaintiff’s figure $15,400 and that of the Defendants’ $14,500 is whether the bonus, double pay and special bonus earned by the Plaintiff should be included.  As I can observe from the record of earnings of the Plaintiff for the past few years before the accident, double pay was paid to him each and every year, but not the bonus and special bonus.  Hence, on balance, I agree to include the double pay only as the basis for calculation.

Particulars

Average salary :$182,881.54 / 12 = $15,240.13

13. Second, the Plaintiff deposed that he had a loss of income because:

“…my employer assigned me to drive on a long-distance route and the amount of work which I could take up decreased dramatically, my monthly commission, incentive bonus and over-time allowance decreased from HK$5,000.00 to HK$3,500.00 a month” (paragraph 41 of the Plaintiff’s witness statement)

However, with respect, such claim is bound to fail in the circumstances because the Plaintiff’s own evidence does not support such proposition at all.  The average income of the Plaintiff in 2001 and 2002 remains around 14,000.00 per month.  I cannot detect any substantial deduction of loss of overtime, commission or attendance incentive, as alleged after the accident.

14. It is further said by the Plaintiff that:

“ 42. At last, as my employer realized that my working ability was not as good as before, my employer informed me of their decision to dismiss me in February 2003.

43. I have been unemployed since the dismissal.

44. Later, I kept looking for a job and especially for a post of driver.  Compared with other types of vehicle, the position of the driver seat of a goods vehicle is higher than the others, so I tried not to look for the job of goods vehicle driver.  It was because it was inconvenient for me to get on and off a goods vehicle.

45. In about April to May this year, through my friend’s introduction, I started to help my friend to do some simple interior decoration work on a part-time basis.  My main duties were to prepare the tools and buy raw materials etc.  As I had no experience in this field, I could not do any decoration work.

46. Moreover, as this was a just a part-time job, my friend would call me to work only when he needed my help.  Therefore, my income was unstable.  The wage was about HK$250.00 a day and I was paid the wage in cash on the day of work and there was no payment record.  My income was about HK2,000.00 to HK$3,000.00 a month.  I usually worked about 10 days a month.

47. I knew that Dr. Au had suggested that I could work as a taxi driver.  I had thought about taking this job, too.  However, I do not possess a taxi driving licence and I do not have a friend who is driving taxi.  In addition, due to the fact that I am not able to drive for a long time, there will be a risk that the daily earning cannot cover the fee for renting a taxi.  Therefore, under such circumstances, I am not bold enough to apply for a taxi driving licence to drive taxi.

48. Moreover, as I cannot sit for a long period and have the problem of diuresis, it is very inconvenient for me to drive (especially for long-hour driving).  As a result, I have only a limited choice of occupation and no employer is willing to employ me.”

15. As a result, he claimed loss of income for the 3^rd period as aforesaid.

16. Upon careful consideration of the Plaintiff’s evidence, I do not consider that it has been proved on balance of probabilities.

(a) The doctor in Queen Elizabeth Hospital advised the Plaintiff to resume his original duty.

(b) He did so and continued to work with his employer for some 21 months.  He earned more or less the same salary beforehand.

(c) He complained unfair treatment from his employer.  However, no corroborative evidence has been adduced other than the Plaintiff’s own testimony.

(d) The Plaintiff claimed that he was dismissed because his working ability was not as good as before.  During trial of the proceedings before me, it was proved to be untrue.  The  employer lost a contract and as such, the Plaintiff was dismissed by reason of “redundancy”. As contained in his Chinese witness statement, he was indeed “遣散”.  At the closing submission, after taking instructions, Mr. Lam also confirmed with the Court that a sum of $44,438 severance pay was received by the Plaintiff.

(e) Mr. Lam tried to save the Plaintiff’s case by arguing that all other colleagues of the Plaintiff were “transferred” to the new company taking over the contract from the Plaintiff’s employer.  Hence, but for the disabilities suffered by of the Plaintiff suffered at the accident, he would have got the new job.  With respect, there is simply no or insufficient evidence before me to back up such proposition.

(f) Dr. Danny Choi, the expert for the Defendants, commented the working capacity of the Plaintiff in the followings:

“Mr. So is considered fit to resume his pre-injury job.  In fact he was able to do so after the expiration of sick leave.  The residual hip stiffness and residual pain may cast inconvenience during too frequent climbing activities.  However this will not affect his driving capacity as well as loading and unloading goods.  His future employment prospect is basically unaffected.” (page 6 of the Report dated 10 June 2002)

(g) The Plaintiff’s own expert, Dr. Au, suggested in his 1^st Report dated 25 January 2002:

“7.7  Employability:

Mr. So has returned to his previous job as truck driver who needs to help loading and unloading of the truck, but with reduced working efficiency.  In case if he needs to change job in the future, he is fit for light duty job e.g. driver, receptionist, cashier, office assistant, car park attendant, security guard etc.”

Further, by a Supplementary Report of 23 June 2003, it was said that:

“……

On the other hand, I opine he is fit to take up the work of taxi driver.  As a taxi driver, he needs to perform over ten hours of continuous driving; but he could overcome this by taking intermittent rest e.g. Rest for 10 to 15 minutes after continuously driving for one hour.

According to your good self, Mr. So’s current job requires him to do continuous driving for over two hours three times a day and also requires him to assist with loading and unloading heavy objects up to 150 pounds.

As instructed by your good self, whenever Mr. So sits for one hour or longer, he has hip pain.  In the event if he needs to drive continuously for over two hours, it is advisable for him to take rest intermittently every hour to ease his hip pain.

Mr. So narrated during my evaluation on 21^st January 2002, that after the injury he can only carry thirty to forty pounds; his lifting ability is limited by right chest wall and right hip pain, therefore I opine his current job duty is too heavy for him.”

(h) Mr. Hemmings have the following observations on the Plaintiff’s case:

“The Plaintiff has given conflicting reasons why he was unable to find employment as a driver.

In his statement, the contents of which he adopted for the purpose of this hearing, he states at para. 44 ‘…the position of the driver seat of a goods vehicle is higher than the others so I tried not to look for the job of goods vehicle driver.  It was because it was inconvenient for me to get on and off a goods vehicle.’

In his evidence he said that he thought he might be a danger to himself and other road-users.  He further stated that he suffered pain from sitting for an extended period of time.”

(Paragraph 2 of Mr. Hemming’s Final Submissions)

(i) The Defendants hired private detectives to follow the Plaintiff on a number of occasions in November and December 2005.  During the videos played at the hearing, the Plaintiff travelled within the city without any obvious difficulty.  He dined with his family in restaurants.  He went shopping in supermarkets.  He went up and down staircases.  He took care of his daughter.  Everything appeared perfectly normal.

(j) On balance, I accept the Defendant’s case and the comment of Mr. Hemmings.  The objective medical examination by the doctors does not support a case presented by the Plaintiff.  While accepting the capacity to assist in loading and unloading objects might be affected, I do not agree that it justifies a case for the Plaintiff that he is unable to resume the pre-injury job.  In my view, “loss of earning capacity” is the appropriate remedy for the Plaintiff in the circumstances.

(k) In conclusion, the Plaintiff is not entitled to damages in the aforesaid 3^rd period.

Pecuniary loss

17. Travel expenses and medical expenses were agreed by parties at $3,000 and $6,827 respectively.  The Plaintiff further claimed tonic food for $5,000.  The Defendants conceded only $2,500 in the absence of documentary proof.  I agree with the Defendants.

Loss of the income of the Plaintiff’s wife

18. There is no dispute that the Plaintiff’s wife did take some 20 odd days’ leave to take care of the Plaintiff after the accident.  There is also no dispute that she earned $55,000 per month at that time.  The Defendants only argued that it was neither necessary nor desirable as the experts did not suggest the wife to do so.  I respectfully disagree.  In terms of reasonableness, I must say that it is more than reasonable and necessary for the wife to take only 3 weeks’ time to take care of her husband who has been injured at a traffic accident and eventually granted sick leave for 3 months.

Future loss of earnings/MPF

19. There is no future loss of earnings/MPF for the Plaintiff in my judgment.

Loss of earning capacity

20. I agree that loss of earning capacity or “Smith v. Manchester awards” is the appropriate remedy for the Plaintiff to compensate his disadvantage in the labour market.  In this respect, Mr. Hemmings suggested $50,000 (slightly more than the loss of 3 months income) while Mr. Lam argued that it should be $369,000 ($15,4000 x 24), i.e. a sum equivalent to 24 months’ earnings in view of the great disadvantage he suffered in the open job market in being unable to assist in loading/unloading of goods.

21. Given the fact that I have accepted the evidence of the Defendants, Mr. Lam’s case cannot stand.  As to Mr. Hemmings’ suggestion, I believe that it might be a bit harsh to the Plaintiff.  In my view, a period of 9 months’ salary should be appropriate to compensate the “weakening of the claimant’s competitive position in the open labour market”.  Hence, in terms of money, it amounts to $137,340.

Conclusion

22. In conclusion, the following damages are awarded to the Plaintiff:

		$	$
(a)	PSLA		350,000
(b)	Loss of pre-trial earnings ($15,240 x 3.5)		53,340
(c)	Pecuniary loss
	(i)   Travel expenses	3,000	12,327
	(ii)  Medical expenses	6,827
	(iii) Tonic food	2,500
(d)	Loss of income of the wife		42,308
(e)	Loss of earning capacity		137,340
			595,315
	Less: sum received by Plaintiff in related DCEC action		154,178
			441,137

23. For general damages, there will be interest at the rate of 2% p.a. from the date of Writ herein to the date hereof.  As to special damages, i.e. the aforesaid pecuniary loss and the loss of income of the wife, interest will be calculated at half of the judgment rate from the date of the accident to the date hereof.

Costs

24. I do not have the benefit of hearing argument from both learned Counsel on the question of costs.  Nonetheless, there appears to be no reason why costs should not follow the event.  Further, having awarded damages to the Plaintiff within the jurisdiction of the District Court, I believe that the costs incurred should only assessed at the corresponding scale.  In the circumstances, there will be an order nisi that the Defendants shall pay costs of the Plaintiff in the assessment on the District Court scale, on party-and-party basis, to be taxed if not agreed.