LUK CHI YIN v. WONG FUNG SHING

HCPI 496/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 496 OF 1997

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J U D G M E N T

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1. This is a claim by the Plaintiff for damages for personal injuries commenced by writ of summons issued on 23rd June 1994. The claim arises out of a road traffic accident on Castle Peak Road on 30th May 1992 in the course of which the Plaintiff, a male born on 9th March 1954, suffered injuries and had to be released from his vehicle by officers of the Fire Services Department.

2. By Defence filed on 2nd August 1994 the Defendant denies negligence or, in the alternative, alleges contributory negligence on the part of the Plaintiff.

The Accident

3. The road traffic accident, following which the Defendant was convicted on 28th October 1992 at Fanling Magistracy of the offence of driving without due care and attention, can be briefly described. The Plaintiff was driving a goods vehicle laden with fruit along Castle Peak Road from the direction of Yuen Long towards Sheung Shui. As he approached a point in the road where it is joined by 2 minor roads from which traffic was obliged to give way to traffic on Castle Peak Road, a lorry driven by the Defendant emerged from one of those minor roads into Castle Peak Road and the Plaintiff's vehicle collided with that of the Defendant. The Defendant's vehicle carried on into the other minor road which was diagonally opposite the minor road from which his vehicle had emerged, and came to a halt.

4. In evidence before me the Defendant did not seek in any way to lay any blame for the accident upon the Plaintiff. His evidence was candid. He agreed that when he told the police, following the accident, that he had not been paying proper attention to the traffic conditions he was telling the truth. He told me that whereas in his witness statement, prepared for these present proceedings, he had made mention of two women crossing the road and thus distracting him, his memory about that was not clear and that he might have been referring to another road accident in which he had been involved. Perhaps most importantly in his evidence the Defendant explained the accident by telling me that on that day he was not physically fit; that he hadn't slept well the night before as he had just returned from Mainland China; that as he drove to the junction with Castle Peak Road there was a container truck also at that junction on his left hand side which completely obstructed his view of any traffic approaching from the left along Castle Peak Road; and that he assumed that when that container truck pulled out from the junction it was going to proceed across Castle Peak Road and not turn left and that consequently it was safe for him (the Defendant) also to pull out and to cross Castle Peak Road as it were (and these are my words) in the shadow or under the protection of the container truck.

5. In my judgment if ever there was an admission of careless driving and negligence it was that admission, and on all of the evidence before me I have no hesitation in concluding that it was the Defendant's negligence that caused the accident that led to the Plaintiff's injuries and that there was no contributory negligence on the part of the Plaintiff, (who was driving along Castle Peak Road at a conservative speed) whatsoever. Accordingly, I hold the Defendant 100% responsible for the accident.

The Plaintiff's Injuries

6. During the course of this trial I have heard evidence from two specialist doctors, Dr. CHENG and Dr. Mao.

7. It is not disputed that as a result of the accident the Plaintiff sustained a fracture of the tibia plateau of the right knee which required surgery on 2nd June 1992 in the form of open reduction, bone grafting and internal fixation with screws, and that the Plaintiff was discharged from hospital after some weeks. Prior to the accident the Plaintiff had enjoyed excellent health and post operatively he made what is described as an uneventful recovery.

8. Both medical specialists have sought to estimate the degree of the Plaintiff's impairment and both appear to accept the difficulties complained of by the Plaintiff in respect of his inability to continue the employment in which he was engaged at the time of the accident i.e. buying and selling fruit and vegetables and transporting them for the purpose of sale.

9. Dr. CHENG tells me that the Plaintiff still has persistent pain and weakness and wasting of muscles and that such impairments are therefore permanent.

10. He assesses the degree of impairment suffered by the Plaintiff as follows:

1. Wasting of thigh muscle of more than 3 cm at 10% whole person impairment and at 24% lower extremity impairment

2. Wasting of calf muscle of 2 cm at 3% whole person impairment and at 8% of lower extremity impairment

3. Knee flexion deficit of about 5°at 4% whole person impairment and at 10% lower extremity impairment and

4. Tibrial plateau fracture with mild displacement at 5% whole person impairment and at 12% lower extremity impairment.

11. In evidence before me Dr. CHENG assesses the Plaintiff's total whole person impairment at 20% - not at 23% as his second report dated 14th December 1996 suggests.

12. He adds that the Plaintiff may find it difficult to work full time; that sedentary work would now be more suitable for him; and that it is possible that Ostearthritis in his knee may worsen.

13. Dr. CHENG estimates the Plaintiff's loss of earning capacity at 25%.

14. In his report of 14th May 1997 - confirmed in evidence before me - Dr. Mao estimates the Plaintiff's lower extremity impairment as follows:

1. Loss of muscle in thigh - 5%

2. Loss of full knee flexion - 4%

3. Arthritis in right knee joint - 5% and

4. Knee instability with pain - 5%

15. Dr. Mao concludes that the Plaintiff thus has a total of 19% impairment of the lower extremity which equals 8% impairment of the whole person, but that a further 1% should be added to the 8% for scars to other parts of the Plaintiffs body giving a total of 9% impairment of the whole person.

16. Dr. Mao estimates the Plaintiff's loss of earning capacity at 15%.

17. The impairment estimates given by the specialists are irreconcilable as too are the estimates of loss of earning capacity.

18. Having heard counsel on the significance or otherwise of those estimates based, as they are, upon textbook tables, it is my view that they are (given the other evidence before me) largely irrelevant to those matters which I am called upon to determine i.e. the general nature of the category of the disability; where within that category the disability falls and the type of employment to which the Plaintiff, following the accident, is now restricted.

19. In any event I am entirely satisfied - and indeed this has not been disputed on behalf of the Defendant - that as a direct consequence of the accident the Plaintiff could and can no longer continue his pre-accident employment and that his area of alternative employment is, to a not inconsiderable degree, now restricted. Since the accident the Plaintiff walks with a limp; he can no larger lift weights as he could previously; nor can he easily and with confidence drive his vehicle. Standing and walking for long periods causes him pain; carrying heavy objects or climbing stairs causes him particular difficulty and his right knee is weak so that it gives way suddenly, especially on stairs or slopes.

The Plaintiff's claims

20. In a schedule of special damages and future losses filed in this action the Plaintiff claims, in addition to damages for pain and suffering and loss of amenities, pre-trial loss of earnings; post trial loss of earnings with a multiplier of 12; hospital expenses; travelling expenses; the value of his vehicle; expenses in respect of tonic food, and interest. In his answer to the Plaintiff's schedule the Defendant does not agree to any of the Plaintiff's claims, which claims I will now address.

Pain suffering and loss of amenities

21. In her closing address to me Ms. Park submits that subject to the question of liability the Plaintiff's injuries fall within the lower end of the serious injury category. I respectfully agree. Ms. Park then proceeded to submit that the appropriate award in this case should be $400,000.00. That makes no allowance for inflationary increases since October 1995 when that figure was settled as being appropriate for injuries in that category.

The Plaintiff's claim for Loss of Earnings generally

22. Prior to the accident the Plaintiff was engaged in the buying and selling of fruit and vegetables. As I understand the position he had been engaged in this work for a little over a year. He would negotiate the purchase of fruit and vegetables from wholesalers; take delivery of that produce, load it onto his van and transport it to a market stall where he unloaded it and offered it for sale. He was not a licensed vendor but in reality a sublessor of the stall from the license holder. He paid the licence holder $3,000.00 per month and he himself paid for utilities such as water and electricity and part time lady assistants. The Plaintiff ran his stall for all but about 10 days a year. It was a cash business and the profit varied depending upon the season. Albeit that the Plaintiff could produce no documentary evidence of this, save some records of his expenditure to the wholesalers, he told me and I accept that his average monthly net income prior to the accident was about $20,000.00

23. I also accept, on the evidence before me, that the Plaintiff was unable to continue his business following the accident either by operating it himself as he had previously done or by employing someone else to run it for him.

Pre-trial Loss of Earnings

24. On behalf of the Defendant Ms. Park accepts in her closing address to me (and in my respectful view rightly so on the evidence) that a net income of $20,000.00 earned by the Plaintiff prior to the accident can properly be accepted as the basis for calculating the Plaintiff's loss of earnings claim. She takes issue however with the Plaintiff's claim of a 10% notional annual increase in that sum as being too speculative, and I confess to having some sympathy with that submission particularly given that the Plaintiff had only been engaged in his employment as a fruit/vegetable trader for a period shortly in excess of one year at the time of the accident.

25. Nonetheless, and again on the evidence before me, if the Plaintiff was earning (as it is now conceded he was earning prior to the accident) a net income of $20,000.00 from his business, it is plain to me that that income could reasonably have been expected to increase (by virtue of goodwill and increased turnover) by at least 8%. To suggest that the Plaintiff's net income would not have increased between 1992 and the date of trial is, with respect, to ignore realities. On the evidence of the Plaintiff about this matter, which I accept, whilst his anticipation of a 10% per annum increase in his net profit might be an expression of hope, it could not be said to be wholly unreasonable. An 8% increase however appears to me, doing the best that I can, to represent a more realistic figure.

26. Ms. Park has also submitted that there is no good reason presented to me why the Plaintiff should not have returned to some form of employment, albeit limited, at the end of the period of 18 months after he had been signed off for work rather than leaving it until May of 1995. Again, on the evidence before me, that submission has considerable force and I find that the period of 18 months is the maximum period for which the Plaintiff can properly claim total loss of earnings. Thereafter he could have found employment - difficult and limited though it may have been.

Future Loss of earnings

27. Mr. Hingorani for the Plaintiff has submitted that an appropriate multiplier would be 12. Ms. Park submits that it would be 7.

28. Having regard to tables and precedents presented to me during the course of this trial it is my view that the appropriate multiplier is 10 given the Plaintiff's age and his injuries and that is the multiplier which I adopt.

Special Damages

1. The hospital expenses are now agreed in the sum of $1,789.00.

2. The travelling expenses incurred by the Plaintiff in travelling by taxi to hospital he puts at $8,640.00 arising from 36 taxi fares at $240 per journey. In his evidence however the Plaintiff told me (and I fully accept) that for a person of his disability a taxi driver may or may not elect to convey him upon his journey and that the fare demanded of him would vary between $100 and $200. Based on that evidence, limited as it was, I accept Ms. Park's submission that I can do no more than award $100 for 50% of the taxi fares and $200 for the remaining 50% - i.e. a total of $5,400.00.

3. The cost of repairs to the Plaintiff's vehicle is now agreed at $19,000.00. The Plaintiff incurred this expenditure in or about October 1992.

4. The claim for Tonic Food made by the Plaintiff in the sum of $225,240.00 has caused me some difficulty. I have been helpfully referred to a number of authorities on this topic as follows: -

Yu Ki v. Chin kit Lam and Anor [1981] HKLR 419

King Light Industrial Ltd v. Lo Wai Keung [1994] 3HKC 54

Mar Yiu Keung v. Ho Cheung Kat [1995] 3HKC 575

29. I have considered those authorities. The principal difference between the evidence in those cases and the evidence before me is that I have been provided with specific and detailed invoices. Having considered the matter carefully it seems to me that I do no more and no less than adopt a pragmatic approach and assess the recoverable amount in respect of this aspect of the Plaintiff's claim at $20,000.00 there being little if any direct medical evidence in support of it.

Loss of past earnings

30. The Plaintiff's loss of earnings from the date of accident on 30th May 1992 to the last date of trial on 22nd October 1998 is calculated as follows, allowing as I do an 8% annual increase effective on the 1st January each year:

1.	Earnings at the time of accident	=	$20,000
2.	Earnings at the time of trial $20,000 x 108% x 108% x 108% x 108% x 108% x 108%	=	$31,737
3.	Media $31,737 + $20,000                       2	=	$25,868
4.	Full pre-trial loss $25,868 x 77 months	=	$1,991,836
5.	Less sums actually earned by the Plaintiff since May 1995 (41 months) or which could have been earned by him between the date of the expiry of his sick leave and May 1995 (18 months) i.e. 59 months in all	=	$324,500
6.	Pre-trial loss of earnings $1,991,836 - $324,500	=	$1,667,336

Loss of Future earnings

Summary

Special damages

Hospital Expenses
	$1,789
Travelling Expenses
	$5,400
Repairs to vehicle
	$19,000
Tonic Food
	$20,000	$46,189
		$5,336,965

31. There will be judgment to the Plaintiff in the sum of $5,336,965. Interest at 2% per annum for pain suffering and loss of amenities is awarded from the date of the service of the writ to the day of judgment. Interest at 6 1/2 % per annum from the date of accident, namely 30th May 1992, to the date of judgment in respect of past loss of earnings and special damages excluding those awarded for the repairs to the Plaintiff's vehicle. The sum awarded for the repairs to the vehicle will bear interest at 6 1/2 % from 17th October 1992 to judgment date (i.e. 72 months). I make an order for costs in

favour of the Plaintiff on a party and party basis.