LAM TAI SUN v. CHOW KAM WAH

1987 No.A5040

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The Plaintiff was working as a godown-keeper at the Agincourt Godown on 31st July 1986 when he was knocked down by a reversing light goods vehicle driven by the Defendant. The writ was issued on 22nd August 1987, and interlocutory judgment for 80% of the liability was entered by consent on 20th May 1988 for damages to be assessed.

2. The Plaintiff's claim for hospital charges ($220.00), out-patient and physiotherapy charges ($78.00), travelling expenses of the Plaintiff and his wife ($102.00 and $194.40) and the cost of a pair of spectacles ($100.00) were agreed. Three bundles of documents, titled "Agreed Rundle of Documents", "Plaintiff's Bundle of Pleadings" and "Plaintiff's Bundle of Documents" were handed up by the Plaintiff at the assessment. Documents in the bundle titled "Plaintiff's Bundle of Documents", consisting of bone-setters' receipts, medical reports of Dr. No and Dr. Hodgson and Certificate of Plaintiff's employment issued by Lee Man Godown were not formally produced by any witness. The admissibility and authenticity of the two medical reports were agreed to by the Defendant. As no point was taken by the Defendant as to the lack of formal production of the rest of the documents in this bundle, the whole bundle is to be taken as properly produced before the court.

3. The Plaintiff gave evidence and called as his witness one Wong Kong Hin, the director and manager of his present employer the Lee Man Godown. The Defendant called no evidence.

Pain, Suffering and Loss of Amenities

4. The Plaintiff was found to have mild tenderness over the right side of the face, chest and the right elbow; with moderate swelling and severe tenderness of the right shoulder. On X-ray, fracture neck of the right humerus and undisplaced fracture of the right 6th rib were found. He was treated with collar and cuff and was discharged after 13 days in hospital. He said he received physiotherapy treatment for a week though the report of Dr. Ho (the doctor in charge of the Plaintiff at the United Christian Hospital) stated the Plaintiff still to be having "regular physiotherapy treatment" at the date of the report on 23rd September 1986. The Plaintiff said he attended the hospital as an out-patient until 23rd December 1987; but the out-patient card dated 31st July 1986 (item No.3 in the Agreed Bundle) recorded only a total of six visits between 24th September 1986 and 8th July 1987. Dr. Hodgson's report dated 26th March 1987 revealed that he complained of constant ache in the right shoulder and stiffness of the right hand at that time. He complained at the assessment of inability to carry things well with his right hand which is his preferred hand, and feeling tired after writing for a period of time. In cross-examination he complained of pain, numbness and trembling of right hand when the weather changes. There is definite muscle wasting in the deltoid region of the right shoulder joint and slightly in the upper arm. He was diagnosed by Dr. Hodgson to have suffered a 22.5% impairment of the upper arm (due to reduced mobility of the shoulder) and a loss in strength of the hand. This amounted to a 13% impairment of the Whole Man. The rib fracture had healed well. Dr. Hodgson's prognosed the Plaintiff's condition to be static. The Plaintiff is aged 64.

5. Mr. Wong for the Plaintiff submitted that this case should come within the bottom end of the "serious category" of Lee Ting Lam v. Leung Kam Ming 1980 HKLR 657. The range of awards under that category as adjusted by the recent Court of Appeal decision in Lau Lau Che Ping v. Hoi Kong Ironwares Godown Co. Ltd. C.A. No.12 of 1988 (judgment given on 22nd July 1988) should be between $135,000.00 to 180,000.00. It was submitted by Mr. Ozorio for the Defendant that the present injuries and disability of the Plaintiff would not put him even within the bottom category of Lee Ting Lam's case. He referred me to Cheung Sze Yuen v. Wong Chi Cheung H.C.A. Fo.2486 of 1984 ($30,000.00 for a 7% impairment of arm and 4% impairment of Whole Man of a Plaintiff aged 31 in March 1986), Chan Yuk Lee v. Chan Chin Ying H.C.A. No.A235 of 1985 ($65,000.00 for a 14% impairment of the Whole Man of a Plaintiff aged 63 in May 1988), Ho Wing Chu v. Chan Kwok Keung 1988 HKLR 95 ($110,000.00,for a 9% impairment of the Whole Man for a Plaintiff aged 63 in July 1987), Ip Au Chiu v. Wong Chun Fai H.C.A. No.7100 of 1984 ($37,000.00 for a 3% impairment of the Whole Man for a Plaintiff probably below 35 of age who had spent two months in hospital, award in March 1987), and Mak Chi Cheung v. Cheung Kwai Yui H.C.A. No.A1864 of 1986 ($70,000.00 for a 5% impairment of the Whole Man for a Plaintiff aged 61 in March 1987). The Plaintiff had also referred me to Wong Kam Man v. Wong Kam Chuen H.C.A. No.3642 of 1983 ($30,000.00 for a Plaintiff aged 23 with no permanent disability after fracture of the humerus, tibia and fibula, award in July 1985, Chui Kit v. Tong Yiu Kay H.C.A. No.7692 of 1982 ($60,000.010 for a 16% impairment of the Whole Man for a Plaintiff suffering restricted ankle movement and aged 62 in December 1982), and Hung Kin Fai v. Koo Kin Chung H.C.A. No.12207 of 1983 ($32,000.00 for a 12% impairment of the Whole Man for a Plaintiff suffering muscle wasting and restricted elbow movement and aged 27, award in June 1985). A simple comparison of the percentage of impairment of the Whole Man per se can be misleading in assessing an award under this head. The effect on the mobility, and the nature of mobility affected, the age of the Plaintiff and his hobbies and habits, the medical treatment given and the nature of the injury and suffering have all to be taken into account. There is no evidence as to the hobbies of the Plaintiff and he is aged 64. After taking all matters into account I award $65,000.00 under this head.

Loss of Earnings

6. The Plaintiff was given sick leave until 19th November 1986 after which he immediately resumed his former job with Agincourt Godown. The Godown closed down in February 1987 and the Plaintiff became unemployed after 14th February 1987. He found employment as a tally clerk with his present employer the, Lee Man Godown on 24th March 1987. He was first paid a salary of $2,300.00 a month which was subsequently increased to $2,500.00 in July 1987 after the probation period. His salary was further adjusted to $2,700.00 in December 1987 and to $2,850.00 since June 1988. The Plaintiff said his salary was $3,000.00 at the time of the accident with no overtime or other allowances. However in Form 2 filed by Agincourt Godown pursuant to s.15 of the Employees' Compensation Ordinance the Plaintiff's salary in July 1986 was stated to be $3,000.00 plus "regular overtime" payment of $105.00 per month. I accept $3,105.00 as the Plaintiff's salary at the time of the accident.

7. Despite the claim for the difference in salary for the period between 15th February 1987 to date of assessment in the Particulars of Damages filed pursuant to the Practice Direction dated 29th November 1984, the Plaintiff conceded at the assessment that he did not lose his job as a result of the accident as he resumed his former employment immediately after the end of his sick leave. There is, in the premises, no claim for loss of earnings apart for the period of sick leave. Instead, the Plaintiff claimed for loss of earning capacity or handicap in labour market at 12% a figure based on the suggestion of Dr. Hodgson in his medical report dated 26th March 1987.

8. In the premises, I award the sum of $11,281.50 for loss of earnings during the sick leave period (the figure of $10,246.50 pleaded in the Particulars of Damages is a mistake as $3,105.00 x 3 19/30 = $11,281.50).

Loss of Earning Capacity/Handicap in Labour Market

9. The Plaintiff relied on the 12% assessed both by the Medical Assessment Board and Dr. Hodgson. Plaintiff said he can work up to 70 as a tally clerk. Mr. Wong suggested a multiplier of 5, citing the case of Chui Kit supra where a multiplier of 6 was awarded to a rubbish collector aged 62 at time of assessment. Mr. Ozario submitted no damages would be recoverable as there was no evidence to suggest any likelihood of the Plaintiff losing his job with his present employer. Reliance was placed on the well-known case of Moeliker v. Reyrolle 6 Co. Ltd. [1977] 1 WLR 132.

10. The Plaintiff said the nature of his present job as a tally clerk is to check stocks, and he would get tired easily after writing for a period. P.W.2, Wong Kong Hin, the director of his present employer said the Plaintiff is a sort of coolie responsible to clear space for storage of goods and to locate goods for delivery. He said the Plaintiff need not keep records. There is a clear divergence between the Plaintiff and P.W.2 as to the nature of the Plaintiff's present job. I accept Plaintiff's evidence that his job is more clerical than manual. There is no evidence from either the Plaintiff or P.W.2 that the present employer is not satisfied with the performance of the Plaintiff in his job despite his disability.

11. I have referred counsel to an assessment of mine on 7th October 1987 in Kong Sze Chung v. Sundo Garments Factory Ltd. H.C.A. No.2734 of 1984 in which I have dealt with in some detail the authorities on the requirement of evidence to establish a claim under this head. On the authorities of Moeliker v. Reyrolle & Co. Ltd. supra and Li Ping Sum, v. Chan Wai Tong [1985] HKLR 176, it is clear that some basis is required for the recovery of such damages and it would not be proper for a "conventional sum" to be awarded in the absence of an established basis for such a claim. In some cases, the basis is obvious e.g. substantial shortening of a leg or lost of considerable movement of a hand of a young and unskilled factory worker. It can readily be accepted that he would face real risk of losing his job and if he does there would be considerable difficulty in finding a new job. In less obvious cases, evidence would usually be required to substantiate the two risks referred to by Stephenson L.J. at pg.144 in Moeliker's case supra, i.e. risk of losing existing job and difficulty in finding a new one.

12. In the recent case of Lau Che Ping v. Hoi Kong Ironwares Godown Co. Ltd. C.A. No.12 of 1988, the Court of Appeal has the opportunity to examine the law and basis for such a claim. The Plaintiff in that case suffered a below knee amputation of the left leg and was fitted with a prosthesis. He can walk without the aid of sticks or crutches, but with a decided limp. He felt pain in the stump after wearing the prosthesis for a few hours. He can walk around quite well though slower than before and have difficulty with stairs and using public transport. Evidence from Labour Department's Selective Placement Division indicated that the Plaintiff should be able to find a job as a watchman, lift operator or packer within one or two months at the salary of $2,000.00 to S2,500.00 per month. An award was made in the sum of $400,860.00 for his loss of future earnings ($4,477.00 - $2,250.00 x 15). The trial judge refused to make an award for loss of earning capacity. On appeal, the Court of Appeal .awarded $15,000.00 under this head on the basis of a 15 years working life and a loss of monthly salary at the rate of $4,477.00 (what he could have earned but for the injuries, and not $2,250.00). The Plaintiff was unemployed at time of trial and thus there could be no evidence of the likelihood or otherwise of his losing any existing employment. However, the Court of Appeal readily accepts that "it is not unlikely' in the natural order of things, the Plaintiff should from time to time within the next 15 years lose the employment he is then in and have to wait on any such occasion several months before the Labour Department can find further employment for him ...." (per Cons, Ag. C.J.at pg.11 of the judgment). The Plaintiff is a young man though the exact age was not disclosed in the judgment of the Court. $15,000.00 is about 3 ½ months of the "should-be" salary of the Plaintiff.

13. In the present case, there is no evidence that the Plaintiff is likely to lose his job. There is no evidence of any complaint about his performance. Despite the prognosis of Dr. Hodgson that his condition is static, it appears from the evidence of the Plaintiff that his condition has somehow improved (e.g. constant ache becomes occasional on change of weather). The nature of his present employment, and according to the tenor of his evidence his only intended employment as a tally clerk is such that his present disability has little effect on his performance. He would easily get tired after writing for a period. He is not required to lift weights. His job is to check stocks. He is aged 64. He was able to find his present job about six weeks after he lost his old job despite being 63 at that time. A multiplier and multiplicand approach is not appropriate in the present case in view of the above matters. In Moeliker's case the Court of Appeal upheld an award equivalent to six months wages under this head for risks the trial judge found to be "very remote indeed." The Plaintiff in Moeliker was aged 45 at the time of trial. Taking all matters into account, I find the risks of the Plaintiff losing his job during the few years left in his working life and to be unable to find new employment as tally clerk to be very remote. In the premises, an award of $5,000.00 is made under this head.

Bone-setters' Fees

14. The Plaintiff was asked to attend out-patient physiotherapy treatment upon discharge from hospital. As the Plaintiff felt painful after ice-pack was put on his shoulder and elbow he decided to quit physiotherapy after one week. He sought bone-setters treatment between 12th August 1986 and 3rd February 1987. The first two bone-setters he consulted (between 12th August 1986 to 24th September 1986, and 25th September 1986 to 8th November 1986 for a total of 89 visits) were unable to improve his condition. He said the third bone-setter was able to restore more mobility to his hand after 83 visits (between 9th November 1986 and 3rd February 1987). A total of $15,900.00 was claimed in respect of the bone-setters' fees. $1,120.00 is claimed for travelling expenses to the bone-setters. The fact of incurrence of the said sums and the quantums are not disputed by the Defendant. The Defendant, however, does dispute the propriety of recovery of such expenses. It was held in Yu Ki v. Chin Kit Lam [1981] HKLR 419 that "(It is) reasonable for any person of Chinese race to decide at any stage that Chinese herbal medicine or the attention of a bone-setter are likely to be beneficial, whether or not he has previously sought conventional medicine and treatment, or is still receiving it. If he does so, he should be entitled to the reimbursement of reasonable fees for the Chinese treatment as well as for the conventional treatment." (per Roberts, C.J. at pg.422). In so holding, Roberts C.J., refused to follow the decision in Kwan Mei King v. Au Hong Keung [1972] HKLR 352 that costs of Chinese medicine is only recoverable if it has been shown to be beneficial and does not overlap with conventional treatment. In Yu Ki supra, the two types of treatment overlapped in respect of a period. "The Plaintiff, though she did not in terms assert that she believed that the bone-setter would do her good, would not have attended him unless she had believed this would be of some benefit to her. I see nothing unreasonable in such a belief." (at pg.422). A sum of $900.00 was awarded to the Plaintiff in that case (for 30 visits to a bone-setter). The Plaintiff in the present case did not make complaint or sought advice from the doctor as to the physiotherapy he was receiving when he attended the out-patient service. He had not really given any chance to the physiotherapy treatment he was to receive. However, I do associate myself with the former Chief Justice to find that it would be reasonable for a Chinese to seek traditional bone-setter treatment in respect of injuries to the bone. The belief in the benefit of such traditional treatment is deep-rooted amongst Chinese, especially those of advanced age, in Hong Kong. However, I find no justification in the Plaintiff attending the first two bone-setters at such frequency and for such a long period when their treatment was, as he said, apparently not effective at all. He gave physiotherapy only a week. The reasonableness involved in seeking treatment from any particular bone-setter is quite different from consulting a registered medical practitioner. There is no qualification required for a bone-setter to set up a practice. There is no statutory body to regulate the standard. Whatever private volunteer associations that exist in respect of bone-setters are fragmented, with no recognised or accepted standard laid down, or any regulatory power or control over practitioners. In the present case, no evidence was called as to the qualifications or experience of the bone-setters, and the only bone-setter who apparently was of any good was the third one. In the premises, I would only accept the costs of the treatment given by the third bone-setter as being reasonably incurred and recoverable. The sum awarded is $8,300.00 ($100.00 x 83). I also aword travelling expenses at the rate of $5.20 per day for 83 days.

15. A sum of $2,000.00 is being claimed in respect of nourishing food the Plaintiff took for a four months period at intervals of three times a week. I find that to be reasonable and make an award in that sum.

In the premises, the total amount of damages awarded is $48,898.20.

(1) Loss of past earnings	$11,281.50
(2) Bonesetters' fees	$8,300.00
(3) Travelling expenses re. bonesetter	$431.60
(4) Hospital charges	$220.00
(5) Out-patient/physiotherapy charges	$78.00
(6) Travelling expenses re. out-patient	$102.00
(7) Travelling expenses of Plaintiff's wife	$194.40
(8) A pair of spectacles	$100.00
(9) Nourishing food	$2,000.00
(10) Pain, suffering and loss of amenities	$65,000.00
(11) Loss of earning capacity	$5,000.00
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	$92,707.50
Less (i) Employees' Compensation	$25,267.80
(ii) 20% contributory negligence	$18,541.50
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	$48,898.20
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16. Interest at the rate of 3 ¹/₁₆%, per annum will run on the sum of $18,166.00 (80% of $11,289.50+$8,300.00+$431.60+ $220.00 +$78.00 + $102.00 + $194.40 + $100.00 + $2,000.00) from the date of accident to the date of assessment and at the rate of 2% per annum on the sum of $52,000.00 (80% of $65,000 00) from the date of the writ to the date of assessment. I will hear the parties on costs.