Chan Cheuk Yiu v. Chan Ho Kwan

HCPI 879/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 879 OF 2000

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ASSESSMENT OF DAMAGES

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1. This is an assessment of personal injuries compensation. Interlocutory judgment on liability was granted on 6 February 2001 in favour of the plaintiff for damages to be assessed.

Personal Particulars of the Plaintiff

2. The plaintiff was born on 26 March 1977. He was single and was a wielder by occupation. Prior to the accident he also worked as a part time delivery worker for Pizza Hut.

The Accident & the Injuries

3. On 20 February 1999 whilst delivering pizza the plaintiff had a collision with the taxi driven by the defendant. The defendant was subsequently convicted of careless driving and was fined a sum of HK$1,500.

4. Right after the accident the plaintiff was admitted into the Queen Mary Hospital. He sustained head, right wrist and right knee injuries. A fracture was discovered on the distal radius of his right wrist. A 5cm laceration was found at the antero-lateral joints of his right knee to the level of the surface of the joint. The cartilage of the knee joint and the fibular collateral ligament were intact. The plaintiff was given close reduction and short arm plaster for his fractured radius. Debridement, irrigation and sutures were carried out on his knee.

5. His post-operative recuperation was uneventful and he was discharged from the hospital on 1 March 1999. The plaintiff defaulted follow-up consultations since 29 March 1999.

6. There was no dispute that the plaintiff had fully recovered from his head injury. There was, however, disagreement between the plaintiff and the defendant about the extent of the plaintiff's remaining physical disability resulting from his injuries.

7. Dr. Brian CHAN who examined the plaintiff diagnosed the plaintiff to have a disfiguring scar on the lateral aspect of his right knee, a residual stiffness in his right wrist and a reduced degree of mobility of his right knee. He assessed the plaintiff to be suffering from a 5% disability on account of his wrist and knee injuries.

8. Dr. LAM Kwong Chin, orthopaedic surgeon acting on behalf of the defendant, came to a slightly different view. He found local tenderness on the plaintiff over the ulna styloid region, but he found no significant reduction in the range of motion or detectable weakness on the plaintiff's wrist. He found no laxity at the distal radio-ulnar joint. He was of the opinion that the plaintiff suffered no ratable impairment at his wrist. Nonetheless he did detect mild deficiency in the plaintiff's weight bearing power in his right lower limb on account of his knee injury. The plaintiff was found to experience a grinding pain on his patello-femoral joint. He assessed the plaintiff to be suffering from a 2% disability.

9. During the hearing the parties agreed, after medical evidence was heard, that the plaintiff suffered no ratable disability on his wrist. The residuary effect the injuries had on the plaintiff was a mild limitation on the flexion and exertion of his right knee. A marginal osteophyte was present medially at his right knee joint, with slight compartment narrowing. He was not able to bend his knee to the full extent. The plaintiff also had reservation in climbing scaffold and stairs.

10. A tape, though recorded in a slightly convoluted time sequence, was played in court. The recording generally showed the plaintiff to have a reasonable degree of mobility and was riding his motor-cycle from place to place. As depicted in this short recording, the plaintiff's knee injuries did not seem to have affected him in his day-to-day activities.

Pain, suffering and loss of Amenities

11. The plaintiff sustained head, right wrist and right knee injuries with fracture to his distal radius of his right wrist and 5cm laceration at his antero-lateral knee joint of his right knee. He was hospitalized for about 10 days with debridement, irrigation and sutures done to his knee and close reduction and short arm plaster for his right wrist. He was granted 3 months of sick leave from 20 February 1999 to 27 May 1999. He has fully recovered from his head and wrist injury. The knee injuries resulted in reduced mobility in the plaintiff's right knee.

12. He used to play football once or twice a week. After the accident he no longer played football.

13. I found the injuries sustained by the plaintiff fell below the category of serious injury. After considering various authorities, including Chan Chung Lop HCPI-327/96; Mak Ping [1995] 3 HKC 558; SO Chung Kwong HCPI-527/98 I award the plaintiff a sum of HK$145,000 for his pain, suffering and loss of amenities.

14. Counsel representing the plaintiff fairly conceded, that in light of the recent successive years of economic depression, adjustment of the CHAN Pui-kei level of compensation was unnecessary.

Loss of Accrued Earnings

15. The plaintiff testified that prior to the accident he worked as a wielder with Ocean Engineering Company for a monthly average of 26 days at HK$700 per day. The plaintiff 's testimony on his pre-accident income was cross-examined at length since his income was not supported by any employer's tax return or corresponding bank deposits. The plaintiff explained there was a lack of bank entries because he often received payments from Ocean Engineering Company in cash. On balance I accept the plaintiff did earn a daily wage of HK$700 taking into account the experience he had in the wielding service industry. I also accept he worked 26 days a month on average.

16. The plaintiff also worked as a part-time delivery worker for Pizza Hut. The plaintiff's evidence on his Pizza Hut income was confusing. Apart from his hourly pay of HK$35 and the average monthly tips of HK$750 which were clear and consistent, his hours of work differed between his witness statement, his verbal account in court and his employer's tax return. I found the information contained in his employer's tax return to be the reliable source of information and accept that the plaintiff earned a sum of HK$14,515 for the period from 19/12/98 to 31/3/99; representing a monthly average of HK$4,147. Coupled with the monthly tips of HK$750 he earned HK$4,897 from his Pizza Hut work.

17. After the accident the plaintiff engaged in the following work:-

(a) Hong Kong Tramways

The plaintiff joined the Hong Kong Tramways Limited on 3 May 1999. He started his employment with Hong Kong Tramways by attending a 2 weeks tram maintenance course ran by Thermit Australia Property Limited. He left Hong Kong Tramways shortly afterwards as he found the work required him to bend his knee. From the tax return filed by Hong Kong Tramways the plaintiff was paid a total of HK$15,734 for the period from 3 May 1999 to 26 June 1999.

(b) Ocean Engineering Co.

The plaintiff returned to Ocean Engineering Co on 27 July 1999 and worked for 2 days with the company before he decided to leave the job as he no longer had the confidence to climb the scaffold after he sustained his knee injuries in the traffic accident. He earned HK$1,400 for his 2 days work.

(c) Hung Fat

After his employment with Hong Kong Tramways, the plaintiff worked for about 2 months with a company called Hung Fat. According to the tax return of Hung Fat the plaintiff was paid a sum of HK$26,520 for the financial year of 1999/2000;

(d) Pizza Hut

The defendant was encouraged to return to work for Pizza Hut after the accident. He resigned after working for 14 days as he felt he could not climb the stairs and it might not be possible for the company to accommodate his knee injuries by assigning delivery jobs to buildings with lifts only. He earned HK$2,660 (HK$35 x 4 hours a day x 14 days + HK$700 tips)

(e) K-wah Construction Co.

The plaintiff secured a job with K. Wah Concrete Company as a wielder since 22 February 2000 and was still working for the same company on the day of this assessment hearing. In this job he was mending the barrows of the cement mixers and he was not required to climb scaffolds. According to the tax return filed by K-wah the plaintiff's emoluments were as follows:-

For the period of 22/2/2000 - 31/3/2000

(i) basic salary of HK$14,540

(ii) travelling allowance of HK$350 for the period of 22/2/2000 - 31/3/2000.

For the period of 1/4/2000 - 31/3/2001

(i) basic salary of HK$139,622

(ii) bonus of HK$11,000; and

(iii) traveling allowance of HK$3,580

18. According to the data, the plaintiff was earning HK$12,850 [1/12 ($139,622 + $11,000 + $3,580)] per month from K-wah for the year of 2000/2001. The income of the plaintiff for April and May 2001 would be HK$25,700 (HK$12,850 x 2). The total pre-trial income the plaintiff received from K-wah was HK$194,792 (HK$14,540 + HK$350 + HK$139,622 + HK$11,000 + HK$3,580 + HK$25,700).

19. The plaintiff accepted he was assigned duties to deliver pizza to buildings with lifts and to distribute pamphlets by Pizza Hut after the accident. Hence his election to leave the Pizza Hut job was self-generated rather than occasioned by his knee disability.

20. Had the plaintiff not received his injuries his income for the pre-trial period from 20 February 1999 to 18 May 2001 (27 months) would have been:-

(a) HK$491,400 [(HK$700 x 26 days) x 27 months] as a wielder;

(b) HK$12,243 (HK$4,897 x 2 1/2 months during the period he was on sick leave from 20 February to 2 May 1999 ) as a part-time delivery worker for Pizza Hut. Though the plaintiff was granted sick leave till 27 May, he in fact had the ability to resume work on 3 May 1999; and

(c) HK$2,660 for the 14 days he worked for Pizza Hut before his resignation.

21. The pre-trial earning that the plaintiff would have fetched without the accident would be HK$506,303 (HK$491,400 + HK$12,243 + HK$2,660). The total sum of wages actually taken home by the plaintiff during the same period were HK$241,106 (HK$15,734 + HK$1,400 + HK$26,520 + HK$2,660 + HK$194,792). Hence the plaintiff's pre-trial loss of accrued earnings was HK$265,197 (HK$506,303 - HK$241,106)

Loss of Future Earnings

22. The plaintiff was aged 22 at the time of the accident and aged 24 at the day of the hearing. Parties have agreed that the multiplier to apply should be 15. I accept his pre-accident monthly income to be HK$18,200 (HK$700 x 26). At the day of this assessment hearing he worked for K. Wah Construction Company as a wielder with a monthly income of HK$12,850. His loss of future earning would be HK$963,000 [(HK$ 18,200 - HK$12,850) x 12 x 15].

Loss of Earning Capacity

23. The loss of knee mobility of the plaintiff was minor. His knee disability was unlikely to substantively affect his performance. I find the plaintiff's risk of losing his job on account of his knee injury to be marginal. I award him a sum of HK$25,000 for his loss of earning capacity.

Loss of Mandatory Provident Fund

24. Since December 2000 the plaintiff would be entitled to 5% of the contribution of his income from his employers. His loss of employers' contribution to his mandatory provident fund would be HK$ 49,755; being the total of HK$1,605 [5% ($18,200 - $12,850) x 6 months] for the period of December 2000 to May 2001 and HK$48,150 [5%($18,200 - $12,850) x 12 x 15] for the period from June 2001 onwards.

Special Damages

25. The defendant was willing to accept liability in respect of the sum of HK$1,796 of medical expenses and travelling expenses incurred by the plaintiff.

Award

26. I accept the following represent a fair and reasonable assessment of the plaintiff's damages:-

(a) Pain, Suffering and Loss of Amenities	145,000
(b) Loss of accrued earnings	265,197
(c) Loss of future earnings	963,000
(d) Loss of earning capacity	25,000
(e) Loss of mandatory provident fund	49,755
(f) Medical and travelling expenses incurred	1,796
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	HK$1,449,748
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27. I award interest on the pain, suffering and loss of amenities compensation at 2% per annum from the date of the writ to the date of judgment. Interest on the loss of accrued earnings, medical and travelling expenses is granted at half the judgment rate from the date of the accident to the date of judgment.

28. I also grant an order nisi on costs, to be taxed if not agreed, in favour of the plaintiff against the defendant for the present assessment hearing. The plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.