WONG KA PANG JAMES v. WONG CHUN WANG

HCPI 644/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 644 OF 1998

_______________

_______________

______________________________________________

DECISION ON ASSESSMENT OF DAMAGES

______________________________________________

1. The Plaintiff claims against the Defendant for damages in respect of loss and damage suffered arising out of personal injury which occurred on 1st August 1995 when he was at work. The accident was alleged to have been caused by the negligence and/or breach of statutory duty and/or breach of terms of contract of employment on the part of the Defendant.

Background

2. At the time of accident on 1st August 1995 the Plaintiff was in employ by the Defendant for about 21 days as a light goods vehicle driver and also as a delivery worker earning $9,000.00 a month. At the time of the accident the Plaintiff was trying to load the goods onto the goods vehicle at No. 3 Container Terminal, Kwai Chung. The iron board which filled the gap between the vehicle and the Terminal platform gave way and the Plaintiff fell on the ground. The Plaintiff sustained injuries to the right ankle.

3. The Plaintiff took legal action in District Court under the Employees' Compensation Ordinance. It was stayed pending the outcome of the present proceedings.

4. The Writ in the present proceedings was issued on 17th June 1998 and Judgment in default of notice of intention to defence was entered on 14th October 1998. The Defendant attempted to set aside the Judgment but without success. Now it comes before me for Assessment of Damages.

The Evidence

5. The Plaintiff was born in Hong Kong on 18th June 1960 and received education up to Form 3 level. Since he left school he worked mainly in the delivery and transportation industry. He obtained driving licence for lorries and light goods vehicles in 1984, and since then he has been so employed.

6. The parties have agreed the Bundle of Documents for production. The Plaintiff has no other witness to give evidence except himself. He relied heavily on the medical reports that have been produced.

7. According to the Medical Report of Dr. N. Maffulli dated 22nd January 1996, the Plaintiff was an out-patient of the Department of Orthopaedics and Traumatology, Prince of Wales Hospital since 21st August 1995. The Plaintiff was treated in a short leg cast for a period of about one and half months from 21st August 1995 to 6th October 1995. When he was last examined on 12th January 1996, he was found to be "able to fully weight bear on his right ankle".

8. Based on Dr. Maffulli's report and the results of his own examinations, Dr. Lam Kwong-chin prepared two medical reports dated 26th July 1996 and 5th February 1999 respectively. The finding made by Dr. Lam in the first report was this : "He has regained all range of movement and walking ability. There is only some residual pain on stress. Such pain is expected after fracture and torn ligament around major joints." He further went on to state in the final paragraph of his last report and concluded : "The present loss in earning capacity is assessed to be 1%."

9. In his evidence the Plaintiff has complained that he still has residual pain on his right ankle when he lifted heavy articles for a long period of time. He can no longer play football, his favourite game which he used to pay before the injury. His employment has also been affected. After the injury he has worked at various places. His income was reduced.

Hearing

10. On 6th July 1999 when the case was first heard by me the Defendant was represented by Mr. R. Lau of Counsel who vigorously attacked the Plaintiff's evidence. Because of my diary the case had to be adjourned for 3 months when the case came before me again. The Defendant was no longer represented by Counsel, he acted in person on this occasion and did not care to appear to defend his case. Notwithstanding this those parts of the evidence that have been conceded by the Defendant shall remain as admitted and agreed facts.

Special Damages

11. The Defendant in the first hearing through his Counsel agreed the following items of Special Damages :

1. Medical Expenses	$3,560.00
2. Travelling	$786.00
3. Tonic Food	$3,000.00
4. Pain Killers	$300.00
Total :	$7,646.00

By consent I take this figure as Special Damages.

Pre-trial Loss of Earning

12. The Plaintiff worked for the Defendant for only 21 days before he met the accident. He claimed that his salary was paid monthly at a sum of $9,000.00, not at the daily rate of $300.00 per working day as alleged by the Defendant. The Defendant did challenge this but did not appear in the second hearing to substantiate it. I have to accept the Plaintiff's evidence and take $9,000.00 per month as his salary and also as the basis for calculation. I was urged to use 10% annual increase to calculate the projected income. I note that in the recent two years Hong Kong has had its recession. If I had been asked to project for a long period, I would have had some hesitation to take 10% as the rate of increase. But, it is only for the purpose of pre-trial loss. The Plaintiff has also indicated to abandon future loss of earning. Mr. Lam has also agreed to concede to use the median figure. For all these reasons I agree to use 10% increase and also to use the median figure as the monthly amount he would earn for the pre-trial period. I rely on the Plaintiff's calculation and take the figure of $11,088.45 as the would-be monthly income.

13. Mr. Lam regards 1st August 1995 to 31st July 1999 as the pre-trial period, a total of 48 months. The estimated income is :

$11,088.45 x 48 months = $532,245.60

14. It has not been challenged, and I accept it as my finding, that the Plaintiff's earning capacity was affected by the injury and he had only an income of $406,750.00. I therefore conclude that he has suffered a loss of $125,495.60 under this head.

Pain and Suffering and Loss of Amenities

15. The Plaintiff was out of work for a year before he found employment in August 1996. He has residual pain after a long period of carrying heavy objects. He used to play football but he could not do it now.

16. We must reckon that soccer is a vigorous sport. For a person at the age of 39, I doubt how often he played and the extent he would exert himself. My colleague, Master Kwan, in a High Court Action, 1995 PI No. 528, Chung Yiu Kwan v. Eagle Engineering Co. commented that "A 40 year old soccer player is unheard of ......" She observed that very few people played soccer beyond the age of 38. I agreed with her observation. Further, in this case there is little evidence to assist me to make a positive finding except the Plaintiff's bare assertion that he played regularly about once or twice a month. He had not joined any football team as a member, which a regular player does. He could not even mention the name of a single player, with whom he usually played. I have some reservation on that part of evidence. I did not have the benefit of cross-examination to test the truth what the Plaintiff said as the Defendant was absent but I must be very cautious not to make unnecessary emphasis on this loss.

17. Dr. Maffulli's observation is that the Plaintiff was able to fully weight bear on his right ankle. Dr. Lam's comment is : "After 9 months of treatment he has regained all range of movement and walking ability. There is only some residual pain on stress. Such pain is expected after fracture and torn ligament around major joints."

18. Mr. Lam urged me to take the leading case of Leung On and another v. Chan Pui-ki [1996] 2HKC 565 as the basis and reference point for assessment. With due respect to Mr. Lam I find that the cited authority has no bearing here. He asked me to take the lowest end of serious injury as the starting point i.e. $400,000.00. Mr. Lam conceded that the Plaintiff does not belong to "serious injury" category but he urged me to take half of the sum i.e. $200,000.00 plus 10% interest for calculation. I see no logic in it.

19. As Lord Diplock said in the Privy Council in Paul v. Rendell (1981) 34 ALR 569, "The assessment of damages in actions for personal damages is not a science." Mustill L.J further developed this in Cunningham v. Cumberwell Health Authority [1990] 2 Med LR 49, at 53 : "What happens in practice is that the Judge adopts an intuitive process buttressed by reference to previously decided cases."

20. Another case Mr. Lam refers to is Lam Kwai Yip v. Yuen Yun Kui, High Court Action 1994, No. A12617 (unreported) decided by Master Chu as she then was. In that case the Plaintiff was hospitalised for 8 days. His right foot was swollen with a fracture in the calcis. The fracture was treated with plaster. He had to walk with the aid of crutches for several months. There was the possibility of developing accelerated arthritis in future. Having taken all these factors into consideration, Ms. Registrar Chu awarded a sum of $250,000.00 for PSLA. I do not find any of those factors for Ms. Registrar to arrive at her decision exists in the present case.

21. I find $200,000.00 as suggested by Mr. Lam is grossly excessive and arbitrary. The cases he quotes have no reference value. I prefer to do my own assessment in the manner as suggested by Lord Justice Mustill. It is not disputed that the Plaintiff has suffered certain pain and inconvenience. He was not hospitalised. He followed his employer's advice to go to a bone-setter next day. I am not criticising him for so doing but I can safely conclude from this fact that the pain was not a serious one; otherwise, he would have received immediate treatment. He had a short leg-cast for one and half months. By January 1996 i.e. about half a year after the injury he had fully recovered and his right ankle could bear full weight. I accept that there is some residual pain. Unfortunately, both Dr. Maffulli and Dr. Lam have not made any assessment as to how long the pain will last and what type of treatment he should receive. Dr. Lam's comment was a casual one and in the first report he puts it in very mild term that he "might need treatment occasionally." In the Second Report Dr. Lam was very definite and stated : "No further specific treatment is necessary." My assessment is $150,000.00 for PSLA in this case. I have made reference to the case Lobo v. Kripalani, HCA PI 321 of 1996 (unreported) where the Plaintiff's Archilles tendon was deeply cut by the broken glass door. She was hospitalised for 8 days and had painful memory of the whole incident. At the time of hearing, about 3 years after the injury, she still had difficulty in climbing steps and getting up from squatting. She had weakness of the foot and some swelling; otherwise, she had fully recovered. On 23rd January 1998 Mr. Justice Seagroatt assessed PSLA at $150,000.00.

Loss of Future Earning

22. Mr. Lam has abandoned the claim for loss of future earning; the reason has not been disclosed to the Court. I do not intend to investigate into it.

Loss of Earning Capacity

23. According to the Statement of Damages filed herein the Plaintiff claims a loss of earning capacity "quantified as one month's earnings per year". Mr. Lam took the monthly salary before injury as the multicand and used the multiplier of 12. I asked him for the reason. He admitted that it was an arbitrary figure. He used Lau Che Ping v. Hoi Kong Ironwares Godown Co. Ltd. [1988] 2 HKLR 650 at 656 as authority. There, Cons, Acting C.J., used the difficulty in finding job as the yardstick. He said, "...... it is to be expected that in normal circumstances an able-bodied man will be able to find replacement employment more quickly than will a disabled man. The difference in the time taken is a true reflection of the latter's handicap in the labour market."

24. In the present case, the Plaintiff has been employed as driver cum delivery man. He is now 39 years of age. For the period of pre-trial loss of earning he has been awarded full salary, not at a reduced rate for sick leave. With increase in age he will not be expected to carry heavy load in any event as delivery man. This may be the reason why Dr. Lam commented : "Because of the residual pain, he might have slight limitation in efficiency and might need treatment occasionally." He assessed the loss in earning capacity to be 1%. I have asked Mr. Lam to try the Employee's Compensation assessment for me as reference. His reply is that Employee's Compensation has no relevance to the common law claim. He does not wish me to go down such route. As it is party's choice and I have no objection using the method of assessment in Lau Che Ping v. Kong Ironwares Godown Co. Ltd. How much more time would he need to find a job than a normal able-bodied person would? My assessment is three months. It will not be fair to use the salary before injury. The Plaintiff has accepted the meridan figure of $11,088.45 to calculate the loss of earning. I should adopt this figure and multiply it by three months. I get the result of $33,265.35.

Conclusion

Pain, Suffering and Loss of Amenities	$150,000.00
Special Damages	$7,646.00
Pre-trial Loss of Earning	$125,495.60
Loss of Earning Capacity	$33,265.35
	$316,406.95

Judgment

25. I give final judgment in favour of the Plaintiff against the Defendant for the sum of $316,406.95 together with interests calculated in the following manner :

(i) Interest on the sum of $150,000.00 (being the damages for pain, suffering and loss of amenities) at the rate of 2% per annum from the date of writ (i.e. 17th June 1998) to the day of this judgment;

(ii) interest on $133,141.60 (being the aggregate sum for special damages and pre-trial loss of earning) at the rate of 5.77% per annum from the date of accident (i.e. 1st August 1995) to the day of this judgment;

and (iii) further interest on the sum of $316,406.95 from the day hereafter until full payment at the judgment rate.

26. I also make an order nisi in respect of costs as follows :

(a) costs of this whole action to the Plaintiff with Certificate for Counsel unless it has been otherwise ordered;

and (b) the Plaintiff's own costs to be taxed in accordance with Legal Aid Regulation.