LEE MIU LING v. WONG NIM CHEE AND ANOTHER

1984, No. 1947

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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ASSESSMENT OF DAMAGES

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1. On 3rd March 1983, the Plaintiff, Madam Lee Miu Ling, was driving a taxi along Wo Yi Hop Road, Kwai Chung and had stopped at a junction, when the taxi was struck from behind by a bus, owned by the 2nd Defendant and driven by the 1st Defendant, causing damage to the taxi and injuries to the Plaintiff's neck.

2. Proceedings were commenced on 22nd March 1984 and had progressed to the stage of setting down for trial when upon liability being admitted by the Defendants, judgment was entered by consent for damages to be assessed.

3. At the outset of this hearing I was informed by Counsel that agreement as to damages had been reached between them in respect of the following matters :-

The only matters, therefore, remaining in issue were :-

4. Three medical reports were agreed and produced, namely the report from the Medical Assessment Board dated 18th November 1983, a report by Dr. R.G.M. Wedderburn dated 1st March 1985, and a report by Dr. P.A.L. Horsfall dated 13th July 1984.

5. For the purpose of this assessment I do not need to go into the medical details save to say that the Plaintiff suffered a fracture of the second cervical vertebra which has united in good position, with residual restriction of movement which, the doctors agree, prevents her from resuming her pre-accident occupation as a taxi driver, and leaves her with a loss of earning capacity of between 10% (Dr. Horsfall) and 15% (Medical Board and Dr. Wedderburn).

6. It was also agreed between the parties that, if applicable in this case, an appropriate multiplier would be 10 years from the date of hearing.

7. The first question therefore to be determined is what the Plaintiff's earnings were, prior to the accident.

8. The sum claimed as loss of earnings in the Statement of Claim, and now claimed by the Plaintiff, who was the only witness called to give evidence, is $3,500.00 per month. However, the matter is complicated by the fact that the Plaintiff was also the owner (as pleaded) or half owner (according to her evidence) of the taxi in question.

9. The Plaintiff, Madam Lee, gave evidence that she had been driving taxis on a full-time basis since 1979, having left school at the age of 12, and subsequently had a number of jobs as an odd-job and then sewing worker in wig and garment factories.

10. The taxi in question was bought in 1980 on hire-purchase over 6 years with monthly instalments of $4,400.00. Madam Lee said that, although the taxi was registered solely in her name, it is operated as a business in the name of Kam On (or Ram On) Taxi Co. in which she and her younger brother are equal partners.

11. However, no business registration certificate was produced or, indeed, any other documents or accounts in relation to this company or its dealings in respect of the taxi.

12. Madam Lee's evidence was that the only drivers of the taxi were herself and her husband. She did the "morning" shift, from 6.30 a.m. to 4.30 p.m., six days a week, and her husband did the night shift usually seven days a week. The remuneration for herself and her husband as drivers was on a "split profit" system whereby from the total takings of each shift, from the first $60.00 the driver took $25.00 and the owner $35.00, and the balance would be divided equally between owner and driver. Madam Lee claimed that turnover averaged $280.00 on the morning shift in 1983, giving her net earnings of $135.00 each day, or $3,510.00 for the 26 days a month she worked. The owners share of the profits would be divided between herself and her brother as partners in the business.

13. In spite of the lack of documentary evidence, I accept that the taxi was run as a joint business venture with the Plaintiff's brother. Indeed, it is apparent that it was a purely family concern between the Plaintiff and her husband and the Plaintiff's brother. It appears to me likely that this is the reason for the lack of accounts or other documentary evidence relating to the business where the arrangements between them were mainly informal and conducted on a basis of trust.

14. I find it more difficult to accept the Plaintiff's evidence as to her earnings as a driver. In view of the lack of formal accounting between the parties to this family taxi business, I am not satisfied that she knew precisely what these earnings amounted to. It is for this reason that I give little weight to that part of her statement to the police dated 13th March 1983 which was put in evidence by agreement, and in which she stated that her monthly salary was $2,500.00 per month.

15. The best guide that I have is the average figure agreed by Counsel for both parties for a taxi driver on the split profit system in March 1983 which is $3,250.00 per month, the agreed average today being $3,650.00 per month.

16. I accordingly find that the Plaintiff's earnings as a driver at the date of the accident were $3,250.00 per month.

17. This, of course, is only part of the financial picture, as the Plaintiff had in addition income and expenses as part-owner of the taxi business.

18. The gross income for the business from fares, on the basis of the agreed average driver's earnings and the evidence of the Plaintiff as to the division of profits from each shift, I assess at $6,900.00 per month, i.e. two shifts per day, each earning slightly more than the drivers share.

19. From this figure the expenses of running the taxi had to be deducted. These have also been agreed by Counsel at an average of $23,000.00 to $24,000.00 per annum in March 1983 and $27,000.00 now, exclusive of fuel, which the Plaintiff says cost $70.00 per shift or about $140.00 per day and $4,200.00 per month.

20. In March 1983 the total expenses were therefore about $6,200.00 per month in addition to the hire-purchase instalments of $4,400.00 per month to be deducted from takings of $6,900.00 per month.

21. I accept the evidence of the Plaintiff that the business has run at a loss since its inception, and that the balance of her share of the running costs and hire-purchase instalments were met by her out of her earnings as a driver.

22. I calculate the deficit to be $3,700.00 or $1,850.00 per partner, which, when deducted from her earnings as a driver would leave the Plaintiff $1,400.00 as her net income.

23. I have gone into these figures and the Plaintiff's family's financial arrangements in some detail as it is submitted by Mr. Pirie, on behalf of the Defendants Defendants that, in calculating any loss of earnings as a result of the accident, one must look at the whole situation and at the net earnings overall, and if the Plaintiff can earn more now than the previous net earnings, there is no actual loss of earnings, but, he concedes, a loss of earning capacity.

24. After careful consideration of the evidence before me I have come to the conclusion that I cannot accept that proposition. While the Plantiff is now prevented by her injuries from pursuing her pre-accident occupation as a taxi-driver, they have not interfered with that of taxi-owner, and income from each must be considered separately. It makes little difference that she chooses to use part of her income, earned otherwise than as a taxi-owner, to meet those expenses not covered by the income of the taxi business. As it is accepted by all parties that Madam Lee can no longer earn a living as a taxi-driver, I need only look at her earnings as such, and what she was and is capable of earning after the accident in some other occupation.

25. The Plaintiff has attempted several other occupations since the end of her period of sick leave. The first was as a sewing worker in a garment factory, which she gave up after 1 to 1?hours as her neck restriction made the work too difficult for her. The second was as a packaging worker in another garment factory, where she worked for about 20 days from 26th October 1983 at $45.00 per day.  She left that job as she considered the pay insufficient.

26. She was next employed as a casual worker on a construction site some time in November 1983, but left after one day without pay as she could not manage the work.

27. She was then apparently unemployed but seeking work until March 1984 when she found employment delivering bills for a transportation company, where she stayed for about 8 months earning $1,700.00 per month.

28. Madam Lee's next job was with another transportation company, doing similar work to which she transferred in October 1984 to earn slightly more at $1,800.00 per month. She remained there until May 1985 when she was made redundant because of insufficient business.

29. Since May 1985 she has attended an interview for employment as an inspector at a garment factory, but declined their offer as it was for only $45.00 per day.

30. Mr. Pirie has drawn my attention to the Quarterly Report of Wages, Salaries and Employee Benefits Statistics published by the Hong Kong Government which was submitted by agreement and which, inter alia, set out an average daily wage rate for "craftsmen and other operatives". In the garment industry this figure was $79.00 in March 1983, $90.00 in March 1984, and $100.00 in March 1985. There is no evidence before me as to what is meant by "craftsmen and other operatives" or whether these figures apply to both male and female workers. I cannot therefore accept this as any more than a very rough guide in assessing the Plaintiff's earning capacity after the accident.

31. I accept the evidence of the Plaintiff that she has made genuine efforts to find employment and that the task has been made more difficult for her by her lack of formal education beyond the primary level and difficulties in adjusting to a different occupation, as a result of her inability to continue that of her choice, and at which she was skilled and experienced.

32. However, she is clearly not an unintelligent woman and I am satisfied that she could and should have found employment in May this year, after being made redundant, and that she is capable of earning $1,800.00 per month, i.e. the best income she received in the post-accident, pre-trial period.

33. I accordingly assess the Plaintiff's pre-trial loss of earnings as follows:-

34. As it has been agreed between the parties that the average earnings of a taxi driver today would be $3,650.00 per month, I assess the Plaintiff's continuing loss at $1,850.00 per month (i.e. $3,650.00 - $1,800.00), or $22,200.00 per year, which with the agreed multiplier of 10, gives a figure for future loss of earnings of $222,000.00. Summary of assessment

General damages

Special damages

35. There will be interest on the award for pain suffering and loss of amenities at the rate of 2% from the date of the writ herein and on special damages at the rate of 5.6% from the date of the accident. There will be no interest on the damages for future loss of earnings.

36. In respect of costs, I make an order nisi for payment by the Defendants of the Plaintiff's costs to be taxed if not agreed. There will be a certificate for Counsel.