YEUNG YU v. WONG YUNG AND OTHERS

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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ASSESSMENT OF DAMAGES

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1. The Plaintiff was sitting in the driver's seat of his stationary lorry parked along the waterfront of Kennedy Town New Praya, Hong Kong at 4.15 p.m. on 12th August 1980. At this time a lighter owned by the 1st and 2nd Defendants was moored alongside the seawall of the said Kennedy Town New Prays and was engaged in unloading cargo by use of a boom derrick which was rigged to a samson post mounted on the deck of the lighter. The said samson post suddenly fractured and collapsed causing the derrick to fall and strike the drivers cabin of the said lorry thereby injuring the Plaintiff. The 3rd Defendant as an independent engineer and shipbuilder had constructed the said lighter in 1971.

2. The question of liability between the parties was resolved at a defended action before Mr. Justice Mantell in the High Court on 15th, 16th, 19th and 20th November 1984, and with the reserved judgment being delivered on 5th December 1984. In this decision the Plaintiff was awarded judgment against the 1st, 2nd and 3rd Defendants with liability for the Plaintiff's damages and costs being apportioned between the Defendants on the basis that 50% of same against the 1st and 2ND Defendants jointly and the remaining 50% against the 3rd Defendant. The damages were to be assessed by a Master which was the purpose of this hearing.

3. The Plaintiff suffered serious injuries in this accident and was unconscious when admitted to Queen Mary Hospital. His injuries included multiple facial lacerations and fractures of the nasal bone, his left 5th, 6th, 7th and 8th ribs, the 1st lumbar vertebra and a compressed fracture of the 5th cervical vertebra. The Plaintiff was in hospital from 14th August until 2nd September 1980 and thereafter attended out-patient and physiotherapy treatment for his injuries. Almost 5 years after this accident the Plaintiff still suffers constant pain in his lower back and has serious eyesight deficiencies. The main medical evidence adduced consisted of 4 reports from Dr. R.G.M. Wedderburn, and 3 reports and oral evidence from Dr. W.J. Heffernan, an opthamologist. The expert medical evidence, which is accepted, has assessed the Plaintiffs permanent disability to be 20% Impairment of the whole manmade, up of 8% for loss of vision, 12% from compression of the 1st lumbar vertebra by more than 50%, plus 1% from the cervical vertebra fracture and his neck injury. The Plaintiffs main problem is lower back pain which he gets by sitting for over an hour or from walking for that time. This is so even though he wears a surgical corset to support the lumbar region. Dr. Heffernan in his evidence explained the extent of the Plaintiff's eyesight defects of double and blurred vision arising from his nasal and brain injuries in this accident. It was also pointed out that the recent premature onset of cataracts in both eyes will exacerbate the plaintiff's problems with his eyesight in the future.

4. Despite efforts on this own and through the Labour Department the Plaintiff has been unable to obtain any form of employment since the date of this accident. Previously, he was an owner/driver with his own lorry, but is now unfit to drive or to perform manual labour. For all practical purposes the Plaintiff is unlikely to find alternative employment because even sedentary occupations, such as, a watchman or janitor, are unsuitable for him with his back injury and eyesight deficiencies.

5. Turning to the assessment of damages in this case the following heads of damage will be considered:

1.    Pain, suffering and loss of amenities

6. Counsel for the Plaintiff suggests that damages under this head should exceed $100,000, whereas both Counsel for the Defendants suggest an award of $40,000 to $50,000. The Plaintiff's injuries were extensive and have taken a long time to stablize. He had 28 days in hospital and out-patient physiotherapy treatment for a considerable period. The Plaintiff still suffers back pain from sitting or standing for any extended period. Furthermore, because of the defects in his eyesight, the Plaintiff has suffered a loss of amenities from increasing difficulty in reading a newspaper and cannot go out on the public street on his own because of the danger of bumping into other pedestrians and from vehicular traffic. He is more as less confined to resting at home and watching T.V. as he is unlikely to find suitable employ meat in the future. The injuries suffered by the Plaintiff would place this case at the top of the "serious injury" category as defined in LEE Ting-ban v. LEUNG Kam-ming (1980) H.K.L.R. 657. Taking into account the fall in the value of money since the range of awards was outlined in LEE's case and after consideration of several eye cases referred to in the assessment of Master Hansen delivered on 18th May 1985 in LEE Tat-Hung v. AMIGO ENTERPRISES LTD-HCA 1257 of 1984, an appropriate award would be $120,000 under this head.

2.    Loss of Earnings

7. The Plaintiff's evidence and documentary evidence filed in support confirmed that his average monthly earnings prior to the date of this accident was approximately $3,000 after taking into account his fixed deductions. This figure for monthly earnings will be adopted to assess the pre-trial loss over a 5-year period from date of this accident. The Plaintiff has done all that could have been expected of him to mitigate his loss by seeking alternative employment through friends and the Labour Department. Unfortunately, no suitable employment is available to him because of his disabilities. It is unrealistic to suggest that he should have continued in the transportation business by continuing to pay off the hire purchase payments on his new goods vehicle after engaging a driver to operate same in his place. Obviously, most of the profit from such an operation would be needed to met the wages of the driver engaged to operate his goods vehicle. As explained this was not a viable alternative open to the Plaintiff to mitigate his loss of earnings. Therefore pre-trial loss of earnings is assessed as follows :

$3,000 ×12 months × 5 years = $180,000.

As for post-trial loss of earnings the Plaintiff is now 56 years of age and in a normal working life in Hong Kong could have expected to have continued in his occupation for at least another 5 years. Taking into account the usual discount for a lump sum payment and the usual vicissitudes of life an appropriate multiplier for post-trial loss of earnings would be 5. While this figure may be generous it does take into account that no in rease of earnings is being allowed for over a total period of 10 years for which the same multiplicand is being used, namely, $3,000 per month. Post-trial loss of earnings is assessed as follows :

$3,000 ×12 months × 5 years = $180,000.

3.    Miscellaneous Special Damages

A summary of this assessment of damages is set out as follows:

8. Interest on the general damages of $120,000 will be at the rate of 2% p.a. from the date of the issue of the writ until the date of judgment. Interest on the special damages will be at the rate of 5.6% p.a. from the date of the accident to the date of judgment. There will be no interest on the award for loss of future earnings. There will be an order for costs to the Plaintiff with the Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.