WONG CHI WING v. WONG TAK WAI AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The Plaintiff was a passenger in a motorcar driven by the 2nd Defendant and owned by 1st Defendant when it was involved in a traffic accident on 29th January 1984. The Plaintiff, who was 24 years of age at the time, suffered serious injuries in this accident. Although an acknowledgement of service and notice of intention to defend this action was filed on behalf of both Defendants, interlocutory judgment was entered by consent on 17th September 1985 with damages to be assessed by a Master.

2. At the assessment Counsel for the Plaintiff produced a bundle of documents numbered 1 to 11 including 6 medical reports numbered 1 to 6 in the said bundle which were produced by consent. Counsel for the Plaintiff was granted leave to withdraw items (e), (f) and (g) in the prayer for special damages which all related to fees for medical reports. Obviously, these medical fees should be included in the Plaintiff's bill of costs in due course. Item (c) in the prayer for special damages relating to hospital expenses was amended to $3,810 to reflect the increased daily charge from $10 to $15 as from 1st May 1984. This amended item (c) for hospital expenses of $3,810 and item (h) of $1, 000 as expenses of Plaintiff and his family travelling to and from hospital were not challenged by Counsel for the Defendants and will be allowed as reasonable expenses incurred.

3. Counsel for the Plaintiff called Dr. R.B.M. Wedderburn to give evidence of his examination and medical reports on the Plaintiff. Dr. Wedderburn produced a report following his examination of the Plaintiff on 1st May 1985 in which he fully outlines the injuries suffered by the Plaintiff in this traffic accident. Briefly, these injuries were as follows :-

4. In evidence Dr. Wedderburn revised his total figure of impairment of the Whole Man by reducing same from 24% to 14%. He also gave evidence of the permanent difficulty the Plaintiff would have in lifting heavy weights because of his pelvic and other injuries. As a result the Plaintiff would be restricted to light work during his working life and his earning capacity reduced by 20%. Dr. Wedderburn also alluded to the Plaintiff's real risk of bladder infection which could spread to his kidney. As a chronic kidney infection may be fatal, his opinion was that the Plaintiff's life expectancy would be reduced by 10%.

5. Three former employers of the Plaintiff gave evidence as dirt the Plaintiff. Their evidence confirmed that the Plaintiff was a semiskilled worker in the electro-elating trade. The Plaintiff's employer when this accident occurred, Mr. Shiu Chi Yia, gave evidence that he was paid at the basic rate of $75 a day on day shift and that the Plaintiff worked 6 days a week resulting in monthly earnings of $2,800 which included overtime. Further that upon completion on of a full year with satisfactory work performance the Plaintiff would have received a bonus of 39 days' wages. Mr. Shiu also gave evidence that if the Plaintiff was still employed by his company- Quality Platers Ltd. - he would now be Paid $3,000 to $3,300 a month at the basic rate of $100 a day for this type of work. This witness confirmed that the Plaintiff earned a total of $11,673 while employed by Quality Platers Ltd. from 3rd October 1983 to 29th January 1984. The Plaintiff was replaced by this employer after 6 months when he could not resume his former job within that time.

6. The Plaintiff gave evidence that before the accident two years ago his health was good and he engaged in out-door activities, such as swimming, running and picnicking. He said he did not swim now because a scar on his chest causes him embarrassment. He claimed that the after effects of the injuries received in the accident are, firstly, a slight pain on the left side of his pelvis when he sits for a lengthy period or when he squats or bends his body, and secondly, a dull pain in his bladder. The Plaintiff gave evidence that while in hospital he took tonic food in form of chicken soup provided by his mother as well as Chinese medicine. The Plaintiff also gave details of his part-time employment with S. Parts and Dies Makers from August 1983 until the date of the accident from which he earned an average of between $1,200 and $1,500 per month. The proprietor of this business - Mr. Sin Shiu Seong - later gave evidence that this part time work would not have been available after the data of the accident as business was poor and he was in the process of closing the business down at that time.

7. Plaintiff's evidence was that he had not worked between the date of his discharge from hospital on 8th. November 1984 until 16th April 1985 as he was still convalescing during that period. He worked at on electro-plating job for Ming Tat Company from 16th April 1985 until the 31st May 1985 where he earned approximately $1,500 in total over that  period. Unfortunately, the Plaintiff was dismissed for taking too much time off (10 days) for hospital dilitation treatment. He tried working for the Itto Company in Kwai Chung earning $60 a day from mid June until the end of August 1985 but resigned when he found he was physically unable to do the work because of the heavy lifting involved. When he was unable to find suitable employment in the electro-plating field, the Plaintiff worked for the Wai Lee toy factory in Kwun Tong as a packer earning $60-$70 a day during October 1985. Although the Plaintiff has not been able to obtain work since because of the approach of the Lunar New Year, he has good prospects of re-employment from his former employers in the electro-plating field after the holiday break.

8. Counsel for the Defendants called as a witness the foreman of Itto Company in Kwai Chung and produced a sample watchcase which Plaintiff was required to electrostyle and die in racks of 84 similar pieces in the course of his work. This witness confirmed Plaintiff's total wages from that company for 2 ½ months was $5,751 being approximately $2,300 per month. Further the witness stated that Plaintiff's wages for similar work at this time would be $2,500-$2,600 per month.

9. Turning to the damages to be awarded in this case, the general damages for pain, suffering and loss of amenities will be considered first. Counsel for the Defendants rightly pointed out that although the Plaintiff suffered serious injuries in this accident he has made a remarkable recovery. Whereas, Mr. Poon was prepared to concede that the Plaintiff's injuries and after effects placed him in the "substantial" injury category, he submitted that the damages should not in fact be awarded on that basis. In support of his submission Mr. Poon cited sevornl authorities and concluded that $100,000 was the correct award under this head. On the other hand, Miss Liu for the Plaintiff, cited authorities to support her contention that the plaintiff's injuries were rightly classified in the "substantial" injury category for which the correct award taking into account inflation of 60% since the decision in Lee Ting Lam's case in 1980 was in the range of $128,000-$160,000. After due consideration of the medical evidence and the evidence from the Plaintiff, his injuries received in this traffic accident do come within the "substantial" injury category as classified in the Lee Ting Lam's decision but at the lower end of that classification. Accordingly, taking account of inflation since the date of that decision the award for pain, suffering and loss of amenities will be $130,000. Interest on this sum is allowed at the usual rate of 2% from the date the writ was issued.

10. Turning to the plaintiff's claim for loss of earnings since the date of the accident on 29th January 1984, he is obviously entitled to claim for the 9 month period he was in hospital and for a reasonable period of convalesce after his discharge from hospital. The Plaintiff first resumed employment less than 15 months after the accident with Ming Tat Company on 16th April 1985 and he should be entitled to his loss of earnings over this period. As his part-time employment had been terminated before the date of the accident he is only entitled to claim his average monthly earnings from Quality Platers Ltd., his full-time employer at that date. Taking into account overtime and the annual bonus paid by Quality Platers Ltd. the monthly earnings for Plaintiff will be fixed at $3,000. Therefore, the sum awarded for the 15 months the Plaintiff was off work recovering from his injuries is assessed as $3,000 x 15 months = $45,000.

11. As for the balance of the period to the date of this assessment the Plaintiff is entitled to his loss of earnings at the same monthly rate less the actual sums paid to him by various employers since 16th April 1985. The balance of the loss of earnings sward is assessed as follows :

12. $3,000 x 10months = $30,000

leaving a balance of $20,929.

13. The Plaintiff's evidence is accepted that he has taken all reasonable steps to mitigate his loss of earnings by seeking and obtaining suitable alternative employment. Judicial notice is taken of the difficulty of obtaining employment in the last few months prior to the Lunar New Year holiday. The total award for loss of past earnings by the Plaintiff is $65,929.

14. The vexed question of the damages to be awarded for loss of future earnings by the Plaintiff is now considered. The Plaintiff is presently unemployed but from the evidence adduced at this hearing there appears to be good prospects that he will obtain suitable employment in the electro-elating field after the Chinese New Year holiday. As a result of his injuries the Plaintiff is restricted in his future employment because he cannot lift heavy weights of 40-50 lbs which he was required to do in polishing moulds. As the Plaintiff's part-time employment had been terminated before the date of the accident and such work is not normally available in Hong Kong, the Plaintiff is not able to establish a loss of part-time work for which he should be compensated.

15. Counsel for the Defendants submitted that the Plaintiff was not entitled to an award for loss of future earnings, but conceded that he was entitled to a lump sum award for loss of or reduced earning capacity in the future and also for the loss of earnings arising from time taken off work to receive medical treatment for the injuries sustained in this accident. Mr. Poon suggested an appropriate lump sum award for future loss of earning capacity was in the range of $30,000 to $40,000. Miss Liu, Counsel for the Plaintiff, made the point that whereas the Plaintiff had been both a skilled electro-plater and polisher of moulds he was now only able to work as an electro-plater because of the heavy lifting usually associated with the polishing of moulds. Furthermore, Mis Liu, emphasised that the Plaintiff will be restricted to fairly light work by the time he attains 45-50 years of age, and she suggested a formula of $500 per month x 12 months x 15 years for loss of future earnings resulting in an award of $90,000 under this head. The suggested multiplicand of $500 per month is mainly an estimate of loss of full-time and part-time earnings because of the present uncertainty over the Plaintiff's future working life. It would appear that this is a suitable case to make a global or lump sum award for loss of future earning capacity rather than  trying to apply the usual multiplicand and multiplier formula. In all the circumstances an appropriate figure would be $60,000. There will be no interest allowed on this award.

16. The only other mattar of special damages to be decided is that under item (d) in the prayer for nutritional and tonic food where $3,500 is claimed. As the usual allowance of $15 a day under this head for the full period in hospital (290 days) exceeds the amount claimed, this item is allowed in full. Interest on the special damages is allowed at 3.8% from the date of the accident until the date of this assessment.

17. A summary of the awards made on this assessment is set out as follows :

General Damages

Special Damages

18. The Plaintiff's costs on this assessment to be met by the Defendants to be taxed if not agreed. There will be a certificate issued for Counsel.