LUM WOON SUN AND ANOTHER v. LAU KIN SING AND OTHERS

1981 No. 7448

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The two plaintiffs, fellow workers, were both knocked down and injured by the same car on 4th November, 1979.

2. On the 14th-15th January 1985 Miss Alice Mok of Counsel appeared for them both on this assessment of damages, putting in in support, bundles of documents in respect of each of them. The 2nd defendant who appeared on the 14th told me that he had no desire to cross examine any of the witnesses and he absented himself at the first opportunity. As a result I heard the uncontradicted evidence of Dr Wedderburn, Dr Ma, and Mr Eddie Tsui for the plaintiff's former employer, and the two plaintiffs' themselves.

3. The 1st plaintiff Mr Lum Woon Sun is now aged 52 and was employed as a fitter by Dragages-Coignet at the time of the accident. In the course of his work he would have been expected to ascend tower-cranes and lift heavy weights besides his more ordinary work-a-day routine.

4. The injuries he received were fractures of the tibiae and fibulae of both legs. Post-operatively he had a history of recurrent infection of the left leg and it was not until October 1980 that it was possible to remove a bone plate inserted in June 1980. He now has an abnormally shaped left leg 3/8th inch shorter than before with only 5^o of dorsi-flexion and 25^o of plantar flexion.

5. The norms are 20^o and 40^o  respectively. Inversion is reduced to 5^o from 30^o and eversion to 20^o from 30^o . The great toe is bent downwards and he cannot move it voluntarily.

6. For the right leg dorsi-flexion is 10^o and plantar, 30^o, with normal inversion and eversion.

7. Dr Wedderburn assessed him as having an 18% permanent disability when last he saw him in July 1983.

8. Rather remarkably he was re-employed by Dragages on 11 March 1981 at no loss of wage for work of an altogether lighter nature, looking after and cleaning the store room. This lasted until 31 July 1981 when he was made redundant.

9. He registered with the Labour Department and on the 21st January 1982 obtained work with the E & M Department of the P.W.D. He told me, and I have no reason to doubt it, that "it was the first job available" to him. His present employment is more in keeping with his skills although obviously he is not required to ascend heights or lift heavy weights.

10. The customary incompleteness of detail in support of items of special damage is aggravated by the fact that the Princess Margaret Hospital lost its records of his attendance and treatment. The Plaintiff can hardly be blamed for this and I have some material before me from which I can fill in some of the gaps in his medical history, most notably three admissions to Caritas Medical Centre for convalescence after three admissions to the Princess.

Hospital Expenses

11. For his pre-accident and pre-trial loss of earnings Miss Mok submitted a detailed calculation setting out the figures claimed by the plaintiff and took me through every item with care. While I would not necessarily have followed the precise methods followed by her, the actual differences (having made some calculations of my own) are within 5% of each other and I therefore will adopt her calculations for my purposes, they are:-

The calculation for future loss of earnings is as follows:-

12. This sum if invested conservatively at 6½% will produce $315.00 p.m., about ½ the loss claimed. Since however if the Plaintiff were to draw on capital to make up the difference monthly he would still be left with more than half the original capital sum at the end of 8 years I shall do nothing other than comment on the fact and leave the calculation undisturbed.

13. For his general damages Miss Mok cited the following cases to me:-

14. Lee Ting Lam v. Leung Kan Ming C. A. 11/80

15. Li Ping Sum v. Choi Wai Tong etc. C. A. 53/83 and the Privy Council's decision thereon No. 22/84.

16. Chui Kit v. Tong Yin Kay HKLJ 1983 P. 426

17. Lam Chak sing v. Lau Yin Yip HKLJ 1984 P. 268

18. Wong Shui Ming v. Yeung Chun Fai HKLJ 1984 P. 387

19. Poon On Lam v. Chan Un Chei H. C. A. 6764/81

20. Liang Yuk Jen v. Kwan Kan Lin HCA 823/83

21. Accepting Dr Wedderburn's assessment of 18% disability together with the shortening of the left leg and restriction of ankle movements Miss Mok says the plaintiff should beat the bottom end of the serious injury category decided in Lee Ting Lam's case.

22. Considering the evidence and having seen the plaintiff's leg and his gait I think that it is right so to categorise it. I therefore assess his general damages at $100,000.00.

23. The 2nd plaintiff has suffered a great deal worse both in body and mind as a result of the accident.

24. It proved impossible to save his left leg and it was amputated some 17 days after the accident leaving an "inefficient" stump, some 3" shorter than a desirable length for the fitting and use of a prosthesis.

25. When first seen by Dr Wedderburn in March 1981 he was suspected of suffering some mental deficit and was referred to Dr Geraldine Mao.

26. Upon reading her report it seems Dr Wedderburn's fears were justified. Before the accident the plaintiff was a skilled electrician, and indeed his supervisor had highly recommended his work not long beforehand. Assuming such a man to be at least of normal intelligence Dr Mao found the plaintiff's intellectual capabilities had been significantly affected by the accident. She recommended a return to work as the best thereapy but most unfortunately the plaintiff has been unable to find re-employment. He claimed to me that he did not think he had lost any of his skill and knowledge of his trade, but admitted that skill and good memory are necessary in electrical matters. On reading his reports. I think his claim before me was rather to maintain his self-esteem than by way of any realistic estimate of his present day abilities. Dr Wedderburn, on reading Dr Mao's report, assessed the 2nd plaintiff's mental deficit at 10%, equivalent to 10% disability.

27. His age presents a difficulty. After the accident he states it to be, at the lowest, 42 and at the highest, 50. Before me he supposed he must have been born in 1931 since his identity card said that he was 29 in 1960. By reason of his mental deficit referred to before I shall use the age he believed himself to be in 1960 i.e. 53 now.

28. The idiosyncracies mentioned in the reports were not much in evidence when he appeared before me, but he was reduced to tears when asked to consider his present circumstances, and his failure to get any work has unfortunately produced the negative effects foreshadowed by Dr Mao. He was not wearing his prosthesis at the hearing, for good reasons as he explained, but he did tell me that he wears it more often than not, although the shortness of his stump obliges him to swing from the waist in order to walk, whereas if he had a longer stump of 7" his  gait would have been more nearly normal.

29. It was his additional misfortune to lose the society and comfort of his wife after the accident for reasons, apparently, not wholly unconnected with it.

30. In support of his claim for general damages, Miss Mok besides citing those of general application produced in support of P.1's case cited the following:-

31. Nazir Begum Din v. Lee Kwei Ying HKLJ 1984

Lai Po Wah v. Chan Woon-sum HKLJ Vol. B No. 3 p. 427

a 5" stump, $75,000 (1983)

Yam Yuk Ngan v. Wong Hon-shing HKLJ 1979 p. 372

3" stump $75,000 (1979)

Tsang Sum Keung v. Chan Pui-ching HKLJ WLR p. 395

10 years, below-knee amputation $90,000 (1982)

Cheung Wat-lim v. KMB Vol. 13 No. 2

10% memory impairment $65,000 (1983)

Li Yuen-wah v. Chan Yee-kuk HKLJ 1981 p. 122

10% impairment of memory $50,000 (1980)

32. Miss Mok submitted that the plaintiff came at least at the highest end of the substantial injury category mentioned in Lee Ting-lam's case and taking his mental deficit into account would say he came at the lower end of the gross disability category.

33. She appeared to accept Dr Wedderburn's simple arithmetic on his assessment of the plaintiff's permanent impairment of 70% for the leg and another 10% for the mental disability. Whilst I do indeed accept Dr Wedderburn's two assessments and add them together I shall refrain from taking the further step of simply assessing the total disability at 80%. One cannot be so precise, obviously I must and do accept that he is very close to such a figure however, but will try to see him as he is in his present day surroundings and circumstances.

34. I place his disablement at the upper end of the serious injury category but make an additional award in respect of his mental disability and assess his general damages at $200,000.

35. As with PW1 Miss Mok submitted a schedule showing how she had calculated his pre and post accident loss of earnings. Making the same observations on this as I did those of plaintiff 1 I accept her method of calculation at least up to the day of hearing hence:-

36. I pause here for two reasons:-

37. Miss Mok has pointed out that although registered with the Labour Department he has, even up today, been unable to obtain any suitable employment, but I had no evidence as to his efforts to help himself in this respect.

38. I must also have regard to his incentive to find re-employment. It is unfortunate that his wife left him and appears to be looking after the daughter. His evidence really is that he has now no one dependent upon him and he is alone.

39. There is in fact, of course, a dependency both of wife and child but I must observe that their interests are far from being in the foreront of his mind.

40. All in all I rate his desire to help himself at a low order of magnitude.

41. Miss Mok would have me use a multiplier of 9, which on the calculation of his present wages comes out at 9 × 12 × 3,634.60 = 392,536.80. Now such a sum if invested today in a 5 year C.D. @ 10% would produce an income of $3,271.14 p.m. not just for 9 years but to the end of his natural life end leave the capital intact upon his death. This does not seem to be commensurate with a claim for future loss of earnings. As I have said in earlier cases the proper calculation ought to be what sum is required to produce from both interest and capital an income of $x per month for y years and then be exhausted. Granted $3,271 is considerably less than the $3,925 than he might otherwise expect to have earned, but, if he were to draw the difference out of capital the duration of the capital investment would far exceed the intended 9 years.

42. I do not accept a multiplier of nine as appropriate to this individual not merely for this reason but more particularly because of my assessment of his lack of interest in helping himself. To allow him 5 as I do is I think to be over-generous.

43. The calculation therefore is

44. Interest (as P1).