LEUNG WING v. CHAN HOI YIN

THE SUPREHE COURT OF HUNG KONG

HIGH COURT

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BETWEEN

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ASSESSMENT OF DAMAGES

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1. These proceedings arise out of an accident which occurred on the 2nd September 1982 at about 1.25 a.m., when the Plaintiff, Mr. Leung Wing was travelling as a passenger in a private car along Aberdeen Main Road, and the car veered across to the wrong side of the road and collided with the hoarding of a construction site.

2. The car was at the time owned and driven by the Defendant.

3. This action was commenced on 17th July 1985 and the Defendant having indicated in his Acknowledgment of Service that he did not intend to contest the proceedings, interlocutory judgment was entered against him on 15th August 1985 with damages to be assessed.

4. A bundle of documents was submitted in evidence on behalf of the Plaintiff, the required notice under the hearsay rules having been served on the Defendant, and no counter-notice having been received. These consisted principally of medical reports with receipts for hospital fees, and sick leave certificates.

5. From the hospital reports, it is apparent that the Plaintiff's principal, indeed only, injuries were to his face. These are described in the Statement of Claim as multiple lacerations over the face, fractures of nasal bone, left zygoma and medial wall and floor of orbit, a 6 cm. haematoma in maxilla, a chronic dacryocystitis of left eye with blockage of the left nasolacrimal duct, and inflammation and tenderness of the left lacrimal sac, and facial assymetry due to enopthalmos on the left side (this means that the left eye is sunken in its socket).

6. The Plaintiff was admitted to hospital and his lacerations were sutured and an open reduction of the fractured zygoma was carried out by a dental unit of Queen Mary Hospital. Unfortunately this was not immediately successful and because of the fracture, a further operation was required to wire the zygoma which was again done by the oral surgeons.

7. The Plaintiff remained in hospital until the 20th September 1982.

8. Apart from the very obvious facial assymetry and sunken left eye socket caused by the fracture to the facial bones Mr. Leung has been left with a number of continuing disabilities, which include a constantly watering left eye with occasional yellow discharge, double vision on looking to the right blurred vision in his left eye, and a loss of sensation in the region of the left upper teeth, the skin of the left upper lip and tae skin over cheek along the left side of the nose.

9. In addition, the facial assymetry has resulted in an inability on the part of the Plaintiff to close his eye-lids of his left eye as the upper and lower eye-lids no longer meet satisfactorily.

10. Dr. Heffernan in his report dated 28th May 1984 gives as his opinion that the problem of the watering left eye can be partly corrected by surgery as it is caused by blockage to the nasolacrimal tear duct but the problem with the eye-lids cannot now be put right and so the Plaintiff will be left with a permanent problem of watering to some extent.

11. The damage to the bones of the face leading to the deformity of the left eye socket cannot now be corrected. Likewise the diplopia (double vision) caused by the damage to the muscle of the left orbit would now be difficult to correct surgically.

12. The loss of sensation over the left upper gum and cheek of the left side of the nose, Dr. Heffernan says is due to nerve damage for which there is no effective treatment.

13. I should also mention a report by Dr. Y. T. Hung dated 19th January 1985 written following an examination of the Plaintiff at Yau Ma Tei Ophthalmic Centre, in which he states: "As far as his visual acuity and binocular function is concerned, patient has suffered around 73% visual loss over his left eye".

14. I am not convinced that this means an actual loss of vision to that extent which would apparently leave him partially blind in the left eye, particularly in view of Dr. Heffernan's report of 28th May 1984 in which on testing the eye-sight, he clearly comes to the conclusion that with unaided vision, the left eye is far weaker than the right which is normal, with corrective lenses the left eye was normal.  Athough in a later letter dated 6th February 1985, he states that he is in general agreement with Dr. Y. T. Hung's percentage loss of binocular function given the patient's diplopia, constantly watering left eye and minimal visual disability left eye.

15. I think this figure of 73% therefore is misleading and although there has clearly been some visual loss, it is not as great as this figure would lead one to believe, and in any event, according to Dr. Heffernan, can be corrected by the use of glasses.

16. The Plaintiff Mr. Leung Wing gave evidence and said that he is now aged 30 years; he was therefore 26 at the time of the accident. He was then working as a transportation worker for his father-in-law, having been a skilled carpenter in a boatyard he had apparently temporarily giver up that employment to assist his father-in-law in his business about a year before the accident.

17. After the accident, his father-in-law continued to pay him his full wages while he was on sick leave and he resumed working for him about 4 to 5 months later and continued to do so until July 1983 when he returned to his work as a carpenter in a shipyard. When working for his father-in-law he had been earning about $3,000. - per month but when he returned to work in a shipyard his pay increased to 190.- per day or about $4,500.- per month.

18. He remained in the shipyard until September 1984 during which time his pay increased to 3220.- per day or about $5,200. - per month.

19. Mr. Leung states that in September 1984 he was sacked by the shipyard. He gives as the reason for this, firstly, because the shipyard had no orders, but secondly, because as a result of his injuries, his working speed was slow compared to other workers.

20. It is apparent that Mr. Leung's work has been affected by his injuries, and although this was clearly not the principal reason for losing his employment, it is easy to see that at a time when there were fewer orders in the shipyard and men had to be laid off, the slower and less able workers such as the Plaintiff would be the first to go.

21. Mr. Leung was unemployed after this for 2 months until he got a job as a welder on a construction site for which he was paid $135.-per day, working a 26 day month. After a year there, he left to take up a similar job with the Mass Transit Railway Corporation in Sheung Wan for slightly higher pay and at the end of that contract, on 20th May this year, again changed employment to work with the Hong Kong Macaw Ferry Wharf, again doing welding work earning $140. - per day.

22. The Plaintiff has therefore clearly made strenuous efforts to secure and to keep employment in spite of the disabilities which must affect his efficiency as a skilled worker, and as a result of his efforts, he has suffered no attributable loss of earnings in the pre-trial period, apart from the 2 months following his departure from the shipyard, for which period I propose to award a sum to represent his loss of earnings.

23. As far as his leisure activities are concerned, his only pre-accident activity appears to have been swimming, which he enjoyed but which he does not do now because of the discomfort he experiences with water entering his eye.

24. The Plaintiff also complained of deafness. However, it is apparent from the medical report of Dr. George Choa dated 3rd January 1986 that the condition of his ears is totally unrelated to the accident.

25. His present complaints with regard to the injuries attributable to the accident are concerned solely with the injuries already mentioned to his face, with severe watering of his left eye particularly when he gets hot, which causes blurring of his eye sight while working, he has to constantly clean his eye to reduce the blurring, although he states that the vision of his left eye is always blurred and not just when watering.

26. The Defendant did not wish to give evidence, call witnesses or made any submissions in the question of damages.

27. With regard to the question of general damages for pain suffering and loss of amenities, Mr. Mak has sought to persuade me that in view of the permanent injuries the Plaintiff has suffered and the very obvious disfigurement with which he will have to live the rest of his life, the damages should be based on the top of the serious injuries category in the scale described in Lee Ting-lam v. Leung Kam-wing [1980] HKLR657 and he referred me to a number of authorities where damages had been awarded for head injuries and eye injuries. Unfortunately, many of these involved total loss of vision in one eye, which is clearly not the case here, and the nature of the Plaintiff's injuries make it extremely difficult to make any direct comparison with other cases.

28. However, I am satisfied that the Plaintiff has suffered a serious disability as a result of the accident and I think the proper sum under this head is $110,000.-.

29. Mr. Mak on behalf of the Plaintiff has ccnceded that apart from the two months when he was unemployed in 1984, the Plaintiff has suffered no loss of earnings and there is no quantifiable loss of future earnings.

30. However, he asks me to award damages for the two months unemployment and also a figure to represent the Plaintiff's loss of earning capacity in the future.

31. With regard to the two months in 1984, Mr. Yak has submitted that a figure of $6,600.- would be appropriate as an average of Mr. Leung's earnings over the pre-trial period. I accept this and accordingly award that sum.

32. With regard to loss of earning capacity, I also accept that as a result of his injuries, the Plaintiff will in future be at a disadvantage on the labour market and is entitled to an award of damages in respect of this disadvantage.

33. Mr. Mak has again referred me to three authorities, the latest being dated 16th May 1985. All three cases referred to award a sum of $50,000.- as a global figure under this head and Mr. Mak has submitted, both that the time has come to upgrade that figure, and that the Plaintiff should be awarded a greater amount in view of his comparative youth and the nature of his permanent disabilities.

34. While it might be appropriate in some cases to increase the previous figures to take account of inflation, I am not satisfied that the Plaintiff's injuries in this case are such to warrant a higher figure than that previously awarded in cases of loss of earning capacity, and I accordingly award the same figure of $50,000. -

35. With regard to special damages, the figures set out in the amended Statement of Claim namely:

have all been justified, both by the Plaintiff's evidence and the receipts produced and these are accordingly awarded in full.

Summary

36. There will be interest on the general damages at the rate of 2% per annum from the date of the writ to the date of judgment, and on the special damages at 3.875% from the date of the accident to the date hereof.

37. The Defendant will pay the Plaintiff's costs to be taxed on a party and party basis if not agreed, and the Plaintiff's own costs are to be taxed under the Legal Aid Regulations.