MAK CHI CHEUNG v. CHEUNG KWAI YUI

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ASSESSMENT OF DAMAGES

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1. This action arose from injuries sustained by the Plaintiff, who is a 61 year old vegetable farmer, while he was unloading vegetables from an iron cart on a footpath at the side of a road in the New Territories. The Defendant was the owner and driver of a dump truck which struck the iron cart resulting in the Plaintiff receiving comminuted fractures of the right tibia and fibula.

2. Interlocutory judgment was entered by consent on 19th August 1986 with damages to be assessed. An amended statement of claim was filed by leave prior to this assessment of damages. Counsel for the Defendant agreed to the claim for medical expenses in the sum of $1,485 for which receipts were available and also for the claim for travelling expenses of $1,000. The parties agreed to the production of 3 medical reports which particularised the injuries and treatment received by the Plaintiff. These reports confirm he was admitted to Queen Elizabeth Hospital on 10th May 1984 while still conscious. Following X-ray the Plaintiff was found to have comminuted fracture of right tibia at mid-shaft, fracture of medial malleolus and segmental fracture of tibula. He was treated with surgical toilet of wound and suturing. The fractures were subsequently fixed with an intra-medullary nail and a screw in an operation on 17th May 1984 under spinal anaesthesia. The Plaintiff was subsequently transferred to Kowloon Hospital on 21st May 1984 for rehabilitation until his discharge on 27th July 1984. He received physiotherapy treatment through the out-patient clinic for some weeks after his discharge. The Plaintiff was only able to resume his former occupation as a vegetable farmer 12½ months after the date of the accident.

3. In his report dated 15th January 1986 Dr. P. A. L. Horsfall said that although the Plaintiff had made a good recovery considering his age and the severity of the fractures, he was left with an impairment by reason of a slight restriction of movement at the right ankle and the weakness of the calf muscles. Dr. Horsfall reported that there was unlikely to be any improvement of this condition in the future and assessed this impairment at 8% of the lower limb from the restriction of the ankle movement and discomfort and 4% from muscular weakness making a total of 12% of the lower limb which is 5% impairment of the whole man. Dr. Horsfall also stated in his report that some degree of osteoarthritis was likely to develop in the right ankle joint because one of the fractures involved the joint surface so that discomfort and restriction of movement in the right ankle joint was likely to persist and even worsen in the future. Dr. Horsfall stated that the Plaintiff should be able to continue his occupation as a vegetable farmer without much loss of earnings as a result of his injury. Finally, as to the Plaintiff's temporary total incapacity, Dr. Horsfall stated that about 12 months was a reasonable period to allow for plaintiff's full recovery from the compound fracture of the tibia and fibula before being able to resume normal farm work. The medical evidence adduce was not challenged and must be accepted.

4. The only witness called at this assessment was the Plaintiff who gave evidence relating to the accident and the treatment received for his injuries. The Plaintiff stated that he had special Chinese tonic food brought to him by his wife every other day at cost of $30 during the 2½ months he was in hospital. He stated he was discharged from hospital and had crutches to assist him in moving about. After 2 or 3 months the Plaintiff was able to walk with only the assistance of a walking stick following physiotherapy treatment. During his recovery the Plaintiff said he attended a bone specialist at Guangzhou Hospital 3 times a week for about 6 - 7 weeks at a cost of 60 - 70 RMB a visit. However, the Plaintiff was not able to produce any receipts for this treatment which he claimed aided his recovery.

5. The main dispute at this assessment centred on the Plaintiff's monthly earnings because in the original statement of claim he claimed for loss of earnings @ $4,500 per month, whereas, in the amended statement of claim loss of earnings are claimed @$15,596.66 per month. In this respect the Plaintiff gave evidence that he had been a vegetable farmer for about 28 years on a small plot of land which he rented at $400 a year. His evidence was that he grew 7,000 catties of vegetables each month for sale in the market and that the average price for vegetables in 1984 and 1985 was between $270 and $300 per 100 catties.

6. In cross-examination the Plaintiff admitted that this market price was reduced by 10% to arrive at the sum paid to the grower. The Plaintiff stated that his monthly expenses in vegetable growing were as follows :-

He gave evidence that he did not employ labour in the growing of vegetables on his farm as the manual work was carried out by his wife and himself. The Plaintiff said that when he was first admitted to hospital his wife employed someone for about 10 days at cost of $70 a day to harvest vegetables growing on land which were sold for $1,800. The Plaintiff said that his plot of land was left fallow for 5 or 6 months until he authorised a friend to use the land to grow vegetables but with no return or rent charged. The Plaintiff said he resumed working the land and growing vegetables himself from the end of May 1985.

7. In cross-examination by Counsel for the Defendant the Plaintiff admitted that market prices for vegetables fluctuate widely according to the demand for same and that he had no documentary records such as bank statements to support his claim to monthly profits of approximately $16,500 per month from vegetable farming. The Plaintiff stated that all his transactions were in cash and that he sometimes bought gold from his monthly savings of about $10,000. The Plaintiff admitted that in applying for legal aid he declared his monthly earnings were $4,500 per month.

8. Turning to the damages to be awarded on this assessment the first head of damage to be considered will be that for pain, suffering and loss of amenities. Counsel for the Plaintiff suggested a figure of $70,000, whereas Counsel for Defendant suggested that half of that sum would be appropriate in this case. After consideration of the medical evidence in this case, the Plaintiff's evidence and the various authorities produced by both Counsel the appropriate award appears to be $70,000 and that sum will be the award under this head of damage.

9. The next head of damages for consideration is the claim for loss of earnings by the Plaintiff during the period of his total temporary incapacity which is agreed at 12½ months. It is difficult to accept the Plaintiff's evidence in the absence of corroboration of any sort that he produces 7,000 catties of vegetables every month of the year. Obviously, such a claim does not take into account the vagaries of climate and season over the year. Furthermore, the Plaintiff has not been able to substantiate his claim as to market price paid to vegetable growers between the date of his accident in May 1984 until he resumed vegetable farming at the end of May 1985. It is necessary to counterbalance the Plaintiff's evidence with his original claim for compensation @ $4,500 per month which was the same monthly earnings figure supplied in his application for legal aid. After due consideration the Plaintiff's monthly earnings from vegetable growing will be assessed on the basis of 4,000 catties of vegetables per month over the whole year at the market wholesale price to the grower of $250 per 100 catties. From this figure of $10,000 per month must be deducted the expenses incurred in production of the vegetables being $1,500 approximately based on the Plaintiff's own evidence. Therefore, the Plaintiff's monthly earnings are calculated to be $8,500 and the loss over 12½ months is therefore $106,250. However, there was evidence that the vegetables in production at the date of the accident were harvested at a labour cost of $700 and sold for $1,800 so that the difference of $1,100 should be deducted from the award for loss of earnings leaving a balance of $105,150.

10. The other outstandings claims are for tonic food and medical expenses. As for tonic food this will be allowed at the usual rate of $15 a day during the 2½ months the Plaintiff was in hospital and for a further month after his discharge while he was recuperating from his injuries. The award under this head is therefore $15 x 105 days = $1,575. As for the claim for medical expenses there is no dispute for the sum of $1,485 for which receipts are available. Even though the Plaintiff has not kept receipts for the medical treatment received at Guangzhou Hospital, the claim will be allowed on the basis of the cost of the medical treatment itself. This award will not be extended to cover the cost of travel and accommodation expenses to obtain treatment in Guangzhou as the evidence was that this treatment was part of social visits to family and friends in the area. Furthermore, there is the vexed question whether any further medical treatment was necessary or desirable to assist the Plaintiff's recovery from his injuries. On the basis of 20 visits at cost of 70 RMB a visit additional medical expenses of $2,800 will be allowed making a total award under this head of $4,285.

11. A summary of this assessment of damages is as follows :-

12. Interest on the special damages being items (3), (4) and (5) above are allowed at 3.75% per annum from the date of the accident. There will be interest on the general damages being items (1) and (2) above at the rate of 2% per annum from the date of the omit to the date of this assessment.

13. There will be an order for costs on the assessment to the Plaintiff with the Plaintiff's own costs to be taxed under the Legal Aid Regulations.