Chak King Por v. Wong Chun Fai and Others

HCPI 14/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 14 OF 2013

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J U D G M E N T

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Introduction

1.I have read Mr Shum’s written opening submissions and accept what he has submitted in relation to liability. 

Liability of 1^st defendant

2.As submitted by Mr Shum, the 1^st defendant’s liability is a foregone conclusion.  Interlocutory judgment has been granted.  He was convicted of careless driving and was duly fined.

Liability of the 2^nd defendant

3.So far as liability in relation to the 2^nd defendant, I have been referred to the 2^nd defendant’s letter of 15 March 2012 which confirmed that the 1^st defendant was employed by the 2^nd defendant as a casual driver, and 1^st defendant was authorised by the 2^nd defendant to drive the subject vehicle. 

4.I find that there was an employment relationship between the 1^st defendant and the 2^nd defendant or, alternatively, the 1^st defendant was an agent of the 2^nd defendant or authorised by the 2^nd defendant to drive the subject vehicle.  I am also satisfied that the 2^nd defendant is vicariously liable to the plaintiff for the 1st defendant’s negligence and on his breach of statutory duties.

5.So far as the plaintiff is concerned, I am also satisfied there was an employee-and-employer relationship between the plaintiff and the 2^nd defendant. This was based on evidence including Form 2 which was filed in the Labour Tribunal which confirmed that the plaintiff’s employer was the 2^nd defendant and his average income was listed therein.

Conclusion on Liability

6.In the circumstances, I am prepared to grant final judgment for the plaintiff on liability against both the 1^st defendant and the 2^nd defendant.

Quantum

7.That leaves only quantum of damages.  Going through the different categories, first of all, for the personal particulars, injuries, medical treatments and permanent disabilities, there was no dispute as to what was set out in Mr Shum’s written submissions and I have read the joint orthopaedic report and also the joint prosthetic report. 

8.So far as the damages are concerned, for the PSLA the plaintiff claimed for $850,000.  I have considered the two cases cited by Mr Shum, in particular Pang Wai Chung v Hoi Tat Rubber Factory [1996] 2 HKC 556,  I note, however, that this was a case which was 20 years ago, and in the Pang Wai Chung case the injury was of the right hand. 

9.Having considered these cases, I am of the view that in the present case a sum of $800,000 would be appropriate.

10.As for Loss of Society, I agree that this can be claimed.  The maximum amount is $150,000.  Having considered the cases cited I will only allow $50,000 under this category.

11.As for Pre-trial Loss of Earnings for the period of 9 May 2010 to 8 May 2011, there was no dispute that there was total loss of income.  Thereafter, I note from 3^rd defendant’s Answer to the Revised Statement of Damages, an issue was raised whether the plaintiff could earn some income, and notwithstanding what the plaintiff said in the witness box, I am of the view that he could secure some part-time work earning at least $2,000 a month for the past three years.  This would mean that $2,000 a month for the past three years would be $72,000.  So for the pre-trial earnings I am going to reduce the amount claimed by $72,000. 

12.For the Future Loss of Earnings, again I am of the view that the plaintiff could at least earn some part-time income of HK$2,000 a month, and the post trial loss of earnings would be $6,230.80 x 12 x the multiplier 3.97, which I accept.  The amount, according to my calculations, should be $296,835.31.

13.Accordingly, the Loss of MPF would be reduced, again according to my calculations, to $39,638.03.

14.As for Special Damages, namely medical expenses, travelling expenses and tonic food, so far as medical expenses is concerned, I allow paragraph 44(i), (ii), (iii), (iv) of Mr Shum’s submissions.  But as far as medical expenses incurred in Mainland China, this is not really supported and I am only going to allow $20,000.  I allow the travelling expenses of $4,000 as claimed. As for tonic food, I will allow the $10,000, even though there is no documentary evidence.

15.As for Future Medical Treatment and Expenses, there was no dispute that the total costs for the fitting of a functional prosthesis would be $260,000 and the estimated cost for the fitting of a cosmetic prosthesis is $40,000, and that the expected life for both these would be three years.

16.I have considered the Table 20 which Mr Shum has referred me to that the expectation of life of the plaintiff would be 24.73 years.  He submitted a cycle of nine cycles for this.  I think a more reasonable figure should be six and this would come to $1,800,000.  And, of course, there would be substantial interest incurred which I would leave Counsel to calculate. 

17.According to my rough calculations, the quantum would be less than what has been claimed, and I am of the view that it is reasonable for the plaintiff to voluntarily reduce the quantum to an overall award of HK3 million inclusive of interest.

Costs

18.The plaintiff’s costs are to be paid by the 1^st and 2^nd defendants jointly and severally.  Plaintiff’s own costs are to be taxed in accordance with legal aid regulations.

19.The plaintiff seeks costs to be paid by the 3^rd defendant jointly and severally with D1 and D2 and this matter is adjourned to tomorrow for argument.

Mr Erik Shum, instructed by ONC lawyers, assigned by Director of Legal Aid, for the plaintiff

The 1^st defendant and 2^nd defendant were not represented and did not appear

Ms Susanna Leong, instructed by Gallant Y T Ho & Co, for the 3^rd defendant