Lam Kam Yu v. Chan Man Cheung and Another

HCPI001114/1998

HCPI 1114/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1114 OF 1998

----------------------

-----------------------

Coram: Hon Tong J in Court

Dates of Hearing: 8 and 9 November 2000

Date of Judgment: 9 November 2000

-------------------------

J U D G M E N T

-------------------------

1. This is a personal injuries claim arising from an incident which occurred on 1 August 1996.

Background

2. The plaintiff in this case was an unlicenced hawker who, with his sister, ran a noodle stall on the street next to an industrial building called Mei Tak Industrial Building, the address being 221 Wai Yip Street, Kowloon. The 1st defendant is the registered owner of the unit, known as Unit B, 11th Floor of the building. The 2nd defendant is the occupier of the same.

3. On 1 August 1996, at about 10:00 a.m, the plaintiff was cleaning his cart in the back lane next to the building. A PVC pipe fell, hit the plaintiff and knocked him to the ground. The PVC pipe was part of the waste water pipe system serving the unit and which was fixed to the external wall of the unit.

Injuries

4. After the accident, the plaintiff was admitted to United Christian Hospital. He complained of lower back pain and had a deformed left ankle with open wound. The x-ray showed that the plaintiff was suffering from the following :

(i) spondylolisthesis between the 5th lumbar vertebrae and the 1st sacral vertebra; and

(ii) a fracture dislocation of the left ankle.

5. Open reduction and internal fixation of the fracture was performed on 2 August 1996 and again on 5 August 1996. The plaintiff was discharged from hospital on 4 October 1996. Therefore, he had to attend follow-up treatments until 4 February 1997. As a consequence of the injuries, the plaintiff found that he was unable to stand for more than 40 minutes.

6. By an amended writ indorsed with the Amended Statement of Claim dated 29 October 1998, the plaintiff commenced action against the two defendants alleging that they had been negligent. The Revised Statement of Damages dated 20 July 2000 listed out five main heads of damages. Both defendants had filed defences. The 1st defendant admitted to be the registered owner of the premises but denied knowledge of the existence of the waste water pipe and the PVC pipe until after the occurrence of the accident. It was averred that the pipes were installed by a former tenant occupying the premises from March 1989 to February 1992. While the 2nd defendant admitted to be the tenant of the premises at the material time, he also denied knowledge of the existence of the water pipes.

The plaintiff's case

7. At the trial hearing, both defendants had failed to appear. Mr L Remedios, counsel for the plaintiff, proceeded to prove his case. He had called a total of five witnesses. They were :

(1) The plaintiff Lam Kam Yu, who produced and confirmed the contents of his witness statement dated 23 April 1999.

(2) The plaintiff's sister Lam Suk Wah, who produced and confirmed the contents of her witness statement dated 23 April 1999.

(3) Dr Lau Hoi Kuen, who produced and confirmed the findings in his medical report on the plaintiff dated 26 December 1998.

(4) Dr Chan, who produced and confirmed the findings in his medical report on the plaintiff dated 24 March 1997.

(5) Dr R. Fu, who produced and confirmed the contents in her physiotherapy report dated 16 January 1997.

8. On the issue of liability, counsel had referred this court, in his written opening, to the tenancy agreement dated 1 April 1992 by which the 1st defendant had leased the unit to the 2nd defendant for a term of three years starting from 15 June 1992. It appeared that at the time of the accident, the 2nd defendant was still in occupation. By virtue of the terms of the tenancy agreement, the plaintiff claimed that both defendants should be responsible for the maintenance of the waste water pipe system in question and in any case, they would be liable in negligence towards the plaintiff.

Amount of Damages

9. Having heard counsel and having considered the relevant witness statements, medical reports and the authorities cited, I am satisfied of the following :

(1) The plaintiff has proved its case on liability against the two defendants;

(2) The defendants were liable to pay damages arising from and as a result of the injuries caused to the plaintiff;

(3) The amounts of damages awarded are as follows :

(a) on the special damages, I shall allow the full amount of $3,558 as claimed;

(b) on the damages for pain, suffering and loss of amenities, I shall reduce the claimed sum to $350,000. This is by comparing the present case to the case of Lai Ching, 1998 HKC Lexis 1602. I found that the plaintiff's injury in our case also fell short of the "serious category" (see Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657 etc.);

(c) on the loss of pre-trial earnings, I shall only allow the plaintiff's loss and not the sister's. In this regard, I have been assisted by the case of Lee v. Sheard ALL ER V3 777 as Mr Remedios had fairly shown to this court. The amount is therefore $336,000;

(d) on the loss of future earnings, I shall use the multiplier of 13 instead of 15 as proposed, in view of the uncertain nature of the work as an unlicenced hawker. The amount is therefore $6,000 x 12 x 13 = $963,000;

(e) as to loss of earning capacity, I shall award $100,000.

The total amount of damages is therefore $1,725,558.

Conclusion

10. Hence, there will be judgment for the plaintiff for the amount of $1,725,558 with interest; and costs to the plaintiff, to be taxed if not agreed. There shall also be an order for Legal Aid taxation of the plaintiff's costs.

11. Further, on special damages and the loss of pre-trial earnings, interest shall be at half of judgment rate from date of accident to the date of trial i.e. 9 November 2000; on damages for pain and suffering, interest shall be at the rate of 2% per annum from date of service of the writ to date of trial.

Representation:

Mr Leo Remedios, instructed by Messrs Boase, Cohen & Collins, for the Plaintiff

D1, Chan Man-cheung, absent

D2, Kisstar Ltd, absent