Chan Yiu Ping v. Mok Yuk Kwong and Others
Read the full judgment text of HCPI 92/1998 on BabelCite. This High Court CFI judgment was delivered on 3 July 2000.
1. The plaintiff brings this action against the defendants claiming damages for injuries sustained by the plaintiff as a result of an accident which occurred on 6 February 1995 whilst the plaintiff was employed by the defendants as a Deputy Chief Chef in the Yuet Hing Yuen Vietnamese Restaurant ("the Restaurant") operated by the defendants.
Cited by 13 cases · Cites 3 cases
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HCPI000092/1998 HCPI 92/1998 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO.92 OF 1998 ----------------------
----------------------- Coram: Hon Suffiad J in Court Dates of hearing: 23-26 May 2000 Date of judgment: 3 July 2000 ---------------------- J U D G M E N T ---------------------- 1. The plaintiff brings this action against the defendants claiming damages for injuries sustained by the plaintiff as a result of an accident which occurred on 6 February 1995 whilst the plaintiff was employed by the defendants as a Deputy Chief Chef in the Yuet Hing Yuen Vietnamese Restaurant ("the Restaurant") operated by the defendants. The plaintiff's case 2. The plaintiff's case is that on 6 February 1995, he was working in the kitchen of the Restaurant which is situated in Mongkok. At about 8 p.m. that evening, the plaintiff was informed that there was a phone call for him. The telephone was situated on the cashier's desk near the main entrance of the Restaurant. The plaintiff then went to take the phone call. As he emerged from the kitchen entrance, his right foot stepped on some oil or water which was on the ground. As a result, his right foot slipped and twisted outwards. At the same time the plaintiff heard sound of bones cracking. He became frighten and yelled out. The plaintiff says he did not fall out but supported himself against the wall and slowly slipped down onto the floor. He then felt pain from his right calf going up his leg. A moment after he had sat on the floor, a colleague, Hui Kwok Leung, came and helped him. An ambulance was summoned and the plaintiff was taken to United Christian Hospital where he was admitted. He was later diagnosed to suffer from a fracture of the distal right tibia and fibula, just above the right ankle. 3. It is the plaintiff's case that at the time of the accident, that part of the Restaurant floor where the kitchen entrance was was made slippery because four chickens, after having been marinated, was hung up to dry right at the kitchen entrance by reason of the fact that an air curtain was situated immediately above the kitchen entrance (the air curtain was for the purpose of preventing the air-conditioned air of the Restaurant proper from mixing with the warmer air inside the kitchen). Oil and water had dripped from these four chickens hung over the kitchen entrance thus causing the ground below to be oily and slippery. 4. It is also the plaintiff's case that these chickens were hung over the kitchen entrance at the instigation of the Head Chef of that Restaurant, one Ma Hon Man. The plaintiff had complained on several occasions previously to the Head Chef, as well as to the defendants' Manager, one Chiu Tin Yuen, of the oil dripping from chicken hung over the kitchen entrance but nothing was done about it by either the Head Chef or the Manager. 5. The plaintiff called as a witness Hui Kwok Leung ("Mr Hui"), his colleague and the first person to come to the plaintiff's assistance after his accident. Although Mr Hui did not witness the actual accident occurring, his evidence was that when the accident occurred, he was only a very short distance (of about five steps) away from the plaintiff inside the kitchen. He heard what sounded like a plastic bucket being dropped onto the floor. He went out of the kitchen and saw the plaintiff on the floor. After seeing the plaintiff in great pain, he notified the Manager to call for an ambulance. 6. Mr Hui also said in his evidence that at the time of the accident, the floor at the kitchen entrance was oily and slippery. He also confirmed the plaintiff's evidence that there were chickens hanging over the kitchen entrance to dry. Moreover, oil and water was dripping from these chickens onto the floor. He also gave evidence that he had previously heard the plaintiff complaining both to the Head Chef as well as to the Manager of oil dripping from the chickens hung over the kitchen entrance. The defence case 7. The Manager of the Restaurant Chiu Tin Yuen gave evidence for the defendants. His elder brother is one of the defendants in this case. He became the Manager in about 1992 and the Restaurant ceased operation in October 1995. 8. He did not witness how the plaintiff met with his accident that evening. However, he denied that the floor where the plaintiff met with his accident was slippery with oil and water. He also denied that there was any chicken hanging over the kitchen entrance at the time. He suggested that the accident came about because of the plaintiff's own negligence and not due to any slippery substance on the floor. He also gave evidence that the Restaurant floor was cleaned by a cleaner three times a day, at 10 a.m., 5:30 p.m. and 11:30 p.m. and at such other times as necessary. That when the floor of the Restaurant was cleaned, it would be cleaned with grease remover. 9. He denied that during the time he was manager of the Restaurant that any chicken would be hung over the kitchen entrance. All the chickens which had to be dried according to him would be dried by being hung inside the kitchen but never at the entrance to the kitchen. He further denied that the plaintiff had ever complained to him or to the Head Chef of oil dripping from chicken hung over the kitchen entrance. Assessment of the evidence 10. The plaintiff struck me as a basically honest witness. However, there are two areas in his evidence, which, I shall need to deal with. 11. Firstly, when the plaintiff was in the witness box he described how he had slipped and twisted his right foot but without falling onto the ground. However in his witness statement (which stood as his evidence-in-chief), it was stated that he had slipped, fallen heavily onto the ground, and upon hitting the floor, fell totally immobilised on his right side. In the light of the discrepancy between the plaintiff's witness statement and what he said in the witness box, this gave rise to the defendants' suggestion that the plaintiff was fabricating a "story" as to how the accident happened. However, when I look at the medical report given by Professor Peter W.H. Lee who was instructed by the defendants, I see in the body of that report an account of the accident (which no doubt was given by the plaintiff to Professor Lee) in the following terms :
12. This account of what happened not only conform with the plaintiff's version as given by him in the witness box, it also predates his witness statement since the plaintiff was seen by Professor Lee on 8 and 15 June 1999 and the report of Professor Lee was dated 3 July 1999. The plaintiff's witness statement was dated 21 July 1999. It is inconceivable that the plaintiff would have told two similar versions, one to Professor Lee and one at the trial, yet in between these two versions, told a very different version of what happened to his solicitors. The inevitable conclusion which I am led to by all this is that the plaintiff's solicitors had made a mistake when drafting the witness statement which was not picked up by the plaintiff when it was interpreted to him before he signed it. 13. Secondly, the plaintiff's own evidence that he had no authority to be in charge of the kitchen workers or to give them order when the Head Chef was not present is contradicted by the evidence of his own witness Hui Kwok Leung. That evidence is also contradicted by the evidence of the Manager, Chiu Tin Yuen. Quite apart from the evidence of Mr Hui and Mr Chiu, common sense would suggest that the plaintiff, being the Deputy Head Chef, would more likely than not be in charge of the kitchen staff, giving them orders in the absence of the Head Chef. 14. Apart from the second matter referred to above, I am prepared to accept the evidence given by the plaintiff. 15. In so far as the evidence of Chiu Tin Yuen, the defence witness, is concerned, I disbelieve his evidence that there were never any chicken hanging under the air curtain where the kitchen entrance was. In his witness statement (which was adopted as his evidence-in-chief) it was stated that chickens were hanged inside the kitchen and not at the kitchen entrance. He further gave evidence from the witness box in chief saying that he had never seen chicken hung at the kitchen entrance to dry. However, under cross-examination, he said that he had warned the Head Chef Mr Ma about hanging chicken over the kitchen entrance. When further cross-examined on this, he said that it was one isolated occasion long before the plaintiff's accident when some of the junior kitchen staff tried to hang chickens over the kitchen entrance but he then warned Mr Ma that this should not be done even before they had succeeded in hanging the chickens there. 16. The sequence in which this evidence came about, in my view shows that Mr Chiu has not been entirely frank with this court. His evidence-in-chief gave, or was intended by him to convey the impression that the practice of that Restaurant was always to hang chicken inside the kitchen and not at the entrance. Only when he was cross-examined that it was revealed that at least one occasion kitchen staff had tried to hang chickens at the kitchen entrance underneath the air curtain. 17. Furthermore, it is the evidence of Mr Chiu that when chickens are hung inside the kitchen, they would be hung near to air-vents from which air would be flowing out so that the chickens could be dried by such air coming out from these air-vents. If that be the case, then all the suggestions in his evidence that chickens hung underneath the air curtain at the kitchen entrance would be unhygienic does not hold good since chicken hung inside the kitchen but close to such air-vents would be equally unhygienic. In my view, if chickens were hung inside the kitchen close to air-vents so that they could be dried from air coming out from the air-vents, it would be more than likely that chickens would also be hung underneath the air curtain at the kitchen entrance for the same purpose. 18. In so far as the medical evidence relevant to liability in this case is concerned, it is common ground between the parties that the plaintiff in this case had suffered a spiral fracture of the distal tibia and fibula. Both the plaintiff's doctor, Dr Chan Kow Tak, as well as the defendants' doctor, Dr Arthur Chiang, are agreed that a spiral fracture more likely than not is a result of a twisting injury. Medical literature produced by Dr Arthur Chiang (Rockwood and Green's Fractures in Adult 3rd ed.) suggested that the typical cause for a spiral fracture would be slipping or skiing and the mechanism bringing about such a fracture, being the torsion or the force generated by the twisting. Both doctors are also agreed that a moderate twisting force would be sufficient to bring about such a spiral fracture in the tibia and fibula. 19. Where the two doctors differ is that Dr Arthur Chiang was of the opinion that while it is still possible for such a spiral fracture to be sustained by a person walking at normal pace, the chance for this to occur is very low. He was of the opinion that it is much more frequent to encounter such fractures in more strenuous activities such as sports where the foot is fixed on the ground and the upper part of the leg sustains a twisting force. 20. On the other hand, Dr Chan Kow Tak takes the view that such a spiral fracture occurs after a twisting injury. The twist is the mechanism of the injury and it can come about whether one is walking or running. He gives the example of a person who slips on one foot while walking. When his foot slips, a person instinctively reacts either to regain his balance or not to lose it, and in so doing, it may very often result in a twisting injury to the ankle which, if forceful enough, can give rise to such a spiral fracture of the tibia and fibula. Findings of fact 21. From all the evidence before me, I find that at the material time of the accident, chickens were being hung over the kitchen entrance to dry. From the chickens hung over the kitchen entrance, oil and/or water dripped onto the floor making it slippery. When the plaintiff emerged from the kitchen entrance, his right foot slipped on this slippery substance causing the right foot to twist and resulting in the spiral fracture to the distal tibia and fibula. I further find that the plaintiff did not fall onto the ground. It follows from this finding that the fracture came about as a result of the twisting injury. Liability 22. From my findings above, prima facie, it was the defendants who had caused or allowed the floor at the kitchen entrance to become wet and slippery which in turn had caused this accident to the plaintiff. Apart from a statement in the witness statement of Chiu Tin Yuen to the effect that a cleaner was employed to clean the Restaurant three times a day, at 10 a.m., 5:30 p.m. and 11:30 p.m., and also at such other times when necessary, the defence of taking all reasonable care to ensure that the floor was not slippery, was not pursued any further by the defendants at the trial. This accident happened at about 8 p.m and apart from what was stated in Chiu Tin Yuen's statement which was adopted as his evidence-in-chief, there was no other evidence before me showing that reasonable steps were taken at the material time to ensure that the floor just outside the kitchen entrance would not be slippery. I therefore come to the inevitable conclusion that the defendants were negligent in respect of the accident and the resultant injury caused to the plaintiff. Contributory negligence 23. In so far as contributory negligence is concerned, there is evidence before me from the plaintiff that he knew of three or four previous occasions when staff of the Restaurant had also slipped at approximately the same place as he did and which were also due to the slippery nature of the floor caused by oil and/or water dripping from chickens hung over the kitchen entrance. 24. There is also evidence from the plaintiff that the chicken hung over the kitchen entrance was the idea of the Head Chef Ma Hon Man and that the plaintiff had, on occasions before this accident, complained to both Ma, as well as the Manager, Chiu Tin Yuen, about the chicken hung over the kitchen entrance. I accept this evidence of the plaintiff and to a certain extent, it is supported by the evidence of Chiu Tin Yuen when he said he had also warned Ma on one previous occasion about hanging chickens over the kitchen entrance. 25. The point taken by Mr Lim on behalf of the defendants relevant to the issue of contributory negligence was that the plaintiff had done nothing to cause the chickens to be taken down from the kitchen entrance when the Head Chef, Ma Hon Man was not there. Although I do not accept that the plaintiff had no authority to order the kitchen staff when the Head Chef was not there, it does not surprise me that the plaintiff did nothing to have these chickens removed from the kitchen entrance when the Head Chef was not there because to do so would be to directly contradict the orders of the Head Chef. As long as the plaintiff had made such complaints to the Head Chef and to the Manager, I cannot see that his failure to have these chickens removed from the kitchen entrance can amount to contributory negligence in the circumstances. 26. All that is left therefore, is the plaintiff's knowledge of the slippery condition of the floor where the kitchen entrance was situated. The kitchen entrance is the only means of access or egress to and from the kitchen. Knowledge of the condition alone is not sufficient to give rise to contributing negligence. It is for the defendants to show that the plaintiff has failed to take reasonable care of his own safety. Granted that the plaintiff knew of the slippery condition of the floor, there is no evidence before me that the plaintiff was in any way careless or should have taken more care in the circumstances that he did. Accordingly, I am not persuaded that there was any contributory negligence on the part of the plaintiff in respect of this accident. Injuries and treatment 27. The plaintiff was admitted to the United Christian Hospital by ambulance on 6 February 1995 immediately after the accident. X-ray taken at the hospital revealed fractures of the right distal tibia and fibula. An operation was done on 7 February 1995 in which an open reduction was done to the fractured site and the fracture itself was treated by nail fixation and plating. The plaintiff was discharged from the hospital on 15 February 1995, having to walk with a pair of crutches for the next few months after discharge. The plaintiff received regular follow-up treatment at an out-patient clinic as well as regular physiotherapy treatment twice a week for the next three months. On 22 July 1996, the plaintiff was re-admitted to the United Christian Hospital for two days for another operation to remove the metal implants in his right leg. Following that operation, he again received further regular out-patient treatment. 28. According to the plaintiff, the condition of his right leg deteriorated in about July 1997 when he experienced prolonged pain at the fractured site especially when the weather changes. 29. His present disabilities include the persistent pain on his right leg, particularly after prolonged walking or standing. His right ankle is always stiff and often swollen. The right leg is weak and he has difficulties squatting, kneeling or lifting heavy objects. He also complains of feeling dizzy and getting tired easily. Psychological complaint 30. In this respect, the plaintiff was examined by Dr Timothy Law, a medical and forensic psychologist as well as a neuro psychologist in March and April 1999. Doctor Law found that because of his fracture of the right distal tibia and fibula, the plaintiff's aspiration to open a restaurant of his own in Belgium has been shattered. He further found that the plaintiff is frustrated at having lost his past years of work and preparation for his future. Doctor Law further found that there were noticeable mild symptoms of anxiety and depression which have persisted due to continuous presence of his pains and discomforts at the fractured site as well as his failure to return to his previous job, the severe financial loss that he has suffered as a result of that as well as an uncertain future. Doctor Law was of the opinion that his emotional psychological and behavioural complaints are common sequela of chronic pain syndromes that are the direct result of his injuries. Doctor Law also came to the conclusion that this in turn has severely affected his marital relationship with his wife and has even led to suicidal ideation on the part of the plaintiff. 31. After conducting a number of tests on the plaintiff, Dr Law came to the conclusion that the plaintiff was suffering from chronic pain syndromes secondary to work related-injury; mild post-traumatic stress disorder, recurrent and unresolved; and mild to moderate major depressions with anxiety, without psychotic features. He assessed the plaintiff's emotion or behavioral impairments at 39% and the plaintiff's sexual impairment at 14%. Doctor Law also assessed the loss of earning capacity to be a 100% and that the future loss of earning capacity without behavioural and psychological treatment to be 70%, but after treatment and promising progress would be 40%. From this he assessed the combined permanent injury of the whole person to be 48%. 32. The plaintiff was also examined in June 1999 by Professor Peter Lee, a consultant clinical psychologist at the University of Hong Kong, Queen Mary Hospital. His findings were not dissimilar from that of Dr Law. Professor Lee found the plaintiff to have some residual depressive symptoms due to the loss of the opportunity for developing his career better and eventually starting his own restaurant. He also found the plaintiff resentful because of his compensation claims and has been bothered much by the litigation process. The plaintiff also has anticipatory worries relating to his future earning capacity as well as his potentially deteriorating physical condition. However, according to Professor Lee, all the plaintiff's psychological symptoms are not severe enough to reach the intensity of a clinical depressive condition, but that his current condition and presentation is more compatible with that of an adjustment disorder with depressed mood. Professor Lee was also of the view that the plaintiff's adjustment disorder arises out of and is complicated by various different issues which extend beyond his accident and physical injury. In this respect, Professor Lee pointed out that prior to his accident, the plaintiff had already had a serious relationship problem with his wife. His injury suffered as a result of that accident only served to further intensify the marital problem between them. Subsequently, the plaintiff discovered that his wife had an extra-marital relationship with one of her colleagues, and this even further aggravated his psychological problem. It was this discovery that led to his suicidal tenancies. Professor Lee further opined that the plaintiff's depressive and adjustment difficulties have most likely also exaggerated his perception of his own incapacity and fixated his attention on his pains rather than his recovering ability. 33. Professor Lee draws a distinct line between the plaintiff's psychological problems resulting from his physical injury to his right leg on the one hand and those arising from his marital discord with his wife and which was brought to a head by his discovery of her infidelity to him. By way of treatment, Professor Lee recommends, firstly, a course of 15 sessions of psychotherapy to help the plaintiff deal with his difficulties in a more realistic manner, to manage his emotions better, to let go of his resentment and bitterness, to focus on the real life tasks that needs to be tackled, to manage his pain better, and to develop a more realistic and constructive plan for his future. As for the problems arising from the plaintiff's marital relationship with his wife, Professor Lee recommends a separate course of 10 sessions of marital therapy. In both cases, the average cost of psychological therapies in the private sector is estimated by Professor Lee to be about $1,500 per session. 34. I have no hesitation in accepting the opinion of Professor Lee over that of Dr Law for the following reasons. Firstly, the extra-marital relationship which the plaintiff's wife had with a colleague of hers, and which was not disputed by the plaintiff in his evidence, was not even mentioned by Dr Law in his medical report on the plaintiff. Despite the fact that under cross-examination Dr Law admitted that he had been told of this extra-marital relationship of the wife by the plaintiff during examination. Secondly, when further cross-examined, Dr Law was adamant that the psychological problems of the plaintiff arising from his marital discord with his wife was linked to a direct result of the plaintiff's physical injuries sustained at the accident. However, Dr Law also conceded that although he had wanted to, he had been unable all along to interview the plaintiff's wife. In the circumstances, I am at a complete loss to understand how Dr Law could say that the wife's extra-marital relationship could be linked to or a direct result of the plaintiff's physical injuries sustained at the accident. Complaint of low back pain 35. This matter is further complicated by a complaint of low back pain from the plaintiff which the plaintiff says was sustained by him on 24 and 25 February 1999 during tests conducted with him by the occupational therapist appointed by the defendants, Mrs Alice Tsang. Moreover, the plaintiff also complains of having sustained a back injury on 28 October 1999 while he was working for the Ho Mei King Restaurant in Tsing Yi Island. 36. In both these cases, there has been no evidence even to remotely suggest that the defendants could have reasonably foreseen in 1995 that their negligence in causing the Restaurant floor to be slippery could result in the plaintiff suffering low back pains in 1999. Even if it could be argued that the defendants ought reasonably to have foreseen that, by their negligence, the plaintiff might have to be examined by an occupational therapist appointed by the defendants at a later stage, it could not have been foreseeable to the defendants that whilst undergoing test at such an occupational therapist, the plaintiff would sustain low back pains. I therefore would exclude from consideration the complaint of low back pains on both these occasions and their attendant consequences in the quantification of damages in this case. Pain, suffering and loss of amenities 37. When the plaintiff was examined by Dr Arthur Chiang in September 1997, Dr Chiang found that the fractures of the right tibia and fibula had aligned well but that there was still some residual pain and stiffness of the right ankle. Dr Chiang assessed the permanent impairment of the plaintiff to be about 5% in respect of the fractures of the tibia and fibula and assessed his loss of earning capacity to be about 10%. 38. Doctor Chan Kow Tak examined the plaintiff in May 1999 and also found some stiffness in the right ankle and residual pain which he put down to being a complication of the healed fracture. He was of the view that the right ankle stiffness may not improve substantially anymore but that the pain may dissipate with time. He assessed the plaintiff's total impairment to be at 13% and the loss of earning capacity to be 18%. These assessments by the two doctors related only to the plaintiff's fracture of the right tibia and fibula. 39. I take into consideration also that the plaintiff had suffered some adjustment disorder psychologically. In doing so, I accept the opinion expressed by Professor Lee that whilst a part of that adjustment disorder may have stemmed from his physical injury to his right ankle, however, that adjustment disorder has been complicated by matters extraneous to his physical injury of the right ankle, namely his relationship with his wife, not the least of which was his wife's infidelity. 40. I was referred in argument to the following cases for the award of pain, suffering and loss of amenities :
41. I have also taken into account a video taken by investigators instructed by the defendants of the plaintiff in June 1999 walking in the street and doing some light shopping. The video shows that the plaintiff was able to walk unaided carrying some light shopping with him. His mode of walking from the video appears to be quite normal with no limp or any apparently uncomfortable movement. In contrast to this, the plaintiff came to Court with a walking stick. However, I bear in mind that the plaintiff has complained of an injury at work in October 1999 whereby he had suffered some low back pain. Although this injury has not been taken into consideration by me in deciding the amount of damages in this case, his low back pain may be the reason why he is now walking with a walking stick, although that is not a consequence which I will take into consideration in arriving at the damages in this case. 42. In all the circumstances of this case, had the plaintiff's injuries been restricted only to his physical injury and its resultant disabilities in the form of stiffness to the right ankle and residual pain, I would have considered an award under this head to be just outside the serious injury category laid down in Lee Ting Lam. However, taking into consideration also the psychological impairment in the form of adjustment disorder to the plaintiff arising out of the physical injury suffered by him, I think a global award of $500,000 would be reasonable compensation to the plaintiff under this head of damage. Pre-trial loss of earnings 43. The plaintiff was given one year's sick leave after the accident and a further four months of sick leave arising out of his second operation to remove the metal platings from the fractured site. Totally, therefore, the plaintiff was given 16 months of sick leave. The plaintiff's pre-accident earnings was $11,000 per month including three free meals a day and a year end extra month salary. Taking into account all this, the average pre-accident monthly salary of the plaintiff comes to $12,697. Government statistics for September 1999 show that a chief cook in a Chinese restaurant would be earning a monthly salary of $18,909 whereas a cook in a Chinese restaurant would be earning a monthly salary of $13,433. The same statistics for restaurant other than Chinese restaurants show that a chief cook would be earning $17,732 whereas a cook would be earning $12,692. From these statistics, I can safely conclude that the plaintiff, who was working as a Deputy Head Chef before the accident in a Vietnamese Restaurant, would be earning in the region of $15,000 per month, had it not been for the accident, at the time of trial. I therefore take the notional earnings for the pre-trial period to be the mean between his pre-accident earnings of $12,697 per month and the earnings of $15,000 per month at the time of trial. This gives the notional earnings for the pre-trial period to be $13,848. 44. For the 16 months that the plaintiff was given sick leave, his loss of pre-trial earnings would come to $221,568. 45. During the pre-trial period, the plaintiff had actually worked on and off mainly on a part-time basis for various kitchens or restaurants. These periods in which the plaintiff had worked on a part-time basis was from March to May 1996, from September to December 1996, from January to June 1997, and from August 1998 to February 1999 when he complained of his back pain after the sessions with the defendants' occupational therapist. These episodes in which the plaintiff had actually worked on a part-time basis suggest to me that the plaintiff was genuinely trying to return to work but was unable to carry on in the work for long because of the discomfort and the pain from his right leg. 46. I have also been urged to calculate the plaintiff's loss of earnings on the basis that the plaintiff was offered a position as Chief Chef in a Chinese restaurant in Belgium at a monthly salary of 100,000 Belgium Franc which translated to over $20,000 for a term of two years. In this respect, a Chinese letter from this restaurant, the Au Cugne d'Or dated 6 May 1998 was produced into evidence by the plaintiff. It is a letter written in Chinese by one Lee Kam Fai, the Supervisor of the Au Cugne d'Or and addressed to the plaintiff. However, apart from saying that he had received such an offer as contained in this letter, there was no other evidence coming from the plaintiff as to how such an offer was made to him or what relationship he stood vis-à-vis Mr Lee Kam Fai. The letter itself, although address to the plaintiff by name, starts off in a most curious manner as follows :
It then goes on to detail the terms of the offer and the necessary documentation required for processing the application. Nothing in the letter suggest that Mr Lee Kam Fai was personally acquainted with the plaintiff and it remains mystery as to how suddenly from out of the blue such a letter came in May 1998, soon after the writ of summons was issued in this case in January 1998. In the absence of any other evidence, I am unable to give any weight to the contents of this letter although it was admitted into evidence by way of a hearsay notice. 47. After the 16 months of sick leave, a further 26 months will bring the time up to August 1998. During this 26 months, the plaintiff had totally earned $59,750 from his on and off part-time cooking work. His loss of income for this period, therefore, comes to :
48. From August 1998 onwards, the plaintiff was able to obtain work as an Assistant Cook in a coffee shop at the salary of $10,000 per month. He was able to keep this job until February 1999 when he suffered his low back pains during the session with the occupational therapist. However, since the low back injury was not a consequence for which the defendants should bear responsibility for the reasons given above, I take the view that in his present condition, he would have been able to continue with that job, paying $10,000 per month on a long-term basis had it not been for the back pain that he suffered. Accordingly, the plaintiff's loss of earnings from August 1998 until trial comes to :
49. The plaintiff's total pre-trial loss of earnings therefore comes to $606,522. Loss of future earnings 50. On the basis that the plaintiff was able to secure a job paying $10,000 per month in August 1998, and that that job was only curtailed because of his back pain, which is unrelated to the present accident, I will use as a multiplicant the difference between what he would have earned today had he continued in his pre-accident job, namely $15,000 and what he actually did earn in his last job of $10,000 per month. The difference comes to $5000 per month. 51. As for the multiplier, the plaintiff was 36 years old at the time of the accident and is now 41 years old. The plaintiff has suggested a multiplier of 12 and the defendants say that a multiplier of 9 is more appropriate. Taking into account the nature of the pre-accident job as a Deputy Head Chef and the fact that the plaintiff has a six year old daughter which suggests that the plaintiff will have to be working for quite some considerable time yet in order to support his family, it would not be unreasonable to adopt a multiplier of 12 as suggested by the plaintiff. The total damages for future loss of earnings, therefore, comes to :
Loss of earnings capacity 52. The plaintiff claims for $250,000 under this head of damage. The defendants on the other hand say that the plaintiff is not entitled to anything under this head because he is able to resume his pre-accident employment. Having accepted that the plaintiff is unable to resume fully his pre-accident employment, but is able to do some less demanding work in a kitchen or restaurant in respect of which he is not required to be on his feet for a prolonged period of time, there is, in my view, a real likelihood that he will suffer a handicap in the labour market. However, in view of the fact that his future loss of earnings is based on the footing that the plaintiff will be able to earn $10,000 per month, I am of the view that a sum of $120,000 would be sufficient to compensate the plaintiff for loss of earnings capacity. This would represent 12 months of the plaintiff's earnings post trial. Loss of congenial employment 53. Although it is now well recongised that this is a separate head of damage and an award may be made when the plaintiff has had to give up a job which he enjoyed and which gave him satisfaction and/or status. However, the facts of this case show that the plaintiff, who was enjoying his work as a Chef in Belgium, had to return to Hong Kong in 1993 thereby enjoying a "lesser" position working in restaurant here due to family pressure. Whilst he may have harboured aspirations of returning to Belgium to work as a Chef there, having a daughter born here could only have further hindered those aspirations. Although he cannot fully return to his pre-accident employment because of the resultant disability, he can still take on work of a less demanding nature in that field, cooking in restaurant or kitchen. In all the circumstances, I am not persuaded that I should make an award under this head, and I decline to do so. Special damages 54. With the exception of the claim for tonic food, the rest of the special damages claimed by the plaintiff in the amount of $5,920 are agreed and will be allowed. 55. In so far as tonic food is concerned, the plaintiff claims $10,000. No documentary receipts have been produced to support the amount claimed. In the absence of such proof as to the amount, I agree with the defendants that $5,000 would be a reasonable sum to be awarded for tonic food. I make that award instead of the $10,000 claimed. 56. Total special damages therefore comes to $10,920. Cost of future psychological treatment 57. Under this head, the plaintiff claims $301,400. This amount claimed is based on the suggested treatment by Dr Law. 58. However as already indicated above, I preferred the evidence of Professor Lee to that of Dr Law. This includes also the future psychological treatment in respect of the plaintiff. 59. Accordingly I will award the plaintiff the cost of 15 sessions of psychotherapy as advised by Professor Lee but not the 10 sessions for marital therapy since I have already come to the conclusion that his marital problems have not been proved to be a result of this accident. 60. Professor Lee suggested $1,500 per session. Therefore 15 sessions will come to $22,500. Summary
Interests 61. Interests will be awarded at 2% p.a. on general damages for pain suffering and loss of amenities from the date of writ until judgment. 62. Interests at half judgment rate (5.77% p.a.) will be awarded for pre-trial loss of earnings and special damages from the date of accident until the date of judgment. 63. The calculation of such interests can be left to the solicitors for the parties to work out. Conclusion 64. Accordingly, there will be judgment for the plaintiff against the defendants for $1,692,375.08 together with interests as indicated above. Costs 65. I shall make a costs order nisi that the costs of this action be to the plaintiff to be taxed if not agreed. The plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.
Representation: Mr Albert Tsang, instructed by Messrs C.W. Chung & Co., for the Plaintiff Mr Patrick Lim, instructed by Messrs Hastings & Co., for the Defendants |
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