Wai Ching Fong v. Leung Yau Nam and Another
Read the full judgment text of HCPI 825/1998 on BabelCite. This High Court CFI judgment was delivered on 15 October 1999.
1. The plaintiff injured herself on 31.8.96. when she fell down on the slippery floor of the kitchen, whilst carrying a bucket of hot soup. At the time the plaintiff was working as a dishwasher employed by the defendants in their restaurant in Fo Tan, Shatin.
Cited by 3 cases
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HCPI000825/1998 1998 PI No.825 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION No 825 of 1998
Coram : Master B Kwan in court Date of Hearing : 28 September 1999 Date of Handing Down of Decision : 15 October 1999 ____________________________________ ASSESSMENT OF DAMAGES ____________________________________ 1. The plaintiff injured herself on 31.8.96. when she fell down on the slippery floor of the kitchen, whilst carrying a bucket of hot soup. At the time the plaintiff was working as a dishwasher employed by the defendants in their restaurant in Fo Tan, Shatin. 2. After the accident the doctor at the Prince of Wales Hospital found scald wounds on both of her legs. She had also fractured her left humerus. 3. In the plaintiff's medical report it was stated that there were "no neurological complications" and "she was treated conservatively". Dr CK KO (PW1) explained that the first phrase meant that there had been no damage to the nerves of the left arm; and the second phrase meant the injury was dressed but not operated on. The plaintiff was given analgesics to ease the pain. 4. Thereafter the plaintiff went for physiotherapy and occupational therapy treatment. PW1 examined the plaintiff in the Dept of Orthopaedics & Traumatology of the Prince of Wales Hospital on 20.3.97. 5. PW1 found a small mild scalding injury at her right calf that had healed up satisfactorily. Although the plaintiff still suffered from mild residual pain in the left shoulder, PW1 noticed that there was a satisfactory range of motion of her left limb. 6. I reminded myself to consider PW1's evidence with caution because he had not physically examined the plaintiff for over 2 years. The report of PW1 was made way back in 1997. The plaintiff adduced no up to date medical report. 7. PW1 is now a Senior Medical Officer of the United Christian Hospital's Department of Orthopaedics & Traumatology. PW1 explained that in March 1997, the plaintiff's condition was sufficiently stabilized for him to refer her to the Medical Assessment Board. 8. In 1997 PW1 found that the main injuries suffered by the plaintiff were a fracture of the left humerus; and a scar on her right calf where the plaintiff was scalded by hot soup. PW1 noted that the bone fracture was not "displaced", in other words the broken parts of the humerus bone had not moved out of position. PW1 found no damage whatsoever to the nerve located in that area, hence his remark "without neurological complication". 9. PW1 found the scalding to be superficial, and the scarring mild. The area of the scar from scalding was small, and PW1 did not consider it to have any cosmetic impact bearing in mind the location and the plaintiff's age. 10. From the treatment given to the plaintiff it appears that her injuries were not considered serious by the doctors at the Prince of Wales Hospital. PW1 said that "treated conservatively", meant that painkillers and physiotherapy were the only treatments prescribed. At the time of his examination PW1 found that the plaintiff had a satisfactory range of shoulder movement. In fact he had expected the broken humerus to heal well. 11. I found PW1 to be a learned and helpful witness. He gave his evidence clearly and confidently. I accepted his opinion that the plaintiff's injuries had healed to a stable and optimum state when he examined her in March of 1997. 12. The most up-to-date medical examination of the plaintiff was on 21.6.97. when she came before the Medical Assessment Board. At that assessment, the Board found that the plaintiff had a loss of earning capacity of 2%. 13. The plaintiff gave evidence in support of her claim. At the date of trial she was already 65 years old, having been born on 16.6.34. The accident happened when she was 62 years old. She is illiterate. Her memory of details such as how and when she was paid her wages was less than perfect. In essence she says that she was paid $5100 per month. In addition, she was provided with meals by the defendant valued at about $500 per month. 14. The plaintiff was not too precise about the details of payment of her salary of $5100 per month. As she was illiterate, she was unable to refer me to the entries in her Sin Hua Bank passbook. She was a little confused whether she was paid once or twice a month. Despite her hesitation, I found the plaintiff to be an honest witness. I am prepared to hold that she was paid the sum of $5100 per month at the time of the accident. 15. Although she was unable to articulate how the food provided came to $500 per month, I am prepared to hold that she was given the fringe benefit in that amount. That sum appears reasonable by logical deduction. If she was given $500 worth of food over 26 working day period, that comes to approximately $19.23 per day, which seems quite reasonable. 16. Ms Chan submitted that the plaintiff's wages should be calculated on the total of monetary income and the value of the fringe benefit of the food provided, making it $5600 per month. I had my reservations about adopting the method of calculating income under Employees' Compensation cases pursuant to Cap 282 in an assessment of common law damages. A method of computing income provided by statute does not necessarily mean that common law damages should be computed in the same way. Since the hearing my attention has been brought to the case of NG WAN KONG v KWAN SIU KEUNG [1989] 1HKC 460 at 466 where Deputy Judge Kaplan calculated the plaintiff's monthly income by way of daily wage and fringe benefits. I am now persuaded that the plaintiff's income may be calculated in that manner. Adding her monetary income together with the fringe benefit of the food provided comes to $5600 per month ($5100 + $500 = $5600 per month). 17. The $1200 paid by the defendants to the plaintiff for medical expenses will be taken into account. 18. The plaintiff adduced medical receipts totalling $464 in support of her visits to the Li Ka Shing Specialist Clinic Exh P3. She also claimed $2080 fees paid to the Herbalist. These items are reasonable and reasonably incurred, and will be allowed. I am satisfied that the plaintiff's travelling expenses of $550 for taking a taxi to and from the Li Ka Shing Specialist Clinic were reasonably incurred and they will be allowed. Pre-trial Loss of Earnings 19. The plaintiff was granted sick leave until 20.3.97. The loss of earnings for that sick leave period is $36,960, being $5600 x 6.6 months. 20. After the accident the plaintiff worked as a part time dishwasher, whenever she did not suffer debilitating pain. At present the plaintiff is still suffering from residual pain. She says the pain at the shoulder joint is severe enough at times to effect the mobility of her left limb. She said the pain would occur about 10 to 20 times a month, and would last from half a day to a day and a half. Whenever she was in pain, the plaintiff would be unable to work, and be unable even to perform daily tasks such as bathing herself. 21. When she was able to do part-time dishwashing, she was paid $60 for one or two hours of work. On some days she would be paid as much as $100. Although the plaintiff was unable to recall exactly how often she worked on average, she stated that it was possible for her to earn about $1000 a month as a part-time dishwasher. I accept her evidence on this issue. The calculation of the median : I am prepared to accept the conventional 10% inflation rate for 1996, as the economic downturn had not yet effected our economy. The evidence shows that the subsequent annual inflation rates to be 5.8% for 1997; 2.8% for 1998; and -1.8% for 1999. 22. Using the figures above, the calculation for inflation will be :
23. I therefore calculate the median to be $6089.58 i.e.($5600 + $6579.17)÷2. 24. The accident occurred on 31.8.96. The plaintiff was on sick leave until 21.3.97. A period of approximately 2 years and 7 months or 31 months had elapsed from the end of the sick leave period to trial. The median income multiplied by the time elapsed ($6089.58 x 31months) produces the sum of $188,776.98 for pre-trial loss of earnings. Added to the loss of earnings during the sick leave period of $36,960 calculated above it comes to $225,736.98. Post trial Loss of Earnings 25. The plaintiff was born on 16th June 1934. She was 62 at the time of the accident. She is now 65 years old. 26. Ms Fung submitted that a multiplier of 4 was appropriate, relying on the SIN case quoted below, and on LAM MUI YING v BONDWOOD DEVELOPMENT LTD PI No.179 of 1995. In my view neither case referred to supports a multiplier of 4. In LAM MUI YING Mr Justice Waung adopted a multiplier of one for a lady aged 73 at trial. In the SIN case, the Registrar adopted a multiplier of 2 on evidence adduced that the plaintiff, who was 73 might well have been employed until the age of 75. There is no evidence at all before me that the plaintiff would be able to get employment in the years to come. She has been fortunate to get part-time work so far, she is already 65 and suffers from periodic bouts of debilitating pain. Her condition makes it unpredictable whether she can report to work on any given day. Managers of restaurants may not look too kindly upon dishwashers who fail to report to work all the time. In all the circumstances I find a multiplier of 2 to be appropriate here. The plaintiff's notional earnings at present would be $6579.17. $6579.17 less her present earnings of $1000 = $5579.17 The loss of future earnings is therefore $133,900.08 ( $5579.17 x 12 x 2 =$133,900.08 ) Pain Suffering and Loss of Amenities 27. Ms Chan submitted that a sum of $120,000 was appropriate for PSLA, relying on the authority of SIN SAU MUI v YUEN SAI KWONG and Ors, HCA No A11319 of 1993, where Mr Registrar Betts awarded the sum of $200,000 under this head. 28. There are 2 aspects to this head of damages, pain and suffering, and loss of amenities. The pain and suffering caused to the plaintiff was not serious. In SIN's case the injuries were much more serious, and the suffering endured by medical treatment spanned at least 3 months. The plaintiff in SIN's case suffered a displaced Colles' fracture of the right wrist which was treated by close reduction and immobilization in plaster for 3 months. This plaintiff's fracture was not displaced; she was merely given painkillers and did not have to be immobilized for months. 29. Loss of amenities is meant to cover "loss of enjoyment of life by reason of the curtailment of his sporting and physical activities" see Chun Yat Nam v AG, Civil Appeal No.92 of 1994. Taking the shoulder pain complained of by the plaintiff into consideration, in all the circumstances I find an award of $100,000 under this head to be appropriate. Summary
Interest 30. The award of $100,000 for PSLA will carry interest at 2% per annum from the date of the writ until 28th September 1999, and thereafter at judgment rate. 31. The sum awarded for pre-trial loss of earnings at $225736.98 and the award for special damages of $3094 will carry interest at half the judgment rate per annum from the date of the accident 31st August 1996 to the date of assessment. I will leave it to the plaintiff to calculate the interest. Costs 32. The costs of the assessment are to the plaintiff against the defendants, to be taxed if not agreed. 33. The plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.
Representation: Ms F Chan of Messrs Boase Cohen & Collins for the plaintiff. Defendants absent. |