Shek Kam Tin v. Chan Fuk Sang and Another

HCA000405/1977

Coram: Zimmern, J.

Date of Judgment: 18th April, 1978.

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JUDGMENT

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1. A young man born in 1955 met with a serious accident in August 1974 that is when he was 19 years of age. He left school early in life at 16 when still in primary school and was apprenticed in a building construction firm as a mason and plasterer for a period of three years. After his apprenticeship he started work as a mason and plasterer in another firm at a salary of $1,500 a month, in the same year he met with this accident. The defendant has conceded or admitted liability and it falls on me to assess damages in this case.

2. As to the injuries two doctors have given evidence. Their reports are before me and they are in complete agreement. First, in layman's terms, there was a fracture of the left thigh bone. Second there was a fracture of the lower part of the left shin bone the part which joins the left ankle. He was treated in a Government hospital and after surgery the thigh bone healed completely and he suffers no disability therefrom save this - there is still a little bit of discomfiture and this is because the nail driven into the bone to fix it is still there and according to Dr. Wedderburn it can easily be removed after which the discomfiture of the leg will go away.

3. The shin bone is a different proposition. Although the bone itself has healed his ankle movement is restricted. Now he can only move the foot in one direction that is up and down to an extent of roughly 20 and now 30 but according to Dr. Wedderburn and Dr. Tsao the ankle in the course of time will stiffen and osteo arthritis will set in if it has not already set in. He has suffered pain and will suffer pain. If he were to accept the recommendation of Dr. Wedderburn to fuse the shin bone and the ankle at he joint then to quote his own words "It will give him a stable painless ankle and he will be able to stand or bear weight for long periods. He would have a slight limp not as marked as at present. He would be able to walk two or three miles, he would not be able to run. His permanent injuries as far as I can see are that he will not be able to squat, he will not be able to run, he will not be able to climb ladders or steps." Because of the operations his ankle is unsightly through skin grafting. There is weakness of the calf muscles but through exercise that weakness will also go away. So much for his injuries.

4. Dealing first with the claim against the defendant the driver and owner of the car under special damage, there is a total claim for $38,120 comprising of 13 items. Counsel for the plaintiff and defendant have agreed on items 1 to 12 to be $22,500 leaving me to assess item 13. Item 13 reads as follows:

"The plaintiff has since (1/11/75 to the end of December 1976) been earning $500 per month thus suffering from loss of earning at $1,000 per month for 14 months and continuing"

and in the prayer for relief under paragraph 4 there is a claim for $38,120. I now have to go into the evidence of the plaintiff and two other witnesses called on behalf of the plaintiff. There is no dispute that for the first 14 months after his accident he was unable to work. According to the plaintiff himself after that he first tried a job with a plastic factory earning a few hundred dollars a month but he quit after one week as he found the work too heavy. He then joined a roast meat firm to work as what I would call a sweeper. It is not exactly clear whether he spent his time in pulling feathers out of poultry or whether he was sweeping off the floor the feathers from the carcases of the poultry.

5. His employer at the time of the accident gave evidence and told the court he was an able young man and he was a skilled workman with a good future. After the accident, well over 14 months after the accident, the proprietor of the roast meat firm said the plaintiff was more or less useless in his job and that he was weak. He has been there now for over 2 years and he has had no increase in salary what-soever remaining at $500 and that he the proprietor really employed him because he was a class-mate of his son.

6. I have heard and seen the plaintiff in the box himself and I have no doubt about one thing. He is an intelligent young man. He was quick to grasp questions, he answered clearly, succinctly and with no disrespect to him, he certainly had wits about him.

7. Mr. Woo on behalf of the plaintiff contends that there is a loss here of $1,000 a month under special damages. Mr. Bokhary for the defendant said immediately after the 14 months period when he was able to work again perhaps he was not all himself but certainly on the 29th September 1977 when he saw Dr. Wedderburn he said this to the doctor who reported:- "he is unable now to do this type of work and he is earning about half of his previous income". The plaintiff admitted that he said this to the doctor and what he told the doctor was true though he tried to evade this in re-examination. I have come to the conclusion that firstly either his present employment is because he has not tried his best to get other employment or the terms of his employment are untrue. I find it difficult to accept and I do not accept that a man described as a skilled worker with the future he has before him could suddenly after the accident, sympathic as I am, take on a menial job at such a low salary without in any way trying to better himself over the last two years. Be that as it may, I am bound by the pleadings and the pleadings here sets out special damage under item 13 at a sum of $14,000 and I award this sum. The special damage therefore comes with the $22,540 special damages agreed to $36,540. I now come to claim for suffering and loss of amenities under general damages. He has certainly suffered quite a bit of pain and he has lost certain amenities and I award the sum of $15,000. Then loss of prospective earnings. I think it is time this plaintiff realised if he does not already know that there is a large labour market in Hong Kong and there is always a demand for labour. He might not be able to do all the work he used to do by reason of his disability but there is still plenty of scope for him.

8. Doing the best I can I assess and I award his loss of prospective earnings to be $200 a month which amounts to $2,400 a year as a multiplicant and I apply a multiplier of 15 which gives a sum of $36,000. Therefore general damages come to $51,000 with special damages at $36,540 totalling $87,540.

9. There will be judgment for the plaintiff in the sum of $87,540 with interest at 4% per annum on the sum of $36,540 from the date of the accident to 4th April 1978. There will be costs for the plaintiff up to 4th April, 1978 and defendant's costs thereafter. Order for payment out of Court the sum of $87,540. Balance in Court to be paid out to the solicitors for the defendants.

Representation:

Patrick Woo (H.M. So & Co.) for the plaintiff

Bokhary (H.A. Hoosenally & Co.) for the defendants