Tang Wang Chi v. Cho Siu Foon

HCA001116/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Cruden in Chambers.

Date of Judgment: 12th April, 1978

Mr. D. Chang instructed by Messrs. T.S. Tong & Co. for Plaintiff.

Mr. Mills-Owens instructed by Messrs. Deacons for Defendant.

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DECISION

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The plaintiff on 23rd September, 1973 was riding his bicycle along Fam Kam Route II from Yuen Long to Sheung Shui. He was then aged 19 years. He was struck and knocked down by Motor Vehicle Registered No. BB8635. The motor vehicle was owned and driven by the defendant. The plaintiff claimed damages against the defendant for personal injuries. Interlocutory judgment was entered against the defendant on 25th July, 1976. The plaintiff now applies for damages to be assessed.

The plaintiff was in Hospital from 23rd September, 1973 to 20th October, 1973. His injuries on admission consisted of a 2 inch haematoma over the right forehead, 2 ½ inch laceration over the left parietal region of the scalp, 1 ½ inch laceration over the left cheek near the lips, 2 inch laceration over the front of the left thigh and a ¼ inch laceration over the front of the left shin. He was diagnosed as suffering from contusion of the brain.

The main brunt of the injury appeared to have been borne by the left side of the skull and brain. As a consequence of those injuries the plaintiff now suffers permanently from total blindness of the left eye. He also suffers from mild headaches which are getting less frequent and less severe. For some months after the accident there was a weakness of the right lower limb which gradually became milder until in 1978 any weakness had disappeared. On the medical evidence there was some dispute as to the possibility of post-traumatic epilepsy. But both doctors now thought that possibility was minimal. Dr. Wedderburn's final opinion was that the possibility was so slight that it was not more than one-quarter of 1%. Dr. Shroff, called by the defendant, thought that even that figure was high and considered that 4 ½ years after the accident, the possibility was now even less remote. It was also alleged that the plaintiff had received treatment for his injuries at the Yuet Sau Shan Hospital in Kwangchow. No medical reports or accounts were able to be produced in respect of those visits.

GENERAL DAMAGES:

1.Pain and suffering and loss of amenities:

The plaintiff suffered a head injury of moderate severity. Before the accident he was a fit young man without any physical disabilities. He was in Hospital for nearly one month. He was confused and drowsy on admission. He still suffers from headaches, although on a reduced scale. Total blindness in one eye must affect his future enjoyment of life. He was still only a teenager when the accident occurred. During the period his right leg was recovering its former strength, he must necessarily have been inconvenienced. While there is only an extremely slight residual risk of epilepsy, it remains a minor element to be taken into account.

After considering all these factors I award $50,000 under this head.

2.Loss of future earnings:

Before the accident the plaintiff was a construction worker in the New Territories. He was employed as a regular and not as a casual worker. He helped to build village houses and worked on smaller rather than major projects. His duties included plastering, aligning and erecting brick walls, mixing cement and related work. His work regularly involved working on scaffolding. It also required him to have some skill in alignment. He had been involved in this type of work for 3 ½ years before the accident. At the date of the accident he earned $60 per day. I am satisfied that the current rate for doing the same work as the plaintiff did before the accident is $75 per day. The plaintiff was then working 26 days a month earning a monthly wage of $1,560.

The plaintiff asserts that as a result of his disabilities he is only able to obtain work as a casual worker at construction sites at a maximum rate of $45 per day. He states that the loss of his left eye has affected his balance and prevents him from doing his former work on scaffolding or working at heights. It also means that he is less efficient in doing alignment work. The defendant's medical witness agreed that, because of the injuries, the plaintiff could no longer work above ground level while he would also experience difficulty in third dimensional viewing.

There was some dispute as to whether the plaintiff could now only be employed as a casual construction worker at the lower rate. I note that when the plaintiff first returned to work he endeavoured to carry on his previous duties. However, within 2 days he fell from a scaffolding and was dismissed for not being able to perform the work of a regular and more skilful worker. I am well satisfied that, as a result of the injuries, the plaintiff can now only obtain work as a casual construction worker at the lower rate of $45 per day.

The more substantial dispute, on the evidence, was whether the plaintiff, as a casual worker, was able to work a normal working month of 26 days. The plaintiff now only works an average of 15 days each month. This reduced number of days is due, he maintains, to two factors. First, he feels physically unable to work for a full month. Secondly, he states that as he is a casual worker it is more difficult to maintain continuity of employment. He considers he is not an attractive proposition to employers wanting short term casual workers. His disabilities are well known to employers in the Yuen Long District. He therefore has for some time worked solely for his present employer. He was assisted in obtaining that job by his cousin who is the employer's son-in-law. Further, that employer himself does not always have work for a full month. As against this, the defence submitted that construction work fluctuates and that particularly in the years immediately after the accident, employment was difficult for even physically able construction workers to obtain. The defence further submitted that, apart from the eyesight disability, the plaintiff had fully recovered and could obtain just as much work each month as other construction workers, if he really tried. The plaintiff rejoined, that to the extent that work was not always available, due to economic downturns in the construction industry, his disabilities weakened his position on the labour market as a casual worker. For when, due to a lull, there was a surplus of labour available in the construction industry, employers had a wide choice and preferred to choose physically able workers.

I accept that during any period of economic depression the plaintiff's disabilities must make it more difficult to obtain work. On the other hand, I was also satisfied that, apart from the loss of his left eye, he has recovered completely. While he could no longer do the more skilled work he earlier performed and while he was no doubt a less efficient worker, I was satisfied that he was capable of working much more than 15 days each month. I was satisfied that he could, with reasonable diligence, obtain work for 26 days each month.

I accepted that he would, but for the accident, be earning $70 to $75 per day for 26 days per month. At the lower figure that produces a monthly income of $1,820. If he worked 26 days a month, I am satisfied he should be working, his monthly income, at $45 per day, would be $1,170. His monthly loss of income is therefore $650. He is now aged 24 years. Based on an age of 24 years, I have selected 12, as the appropriate multiplier. On that basis I calculate his future loss of earnings $650 x 12 =$7,800 x 12 = $93,600.

SPECIAL DAMAGES:

I will deal with these in the order in which they are claimed:-

As to the remaining special damages, plaintiff's Counsel while inviting me to take a broad view, conceded that he was unable to prove the medical and travelling expenses relating to the visits to Kwangchow or the claim for extra nourishment. Those claims are therefore disallowed.

The total damages awarded are therefore:-

GENERAL DAMAGES:

SPECIAL DAMAGES:

Interest will be allowed at the rate of 8% on the $50,000 of the general damages from the date of service of the writ, namely 14th June, 1976 to today. Special damages of $38,365 will carry interest at the rate of 4% from the 23rd day of September 1973 to today. The total damages are to be paid into Court within 14 days. On payment in there will be payment out to the plaintiff. The plaintiff is entitled to the costs of this assessment and the action. Costs to be taxed in accordance with the Legal Aid Regulations. There will be a stay of execution as to $90,000 for 21 days and in the event of an appeal being filed within that period a further stay until the appeal is disposed of. There will be a certificate for Counsel.

Dated this 12th day of April, 1978.

Representation:

Mr. D. Chang instructed by Messrs. T.S. Tong & Co. for Plaintiff.

Mr. Mills-Owens instructed by Messrs. Deacons for Defendant.