Ip Koon Ling v. Cheung Chin Keung and Another

HCA002469/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 2469 OF 1971

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Coram: Mr. Registrar Wong in Chambers.

Date of Judgment: 23rd January, 1976.

Mr. Robert Tang instructed by Messrs. Woo & Woo for the Plaintiff

Mr. H.A. Hoosenally of Hoosenally & Co. for the Defendants.

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DECISION

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1. This is an action for damages for personal injuries and loss arising out of a road traffic accident on 23rd June, 1970. Liability is not in dispute as interlocutory judgment was entered by consent on 15th October, 1975 for the plaintiff against the Defendants for 90% damages to be assessed.

2. The plaintiff was knocked down by a vehicle owned by the 2nd Defendant and driven by the 1st Defendant while walking along Kwai Chung Road near the Tin Hau Temple, New Territories. He lost consciousness and received injuries of lacerations over the left parietal region, the left eyebrow, and the right occipital region; abrasions over right forehead, right face, right chin, dorsum of left hand and left knee; bruising of left arm and back of left chest and most serious of all a comminuted fracture of the left tibia and fibula. He was admitted to Kwong Wah Hospital where he remained for 3 months. A Medical Board which examined him on 19th June 1974 found that the comminuted fracture of left tibia and fibula had a resultant disability of (i) shortening of about 1" of left leg; (ii) weakness of left leg muscle; (iii) slight deformity of lower 1/3 of left leg, and assessed his incapacity at 15%.

3. On 12th April 1975 he was examined by Dr. Wedderburn, F.R.C.S. Edinburgh who confirmed the shortening of the left leg and assessed permanent disability of the whole man at 6%.

4. At this stage, I might point out that the medical evidence was agreed by the parties in the form of written reports and no further evidence was called.

5. The plaintiff gave evidence. He said that he stayed in hospital for about three months and had a plaster on for about 50 days. He was much in pain. He lost consciousness immediately after the accident and this subsequently developed into a headache. After his discharge from hospital, he had to walk with two sticks for six months and one stick for another ten months. He attended follow-up treatment for about 3-4 months.

6. He is now 32 years of age. Before the accident, he worked as a plastic moulding worker on piece rate basis earning about $700 a month plus free meals and accommodation which he reckoned to be worth another $150. This would put his monthly income in the region of $850. The work of a plastic worker involved the lifting of heavy loads ranging from 50 1bs to 100 1bs and standing long hours.

7. According to him, he was completely out of work from 23rd June 1970 to 28th February 1971. He started to work again in March, 1971 but was unable to resume his former work. He had to work as a packing worker at a grossly reduced salary of $200 a month without the free meals and accommodation he used to receive prior to the accident. He continued to work in this capacity until October, 1971 and then became unemployed due to the shortage of work. He obtained another packing job again in March 1972. There was admittedly an economic recession at the time and he was out of work again by June. During this period, he said he earned about $14 a day working about 20 days a month. From then onwards until March, 1973 he worked either as a cook or a temporary packing worker in many different factories earning about $200 a month. He tried to resume his former work of plastic moulding in October 1972 but he found it too tough going after trial for a week. He made another attempt in March 1973 and it lasted two weeks. Afterwards he worked as a packing worker and this went on until June 1974 when he was dismissed because the factory was cutting down the size of the packing section. During this time, he earned $15 a day working about 20 days a month. He later went to work in the Shut Lak Garment Factory in Sanpokong. He made yet another attempt to resume his former work of plastic moulding and managed to carry on for as long as one month. He was transferred to the packing section as the management considered that he could not finish his work fast enough. He was subsequently dismissed because there was insufficient work in that factory. As a packing worker in this particular factory, he earned $15 a day working between 20 - 22 days a month while the pay for a plastic moulding worker was between $800 to $1,000 a month. He has since been working as a cook in a shop in Tsuen Wan. He earns $300 a month with free meals. He had not been a cook before. He admitted that he could not work in a supervisory capacity because of his lack of educational qualifications. He had been a plastic worker for 8 - 9 years before 1970. He was unable to resume his former work because he was not strong enough. He could not run and could not stand up for more than two hours. He had to take a rest if he continued walking for more than an hour. He could not lift loads weighing 50 1bs to 100 1bs.

8. Mr. Tang, Counsel for the plaintiff, contends that the damages to which the plaintiff is entitled should consist the following items:-

1. Pain and suffering;

2. Loss of earnings between 24.6.70 to 28.2.71;

3. Partial loss of earnings between 1.3.71 to 26.10.71;

4. Partial loss of earnings between 26.10.71 up to date (50 months);

5. Loss of future earnings; and

6. Special damages.

9. I would now deal with the various heard of damages in the order proposed.

10. Pain and suffering - Mr. Tang quoted the figure of $6,000. I think this is far too low and I am glad to say that Mr. Hoosenally, with characteristic fairness, shared my opinion. In view of the extent of the injuries and pain the plaintiff suffered and the long period he had to stay in hospital and walk with sticks, the proper award under this head should be $10,000.

11. Loss of earnings - There is no dispute that the plaintiff was completely out of work between 24.6.70 to 28.2.71. The only objection which Mr. Hoosenally raised was that as the plaintiff paid nothing for his food and accommodation during the period while he was in hospital he should not be allowed damages at $850 a month. Although there may not be a legal obligation that the plaintiff must pay these expenses, I do think that he has at least a moral obligation to pay the hospital whenever he is financially able to do so. Mr. Tang was also right when he said that if the plaintiff was not allowed to benefit from charity or taxpayers' generosity the Defendants should not be allowed to benefit likewise. I would allow the claim of $7,000 calculated at $850 a month.

12. Partial loss of earnings - According to the plaintiff, he had been doing lighter work either as a packing worker or a cook at grossly reduced earnings on the average of $300 a month even up to the date of the hearing of this case. Although Mr. Hoosenally had doubts as to the genuineness of this figure there is no evidence to contradict it and it is not possible for me to find otherwise. For the purposes of this decision, I would accept that the plaintiff's average earning had been $300 a month since 1.3.71 up to a certain time. The next question to decide is up to what time he would or should have continued to earn $300 a month. Of course, the plaintiff said that he was still earning $300 a month even up to the present time. This statement must, however, be considered in full context of all the evidence. In his own evidence, the plaintiff made constant reference to shortage of work and economic recession and as a result he was out of work many times. He also said that even up to date he was still unable to resume his former work. An analysis of all the evidence perhaps does not seem to entirely support his claim. He had attempted to resume his former work of plastic moulding on three occasions. The first occasion was in October 1972 when he could only manage for a week. He tried again in March 1973 and managed for two weeks, doubled the time of his first attempt. The third and last attempt was made in June, 1974 and it lasted for a whole month. It is significant to observe that he did not cease to work because he had found the work exhausting and difficult. He could do the work but the management thought he was rather slow. He made no complaint that he was not able to stand up too long or lift heavy loads. I think if he could manage to do the work for a whole month it is strong indication that he could continue to do the work indefinitely, perhaps at reduced speed. It is also important to note that soon after his transfer to the packing section he was dismissed from that job because of shortage of work in that section. It is quite possible that he was not allowed to continue plastic moulding earlier because there was also a shortage of work of that kind and that there was probably competition for that job as well. However, I think it is quite true that his speed in plastic moulding was reduced to some extent. It is rather strange that he made no further attempt to resume his former work again and instead he shifted his interest to working as a cook. This may explain that the reason he did not go back to plastic work was because it had been difficult for him to find work in plastic factories even as a packer while the economic recession still subsisted and not because he was not physically strong enough. He has been working mainly as a cook since he left the Shut Lak Garment Factory. The work of a cook in a shop, I imagine, is also fairly strenuous. It requires standing up for long hours and going to the market to buy food. If he is physically strong enough to work as a cook, I should think that he is probably also physically able to do his former work perhaps, as I said before, at reduced speed. At the time Dr. Wedderburn examined the plaintiff on 12th April 1975, he formed the opinion that the plaintiff was probably able to resume his former work by then. On the evidence, I find that the plaintiff should be able to resume his former work at reduced speed by the end of April 1975 and is entitled to damages under this head at the rate of $550 for 50 months between 1.3.71 to 30.4.75 resulting in a figure of $27,500. Partial loss of earnings from 1.5.75 up to the date of hearing of the action will be considered together with loss of future earnings in the next paragraph.

13. Loss of future earnings - In view of my finding in the foregoing paragraph that the plaintiff would be able to resume his former work with effect from 1st May 1975 at reduced speed, the question which I must decide next is to what extent the plaintiff's working speed as a plastic moulding worker is likely to be reduced in all the circumstances of this case. Dr. Wedderburn put his permanent disability of the whole man at 6% but this is not the same thing as earning incapacity. The Medical Board assessed his incapacity to be 15% and I think that this could be a reference to his earning capacity. In his report, Dr. Wedderburn also expressed the opinion that a factory would be reluctant to employ him if others who were completely physically normal were in competition for his job. It seems remarkable that the plaintiff was able to work as a cook even without any previous experience. His cooking skill and experience will improve following the passage of time and he should be able to earn more if he continues to work as a cook. Taking into account all the factors as well as that payment is in a lump sum, I am of the opinion that his earning capacity will be reduced by 20%. The plaintiff is 32 years of age, a multiplier of 14 as suggested by Mr. Tang is not unreasonable. In so doing, I shall not, however, make any separate award in respect of partial loss of earnings between 1st May 1975 and the time of hearing of this action. The simple equation would be 20% of $850 x 12 x 14 = $28,560.

14. Special damages - This has been agreed at $1,270.

15. There would be judgment for the plaintiff for 90% of $74,330 i.e. $66,897. I also order the sum of $40,050 to carry interest at 8% from 25th October 1971 to to-day and the sum of $1,143 at 4% from 23rd June 1970 also to to-day. The plaintiff will have costs to be taxed in accordance with the Legal Aid Regulations with a certificate for Counsel.

16. Dated this the 23rd day of January, 1976.

Representation:

Mr. Robert Tang instructed by Messrs. Woo & Woo for the Plaintiff.

Mr. H.A. Hoosenally of Hoosenally & Co. for the Defendants.