Wan Chi Wai v. Cheung Kwok Wah

HCA000361/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Mayo in Chambers.

Date of Judgment: 12th day of December, 1973.

Mr. Michael Asome, Counsel instructed by Messrs. David Burgin & Co., Solicitors for the Plaintiff.

Mr. Robert Tang, Counsel instructed by Messrs. H.H. Lau & W.S. Lo, Solicitors for the Defendant.

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DECISION

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1. This is an assessment of damages. At the commencement of this hearing the Plaintiff made an application to amend the Statement of Claim. The application was not opposed by Mr. Tang and related to the amount of special damages which were being claimed in respect of the Plaintiff's loss of earnings. I propose dealing later in this decision with this amendment when considering this head of damages.

2. The Plaintiff was injured in an accident which occurred on the 25th January, 1970, when he was a passenger in a private motor car. Dr. Harry Fang, who is a well-known Orthopaedic specialist, gave most helpful evidence on the nature and extent of the injuries which the Plaintiff sustained. I had no hesitation in fully accepting Dr. Fang's evidence and indeed this evidence was not in substance disputed by Mr. Tang. The Plaintiff suffered multiple fractures of the upper part of his left leg and his pelvis was damaged. Dr. Fang produced to the Court X-rays which showed the gross deformities which existed. Although the Plaintiff was immediately admitted to hospital subsequent to the accident, he did not make a complete recovery from the injuries he suffered. The bones which were broken did not join head to head and consequently the Plaintiff's left leg is now 3" shorter than his right leg. This leads to further complications in that the supply of blood to the bones has been interfered with which will lead to degenerative changes in the weight bearing bones. Also it has been necessary for the Plaintiff to compensate for the shortening of his left leg by tilting his pelvis. This will mean that there would be artificial curvature to his spine which will lead to the early degeneration of his back. Dr. Fang estimated that the Plaintiff's condition could become acute in about 10 years' time if major surgery is not undertaken to alleviate the situation. This surgery would involve at least two major operations which would necessitate the Plaintiff being hospitalised for approximately four months. Dr. Fang estimated that if such surgery was performed, there was approximately a 70% chance of its being successful. If the surgery was successful, it would mean that the Plaintiff's present disability of 20% would be reduced to a disability of approximately 5%. In using these percentages Dr. Fang was basing his estimates on the degrees of incapacitation referred to in the workmen's compensation legislation. Dr. Fang also added that if the surgery was not successful, the Plaintiff would be in a much worse position than he is at the present time and it would be necessary for bone grafting operations to be performed which would involve further operations and at least a further three months' hospitalisation. In addition to the injuries I have referred to, there was a further injury to the Plaintiff's shin. There had been a tapering of muscle on the skin which affected the use of muscles. If the surgery I have referred to was performed on the Plaintiff, it would be a comparatively simple matter for a further operation to be performed on these muscles to rectify the position at the same time. Dr. Fang expressed an opinion that it was unlikely that a Government hospital or a semi-charitable hospital such as the Tung Wah Group of hospitals would agree to admit the Plaintiff for this surgery as they were mainly geared to treat emergency cases. This will mean that if the Plaintiff decides to undergo this surgery, it is only realistic to estimate the cost of the operations on the basis that he would receive the treatment in a private hospital. Dr. Fang estimated that the total cost of the operations which would be required including the cost of four months' hospitalisation would be somewhere in the region of HK$25,000.00. This would assume that there were no untoward complications. It is quite clear that the Plaintiff must already have undergone a very considerable amount of pain and suffering up to the present date and that if further surgery is to be performed, there will be a considerable amount of further pain.

3. As a result of the injuries he has suffered the Plaintiff now finds that he is unable to pursue many of the recreations he followed prior to the accident. He is unable to go dancing or go on walks or indeed to sit in comfort for any length of time. If he remains seated for more than about an hour and a half he is troubled by pain. Dr. Fang confirmed that these complaints would be entirely consistent with the injuries the Plaintiff has suffered. At the time of the accident the Plaintiff was employed as a driver and claimed that he earned his livelihood by driving a mini-bus. The Plaintiff produced at the hearing his driving licence entitling him to drive a mini-bus and this was issued in October, 1969. I accept that he was employed as a mini-bus driver at the date of the accident. In his evidence the Plaintiff said that he had been unable to work at all during the year following the accident. He had been detained in hospital as an in-patient for four months and had received treatment as an out-patient thereafter. He did also admit that he had received treatment from a Chinese bone-setter and herbalist, but in the light of Dr. Fang's medical advice, I am satisfied that this treatment did not have any material detrimental effect upon the Plaintiff's condition. When the Plaintiff resumed work, he first obtained employment as a chauffeur. After approximately two months he attempted to resume his work as a mini-bus driver. He succeeded in continuing with this work for a period of fifteen months but was unable to continue the work because of the pain he suffered as a result of having to sit in the mini-bus for lengthy periods of time. Although I propose dealing in some detail with the question of loss of earnings when considering the question of special damages, I do consider that it is necessary for me also to consider this question generally in attempting to arrive at the amount of general damages which are recoverable. I am satisfied that unless the surgery I have above referred to is performed, it will not be possible for the Plaintiff to work as a mini-bus driver for any appreciable length of time. As it appears that a mini-bus driver is able to earn a higher salary than a chauffeur, I do consider that this is a relevant matter. Although there are a number of imponderables in this case, I am satisfied that the only realistic way of assessing general damages is to assume that the Plaintiff will follow the medical advice he receives and have the necessary surgery performed on him. If this surgery is performed and is successful, it will be possible for him to resume his occupation as a mini-bus driver and accordingly future losses of earnings will discontinue. Dr. Fang expressed the view that the sooner the operations were performed the better the prospect would be of a good recovery. In assessing general damages I propose proceeding on the assumption that the operations will be performed shortly, but I will take into account the fact that there will be further losses of earnings during the period when the Plaintiff is hospitalised. I will also inflate the figure to include the element of risk that there may be complications with the surgery. Taking all factors into account, I assess general damages at $55,000.00. This figure, of course, takes into account the heavy medical expenses which will be incurred.

4. I now turn to the question of special damages. I will first deal with the simple question of expenses which are claimed for the Chinese bone-setter and medicine of $1,000.00. I propose disallowing these special damages as the treatment was not prescribed by a European qualified medical practitioner. There is ample authority for my adopting this line. The question of loss of earnings is very much more difficult. I regret that I am suspicious concerning the amendment which was made to the Statement of Claim at the commencement of the hearing. The effect of the amendment was to claim loss of earnings on the basis that the Plaintiff was earning $1,800.00 to $2,000.00 per month at the time of the accident rather than the figure of $650.00 which was originally claimed. No satisfactory explanation was forthcoming from the Plaintiff for this discrepancy and it is difficult to resist coming to the conclusion that the amounts claimed in the amended Statement of Claim are inflated. Much of the time of the hearing was spent on the examination and cross-examination of the Plaintiff on the subject of his earnings as a mini-bus driver. At no time, however, was a satisfactory distinction drawn between the Plaintiff's earnings as a mini-bus driver in January 1970 and his earnings when he resumed his work a year later and worked for fifteen months. At the end of the 15 month period more than two years would have elapsed from the date of the accident and I am satisfied that the earnings of a mini-bus driver would have increased substantially during that period. It appears that the Plaintiff would operate on a freelance basis when driving the mini-bus and would hire the vehicle from its owner at $38 or $40 per shift. The driver of the mini-bus would bear the cost of fuel which apparently amounts to approximately $10 per shift. The Plaintiff explained that the morning shift would last from 6.30 a.m. until 2.30 p.m. and the only breaks during this period would be breaks for food or for him to go to the toilet. The Plaintiff gave evidence that during the relevant period he plied his trade from Chai Wan to Centra. He said that during an average shift he would be able to make five journeys, two of which would be during the peak period. During the peak period his bus would be full almost all of the time and he could obtain $2.00 for the journey from each passenger in the 14 seater bus. During off peak periods he would only be able to charge 50 per head and the bus would not always be full. A similar situation would prevail for return journeys during the peak period from Central to Chai Wan. While I generally accept that this evidence is truthful, I do think that there has been an element of exaggeration. I am doubtful if it would have been possible in January 1970 to get $2.00 per head from all passengers during the peak period. When account is taken of the outgoings which would have to be incurred by the Plaintiff, I am satisfied that the earnings originally referred to in the Statement of Claim would bear a greater resemblance to reality than the inflated figure referred to in the amendment. I am prepared to accept that the items of special damages claimed at 2(a) and 2(b) in the Particulars of Special Damages in the original Statement of Claim are correct. It would appear, however, that some adjustment will have to be made in respect of special damages from the 30th December, 1970. I am satisfied that the earnings of mini-bus drivers have in fact increased substantially since this form of transport became legalised. I am also satisfied from the evidence which has been made available that it would have been possible from the beginning of 1971 up to the present date for the Plaintiff as a mini-bus driver to have earned $1,000.00 per month. While I realise that this is a somewhat rough and ready approach to the problem, I do not think that I should be shackled by earnings which related to early 1970 in determining what the Plaintiff could have reasonably expected to earn at the beginning of 1971. I am prepared to accept from the Plaintiff's evidence that he worked as a chauffeur from January 1971 until the end of February 1971 at an average wage of $700.00 per month. There will therefore be special damages at the rate of $300.00 a month for this period of two months which amount to $600.00. I also accept that the Plaintiff worked as a driver of a mini-bus for the next fifteen months, namely, up to May, 1973. There was no loss of earnings during this period and accordingly no special damages will be payable during that period. I accept, however, that the Plaintiff has worked as a chauffeur since that time at a median salary of $750.00 per month up to the present date. For ease of calculation, I will allow special damages at the rate of $250 per month from May, 1973, up to the end of December, 1973. This is a period of eight months and accordingly I award special damages of $2,000.00 for this period. As I have mentioned previously in this decision, I have taken future losses of earnings into consideration in arriving at the global figure for general damages. This being the case, the total amount of special damages I award is $9,912.50. The Defendant will pay the Plaintiff's party and party costs and costs shall be taxed in accordance with the Legal Aid (Scale of Fees) Regulations.

Dated the 12th day of December, 1973.

Representation:

Mr. Michael Asome, Counsel instructed by Messrs. David Burgin & Co., Solicitors for the Plaintiff.

Mr. Robert Tang, Counsel instructed by Messrs. H.H. Lau & W.S. Lo, Solicitors for the Defendant.