Chung Wing Kwong v. Leung Kam Fai

HCA004783/1991

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Bokhary in Court

Date of hearing: 11 December 1991

Date of handing down of Judgment: 18 December 1991

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ASSESSMENT OF DAMAGES

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1. This is an assessment of damages. The damages are for personal injuries and consequential loss. They result from a head-on collision along the Cross Harbour Tunnel on the 7th December 1989. The collision, which was due to the negligent driving of the defendant, was between a taxi being driven towards Kowloon by the plaintiff and a public light bus being driven towards Hong Kong by the defendant. In addition to having been convicted of careless driving in respect of the collision, the defendant has also been convicted of taking the public light bus without authority, driving it without a licence and driving it without third party insurance. These last three convictions may explain why interlocutory judgment was obtained in default of acknowledgment of service and why the defendant did not appear at this assessment.

2. The plaintiff was 29 years of age at the time of the accident. He was and is a bachelor.

3. As far as his injuries are concerned, these are described thus in a medical report dated the 26th February, 1991 by Dr. Philip Mao (which report has been put in evidence under a hearsay notice in respect of which there has been no counter-notice) :-

"On 7 December, 1989 Mr. Chung who is a taxi driver was driving in the Hongkong-Kowloon tunnel at about 4 a.m. when it collided with an oncoming mini bus. He lost consciousness but recovered about half an hour later when he found himself in the Casualty ward of the QEH. He had suffered severe injuries to both legs and to his right hand which required emergency operations.

The right femur was fractured in the shaft and this was treated by open reduction and plating. The left tibia and fibula showed compound fractures which required treatment by use of an external fixator on the left tibia. The fractures were in the middle of the shafts of the tibia and the fibula on the left side. A fixator consists of an external bar to which is attached various screws on the upper and lower parts of this bar and inserted into the healthy bone above and below the fractures. This bar can be adjusted so as to get proper alignment of the fractures.

He also had a cut tendon of the right middle finger on the dorsal aspect which required anastomosis. He was in the hospital for about 2 1/2 months and he was given physiotherapy on alternate days. Two months after his operation, he was given a pair of forearm crutches and he was allowed to walk without weight bearing on the left leg.

On 20 February, 1990 the tibial fixator was removed and 4 days later he was discharged from hospital walking on crutches. He then attended the OPD from weekly to 2-weekly for about 9 months with physiotherapy 3 times a week for another 2 months. He stopped using the crutches two months after discharge from the hospital.

He is now able to stand for one hour when he gets discomfort and numbness in the right leg. Sitting down is unaffected. He is able to walk slowly for long distances and he is able to climb stairs.

The metal plate in his right femur is due to be removed sometime in August of this year depending on the degree of union."

4. In the result, the metal plate has not yet been removed.

5. Moving on to what Dr. Mao found upon his examination of the plaintiff and the view which he formed upon such examination, his report continues and concludes thus:-

"Examination shows that the left leg is shorter than the right one by about 1/2". This is equal to 5% impairment of the lower extremity. The circumferences of both thighs are equal. Movements of both hip joints are normal. Movements of both knee joints are normal and there is no abnormal laxity. The right foot moves normally. The left foot also moves normally except for loss of dorsi flexion which equals 7% impairment of the lower extremity. He thus has a total of 12% impairment of the lower extremity.

There is a 12 1/2" scar lying vertically on the lateral aspect of the right thigh. On the left leg there are many scars. Below the knee, on the medial and lateral sides of the tibia are 3 healed small holes where the fixator screws had been inserted and similarly in the lower part of the tibia below the middle, there are 3 healed holes on the lateral and medial aspect of the left tibia. Palpation of the tibia shows an irregular healed fracture at the junction of the upper and middle-thirds in the front along the crest. There is a healed scar on the medial aspect of the left tibia measuring 1 1/2" below the middle. There is a 2" scar on the middle of the medial aspect of the left tibia.

The right hand shows on the dorsum a 1 1/4" healed scar lying vertically at the base between the 2nd and 3rd metacarpals and a 1" scar lying on the dorsum of the hand between the 4th and 5th metacarpals.

The grip in the right hand comes to 60 1bs compared to 80 1bs in the left hand. Movements of the wrists and fingers are within normal limits. He thus has a 12% impairment of the lower extremity which equals 5% impairment of the whole person. To this, I would add a 1% impairment of the whole person owing to loss of strength in his right hand and also for the pain in his right leg which gives rise to 6% impairment of the whole person. His loss of earning capacity is estimated at 10% - 5% for the shortening and 5% for impairment of the movements of the left foot.

However, I think he should be able to go back to his work as a taxi-driver eventually but as his operation was carried out slightly over a year ago, his general condition may well improve and the pain in his right leg will be ameliorated when the long metallic plate is removed from his right femur.

X-rays show an old fracture in the shaft of the right femur with good bony union and a long plate with about 14 screws present. The left leg shows a healed fracture in the shaft of the left tibia and fibula.

He should be reassessed in another year's time."

6. As one sees from the Schedule of Damages filed by the plaintiff pursuant to the Practice Direction of 29th November, 1984, special damages are sought in respect of pre-trial loss of earnings and in respect of miscellaneous items of special damages, while general damages are sought in respect pain and suffering and loss of amenities and in respect of loss of future earnings.

7. I will deal with the miscellaneous items of special damage first. There are set out in the Schedule thus:-

" Miscellaneous items.

8. Items (a) and (b) are supported by receipts. They are plainly genuine and reasonable. I award them in full. On the plaintiff's evidence, I am satisfied of the genuiness of item (c). But the reasonableness of the expenditure is unsupported by any medical evidence. Doing the best I can on what I have, I regard an award of $3,000.00 as appropriate in respect of this item. I award that sum accordingly. On the plaintiff's evidence, I am satisfied that items (d) and (e), which are in respect of taxi fares, are genuine. I have no doubt that item (d) is reasonable. The reasonableness or otherwise of item (e) has given me pause. But, on balance, I think it is reasonable even though the trips could have been made a more cheaply by some form of public transport cheaper than taxis. One of the hospitals at which the plaintiff stayed was difficult of access by such alternative means of transport. Also one must bear in mind that nothing is claimed in respect of any of the visiting relatives' time; and much more travelling time might have been taken if such alternative means of public transport had been used. I award items (d) and (e) in full. The total award in respect of these miscellaneous items comes to $9,494.00.

9. Updated to the date of the assessment, this is how the plaintiff's statement as to pre-trial loss of earnings in the Schedule reads:-

" Loss of earning.

10. His evidence supports that statement subject to his counsel, Mr. Ismail's concession that the $11,000.00 per month (and therefore $132,000.00 per year) is before tax so that $2,000.00 per month (and therefore $24,000.00 per year) should be deducted to arrive at the correct figure, which comes to $9,000.00 per month (and therefore $108,000.00 per year).

11. No suggestion was made on the plaintiff's behalf that, by the same token, some deduction for tax should be made from the $4,000.00 per month which - he says and I believe - he has been earning since the accident. But I am inclined to think that some such deduction could have been suggested to the plaintiff's advantage. The problem can, I think, be solved like this. My impression is that the $11,000.00 per month, while not wildly wrong, is slightly exaggerated. On the whole, doing the best I can on what I have, I think that justice can be done - on a swings and roundabouts basis - by proceeding on the $11,000.00 (subject to the deduction for tax of course) even though it is slightly exaggerated, and, at the same time, proceeding on the $4,000.00 without any deduction.

12. So the appropriate figures are as follows. From the accident until February 1991, during which period - the plaintiff says and I believe - he earned no more than about $3,500.00 in all, the award is ($9,000.00 x 14.07) - $3,500.00, which comes to $123,130.00. Partial loss of earnings from 1st March, 1991 to the date of assessment were ($9,000.00 - $4,000.00) x 9.33, which comes to $46,650.00. So the total award for pre-trial loss of earnings comes to ($123,130.00 + $46,650.00) $169,780.00.

13. As far as loss of future earnings are concerned, my view, formed by doing the best I can on what I have, is as follows. The plaintiff will probably suffer some impairment in terms of his earning capacity for most of the remainder of his working life. But such impairment would probably become less and less as his condition improves and as he adjusts to such problems as remain. The best assessment I can make, averaging things out, is arrived at by taking a multiplier of 10 and an annual multiplicand of $36,000.00 to arrive at an award of $360,000.00. That is the award I make in respect of loss of future earnings.

14. All that remains is to arrive at an appropriate award for pain and suffering and loss of amenities of life. Mr. Ismail referred to the decision of the Court of Appeal in Wong See-mo v. Lam Nam-fui [1991] 1 HKLR 361. The relevant facts of that case, as one sees from pp 362F to 363B of the report, were these:-

"The plaintiff was 37 years of age at the time of the accident. His left hand came into contact with the blade of an electrically-driven circular saw which he was using to saw wood. Mercifully, he is right-handed. Sadly, the injuries were bad.

Between what the saw did to his left hand and the surgery which that necessitated, the plaintiff has lost the distal phalanx of his index finger, parts of the distal and middle phalanges of his middle finger and the distal phalanx of his ring finger.

He spent a day in hospital, and was given 20 days' sick leave following his discharge. He underwent physiotherapy 3 times a week for, it seems, about 2 months.

Dr. Philip Mao, who reported and gave evidence on his behalf, reported in March 1987 that he plaintiff had complained of: tenderness of the tips of his index and ring fingers; pain in his index, middle and ring fingers upon flexion; upon flexion; crepitus in his middle finger; and loss of strength generally of the injured hand.

Giving evidence at the trial, the plaintiff told the learned judge of: his loss of dexterity leading to his disinclination to play the occasional game of basketball in which he used to indulge; his inability to peel fruit; and his difficulty in doing up zips and buttons and in holding a bowl in his left hand.

The judge appears to have accepted such evidence, which pertains principally if not wholly to pain and suffering and loss of amenities. In that regard, the judge also made the point that: "Although we have no evidence regarding the pain he suffered at the time there must necessarily have been considerable shock and pain and further pain continuing at least until the time of treatment."

Dr. Philip Mao assessed the plaintiff as having a 30% disability of the upper extremity which amounts to an 18% disability of the whole person."

15. On these facts, this is what Mr. Justice Bokhary, delivering the judgment of the Court of Appeal, said (at p. 363 D to J) in regard to the "Serious Injury" category (which is the lowest category laid down in Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657 and which is the category within which Mr. Ismail submits that the plaintiff before me comes):-

16. Mr. Ismail submits that the plaintiff comes within the middle of that category; and he asks for $175,000.00 accordingly. In my view, the plaintiff does come within the "Serious Injury" category, but only at the lowest end of it, so that the award in respect of pain and suffering and loss of amenities should be $150,000.00, which is the award I make under that head.

17. So the total award in respect of special damages comes therefore to $179,274.00 ($9,494.00 + $169,780.00) while the total award in respect of general damages comes to $510,000.00 ($360,000.00 + 150,000.00). These are the awards I make with interest on the general damages at 2% p.a. from date of service of writ to final judgment and on special damages at 5% from date of accident to final judgment.

18. I award the plaintiff his costs, with certificate for counsel, to be taxed against the defendant; and I further order that his own costs be taxed under the Legal Aid Regulations.

19. Lastly, I express my indebtness to Mr. Ismail for his assistance in this matter.

Representation:

Mr. A. Ismail (instructed by Messrs. Poon & Cheung for the Plaintiff

Defendant absent