Chu Suen v. Lok Chi Keung

HCA003524/1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Betts in Chambers

Date of Assessment: 26 June 1985

Date of Delivery: 2 July 1985

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ASSESSMENT OF DAMAGES

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1. On 15th March 1983 the plaintiff was travelling as a passenger in a private mini-bus being driven by the defendant along Lung Main Road towards Tuen Mun. As a result of the defendant's negligent driving there was an accident and the plaintiff was injured.

2. The writ in these proceedings was issued in May 1984 and interlocutary judgment entered in September.

3. The plaintiff suffered a number of injuries the main ones being to his legs. The modial malleolus of the left tibia was fraotured. This was treated by insertion of a bone screw which was removed in January 1984.

4. His right tibia was fractured, three inches below the knee, and his fibula was fractured close to the knee, but without involving the knee joint.

5. He was kept in hospital for two months and later underwent a lengthy course at physiotherapy.

6. The net result of his injuries is that he now has a shortening at the right lower leg of 5/8th of an inch and a loss of movement which restricts his ability to squat, run, stand for lengthy periods or carry heavy weights. It has been assessed by Mr Wedderburn as a 6% impariment of the whole man.

7. At the time of the accident the plaintiff was aged 58 and employed by Gammons handling steel on a construction site.  He was earning an average of $4,680 per month. It is clear from the evidence that his injuries have rendered him quite unsuited to such work, and I am satisfied he has acted reasonable in taking up his present employment as a packer in a plastics factory where he can sit down to work. His earnings now average $1,768 per month. He started his present job in June 1984 and, again, I am satisfied from the evidence that he did not unreasonably delay finding suitable employmert when he was fit to do so.

Pain Suffering & Loss of the Amenities of Life

8. Mrs Lauder referred me to three decisions : -

In view of the fall in the value of money since those awards, and taking all the circumstances into account she submitted that the proper award in this case would be $80,000. I agree and that is my assessment under this head.

Loss of earnings

9. I accepted the plaintiff's evidence of his pre-accident earnings and that it was reasonable for him to remain unemployed from the date of the accident until June 1984. That is 13.5 months. His loss of earnings, therefore, up to June 1984 was 4,680 x 13.5 = 63,180. From the beginning of June 1984 to date (13 months) he has been earning an average of $1,768. His loss during that period is ($4,680 - $1,768) x 13 = $37,856.

10. The total loss from the date of the accident to date is, therefore, $63,180 + $37,856 =$101,036.

Future loss of earnings

11. No evidence was given of what the plaintiff would be likely to be earning now or in the future had it not been for the accident. The only figure I have is $4,680 and I will not assume either an increase or a decrease.

12. No evidence was given of what the plaintiff is likely to earn in the future. The only figure I have is $1,768 and I will not assume either an increase or a decrease.

13. If follows the multiplicand is $4,680 - $1,768 = $2,912.

14. Mrs Lauder referred me to a number of authorities and suggested that a suitable multiplier would be 7 years from the date of the accident, or 5 from to-day. I do not find that unreasonable and my assessment for loss of future earnings is $2,912 x 12 x 5 = $174,720.

Special Damages

15. Receipts were produced in support of a list of expenses claimed in the Particulars. I am satisfied they were properly incurred and award them in full at the sum of $2,377.

16. Two items, however, fall to be dealt with separately. Claims were included for travelling expenses and for tonic and herbal food.

17. No evidence whatever was adduced in support of either claim and no assessment is made.

Summary

18. Credit will be given for workmen's compensation of $70,000.00 already paid.

19. There will be interest on the general damages at the rate of 2% per annum from the date of the writ to the date of judgment and on the special damages at the rate of 5.6% per annum from the date of the accident to the date at judgment. There will be no interest on the award for loss of future earnings.

20. There will be an order for costs to the plaintiff with the plaintiff's own costs to be taxed under the Legal Aid Reulations.

Representation:

Mrs. L.S. Lauder for Director of Legal Aid for Plaintiff

Defendant present and unrepresented