Lau Sun Kiu v. Leung Chan Fai and Another

HCA002823/1983

1983 No. 2823

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Suttill in Chambers

Date of Hearing: 9 January 1986

Date of Delivery: 6 February 1986

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ASSESSMENT OF DAMAGES

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1. The plaintiff, Lau Sun Kiu, is now 49 years old. She is a married woman living with her daughter, Lee Ping Kin. The plaintiff's husband ceased to live with her immediately after her accident and, apart from supplying her with a place to live, has no contact whatsoever with her.

2. The accident to which I refer took place on 23rd February 1981. It happened on Castle Peak Road as the plaintiff was about to cross it from east to west when she was struck by a motor car AZ6523. That car was owned by the 2nd defendant and driven by the 1st defendant in the course of his employment therewith.

3. The writ of summons was issued on 10th March 1983. On 17^th May 1983 interlocutory judgment with damages to be assessed was obtained against the 1st defendant, no intention to defend having been filed.

4. On the 20th September 1985 the action was discontinued as against the 2nd defendant.

5. The assessment of damages was before me on the 9th January 1986. The 1st defendant was not present.

6. The plaintiff was taken from the scene of the accident to Princess Mary Hospital (P. H.H.).

7. Dr. S. K. Chow of that hospital had this to say about her treatment there :-

8. While the plaintiff was in the Lady Trench Centre partial recovery of motor power in the limbs occurred gradually. She was discharged from there after about 9 months.

9. On the 16th September 1985 the plaintiff was examined by Dr. P.A.L. Horsfall. His examination showed weakness and spasticity in all four limbs but some power was also present in all. Sensation was diminished but not absent. Mentally the plaintiff appeared to be of normal intelligence and stable personality. Her speech was also normal. She was able with great difficulty to stand and shuffle a few steps. There were no skin ulcers or oedema (swelling of the legs) (she could move around sufficiently to prevent these complications).

10. The plaintiffs daughter gave evidence before me confirming the matters told to Dr. Horsfall regarding the plaintiff's present condition.

11. According to her the plaintiff now spends most of the day in her wheelchair. She is able to raise hereself out of the chair and to walk a few steps with the aid of a tripod walking support. She is also able to crawl up stairs. She can feed hereself and even prepare simple meals. However, she is unable to propel the wheelchair, to bath herself or to get into and out of bed unaided. She has partial but not good control over bowel actions and micturition and needs to wear napkins. Dr. Horsfall also remarks that there is no prospect of the plaintiff ever being fit to take up gainful employment.

12. Damages, interest and costs are claimed as follow :-

1. Pain suffering and loss of amenities

I was referred to

Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657 C.A. where, at page 660, Cons. J.A. describes the "disaster" category of injury in the following terms :-

	"         This is where the victim requires constant care and attention and is incapable of ever leading or appreciating an independent adult life. This bracket includes tetraplegics and those reduced to "living cabbages" or left with the mental age of very young children.
	Awards are from $150,000 upwards. We should add that in (this category) additional awards can be expected to cover nursing or other attendant care."

I have no difficulty in placing the plaintiff in the disaster category so described by Cons. J.A.

Miss Mok has properly conceded that the plaintiff falls within the opening remarks of Cons. J.A. rather than the "living cabbage" description. Nevertheless her condition is acutely distressing to her and, according to her daughter, has on several occasions induced her to thoughts of suicide.

Therefore taking Lee Ting-lam as a starting point, making allowance for the changed purchasing power of money since then (see Chan Wai-tong v. Li Ping-sum [1985] HKLR 176, P.C.) and allowing an average of 10% per annum increase thereon, I assess damages under this head at $330,000.

2. Past loss of earnings (i.e. from the date of accident to the date of the of the assessment).

Prior to the accident the plaintiff was a construction site worker with Gammon (H.K.). The personnel officer of that company gave evidence in the assessment. He was Mr. P.C. Wong.

The annual earnings of the plaintiff from 12.12.1979 to 11.12.80 were $24,806.70 and so her average monthly earnings were $2,067.22 therefore:

loss of earnings 23.2.81 to 31.3.81 = $2,584.02

According to Mr. Wong during the period 1.4.81 to 31.3.82 a similar daily paid worker would have earned $25,608.00 therefore

loss of earnings 1.4.81 to 81.3.82=?25,608.00

In the ensuing years the daily paid workers of Gammon enjoyed annual increases in take-home-pay and based thereon the plaintiff's estimated total earnings can be calculated as follows:

	1.4.82-31.3.83	$ 28,066.36	+9.6%
	1.4.83-31.3.84	$ 30,249.92	+7.78%
	1.4.84-31.3.85	$ 31,341.94	+3.61%
	1.4.85-31.12.85	$ 24,590.10	+4.61%    (9 months)
	1.1.86-9.1.86	$    956.28	(9 days)

Total pre-trial loss of earnings are therefore-$143,396.62.

3.Future loss of earnings

The plaintiff was 44 years old at the time of the accident and is now 49 years.

It is the evidence of her daughter that, prior to the accident, the plaintiff was in robust health and perfeetly capable both physically and mentally of holding down her job on the construction site.

Miss Mok has proposed a post trial multiplier of 10. After much consideration I am of the view that whilst that figure may represent an optimum limit on the plaintiff's working life it is by no means improbable or excessive and accordingly I adopt it.

Her current monthly earnings would be $2,732.23.

She would have enjoyed an average increase of 6.4% from 1981. Applying that (but not compounding it) I arrive at a multiplicand of $2,732.23 x 106% = $2,907.09.

Accordingly an award 15 is made under this head of

$2,907.09 x 120                                                             =$348,850.80

4. Special damages

Various minor items of special damages are claimed and I am satisfied that they are fully borne out by the evidence of the plaintiff's daughter and the hearsay notice and I make awards as follows:

5. Future attendant care

6. Summary

The total award is summarised as follows :

	1.PSLA			$ 330,000.00
	2. Past loss of earnings			$ 143,396.62
	3. Future loss of earnings			$ 348,850.80
	4. Special damages			$ 14,865.00
	5. Future attendant care
		Domestic help	584,999.28
		Wheelchair	109,363.50
		Medical attention	144,000.00
		Dressings	21,600.00	$859,962.78
			________	___________
				$1,697,075.20
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7. Interest

There will be interest on the general damages at (1) above at 2% from the date of the writ until today, and on the special damages at (2), (3) and (4) at 4% from the date of the accident until today.

13. There will be a certificate for counsel.

Representation:

Miss. A Mok instructed by the Director of Legal Aid, for the Plaintiff

Leung Chan Fai, 1st Defendant - Absent