Yu Man Chui v. Chow Chi Fun
Read the full judgment text of HCA 2518/1981 on BabelCite. This High Court CFI judgment was delivered on 13 August 1982.
1. This is an assessment of damages consequent upon injuries suffered by the plaintiff when he was knocked down by a motor vehicle being driven by the defendant on the 5th January, 1979.
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HCA002518/1981
IN THE SUPREME COURT OF HONG KONG HIGH COURT _____________________ BETWEEN
_______________________ Coram: Mr. Registrar Barrington-Jones in Chambers Date of Judgment: 13 August 1982 __________ DECISION __________ 1. This is an assessment of damages consequent upon injuries suffered by the plaintiff when he was knocked down by a motor vehicle being driven by the defendant on the 5th January, 1979. 2. On the 13th June, 1981 interlocutory judgment was entered for the plaintiff against the defendant with damages to be assessed. 3. At the date of the accident the plaintiff was 26 years of age and was an operations worker employer by Dairy Farm Ltd. at the Airport earning a basic salary of $1,010 per month. He is married with one child. 4. Because there have been delays in the delivery of this decision, I think it should be explained that the hearing of this assessment first commenced on the 20th July, 1981, and resumed on the 19th April, 1982, when the plaintiff gave evidence; and was then adjourned for the delivery of the assessment of the plaintiff's claim on a date to be fixed. However on the 27th April, 1982 I was advised by the defendant's solicitors that they had obtained further material evidence and requesting me to defer my decision. I acceded to this request, and the defendant's solicitors took out a summons which later resulted in the hearing of the assessment being re-opened by consent, when the plaintiff again gave evidence. This second hearing took place on the 27th July, 1982, which was the earliest date available. 5. At this second hearing it transpired that an observant clerk of the defendant's solicitors had seen the plaintiff in uniform at the New World Tower in Central on the 26th April, 1952. Arising from that observation the defendant's solicitors wrote to General Security (HK) Limited on the 30th April, 1982 posing a number of questions regarding the plaintiff and I give below the questions posed and the answers received from General Security, they are as follows:-
6. It is appropriate to note here what the plaintiff had said on the 19th April regarding his employment:-
7. The plaintiff in his evidence on the 27th July agreed that he had in fact joined General Security (HK) Ltd as a security guard on the 7th January, 1982 and appeared to be substantially in agreement with the terms of his appointment as reflected cted in the answers of his employer (supra). The plaintiff went on to say that he had started working at "Chez Michael" on the 16th March, 1982 and had left there on the 25th April, 1982; and he confirmed that he had worked for Data Products from the 21st November, 1981 to the 10th March, 1982. 8. So that it becomes clear that after the plaintiff first went to work for Data Products on the 21st November, 1981 (working there for about 6 1/2 hours a day) he had continued to work exclusively for that company until the 7th January, 1982 when he joined General Security; and he then continued to work for both firms from the 7th January until the 10th March, 1982 when he quit Data Products. Then, continuing his regular employment as a security guard, he also took on a part-time job (1 1/2 to 2 hours a day) at Chen Michael from the 16th March until the 25th April, 1982, when he left Chez Michael; and since that date has worked exclusively for General Security. 9. The plaintiff readily admitted that he had not told General Security about his accident or the extent of his injuries, but it was equally clear from his evidence that the duties of a security guard involve fairly long shift hours of duty, patrolling on foot, having to remain standing, and adopting an upright stance commensurate with a security guard on duty in uniform; although it seems clear that some of his duties do give him the opportunity to remain seated. It would seem that the plaintiff has done well with General Security because the plaintiff said that he has now been promoted to acting supervisor. 10. For reasons best known to himself the plaintiff failed to disclose to me at the first hearing in April that he had in fact been in full-time employment with General Security from the 7th January, 1982. General Damages (i) Pain, suffering and loss of amenities 11. After the accident the plaintiff was admitted to Queen Elizabeth Hospital where he was found to have suffered a torn lateral collateral ligament of the right knee. The ligament was repaired at operation and he wore a plaster cost for three months, and was discharged from hospital on the 24th February, but returned to Queen Elizabeth Hospital because of pain in his leg and was hospitalised for two weeks before being finally discharged. The plaster cast was later removed and the plaintiff commenced physiotherapy. 12. Dr. Wedderburn advises that both ligaments at the knee are defective resulting in the plaintiff's knee being unstable and repair difficult; and it is a permanent condition. Dr Wedderburn is further of the opinion that osteo-authritis of the knee in this case is inevitable. 13. The plaintiff states that he can now only stand for about an hour and then has to rest for 10 to 15 minutes; and says that he has a bit of a limp which becomes more marked when he is tired. He also says that he suffers occasional pain, more particularly after he has been walking for some time. He states further that his injury has affected his ability to lift weights and is now quite unable to lift heavy objects. He cannot squat down completely, and he says that since the accident his injured knee gives way sometimes - at least two or three times a month. 14. In the light of what the plaintiff told me at the reopened hearing I am quite convinced that he sought to exaggerate his disabilities at the first hearing. I say this if only because he has clearly been able to efficiently perform the duties of a uniformed security guard since the beginning of the year, with long shift hours, and has obviously given satisfaction to his employers to such an extent that he has now been promoted. I therefore have no difficulty in concluding that he is perfectly capable of standing for long periods of time, and is able to carry out all the duties connected with the work of a security guard. I accept, however, that is ability to lift weights has probably been affected as a result of his accident, and that his knee gives way occasionally, and that he cannot squat down properly. 15. I was earlier referred to a number of useful authorities and Mr. Ozorio took the opportunity to draw my attention to two others at the reoponed hearing viz:- 16. Newman v. Devon Area Health Authority per Bristow, J., (9th March, 82) and Leung Wing Kai (an infant) and Shun Dik Industrial - an assessment made by Mr. Registrar Betts on the 1st April, 1982. But I perceive distinct similarities between this case and Kwok Mei Tai v. Tang Yu Hand & Anr (HCA No. 3707 of 1977) and (apart from the advanced age of the plaintiff) Cao Hao v. Liong Peng For & Anr (HCA No. 3634 of 1978 where $15,000 was awarded in both these cases under this head. Taking into account the age of the plaintiff in this case, his disabilities, and making some allowance for inflation commensurate with the effluxion of time from the date of the aforementioned awards brings me to the figure of $20,000 which I consider is an appropriate award under this head. (ii) Cost of Future Operation on Knee 17. It is Dr Wedderburn's view that the plaintiff may need a knee joint operation in about twenty years time, but advises that the results of such operations are currently disappointing. Such an operation would probably cost something in the region of $12,000 if done privately, but could be carried out in a Government hospital free of charge. 18. Whether such an operation will eventually become necessary, and whether the plaintiff will want to have it, are unpredictable facters at this time. But since such an operation can, in any event, be carried out in a Government hospital free of charge, and in the light of the imponderables which necessarily arise, I do not consider that it is appropriate to make an award under this head. (iii) Loss of future earning capacity 19. Whilst I am persuaded that there should be an award under this head if only because of Dr Wedderburn's firm belief that there will inevitably be an onset of osteo-arthritis later in the life of this 29 year old plaintiff, and thus there is a real risk that he might later be thrown on to the labour market. Although set against this is the advice of the Administration Manager of General Security that the plaintiff is employed by that company on a permanent basis, and it is to be kept in mind that he has joined the company's Provident Fund in respect of which the company contribute $50 per month on behalf of the plaintiff. But should the arthritis become so acute in later years so that the plaintiff commenced to walk and stand badly, it is my belief the plaintiff's employers might then not wish to retain him on a long term basis; so that there must in my view be an award under this head if only to cover what I consider to be a real risk. (Ashcroft v. Austin (1971) 1 W.L.R., 1973 : Smith v. Manchester Corporation (1973) 17 K.I.R.1) 20. I am also indebted to Mr. Ozorio for the authorities he cited to me, particularly that of Zielinksi v. West 1977 C.A. No. 124: 28th February, 1977; doing my best to value the "chance" taking into account all the facts of the case, and after referring to Chow Keung Kwong & Cheung KaKu Kui 1980 H.K.L.R. 104, and Moeliker v A Reyrolle & Co Ltd (1977) All E.R. 15 (d) I have reached the conclusion that $26,000 should be awarded under this head. Special Damages
21. There will be interest on the general damages from the date of service of the writ at the rate of 17½% per annum; (Re: Birkett & Hayes (Law Report 19.3.82) views of Fuad. J. in H.C.A. 4321/1981 followed); and interest on the special damages from the date of the accident until judgment at the rate of 8¾% per annum. 22. Plaintiff's costs to be taxed under the Legal Aid Regulations. 23. Certificate of Counsel. 24. Dated this 13th day of August 1982
Representation: Mr. Michael Ozorio (instructed by Helen A. Lo & Co.) for Plaintiff Mr. Thomas Lai (instructed by Vincent Lo & Co.) for Defendant, with Mr. Alexander Wong appearing at the resumed hearing on the 27th July, 1982. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||