Sit Shing v. Lai Fok Ye Man and Another
Read the full judgment text of HCA 1681/1978 on BabelCite. This High Court CFI judgment was delivered on 11 August 1979.
1. This is an assessment of damages consequent upon injuries suffered by the plaintiff when he was involved in a traffic accident on the 18th April, 1976.
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HCA001681/1978
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Barrington-Jones in Chambers. Date of Judgment: 11 August 1979 ------------------------------------- ASSESSMENT OF DAMAGES ------------------------------------- 1. This is an assessment of damages consequent upon injuries suffered by the plaintiff when he was involved in a traffic accident on the 18th April, 1976. 2. On the 8th May, 1979 interlocutory judgment was entered for the plaintiff against the defendants with damages to be assessed. 3. The Plaintiff was admitted to Queen Elizabeth Hospital on the 18th April, 1976 where surgical toilet was carried out and the open wound sutured, and the plaintiff placed on McKee's traction for a comminuted compound fracture of the left tibia and fibula. He later underwent two subsequent surgical operations. The last one involving a bone graft for non union of the compound fracture. The Plaintiff later discharged himself against medical advice on the 21st September, 1976. Thereafter the plaintiff went to Canton and sought medical treatment there from the 23rd September, 1976 until his return to Hong Kong on the 27th June, 1977. There is now a I" shortening of the left leg and loss of ankle movement. 4. An award for pain, suffering and loss of amenities has been agreed at $20,000.00. Special Damages 5. A total of $42,778.50 is claimed by way of special damages, of which the following items were not disputed:-
Mr. Suffiad very properly withdrew an item of $3,311.00 in respect of a bone setter, so that item can be disregarded. 6. On the subject of the disputed items of special damage, I will deal first with the Plaintiff's claims for hospital and medical charges whilst in Canton. The plaintiff was extremely vague about these and admitted that he had not as yet ascertained the true cost; but amongst other things, he did say that he had given his younger brother H.K. $5,000.00 whilst he was in China, and thought that two thirds of this went towards such expenses; but as I said all this is very vague indeed. Mr. D'Almada pointed out that there is no real verification of this item, and certainly nothing was adduced to support the computation of such charges at $500.00 per month for nine months. Neither have any precise dates been given of the Plaintiff's admission and discharge to the Institute of Chinese Medicine in Canton. In all the circumstances I think the right way to approach this item is to base this claim on the plaintiff's statement that he thought two thirds of the $5,000.00 given to his brother was in respect of such expenses, and to allow $833.25 per month for four months, this to include both hospital and medical charges whilst in China, as well as the attendance of the so-called traumatic doctor. Accordingly I will award $3,333 in respect of this item. 7. I next turn to the claim for nutritious or special foods in the sum of $1,400.00, which the Plaintiff says the bone setter advised, and that he agreed to take, twice a week for a year. The Plaintiff says that the cost of taking these special foods was $40.00 on each occasion. If this were so then the cost would be $4,160.00. Mr. Suffiad asked me to make an award in the sum shown in the Statement of Claim viz $1,400.00. Applying the dicta of McMullin, J., in Mui Ling-kwan & Anor. v. Wong Yin-wah & Anor. (1973 H.K.L.R. 465), I am satisfied that there is some evidence here to support the advisability of taking such special food, and after referring to Fuk Nui v. Lai Man-wai & Anor. (OJA 2661/77), I think it will be sufficiently adequate if I award $800.00 under this head. 8. Mr. Suffiad fairly allowed that the plaintiff's total loss of earnings from the 19th April,1976 to 22nd September, 1977 should be at the rate of $1,300.00 per month, and not $1,500.00 as claimed. This claim is not in dispute so that an award is made in respect of the period from 19th April, 1976 to 22nd September, 1977 at $1,300.00 per month, this works out at $22,273.22. 9. I find myself in some difficulty in arriving at a fair figure in respect of partial loss of earnings if only because the plaintiff has produced no evidence of his earnings in the factory where he first worked. He says that he was paid $20.00 per day for a six day week; that would be from the 23rd September, 1977 until he left that factory in February, 1979. I will accept that he earned $520.00 per month for the period 23rd September, 1977 to 28th February, 1979; so that he thereby suffered a partial loss of earnings at the rate of $780.00 per month for that period, and I therefore make an award of $13,423.31 for this loss. 10. It is evident that the plaintiff then took up more remunerative employment at a second factory dating from the 1st March, 1979 earning $800.00 per month, and I find that he is thus entitled to a further award for partial loss of earnings for the period 1st March, 1979 to the date of this assessment at the rate of $500.00, thus resulting in an award of $2,033.30. 11. I now turn to loss of future earnings. Before the accident the plaintiff was a public light bus driver, and it appears from Dr. Wedderburn's report as well as from the evidence of the plaintiff himself that there is a real possibility that he will be able to take up driving again with the effluxion of time. Indeed there is evidence that he has already driven on two occasions since his discharge from hospital. So that the likelihood of his returning to driving for a living is a real possibility and that must, to my mind, be a factor in assessing loss of future earnings. The plaintiff is now 46 years old and now probably has a working life expectancy of 14 years. 12. After careful consideration, and after referring to Kemp and Kemp "The Quantum of Damages", I have come to the conclusion that there will be a continuing loss of earnings of $500.00 per month, and I consider that a multiplier of 8 is appropriate here, and I therefore award $48,000.00 for future loss of earnings. 13. In summary then:- General Damages
Special Damages
14. There will be interest at 4% on special damages from the date of the accident. 15. The total damages to be paid into Court within 14 days. 16. There will be a certificate of Counsel and the Plaintiff will have his costs. 17. Costs to be taxed under the Legal Aid Regulations. 18. Liberty to apply. Dated this 11th day of August, 1979.
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