Man Chuen v. Cheung Ka Kui

HCA002455/1978

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Coram: Silke, J.

Date of Judgment: 22 November 1979

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JUDGMENT

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1. The plaintiffs in these consolidated actions, MAN Chuen and CHOW Keung-kwong, were injured in an accident on the 18th September 1975. They were passengers in a lorry driven by one CHOW Hon-ching along Kam Tin Main Road. The lorry ran off the road and overturned. The driver, amongst others, was killed.

2. Shortly before trial third party proceedings, begun by the defendant and involving two insurance companies, were withdrawn.

3. At the same time the defendant served notice admitting liability. The sole issue is therefore quantum.

4. Before I go on to deal with the issue I must advert to the pleadings as they stood when the trial commenced.

5. At that time the particulars of injury in respect of MAN Chuen were defective: they remain so. They contain no reference to a fracture of the 3rd Cunieform bone of the left foot nor any reference to a fracture of the terminal phalanx and proximal phalanx of the left big toe: nor to the tendon of the top of the foot to the big toe being divided. These particulars are still absent though Mr. Mumford, who appeared for the defendant, very properly took no point on this.

6. More important however the particulars of special damage in respect of MAN Chuen contained no reference to either nourishing food or loss of earnings: those of CHOW Keung-kwong no reference to loss of earnings.

7. These defects have now been remedied by amendment - such being made at the sitting of the court. The effect of these amendments was to vastly enlarge the scope of the quantum.

8. It is the plaintiff's case that there is total loss of earning, and continues, and there is loss of employability which should be compensated for in damages.

9. I fail to understand, and this is no criticism of Mr. Fung who appeared for the plaintiff, how matters of such importance came to be overlooked, and I bear in mind the evidence of Mr. Sezto, the Articled Clerk to Mr. Fung's instructing solicitors, on the matter.

10. I shall deal with each of the plaintiffs separately and first with MAN Chuen.

MAN Chuen

11. His injuries consisted of fracture of both the tibia and fibula in both legs, a fracture of the third Cunieform bone of the left foot, a fracture of the terminal and proximal phalanx of the left big toe and a division of the tendon from the top of the foot to the big toe.

12. He was admitted to Queen Elizabeth Hospital, plaster cast applied and the open wound to the right lower leg treated. Pins were driven through the upper and lower fragments of the right tibia which pins were attached to a metal bar parallel to the leg - this to provide traction.

13. A skin graft was done about one month after the accident to the right lower leg taking skin from the thigh.

14. He was transferred to Kowloon Hospital in October 1975 and in January 1976 was sent to the Rehabilitation Centre at Kwun Tong where he stayed until April - this being a total period of hospital treatment of about seven months.

15. After discharge he was using a stick and he reported back to Queen Elizabeth several times.

16. On examination by Dr. Wedderburn, who gave evidence, in January 1977 Mr. Man was found to have a scar 7½ in. by 8 in. on the door area of the skin graft. The graft has taken well on the right calf and there is no appreciable loss of underlying muscle.

17. Both legs are shortened. The left by a total of 1½ in. and the right by 1 in. This results in a net shortening of ½ in.

18. There is a bony protruberance which can be felt on the front right calf below the knee and a similar one on the front of the lower left calf.

19. He has full knee movement in both knees but he can flex the left ankle to 95^o only, being 50^o short of the right ankle and he can extend it to 125^o. He can flex the right ankle to a right angle and extend it to 130^o.

20. Normal movement is 70^o to 150^o.

21. The mid left foot is swollen and the measurement around the foot is 10 in.; around the right foot it is 9 in.

22. The fractures of the toe are well healed though he cannot use his toe in walking.

23. He walks with a marked limp. He told Dr. Wedderburn that he can walk for three to four hours but if he tries to talk fast he gets a pain in his foot. He told me in evidence that it took him three hours to walk from the end of Battery Path - at Queen's Road Central - to the Supreme Court building. This, having seen him move in Court, I think to be an exaggeration.

24. There is considerable overriding of bone fragments in both legs and he cannot bend his left ankle to form a right angle with his lower leg nor can he put his heel to the ground.

25. It is the opinion of Dr. Wedderburn that he is fit only for light or sedentary work. His impairment from his injuries is 10% of the whole man. Dr. Wedderburn describes impairment as something upon which a surgeon can form an opinion. Disability, he says, is how that impairment affects a man's working capacity and this is affected by many matters of which the surgeon may be unaware.

26. He thought Mr. Man did well to get out of the Rehabilitation Centre in April 1976. He would expect him to use a stick for at least two months thereafter. Some men go in for four months a very determined man might reduce the use of a stick in about one month.

27. In July 1977, on examination, Mr. Man was not using a stick.

28. He would expect Mr. Man to have considerable difficulty in using public transport - mainly the bustling and josseling which is part and parcel of boarding public transport in Hong Kong - but he could use a mini bus with less inconvenience.

29. He gave it as his opinion that a disabled man, and this view he applies to Mr. Chow as well as Mr. Man, would generally have difficulties in finding work in the construction industry. Mr. Man cannot compete with a sound man his output would be lower and his speed less.

30. He can do a sedentary job - or one where standing is required but he would need to sit on occasions.

31. There is some dispute on the evidence as to Mr. Man's age. Dr. Wedderburn assessed him as fourty nine in July 1977.

32. Mr. Man says at the time of the accident in 1975 he was fourty eight. Having seen him and considered the evidence I would think him now to be a man of about fifty one and I will use that age in this assessment.

33. He is a man of little education and has been in the construction industry for twenty years. Immediately prior to the accident he earned $50 per day and I am content to accept that figure as his pre-accident earnings and his monthly earnings as $1,400 per month.

34. I would further accept on the evidence that he is permanently unfit for heavy work. He says he had worked for a short period in December 1976 for Hsin Cheong Construction Co. but stopped in mid January 1977 as he could not continue.

35. He tells me he tried other construction companies later in 1977 but was refused employment and that he could not get light work from them either. He has had no other job since the accident.

36. He approached the Labour Department who, he says, told him he would be notified if a job was available but he was never so notified. He went there but once and made no further attempt to seek employment through that Department. His explanation for his but single visit rang somewhat hollow for he says he had no one to "lead him there".

37. I am aware of the evidence of Dr. Wedderburn as to the difficulties a disabled man would encounter in obtaining employment in the construction industry and that of the Assistant Labour Officer Mr. Chan. But there is also the evidence of a witness, called on his behalf, to say that Mr. Man worked for about eight months with Hsin Cheong Construction starting near the end of 1976. It is correct that Mr. LIU Yau said that this was only light work and as Mr. Man "could not make it" the foreman told him to go and get another job.

38. The defendant called a Mr. CHOW Leung who retailed a conversation he had with Mr. Man at Tsuen Wan Court - they were there in connection with workmen's compensation matters. But Mr. Chow was a very vague witness and I am not prepared to give much weight to that which he had to say. The other witness called by the defendant, Mr. TANG Min, spoke of offering work to Mr. Man, for whom he felt sorry at the end of 1977. He says Mr. Man refused the offer as he was then doing plastering work. A little later he made another offer to Mr. Man and again was refused. This offer - I do not know what exactly Mr. Tang had in mind then for Mr. Man - referred to a construction site at Tsing Yi and Mr. Man complained of the long distance he would have to travel to reach the site - a reasonable complaint in the light of Dr. Wedderburn's evidence as to the travel difficulty which Mr. Man would experience. Mr. Tang added in cross-examination that in 1978 he took Mr. Man to construction sites but it seems clear to me that the work offered to the plaintiff was such that he could not be expected to do it.

39. Mr. Man's pre-accident work was described as that of a mason and carpenter - I think the word "mason" to be used somewhat loosely as the reality of his work was laying stones on steps or kerbs.

40. He is undoubtedly unfit for that now or any heavy work though I do not think him to be unemployable.

41. The Assistant Labour Officer put the present day earnings of such a worker at between $120 and $130 per shift. This on a twenty eight day basis gives either $3,360 or $3,640 per month. Mr. Tang on the other hand, and he is on the ground as a subcontractor, put the current wage at $90 per shift. He does say, however, that there are occasions when a higher rate would be paid for a short job which needed to be done quickly. This could go as high as $130 per shift.

42. I would accept, based on the evidence of Mr. Chan, who put it somewhat high, and on that of Mr. Tang that $110 per shift would be a fair average.

43. There is a duty on an injured person to, so to speak, mitigate by attempting to find suitable work and, if found, of telling about it.

44. I note Mr. Man was paid $41,400 as workmen's compensation some time in 1977. And this may have some bearing on his work pattern since the accident.

45. As to what he might earn now in suitable employment it is the Assistant Labour Officer's evidence that a coolie, as he put it, could earn about $80 per shift if he is organised - if not about $60 per shift.

46. By "organised" he meant had friends in or connection with the construction industry.

47. I would treat Mr. Man as an "unorganised" worker. I think him to have exaggerated his difficulty in finding work and I think he did get work though of a sporadic nature.

48. It would be reasonable for him not to work for several months after his discharge in April 1976 from the rehabilitation centre. I would give him up to August 1976, despite Dr. Wedderburn's opinion that he could look for work in June of that year. I do this because of the trauma of what was a serious injury.

49. I would therefore assess a total loss from 18th September 1975 to 1st August 1977 - 10½ months at $1,400 per month or $14,700.

50. Thereafter to trial I would allow him at an average of $30 per shift as loss or $840 per twenty eight day month. This is 39 months at $840 per month or a total of $32,760. The total loss of earnings $47,460.

51. As to the remaining specials I would allow $50 for clothings and $30 for traffic expenses as claimed.

52. As to the nourishing food. No evidence has been produced to substantiate the sum of $300 claimed. I have no doubt, on Mr. Man's evidence that some nourishing food was provided for him by his wife. I would allow $100 under this head.

53. Special damages total therefore comes to $47,640.

54. As to general damages: (1) loss of future earnings.

55. As a multiplier I would use 8. There is little difference between the submission of counsel on this point. I chose 8 bearing in mind the type of work Mr. Man did, his age now of about fifty one and the lump sum payment.

56. As a multiplicand I would take as a basis if $100 - inflation must be considered and contrasted with the lump sum payment to which I have referred. I would on the evidence assess his incapacity as 50%. Therefore $55 per day for a twenty eight day month gives $1,540 - per year gives $18,480 x by 8 gives $147,840.

(2) As to pain and suffering and loss of amenities I have been referred to SHEK Kam-tin v. CHAN Fuk-sang & another⁽¹⁾; KWOK Me-tai v. TANG Yu-hand & others⁽²⁾; YIP Hoi-kwan v. YAU For-chai⁽³⁾; NG Cheung-wai v. LAU Che-ming⁽⁴⁾ and the damages awarded therein.

57. Bearing in mind the period of hospitalisation - the serious fractures to both legs - the shortening of both legs: the residual shortening of ½ inch: The skin graft: the fracture to the foot: the double fracture of the big toe, the division of the tendon, and the permanent limp I think a sum of $40,000 to be the proper figure.

58. To this is added the loss of future earnings to which I have already referred of $147,840. The total general damages will therefore be $187,840.

59. There will be interest on the special damages at the rate of 4% from the 18th September 1975 to today and on the general damages at the rate of 8% from the date of service of the writ to today.

60. I specifically make no award as to loss of earning capacity having made an assessment of loss of future earnings.

CHOW Keung-kwong

61. He, on admission to hospital, was found to have bruising over both eyes and tenderness and guarding over the left flank.

62. He was in shock which it was thought resulted from intra abdominal bleeding. An immediate operation was performed and the bleeding was found to be due to a ruptured spleen and a ruptured left kidney. Both were removed.

63. He was discharged with remarkable speed on the 27th September 1975.

64. He was examined on 26th July 1976 by Dr. Wedderburn who found he had a scar 10½ in. in length running from the upper abdomen down almost the whole length of the abdomen. This scar remains, for Mr. Chow showed it to me in court. It is well healed and the muscles are normal.

65. He complained then of occasional tightness in the wound and of indigestion. Dr. Wedderburn says that it is normal in the case of serious abdominal operations that adhesions form. This may necessitate a further minor operation to reduce the adhesion - which can occur up to thirty years after the main operation. The risk is put at 1%.

66. Mr. Chow's remaining kidney is functioning normally.

67. In his evidence Mr. Chow said he continues to get pain when the weather changes or if he lifts heavy objects. He made no reference to Dr. Wedderburn in respect of this according to the doctor. He also, in cross-examination, said that his head had been "damaged" in the accident and as a result his memory is bad. He had, he said, banged his head on the ceiling of the truck and become unconscious. He did not tell Dr. Wedderburn this nor is there any reference in that doctor's report or evidence, nor in the admission report, to the bruising around the eyes is mentioned. He alleges loss of consciousness but I think this may be confused in his mind with the state of shock in which he was when admitted to hospital.

68. Dr. Wedderburn stated that Mr. Chow told him that at the time of examination he was working as a measurer for a surveyor for greatly increased wages. Mr. Chow denies he ever said this as to wages. This is a matter with which I shall deal when I come to loss of earnings. But it serves here to illustrate the conflicts between the medical evidence and that of Mr. Chow.

69. It was Dr. Wedderburn's opinion that the loss of a spleen is of no effect on a person's life or employability. The loss of a kidney -which it is trite to say leaves but one remaining - is the loss of an essential organ and results in a 10% impairment of the whole man.

70. He confesses it is difficult to assess disability. In Mr. Chow's case the remaining kidney was performing perfectly well but there is, as he has said, a prejudice in Hong Kong against a "disabled" person in respect of future employment. Mr. Chow should not be, in the normal course, affected by his loss until his fifties.

71. There is a dispute about Mr. Chow's age. Dr. Wedderburn assessed him at 38 in July 1976, both on what Mr. Chow said to him and on visual assessment. Mr. Chow disputes this and suggests that his identity card shows his true age. He was not born in Hong Kong so has no birth certificate. On the evidence I would accept Dr. Wedderburn's assessment as being accurate which puts Mr. Chow at 41 now.

72. Going on more specifically to deal with loss of earnings, loss of future earnings, if such there be, and, in the alternative, loss of employability.

73. After his discharge Mr. Chow did make several visits to hospital. It was Dr. Wedderburn's opinion that a recovery period of at least one month was required, with six weeks to two months being not unreasonable. Two months would bring Mr. Chow up to mid November 1975.

74. The doctor also went on to say that there was no reason why he should not be able to do his previous work. However he did say that the scar, which would be plainly visible if Mr. Chow worked without his shirt, could deter prospective employers.

75. Mr. Chow's pre-accident work was the making of holes in rock using a pneumatic drill, putting pins into the holes he made and then using a hammer to split the rock.

76. In his evidence Mr. Chow says he tried for a job "about a year or so" after the accident. He then got his measuring job. This was clearly 1976 and in July - though Mr. Chow was confused as to the year. He denies emphatically that his wages were greater than his pre-accident rate of $40 per shift. He says they were merely $20 per shift and that, in any event, he lost the job after a month as he was expected to do calculations and this, with his lack of education, he could not manage.

77. His old employer Kin Shing refused to have him back - and this he did tell Dr. Wedderburn.

78. In 1976 while working with Hsin Cheong he did try using a pneumatic drill but as he immediately felt pain he desisted and did not try again.

79. He made reference to other firms which he approached for a job: Yu Wing Co. and Lee On: both construction companies. He looked for odd jobs having, in my view, convinced himself that he could not do his pre-accident job. He was also paid $33,000 in Workmen's Compensation which may have some bearing on the matter.

80. When asked in cross-examination why he did not go to see a doctor if he felt the pain he said he did when doing heavy work he answered "I do not know where to find a doctor" and asked counsel to tell him where he could find a Government clinic. In answer to me on this point, when I asked him if he were willing to put up with the pain, he answered "Not really. I did go to see a private doctor and got some treatment in the form of medicine". There was no mention of this to Dr. Wedderburn and even now the details of such visit are noticeably absent, as are details of his job searches.

81. One further point he made in his evidence was that there was not enough work for construction workers in Hong Kong in the period 1976 to now. This with respect to him is arrant nonsense - and there is evidence before me, and which I accept, which supports my view.

82. I do not, incidentally, accept Mr. Chan, the Assistant Labour Officer's assessment of Mr. Chow as "disabled". He is not, other than the natural disability arising from the loss of an essential organ.

83. The witness called by the defence, Mr. CHOW Leung, a relative of the plaintiff, and to the nature of whose evidence I have referred when dealing with Mr. Man, also made reference to Mr. Chow. I would not, as I have said, be prepared to place reliance on his evidence. The other defence witness Mr. TANG Min has nothing to say about Mr. Chow having had no contact with him since the accident.

84. It is not disputed that Mr. Chow's pre-accident earnings were at the rate, including meals, of $1,036 per month.

85. I do not think Mr. Chow to be a very determined man and I would allow him a three-month recovery period, this would bring him to mid December 1975 and involve a sum of $3,108. I am not impressed by what he says are but efforts to find work, he exaggerates very considerably his difficulties and the effect of his injuries.

86. It would not be unreasonable for him to do light work for a short period of say three months after his recovery period when he could expect to earn at least $20 per shift. The loss would therefore be $20 per shift on a 28-day working month or $560 per month. This gives a total of $1,680.

87. I have no doubt that he did get work thereafter and at the increased rate which he mentioned to Dr. Wedderburn.

88. On the evidence and having considered Mr. Chow as a witness I think his failure to obtain his pre-accident work is unreasonable.

89. I would also allow the hospital charges clothing and traffic expenses claimed - they are not seriously disputed. This at $264

90. I would allow loss of earnings at a total of $4,788: $5,052 being the total specials.

91. As to general damages:

92. I have been referred to Kemp and Kemp Vol. 2 para. 78-15 and the cases therein mentioned. Also to the Current Law Year Book 1977, 782.

93. Bearing in mind the fact of a major operation; the loss of an essential organ; the possibility of a future operation; for adhesion; the scar; the removal of the spleen I think a sum of $30,000 to be the proper award for pain and suffering.

94. There also falls to be considered loss of employability. For Dr. Wedderburn said that the advice he would give to a man of sixty as to the reduction of heavy work he would give to Mr. Chow at the age of 50.

95. A man of Mr. Chow's work type could now earn about $75 per shift. No doubt wages, as everything else, will continue to increase. He does not become unemployable at 50 and could well, allowing for the ordinary vicissitudes of life, expect to work until at least 60. And he could have continued his pre-accident work to this age were it not for his injuries.

96. Bearing all the factors in mind and remembering the difficulties a man who should not do heavy work is likely to find in obtaining employment in the construction industry I would award a lump sum of $35,000 for loss of earning capacity though in reality this is a form of loss of future earnings. I arrive at this figure bearing in mind the general tests of: the risk that the plaintiff will, at some time before the end of his working life, be thrown on the labour market: his age and qualifications: the nature of his injury. There is, here, a real and substantial risk in a high degree arising in about ten years' time.

97. In Cook v. Consolidated Fisheries⁽⁵⁾ Lord Denning warned against awarding by sums under this head. I think the Hong Kong position to be somewhat different, much more competitive and with little protection for a handicapped worker. There is also the prejudice against such a worker referred to by Dr. Wedderburn. General damages will therefore be $65,000.

98. There will be interest on the special damages at the rate of 4% from the date of the accident until trial and on the general damages at the rate of 8% from the service of the writ to date.

99. Having heard counsel, there falls to be deducted from the general damages the amounts paid to Mr. Man and Mr. Chow in the Workmen's Compensation proceedings. In the case of Mr. Man this came to $41,400 which, deducted from $187,840, gives a net award of $146,440.

100. In the case of Mr. Chow this came to $33,000 which, deducted from $65,000, gives a net award of $32,000.

Representation:

Mr. D. Fung (DIAlmada Remedios & Co.) for Plaintiffs.

Mr. Mumford (Samuel Soo & Co.) for Defendant.

(1) (1978) H.K.L.J. 377

(2) (1979) H.K.L.J. 100

(3) (1979) H.K.L.J. 197

(4) (1977) H.K.L.J. 149

(5) [1977] 1 C.R. 635