Che Che v. Leung Siu Tong and Another

Case No.HCA 2384/1979

Court

High Court CFI

Date27 Apr 1982

Judge—

Case Document

100%Judiciary

HCA002384/1979

1979 No. 2384

IN THE SUPREME COURT OF JUSTICE

HIGH COURT

BETWEEN

	CHE CHE	Plaintiff
	AND
	LEUNG SIU TONG	1st Defendant
	CHAN KWOK HUNG	2nd Defendant

Coram: Mr Registrar Julian Betts in Chambers

Date of Judgment: 27 April 1982

--------------------------------------------------------------------------------------

ASSESSMENT OF DAMAGES AGAINST THE 2ND DEFENDANT

--------------------------------------------------------------------------------------

1. On 21st June 1978 the Plaintiff, then aged 64, was knocked down by a motor cycle driven by the 2nd defendant. He suffered an intertrochanteric fracture of the right femur. He was admitted to hospital for eight weeks. Thereafter he used crutches for a period of one month.

2. His fracture was treated by the insertion of a nail attached to a bone plate secured to the shaft by four bone screws.

3. In his evidence before me the Plaintiff claimed that his right knee was also injured in the accident and that on admission to hospital it was swollen to about twice its normal size. He made the same complaint to Dr Wedderburn when he first consulted him in May 1979. The report from Dr Leo Chan of Queen Elizabeth Hospital, where the Plaintiff was first admitted, makes no mention of any such injury; nor did Dr Chan in his evidence.

4. This caused me some concern because the evidence of Dr Wedderburn is to the effect that the Plaintiff's continuing limp and difficulty in standing for long periods are due not to the fracture of the femur but to pain from the right knee which is still experiencing a degree of crepitus with the possible development of osteoarthritis. I do not think that the comparative importance of the knee injury would have been appreciated by the Plaintiff in May 1979 and take the view that its omission from the report of Dr Chan was an inadvertance. I accept the injury was inflicted in the accident.

5. Prior to the accident the Plaintiff was a self employed blacksmith making small knives by hand. His output was between 40 and 50 a day and his monthly earnings were between $1,500 and $1,600. The work is physical and necessitates standing for long periods. The Plaintiff resumed the same work in January 1979, rather sooner than might have been expected. Not surprisingly he then, and still, finds the work more exhausting and his output has fallen to its present level of 24 or 25 pieces a day. He has, however, put up his prices and is earning some $1,400 a month. I take into account that he might well have made the same price increases had his production not fallen.

6. It is accepted by the Plaintiff, and confirmed by Dr Wedderburn, that the Plaintiff's age is an inevitable factor in slowing his work; and would be so irrespective of his injuries.

7. Dr Wedderburn assesses the injuries as 4% impairment of the whole man but as a 20% disability in the Plaintiff's earning capacity. That is an assessment with which I do not disagree.

8. That disability will continue but I have no evidence it will get significantly worse in the next couple of years.

9. The Plaintiff is now 68. He has friends in the same trade still working well into their 70's. He has a daughter at school and intends to go on working till she goes out to work in 2 years time. He may well then retire and will be 70. I consider the proper multiplier for loss of future earnings to be 2.

10. I will now deal with the heads of damage.

Pain, suffering and loss of amenities

11. I am obliged to Mr Frankie Leung for drawing my attention to a number of authorities in somewhat similar cases demonstrating a range of awards between $15,000 and $25;000. Having considered then I award $25,000 under this head.

Special Damages

	(a)	Travelling expenses both for the Plaintiff in follow up attendances at hospital and for family visits over the two months he was detained were claimed at $150. That figure is reasonable and awarded in full.
	(b)	Special nourishment is claimed at $600 but no evidence given to support that figure. Evidence was given, however, that the Plaintiff did receive Chinese herbal nourishment from his family whilst he was in hospital. Following To Ki v Chan Kit Lam & another 1980 No. 2224, I allow this claim on the basis of $10 a day for 60 days.
	(c)	Loss of earnings
		From the date of the accident to the 12th January 1979 the Plaintiff was totally unable to work. I accept the evidence of Dr Wedderburn that was the earliest possible date the Plaintiff could be expected to return to work and, indeed, was rather earlier than might have been expected. That is a period of 6 2/3 months. In the Statement of Claim the Plaintiff put his previous earnings at $1,560 a month but in evidence claimed it at $1,600. I think it most likely that the figure would vary from month to month and accept his original figure as a fair average estimate. The sum awarded for that period is, therefore, $10,400 as claimed. From 12th January 1979 to date the Plaintiff has been working but at reduced capacity. I think he would be earning in excess of $1,600 per month and that is reduced by 20% as a result of this injury. I agree with Mr Leung's figure of $400 a month. Loss of earnings from 12 January 1979 to the date of hearing are, therefore, $400 × 27 = $10,800 which is the sum I award.
	(d)	Loss of future earnings
		For the reasons set out above I apply the multiplier of 2. The Plaintiff's earning capacity is reduced partly by increasing age and partly by his injury. I take the multiplicand at today to be $400 and increase it by 2516 for inflation. The award for loss of future earnings is $500 × 12 × 2 = $12,000.

Summary

12. There will be an award as follows:-

	(1)	General damages	$25,000.00
	(2)	Special damages

(a)	Loss of earnings	$21,200.00
(b)	Loss of future earnings	$12,000.00
(c)	travelling expenses	$ 150.00
(d)	special nourishment	$ 600.00	$33,950.00
			________
			$58,950.00
			========

13. There will be interest on the general damages at the rate of 17.5% per annum from the date of service of the writ until to-day and at the rate of 8.75% per annum on $21,950.00 special damages at 2 (a), (c) and (d) supra.

14. Plaintiff's costs to be taxed under Legal Aid Regulations with Certificate for Counsel.

Dated the 27th day of April 1982.

	(J. Betts)
	Assistant Registrar

Representation:

Mr Frankie Leung instructed by Messrs Rowdget W. Young & Co for the Plaintiff

2nd Defendant in person