Chui Fai v. Chan Yue Hing and Another
Read the full judgment text of HCPI 863/1976 on BabelCite. This High Court CFI judgment.
1. On 22nd June 1975 the plaintiff was run over by one of the 2nd defendant's buses which was then being driven by the 1st defendant. Both of the plaintiff's legs were crushed.
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HCPI000863/1976
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Barnett in Chambers Date of Judgment: 25th November 1976. C.Y. Wong (Vincent Lo & Co.) for Plaintiff R. Mills-Owens (Deacons) for Defendants --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1. On 22nd June 1975 the plaintiff was run over by one of the 2nd defendant's buses which was then being driven by the 1st defendant. Both of the plaintiff's legs were crushed. 2. The plaintiff was admitted to Queen Elizabeth Hospital in a state of shock. He had bled a lot and resuscitation was carried out by blood transfusion. His left leg was amputated through the knee. Attempts were made to save the right leg by McKee's traction. However, the right leg failed to survive and a below-knee amputation was carried out on 7th July, followed by skin grafting on 19th August. The plaintiff then progressed satisfactorily. He was fitted with prostheses. He was discharged on 12th December 1975 after about 6 months in hospital. 3. There was some uncertainty as to the plaintiff's age. The plaintiff in evidence said he was born on 3rd January 1926 and produced his identity card in support. He had told his erstwhile employers he was born on 3rd January 1922. He explained that he did this so that he would be able to retire 4 years earlier. I accept what the plaintiff said. I am satisfied he is now 50 years old. 4. The plaintiff has now reached a critical point. He has experienced great difficulty and discomfort with the prostheses with which he has been fitted and which are of a modern pattern. He has lost confidence in them to such a degree that he has achieved little mobility and spends a great deal of time in his wheel chair. He is unwilling to try replacement prostheses of a conventional type as recommended by specialists. 5. Dr. Ma, an orthopaedic specialist, gave evidence for the plaintiff. Dr. Fang, whose orthopaedic qualifications are well known, gave evidence for the defendants. Happily, I think both are really in substantial agreement. If the plaintiff will only agree to be fitted with replacement prostheses, there is no reason why he should not achieve a great measure of mobility. He will be able to walk with the aid of one or two canes. He will be able to go to work provided the work is of a sedentary nature. He will be relieved of most of the present pain and discomfort. If he attends a government rehabilitation centre, to which he may be referred by anyone, he will receive full time training and should be up and about within 3 months. Clearly, it is desirable that the plaintiff should do what has been advised as otherwise he is only going to become more miserable and helpless and slowly vegetate in his chair. I hope that this will be brought to the plaintiff's attention in a sympathetic but firm way. 6. It is true, as both doctors agree, that a person can become afraid of prostheses if they are ill-fitting and refuse to use them. The plaintiff, however, is a man of some intelligence and character. I am persuaded that he will soon agree to try again. 7. I now come to consider the question of damages. As far as general damages are concerned, Mr. Mills-Owens suggests I should make a global award to cover pain, suffering and loss of amenities, and loss of earning capacity. He submits that it is difficult to say that a plaintiff will sustain a quantifiable loss in the circumstances of this case as there are no basic figures to go on. Mr. Wong, although he did not touch upon the point, is clearly of the view that the loss of earnings is quantifiable and quantified it. Whichever practice one adopts, it seems to me that there must be some rational basis for the award, whether it be case law which may provide some guide as to a suitable global award or a careful analysis of the facts of an individual case which may demonstrate with some accuracy a monthly or annual continuing loss. 8. I am of the view that global or lump sum awards are to be made only if there is absolutely no evidence to go on. My general practice is to try and quantify the loss and I propose to adopt that course in this case. 1. Pain, suffering and loss of amenities 9. There is no need to spell out the dreadful experience that the plaintiff has had or the obvious and permanent inconveniences to be endured hereafter. Fortunately, if the plaintiff will take the advice given him, the prognosis is hopeful. 10. I accept that for the time being the plaintiff still has tenderness, particularly in the left stump. I would be most surprised if he did not. 11. No prostheses are perfect. They will require adjustment or changing from time to time. This will involve the plaintiff attending for fittings, perhaps every 2 years. He will also have to attend for periodic check-ups on his stumps. 12. The plaintiff has been unable to resume sexual relations with his wife. The reason is a matter of temperament, rather than physical. Dr. Ma said such a situation can be permanent. I take the view that this loss will probably be permanent. 13. The plaintiff can no longer play tennis which previously he played once a week. Dr. Fang says he can still swim. However, there is a great deal of difference between an unrestricted free-style across Repulse Bay and a dignified dog-paddle close to shore, always assuming that the plaintiff can bear to reveal his injuries in public. 14. There is a complete lack of Hong Kong authority for such a case. English awards would appear to be in the region of £9000 but the cases mentioned date back to the late 1950's or early 1960's. In Thorne v. British Railways Board (1970) (Kemp and Kemp, vol. 2, p.10011) £13000, which included probably £6000 for loss of earnings, was awarded to a man aged 19 at the time of the accident. In Evans v. Robert Wynn & Sons Ltd. (1968) (Kemp, p.10051) a man of 46 was awarded £19736 which presumably included an award for loss of earnings. In any event, these awards would have to be scaled down, although perhaps not as much as before in view of the decline in value of sterling. 15. In Lee Koon-keung v. Ng Chi-yat O.J.A. 1297 of 1974 (1975 H.K.L.J. p.385) Cons, J. awarded $55,000 for the loss of one leg in respect of a man of 18. 16. Mr. Wong, rightly in my view, says that it is not simply a case of multiplying the award of Cons, J. by 2, that loss of 2 legs is more than double the seriousness of the loss of one. He suggests an award of $150,000. 17. I have to keep in mind that the award of $55,000 by Cons, J. was in respect of a man of 18 who would have had virtually the whole of his life before him. The plaintiff has already enjoyed a full life and the happiness of marriage and children. 18. In all the circumstances, I think the proper award is $120,000. 2. Loss of earning capacity/earnings 19. Mr. Mills-Owens and Mr. Wong pitched their addresses respectively under these heads. I am of the view that there is a difference (see my assessment in Piper v. Tang A. 3094/75) but I think that nothing turns on it in this case. 20. At the time of the accident, the plaintiff was employed by Hong Kong Security Limited as a junior controller earning $1075 per month. He was considered as one of the more senior supervisory officers, was well regarded by the company and had good prospects. Wages were reviewed each year and, in the foreseeable future, the plaintiff could have looked forward to annual increments of about $100 per annum, rising to a maximum of $2000 per month. He could also have looked forward to possible promotion to post controller in perhaps 4 or 5 years with a salary range of $1500 - $2500 per month. Because of the incorrect age given to the company, the plaintiff would have been due for retirement in 1987. 21. The company made it plain to the plaintiff that they would take him back if he wished to return. Out of compassion, the company was prepared to find him some static job, probably tailor-made for the plaintiff's situation, involving the use of radio or monitoring electronic equipment. After the necessary training, the salary would be about $1000 per month but outside the normal scheme of salary review. The job would of necessity be in Kowloon. 22. The plaintiff indicated to the company that, having lost 2 legs, he could not resume duty. Accordingly, his employment was terminated on 30th September 1976. As I understand it, the company is still willing to employ him. 23. I have already found that the plaintiff is or will be capable of returning to sedentary work. A job is available at a salary not incommensurate with what the plaintiff had been receiving. 24. Dr. Fang agreed that it was desirable that the plaintiff live close to his place of work. The plaintiff lives in North Point. He would have to cross the harbour each day to get to the job available to him. Dr. Fang agreed that, although the plaintiff should soon be able to get on and off public transport, in the peculiar circumstances of Hong Kong where courtesy and consideration are not immediately apparent it would be dangerous for him to do so. 25. Dr. Fang also mentioned proposed legislation relating to disabled persons in bus queues and the possibilities of a specially adapted car and free parking. Realistically, these matters were not pursued by the defence. 26. In evidence, the plaintiff said that he intended to use his compensation money to buy a house. Mr. Mills-Owens suggested that he could buy a house in Kowloon and thus be near his place of work. I do not think that there is any great merit in this point. The plaintiff may well change his mind and spend his money in another way. In any event, it is bad enough that the plaintiff has to start a new way of life without having to move away from familiar faces and places and start a completely new life. 27. I am therefore of the view that for good practical reasons the plaintiff will not be able to avail himself of the generous offer made to him by Hong Kong Security Ltd. He will be constrained to seek a job in the locality of his home. There is no reason why he should not obtain employment as a cashier or some other such sedentary post. It is true that the plaintiff has no particular office-type skills having spent all his life in security work, his previous employment having been with the Prisons Department. Nonetheless, he is clearly a man of some intelligence and should have no difficulty coping. While no evidence has been adduced, he would probably be able to command a salary of $6-700 per month. 28. There is no doubt in my mind that, but for the accident, the plaintiff would have continued with Hong Kong Security Ltd. until retirement in 1987 when he would have been earning at least $2000 per month. Assuming that the plaintiff is able to obtain a job at his pre-accident salary, there would be a continuing average monthly loss of earnings of about $500 per month. However, this is compounded by the fact that the plaintiff is only likely to earn $6-700. 29. I therefore find that there will be a continuing loss of earnings of $800 per month until 1987. I adopt a multiplier of 7. This amounts to $67,200 which I round up to $70,000 bearing in mind that the plaintiff will not in any event be earning anything at all for some months to come. 30. In his submission, Mr. Wong sought to claim loss of retirement benefits. This was not pleaded. O.18 r.12 of R.S.C. makes it clear it should have been pleaded. I therefore make no award. It is fair to say that counsel did not lead the necessary evidence from PW3 and could not have intended to pursue this claim. I extracted the information from PW3 at the end of his evidence. If I misled counsel into thinking I would allow a claim for this loss, I apologise. Special damages
31. General damages amount to $190,000. From this must be deducted $62,693.89 already paid to the plaintiff by way of workmen's compensation. The net award is therefore $127,307 in round figures. 32. Special damages amount to $8,891.80. 33. I award interest at 8% on the damages in accordance with Jefford v. Gee. 34. Total damages are to be paid to the plaintiff's solicitors within 14 days. 35. Plaintiff's costs. 36. Fit for counsel. 37. Liberty to apply. 38. Dated the 25th day of November, 1976.
Representation: C.Y. Wong (Vincent Lo & Co.) for Plaintiff R. Mills-Owens (Deacons) for Defendants |