Lee Kai Wah v. Lee Cheung Fook

HCA003712/1981

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

__________

BETWEEN

__________

Coram: Master Barrington-Jones in Chambers

Date: 31st August, 1983

_________________________

ASSESSMENT OF DAMAGES

_________________________

1. This is an assessment of damages in respect of injuries sustained by the Plaintiff when a taxi collided with him (and his hand-cart) at about 5 a.m. on the morning of the 9th September, 1978, at the intersection of Wong Chuk Street and Cheung Sha Wan Road in Kowloon; and is before me by order of the Honourable Mr Justice Mantell dated the 26th April, 1983.

2. At the date of the accident the plaintiff was 45 years of age and was a hawker earning an average monthly income of $3,600. He is married with two children, but his family have always lived in China.

3. As a result of the accident the plaintiff was admitted to the Neurosurgical Unit at Queen Elizabeth Hospital the same day where he was found to have a fractured right hip (neck of right femur) and a marked decrease of hearing in the right ear, and other minor injuries. An operation on his hip was done on the 14th September when a nail was inserted, and the Plaintiff was discharged from hospital on the 26th September, 1978.

4. Dr Wedderburn examined the plaintiff on two occasions, and in his report dated the 7th February, 1980 noted a 3" operation scar on the outer aspect of the right thigh, and found that the plaintiff could only flex the right leg at the hip through 130^o instead of the normal 150^o. X-rays showed the result as excellent, although there is a slight shortening of the neck of the femur. Dr Wedderburn further noted that the plaintiff had no limp, but walked slowly carrying a walking stick in his left hand, but not using it for support. He found a 11% impairment of the leg, and a 4% impairment of the whole man, assessing his permanent disability at 5%.

5. In his second report dated the 13th July, 1983, Dr Wedderburn states the plaintiff complains that the nail in the hip region causes some discomfort, and that he has some difficulty with stairs, and uses an umbrella for support; but he was later observed by Dr Wedderburn carrying an umbrella without using it for support when walking. Dr Wedderburn found the muscle had completely recovered which led him to believe that the plaintiff is walking and exercising normally. Unfortunately the plaintiff resisted Dr Wedderburn's attempts to examine the movement of the hip as well as his attempts to measure the internal and external rotation of the leg at the hip; but Dr Wedderburn was of the opinion that the plaintiff probably does have a genuine loss of the final degrees of flexion, and probably some loss of external rotation amounting to 5% impairment of the leg which is a 2% impairment of the Whole Man. This is, of course, a considerable improvement on his first assessment made in 1980.

6. Turning to the plaintiff's impairment of hearing, the Consultant E.N.T. Surgeon advises that there is a mild permanent loss of hearing on the right side. Dr Wedderburn comments that this is a very mild loss (being an 8% loss of hearing in the right ear) which is only a 2% loss of binaural hearing and a 1% impairment of the Whole Man.

7. Dr Wedderburn concludes his second report by stating:-

"I consider that he greatly exaggerated his difficulties during the examination, failed completely to try to co-operate, and I can see no reason why he could not have resumed work approximately a year after the accident. He did not co-operate with after care. There is loss of hearing and genuine hip loss; he has a 3% impairment of the Whole Man and would be fit for medium and light manual labour although arduous manual labour would not be advisable "

8. The plaintiff in his evidence suited that he could now walk normally though very slowly with the aid of a stick (or umbrella) and that if he sits or stands for a long time he feels pain.

GENERAL DAMAGES

Pain, suffering and loss of amenities

9. Mr Cheung submitted that an award in the range $30,000 - $35,000 should be made under this head and referred me to seven authorities as follows:-

10. Taking into account the authorities cited, the serious nature of the plaintiff's injuries as well as the fall in the value of money I assess damages under this head at $34,000.

LOSS OF FUTURE EARNINGS

11. Dr Wedderburn has stated in his final report that the plaintiff (now aged 50) was capable of working from the end of 1979 but would only have been fit for medium and light manual labour and that arduous manual labour would not be advisable; and this must suggest that the plaintiff would not have been fit enough to return to his work as a cooked food hawker. Indeed it transpired that the plaintiff did not return to hawking but later worked as a substitute part-time caretaker; and since then has joined a friend assisting in the running of his Dumpling Stall.

12. It is, of course, well settled that in cases of continuing disability the plaintiff may be able to remain in his employment for some time but with the risk that, if he loses that employment at some time in the future, he may then, as a result of his injury, be at a disadvantage in getting another job. It is generally accepted that it is always difficult to assess the true income of a hawker, not to mention a hawker of cooked food; but in this case I accept that it is not unreasonable to find on the plaintiff's own evidence that he did in fact earn $3,600 per month (say 30 days @ $120) at the time of the accident. Mr Cheung proposed that I should adopt a multiplicand of $3,000 ($3,600 - $600) and a multiplier of 7, resulting in ($3,000 x 12 x 7) = $252,000; remarking that no matter how one looks at the accident the plaintiff's earning capacity has been diminished by his injuries. Whilst I agree with the latter part of that submission I ponder the extent that the plaintiff's earning capacity has in fact diminished.

13. Looking at the history of this case the plaintiff was clearly fit to work one year after the accident circa October, 1979 but it transpired that he only resumed work as a substitute part-time caretaker in February, 1981 when he said that his average monthly income was about $200 whilst "working on and off". The plaintiff said he continued this employment until May or June, 1982 when he went out on the streets collecting cartons which he sold, earning an average of $8 to $10 per day; and finally in February, 1983 he went to help a friend run his dumpling stall, he says that he does not get any pay but is given food and lodging. The plaintiff did not disclose why he gave up his work as a caretaker, nor why he is content to be paid nothing in respect of his current employment at the dumpling stall; nor did he say whether he had sought any other form of employment.

14. In noting the plaintiff's refusal to co-operate with Dr. Wedderburn when he endeavoured to measure the extent of his injuries, and that Dr. Wedderburn considers that the plaintiff greatly exaggerated his difficulties, I have reached the conclusion that whilst the plaintiff could not return to his former occupation as a cooked food hawker he has made no real effort to seek alternative regular employment. I remind myself that the plaintiff has made a very good recovery from his injuries (5% impairment of the leg which is 2% of the Whole Man with a slight hearing deficiency in the Wright ear) and I thus believe that he could, had he so wished, obtained a job, perhaps as a messenger or some other form of unskilled work earning at least $1,600 per month.

15. After referring Moeliker v A Reyrolle & Co Ltd (1977) 1 All E.R. 9; Cook v Consolidated Fisheries Ltd (1977) I.C.R. 635; Man Chuen v Cheung Ka Kui (HCA 1978 No. 2455); Ashcroft v Curtin 1971 I W.L.R.,1731; and Clarke v Rotax Aircraft Equipment Ltd (1975) 1 W.L.R. 1570; and taking all the circumstances of this case into account, the age of the plaintiff (50), the degree of his permanent disability, and the vicissitudes of life, I have come to the conclusion that I should adopt as the multiplicand ($1,600 - $3,600) = $2,000. I agree with Mr Cheung that the multiplier should be 7 ($2,000 x 12 x 7) thus $168,000 is awarded under this head.

16. There will, of course, be no interest on this award.

SPECIAL DAMAGES

(1)    Loss of Earnings

17. There is no doubt but that the plaintiff was unable to work for a year after the accident so that he is entitled to an award for loss of earnings for the period 9th September, 1978, to the 1st October, 1979.

18. I have already found that the plaintiff earned $3,600 (proximo) at the time of the accident so that he is entitled to Loss of Earnings for the period when he was unable to work, as follows:-

19. I accept Dr. Wedderburn's view that there was no reason why the plaintiff should not have resumed work one year after the accident and I therefore decline to make any award for the period October, 1979 to January, 1981.

20. There should, however, be a provision for loss of earnings from February, 1981 to the assessment, as follows:-

21. Making a total of $102,240 under this head.

(2)        The loss of the plaintiff's handcart (containing cooked food utensils etc.,) was claimed and is allowed in the sum of $1,200;

(3)        There was also a claim for cash ($627) alleged to have been kept in the handcart on the morning of the accident and was said to have been lost. In evidence the plaintiff said it was $600 but I regret I am somewhat dubious about this claim. Whilst there is the plaintiff's evidence of it I find it difficult to believe that such a sum (some 5 times his daily income as a hawker) would have been in the cart at 5 a.m. on the morning of the accident. Nor was there anything before me to suggest that the plaintiff habitually kept such sums of money in his cart. I am left in considerable doubt, and the item is therefore disallowed.

(4)        Damages to the plaintiff's clothes and shoes were claimed and are allowed in the sum of $58;

(5)         Repairs to the plaintiff's damaged watch were claimed and are allowed in the sum of $28;

(6)         Hospital charges were claimed and are allowed in the sum of $85;

(7)         Crutches were claimed and are allowed at $20;

(8)        Travelling expenses (6 x $7) were claimed and are allowed at $42.

22. There will be interest on the General Damages at the rate of 2% per annum from the date of service of the writ until judgment, per Fuad, J.A., in Leung Ngan and Ng Chai Man/The Kowloon Motor Bus Co (1933) Ltd (Civil Appeal 1983 No. 55); and interest at 5.5% per annum in respect of the pre-trial portion of loss of earnings viz $102,240 and in respect of the remaining Special Damages from the date of accident until judgment.

23. There will be costs to the plaintiff, to be taxed in accordance with the Legal Aid Regulations, with a Certificate for Counsel.

Representation:

Mr Peter Cheung instructed by Messrs Foo & Li for the Plaintiff

Defendant in person