Lau Chak Sing v. Ku Kin Yip and Another

HCA004966/1981

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

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Coram: Master Hansen in Chambers

Date: 23rd June 1983

Appearances: Miss B. Kwan instructed by Messrs Day & Cc for Plaintiff

Mr A. Wong instructed by Messrs Vincent Lo & Cc for Defendants

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ASSESSMENT OF DAMAGES

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1. On the 13th of February 1980 the Plaintiff was struck by a motor vehicle in Tung Fat Road, Kowloon. At that time the Plaintiff was aged 30 and was employed as a driver/delivery man by a company selling kerosene and L.P. Gas.

2. As a result of the accident the Plaintiff was admitted to Queen Elizabeth Hospital suffering from a communited fracture of the mid shaft of the right femur. He also suffered head injuries which caused a 4 hour period of post traumatic amnesia. He remained in Q.E. Hospital for 8 weeks undergoing skeletal traction. He was then transferred to Kowloon Hospital where he remained until the 3rd of May 1980. From then until the 20th August 1980 he attended Kwai Chung Clinic three times a week to undergo physiotherapy treatment.

3. The Plaintiff was examined by Dr R.G.M. Wedderburn in May of 1981 and by Dr Edmund Cheung in March of 1982. Unfortunately, the Plaintiff's advisers had not considered it necessary to have an up to date examination carried out prior to this assessment. This caused problems in relation to two aspects of the Plaintiff's evidence.

4. In evidence the Plaintiff stated that his leg injuries prevented him walking any reasonable distance. The heel of his right shoe was raised 1" but he walked with a limp and needed a rest after walking for about 15 minutes. He complained of difficulty in lifting heavy objects and the impossibility of carrying heavy objects up staircases he also complained that since the accident he suffered from a poor memory. He said both these complaints hindered him in his occupation. Since the accident he had gone into business on his own account selling and distributing kerosene and L.P. gas. Fortunately, this business has prospered but the Plaintiff stated that he always required his wife to assist him. Firstly, to help with lifting L.P. gas cylinders and secondly to remember orders, addresses etc. However, he did acknowledge under cross examination that by making a list the latter problem could be overcome. Mr Wong suggested to the Plaintiff that the use of a trolley would overcome his other difficulties. However, as the Plaintiff rightly pointed out, a trolley is of little use to him given the prevalence of narrow lanes and staircases that confronted him in his daily work.

5. Both Drs' Wedderburn and Cheung gave evidence. Dr Cheung felt the head injury suffered by the Plaintiff would not cause any permanent memory difficulty. Dr Wedderburn found the Plaintiff suffered from some memory loss, both immediate. And remote As I said earlier the lack of up to date examinations of the Plaintiff caused problems as his evidence conflicted with that of the doctors. Whilst I accept the Plaintiff does have memory problems I find that these are relatively minor in nature. Dr Wedderburn in his report found that the Plaintiff suffered from slight angulation of the legs and reduction in both the external and internal rotation of the leg. He found shortening of the leg by 1 7/8". He assessed the leg injury as an 8% impairment of the whole man and the memory difficulty as a 2% impairment making a total of 10% impairment of the whole man. Dr Cheung found the Plaintiff's disability to be 15% and this was totally related to the leg injuries. However, in this regard I must bear in mind that Dr Cheung is a neurosurgeon.

6. Dr Wedderburn in his report said "In the occidental, osteoarthritis of the hip or knee is likely to arise because of the altered mechanics of walking, but such osteoarthritis does not occur in Chinese from this cause, the osteoarthritis only occurs in Chinese if a fracture has involved a joint." Yet almost a year later the X-Rays provided to Dr Cheung revealed that the knee showed evidence of early osteoarthritis. Again I was hindered by not having a recent medical report. The Plaintiff adduced no other evidence on this point and accordingly I feel bound to ignore osteoarthritis as an inevitable consequence of the Plaintiff's injuries.

7. Considering the medical evidence I am satisfied that Dr Wedderburn's assessment is correct.

Pain suffering and Loss of Amenities

8. In considering this head of damage I must take into account not only the Plaintiff's difficulties with his work but also his inability to partake in football and other physical activities that he said he enjoyed before the accident.

9. Unfortunately, despite a plethora of cases involving similar injuries appearing in Damages for Personal Injuries and Fatal Accidents in Hong Kong : Martin & Rhodes (London, Butterworth 1982) and the Hong Kong Law Journal counsel between then only referred me to 3 cases. Therefore it is necessary for me to undertake a review of the relevant cases. The bulk of these appear in Martin & Rhodes (supra):-

10. Choi Sing Tong v A.G. OJA 1938/72 (Martin & Rhodes page 423) Plaintiff aged 22 shortening of right leg by ¼", wasting of right thigh limitation of external rotation of right thigh; and high danger of osteoarthritis was slight. Mr Registrar Silke (as he then was), awarded $30,000.

11. Param Jit Kaur v Leung Tat-sang [1976] HKLR 655 (Martin & Rhodes Page 233)

12. Plaintiff aged 30. Right leg 1" shorter. Hospitalised 6 months. Walked with a limp. Right hip movement substantially reduced. Mr Registrar Barnett awarded $20,000.

13. Tam Pang v Wong Pit-chung H.C.A. 3180/78 (Martin & Rhodes Page 262)

14. Plaintiff aged 57. 7/8" shortening of left leg and ¼" of right leg. Restriction of right hip joint. Total disability of whole man assessed at 7%. Mr Commissioner Rhind (as he then was) awarded $40,000.

15. Mak Leung Yan v China Motor Bus Ltd H.C.A. 227/80 (Martin & Rhodes page 272).

16. Plaintiff aged 66. 1/2 shortening of the right leg. Limped, could not squat and suffered pain. Impairment of whole man assessed at 6%. Liu J. awarded $20,000.

17. Wan Chi Wai v Cheung Kwok Wah OJA 361/71 (Martin & Rhodes page 286).

18. 3" shortening of left leg. Certainty of degenerative changes in weight bearing joints. No longer able to sit or walk with comfort. Mr Registrar Mayo (as he then was) awarded $55,000.

19. Lam Shu Chu v Ip Koon Hung OJA 2588/73 (Martin & Rhodes page 289).

20. Plaintiff aged 42. Amount of shortening not mentioned. . Plaintiff limped when walking and could not squat. Cons J. awarded $10,000.

21. Lee Sze-kwan v Ip Bik-yuen OJA 3334/73 (Martin & Rhodes page 290).

22. Ip Koon-ling v Cheung Chin-keung OJA 2469/71 (Martin & Rhodes page 295).

23. Plaintiff aged 26. Left leg shortened by 1", weakness of left leg muscle and slight deformity of lower third of left leg. Disability of the whole man assessed at 6%. Mr Registrar Wong (as he then was) awarded $10,000.

24. Ng Cheung Wai v Lau Che-ming OJA 2117/74 (Martin & Rhodes page 297).

25. Plaintiff aged 45. Right leg shortened by ¾". Loss of flexion in right knee and permanent disability of right leg would eventually lead to osteoarthritis. 11% impairment of the whole man. Mr Registrar Barnett awarded $25,000.

26. Pang Yau v Cheung Kwok Hing HCA 2215/76 (Martin & Rhodes Page 304).

27. Plaintiff aged 54. Right leg shortened by the extent of shortening not revealed. Restriction of movement of knee and ankle. Cons J. awarded $20,000.

28. Chow Yu v Yuen Lam-him HCA 3358/78 (Martin & Rhodes page 322).

29. Plaintiff aged 37. Fractures of both legs. Right leg 7/8" shorter, right ankle movement restricted and he walked with a limp. The ankle would improve. Mr Registrar Barrington-Jones awarded $45,000. This sum included a figure for 6 months partial loss of earnings which the learned editors put at $15,000.

30. Sit Shing v Lai Fok Ye-man HCA 1681/78 (Martin & Rhodes page 323).

31. Plaintiff aged 43. Left leg 1" shorter and loss of ankle movement. The agreed sum was $20,000.

32. Chung Man v Szeto Tak-cheung HCA 3344/79 (Martin & Rhodes page 327).

33. Plaintiff aged 50. Left leg shortened by ½" and lower leg from 3" above the ankle angulated inwards by 16°. His walking was affected and he could not sit or stand for long periods. Impairment of the whole man assessed at 9%. Bewley J. awarded $15,000.

34. Lau Chow Lum v Fung Mong-yan HCA 4716/79 (Martin & Rhodes page 335).

35. Plaintiff aged 44. Left leg shortened by There was a 20?loss of internal and external rotation and the Plaintiff had a limp. Impairment was assessed at 7%. Mr Commissioner de Basto Q.C. (as he then was) awarded $35,000.

36. Chan Ming v Leung Chi-yan HCA 3903/79 (Martin & Rhodes page 337).

37. Plaintiff aged 23. Right fibia bent and angled outwards and shortened by ¾". Pain from prolonged standing. Surgical boot required. Roberts C.J. awarded $25,000.

38. Mak Leung Yau v CMB & Chan Yick-yee HCA 227/80 (HkLJ) 1982 page 92).

39. Plaintiff aged 66.½ inch shortening of right leg; limp, inability to squat and pain during the day. Impairment assessed at 6%. Liu J. awarded $20,000.

40. Of course each case must be considered in the light of its own unique circumstances. It would be rare indeed to discover two personal injury cases where the injuries and circumstances of the Plaintiff were identical. However, the extensive list of cases I have cited above are useful guidelines and one case in particular has many similarities with this case. That case is Lau Chow Lan v Fung Mong-yan (supra). In that case the shortening of the leg was less than found here while the loss of rotation was greater. The impairment was assessed at 7%. In the instant case Dr Wedderburn has assessed impairment at 10% a figure which I accept. Given that the Plaintiff here suffered more serious impairment and given that I must take into account the fall in the value of money (Lee Ting Lam v Leung Kam Ming [1980] HKLR 657) 1 consider the correct award to be $50,000.

Loss of Future Earnings

41. Fortunately the Plaintiff's venture into business has proved successful and he has suffered no loss.

Loss of Earnings

42. There was some confusion in the evidence as to whether the Plaintiff was earning $1,300 p.m. or $1,500 p.m. at the time of the accident. Having seen the Workers Compensation Agreement I accept the correct figure is $1,300 p.m. The Plaintiff was off work 8 months and I award $10,400.

Special Damages

The following figures were agreed:-

The following items were disputed:-

Summary

43. There will be a credit for $11,780.90 paid under the Workers'  Compensation Agreement.

Interest

44. Confusion had arisen in Hong Kong in relation to general damages because of conflicting decisions of the High Court. In Tang Shing Kee v St. Francis Xavier's College Kowloon 2356/81 Mantell J. adopted the reasoning of the English Court of Appeal in Birkett v Hayes [1982] WLR 816 and awarded 2% on an award for loss of future earnings. This course was also adopted by Jones J. in Chung Wai Lin v Kowloon Motor Bus (1933) Ltd and Wong Yiu Chong HCA 1980/471. However, Fuad J. in Madam Ho Hing Mui v A.G. and others HCA 4321/81 and Roberts C.J. in Tsang Toy Fuh v Kong and Halveson Marine & Engineering Ltd HCA 1393/81 declined to follow Birkett v Hayes (supra). Both awarded interest at the full economic rate for the relevant period.

45. It appeared that the question had been settled by the Court of Appeal in Wong Yuk Chau and the Kowloon Motor Bus (1933) Ltd v Tang Suk Yee, Daisy administratrix of the estate of Tang Man deceased and Ko Sin deceased Civil Appeal No. 13/83. Here the Court said at page 17 "For the present, therefore, we consider that the guideline to be applied to Hong Kong is that general damages for pain, suffering, loss of amenities and loss of expectation of life should be at the full economic rate. We emphasise that this is only a guideline and judges are free to exercise the discretion given to them by the statute. "And in the last paragraph "It will be appreciated that since the instant case only concerned the award of interest for loss of expectation of life, what we have ventured to say about the rate of interest for pain suffering and loss of amenities must be considered as obiter." However, since that decision the House of Lords delivered its decision in Wright v British Railways Board [1983] 3 WLR 211. Diplock L.J. in delivering the decision of the House stated that the decision in Birkett v Hayes (supra) was correct and at the present time the appropriate rate was 2% per annum. It is clear that the H.K. Court of Appeal in Wong Yuk Chau another v Tang Suk Yee (supra) accepted that it was bound by the House of Lords on this issue. At page 17 Fuad J. stated "In our respectful judgment, to follow Birkett's case would be to put a gloss upon the decision, and the reasons for it, of the House of Lords in Picketts case, a decision by which (in view of the similarity of the relevant statutes and principles) we are bound." Accordingly, I consider myself bound by Wright and British Railways Board. I award interest on general damages at the rate of 2% p.a. from the date of service of the Writ (see Jefford v Gee [1970] 2QB130) until judgment. I award judgment on the special damages at the rate of 7% p.a. from the date of the accident until judgment.

NOTE:- Since writing this assessment I have received an extract of the judgment of the Court of Appeal in Leung Ngan v Ng Chi Man & Kowloon Motor Bus (1933) Ltd 55/1983. In that case the Court was referred to Wright v British Railways Board (supra) and followed it.

Representation:

Miss B. Kwan instructed by Messrs Day & Cc for Plaintiff

Mr A. Wong instructed by Messrs Vincent Lo & Cc for Defendants