Cheung Chi Young v. Tsang Cho Yiu and Another

HCA006575/1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

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Coram: Master Barrington-Jones in Chambers

Date: 5th August, 1983

Appearances: F. Leung, Esq., instructed by Messrs Liang Ng and Lie for the Plaintiff

Miss C. S. Burgess (Messrs Gallant Y.T. HO) for the Defendants

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ASSESSMENT OF DAMAGES

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1. This is an assessment of damages consequent upon interlocutory judgment having been entered against the defendants on the 21st April, 1983.

2. Damages are sought in respect of injuries suffered by the Plaintiff when he was a passenger on board a public light bus which collided with a lamp pole on the Kwai Shing Circuit near Block 10 Kwai Shing Estate on the 12th September, 1979.

3. The Plaintiff who was 40 at the time of the accident was admitted to Princess Margaret Hospital the same day where he was found to have a superficial laceration (4 cms long) over the left side of the chest, superficial abrasions over the left elbow and a colles fracture of the left wrist. The chest wound was sutured and the fracture reduced and a plaster applied and he was discharged on the 17th September, 1979. Dr Wedderburn examined the Plaintiff in June, 1982 and advises that if the left hand is the Plaintiff's preferred (or dominant) hand then the impairment of the arm is 14% and of the Whole Man 7%; he also noted that there was a slight residual displacement of the hand at the wrist together with a slight swelling and goes on to say that there is a limitation in bending the hand forward which is limited to 30^° as compared with the normal of 80^° and that extension is reduced to 60% as compared with the normal of 80^°. Dr Wedderburn states that the Plaintiff's only complaint is some weakness of the left hand and discomfort in the wrist when the weather changes. He goes on to explain the effect of a Colles fracture and notes that the fracture is very soundly united.

GENERAL DAMAGES

4. Mr Leung submitted that the award for pain suffering and loss of amenities should be $25,000 and referred me to three cases, as follows:-

Leung Yiu Keung	(1981) H.K.L.J. 268 where $30,000 was awarded,
Ng Kwok Leung	(1980) H.K.L.J. 106 where $18,000 was awarded, and
Cheung Luk	(1982) H.K.L.J. 391 where $15,000 was awarded.

5. On the other hand Miss Burgess submitted that the award under this head should be $18,000, and she referred me to the following cases:-

6. Tse Po Chi v Fung Hon Tung (HCA 3254/78) where $25,000 was awarded,

7. Lo Chun v Ng Kwok Ming (1978) H.K.L.J. 104 where $23,000 was awarded, and

8. Chu Sun-kwok v Lee San-king (1976) H.K.L.J. 604 where $30,000 was warded.

9. After carefully considering the cases cited to me, and noting that the cases referred to by Mr Leung are more recent, and allowing for inflation, I am satisfied that an award of $25,000 should be made here.

SPECIAL DAMAGES

Loss of Earning Capacity

10. It is 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, he at a disadvantage in getting another job or an equally well-paid job. There is, in the light of evidence led in this case, a real risk that the Plaintiff will lose his present employment with the passage of time and that as a result of his injury he will be at a disadvantage in getting another job. Admittedly assessment of damages under this head is highly speculative and no real mathematical approach is feasible but it is important to state hero quite unequivocally that I am satisfied that there is a real risk that the Plaintiff will be subject to the disadvantage before the end of his working life and so I must do my best to value what has been called "the chance" taking into account all the facts of the case.

11. Mr. Leung submitted that on a lump sum basis the award should be in the range $30,000 to $35,000 and he referred me to:-

12. Moeliker v A. Reyrolle & Co Ltd (1977) 1 "All E. R., 9

13. Cook v Consolidated Fisheries Ltd (1977) I.C.R. 635, and

14. Man Chuen v Cheung Ka Kui (HCA 1978 No. 2455)

15. Whilst Miss Burgess submitted the award should be in the sum of $10,000 and in support of this contention she cited to me:-

16. Ashcroft v Curtin 1971 I W.L.R. 1731

17. Clarke v Rotax Aircraft Equiptment Ltd (1975) 1 W.L.R., 1570, and

18. Moeliker v Reyrolle & Co Ltd (1977) 1 All E. R. 9.

19. My task is not made easier in this particular case if only because the Plaintiff's present employment appears to be so tenuous; for whilst the Plaintiff and a representative of his employer gave very full evidence of the Plaintiff's somewhat bleak prospects and this evidence was exhaustively cross-examined by Miss Burgess but I regret to say that at the end of he day it was still not made clear to me how long the Plaintiff could be expected to be retained by his present employers. I venture to think that Dr Wedderburn came closer to the realities of the situation when he reported:-

"Before the accident he worked as an engineer in a textile factory. He supervised, maintained machines, gave advice regarding new equipment, and was involved in some design of machines. He frequently had to lift heavy objects. He returned to the same job and his pay has been maintained and he has had increments in line with that of other workers so he has suffered no earning loss. He can do the work adequately but does have some difficulty lifting heavy weights. Ho is obviously a trained man and must be employed because of his experience rather than his physical activity."

20. As I understand the position the factory is now virtually closed down, much of the machinery has been sold but for all that the Plaintiff has been retained, although it seems to me that his previous job of engineer has become downgraded to one of a caretaker. Happily for him there. has been no change in his salary status thus far. I venture to suppose that this state of affairs could continue almost indefinitely although commonsense suggests that certainly at some time in the future the owners of this factory will seek to dispose of the premises or convert them for other uses when there is a real and substantial risk that the Plaintiff's services will be dispensed with.

21. So it thus becomes apparent that in striving to arrive at an equitable assessment, it is, in the last analysis, something of "a leap in the dark". I have kept in mind that the plaintiff is now 44 years old and is certainly handicapped as a result of the accident in that, amongst other things, he cannot now pick up heavy objects. I therefore adopt the general tests used by Silke J., (as he then was) (in Man Chuen v Cheung Ka Kui and Chow Keung Kwong v Cheung Ka Kui 1978 No's 2455/6) i.e.

"The risk that the Plaintiff will, at some time before end of his working life be thrown on to the labour market; his age and qualifications; the nature of his injury."

22. Applying those tests to the present case and having carefully considered the authorities cited to me I award $30,000 under this head. There will, of course, be no interest on this award. (Clarke v Rotax Aircraft Equipment Ltd (Court of Appeal (1975) 1 W.L.R. 1570)

Loss of earnings

23. The Plaintiff did not work from the 13th September, 1979 until the let January, 1980 ($w,300 x 3½ = $8,050, from that sum $1,500 paid to him by his employer should be deducted = $6,550. This claim was agreed and is allowed in the sum of $6,550.

Loss of the Plaintiff's wife earnings

24. Mr. Leung drew my attention to the fact that this item had been revised in the amended statement of claim and now stood at ($300 x 38½ weeks) which results in a claim of $11,550. In support of the claim Mr Leung referred to Donnelly v Joyce + (1974) 1 Q.B. 454 where the Court of Appeal held that since the loss to the plaintiff caused by the defendant's wrongdoing included the existence of the need for the nursing services provided by his mother he was entitled to recover her loss of wages as the proper and reasonable cost of supplying that need. But Mr Leung did concede that if it was considered that the claim extended over too long a period it might be curtailed. He said that the Plaintiff's wife was undoubtedly aggrieved by the accident the Plaintiff had sustained. It was in these circumstances that he was prepared to leave the period for my determination and finally submitted that the multiplicand should not be less than $200.

25. Miss Burgess for her part vigorously opposed that any award should be made under this head. In support of her contention she cited Schneider v Eisovitch / Same v Same (1960) 2 Q.B. 430 at p. 440 where Paull, J., said:-

"......Before such a sum can be recovered the Plaintiff must show first that the services rendered were reasonably necessary as a consequence of the tortfeasor's tort; secondly, that the out-of-pocket expenses of the friend or friends who rendered these services are reasonable, bearing in mind all the circumstances including whether expenses would have been incurred had the friend or friends not assisted; and, thirdly, that the Plaintiff undertakes to pay the sum awarded to the friend or friends......."

26. Miss Burgess in a very close cross-examination of the Plaintiff's wife got this lady to say that she had not worked when her husband was at home because she was "not in the mood". From the evidence it was clear that when the Plaintiff's wife did work she worked at home in her own time, and that the care of her husband was not a full-time occupation. In the last analysis L accept that the Plaintiff's wife certainly did look after the plaintiff, bathing him and attending him generally; but that this was not in any way a whole day's activity. She could I find have done her daily piece work had she so wished, but she chose not to do so.

27. I have also kept in mind that whilst at home the plaintiff was fully ambulatory and would generally be able to look after himself so that his fractured left wrist (in plaster) and other injuries would not have incapacitated him unduly; although I accept he would have needed some assistance with his ablutions etc.; so that L believe that this case can be distinguished if only on the facts from Donnelly v Joyce which concerned a claim for a mother's nursing services to her infant son who required special bathing and daily dressings for some six months after his discharge from hospital. On the evidence and the authorities cited to me I have come to the conclusion that no award should be made under this particular head.

28. There were other claims under SPECIAL DAMAGES, as follows:-

Damaged clothing	$90
Damaged watch	$50
Damaged pen	$50
Damaged shoes	$70
Travelling expenses of wife of plaintiff	$70
Hospital fees	$25
Clinic fees	$120
	____
	$475
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29. These claims were agreed and are allowed in the sum of $475.

Special Foods

30. There is claim for $1,000 under this head. Mr Leung referred me to Yu Ki and Chin Kit-lam and Another (High Court)(Civil Action No. 2224 of 1980) where the Chief Justice held:-

"Despite the absence of the supporting evidence as to the advisability or suitability of nourishing food to assist the recovery of the injured peron as discussed in Mui Ling-kwan v Wong Yiu-wah (1973) H.K.L.R. 465 it was proper to allow a nominal sum where relatives have spent this on food which the injured peron or relative reasonably believed to be helpful to the patient's recovery. $10 a day for additional food during the period the plaintiff was in hospital only, was allowed: a total of $350."

and submitted that a nominal sum was usually awarded in these sort of cases and said that on the basis of the plaintiff's wife evidence I should award ($375 + $67.50)=$442.50 under this head.

31. Miss Burgess on the other hand whilst agreeing that a nominal sum should be awarded submitted that this should be computed on the basis of (10 days x $10) = $100, and she also relied on the Chief Justice's judgment (supra) in support of her submission.

32. In this case there was no evidence that any doctor, or herbalist, or person with any medical knowledge, had suggested that the nourishing food which was supplied was advisable or suitable; only the plaintiff and his wife gave evidence on this aspect of the claim; she said that she had heard that pork cooked with herbs called 'Tin Chat' would be good for the plaintiff and stated that it cost about $30 each time and that she had supplied this to her husband for about a month at a cost of about $1,000. The plaintiff confirmed this to the extent of stating:........

"as far as we Chinese are concerned we believe that the Chinese herbs would help ........ I believe so........".

33. In the particular circumstances of this case I believe that there should be a nominal award of $400 under this head.

34. On the question of interest Miss Burgess concurred in Mr. Leung's invitation that I should follow the Court of Appeal in Wong Yuk Chau The Kowloon Motor Bus Cc (1933) Ltd and Tang Suk Yee, Daisy (Civil Appeal No. 13 of 1983) but I learnt after the conclusion of the hearing that there was a possibility that the Court of Appeal might revise their views on interest in the light of Wright v British Railways Board (The Times 29th June, 1983) following Birkett v Hayes (1982) 1 W.L.R. 816; and so I decided to defer the delivery of this assessment and on the 22nd July, I received a copy of an extract from the judgment of Fuad J. A., in Leung Ngan and Ng Chai Man/Kowloon Motor Bus Co (1933) Ltd (Civil Appeal No. 55 of 1983) dated 19th June, in which it is stated, inter alia, that ........

"the new guideline should therefore be that the rate of interest to be awarded in personal injury actions on damages for non-economic loss should be 2% subject to the discretion we emphasised in Wong Yuk Chau......"

35. There will therefore be interest on the General Damages for pain suffering and loss of amenities at the rate of 2% per annum from the date of service of the writ until judgment; and at the rate of 5.5% per annum in respect of Special Damages in the sum of $7,425 from the date of accident until judgment.

36. There will be costs to the Plaintiff with a Certificate for Counsel.

Representation:

F. Leung, Esq., instructed by Messrs Liang Ng and Lie for the Plaintiff

Miss C. S. Burgess (Messrs Gallant Y.T. HO) for the Defendants