Wong Ting Hong v. Li Hon Chuen and Another

HCA001720/1986

1986 No.A1720

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Chan in Court.

Appearances: Mrs. J. Barnes instructed by Messrs. Ng & Pang for Plaintiff.

Mr. Chu Tak instructed by Messrs. Deacons for Defendants.

Dates of Hearing: 7th November, 1988

Date of Delivery:16th November, 1988

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ASSESSMENT OF DAMAGES

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1. The Plaintiff was walking on the pavement of Sheung Shing Street near Shek Ku Street on 30th October, 1983 when he was knocked down by a private vehicle driven by the 1st Defendant and owned by the 2nd Defendant. The writ herein was issued on 25th March, 1986. Interlocutory judgment for damages to be assessed was entered by consent on 11th November, 1986. The Statement of Claim was amended by consent on 6th July, 1988.

2. At the hearing of the assessment the Plaintiff called one witness in addition to giving evidence himself, and produced a bundle of documents which were the subject matters of 2 hearsay notices.dated 25th July 1988 and 5th November 1988 respectively. Objection was taken by the Defendants to a document purported to be a "testimonial from Mr. Sing Ming" which was in fact signed by the Plaintiff allegedly on behalf of the said Sing Ming. The Plaintiff conceded to the said objection and the document was ruled inadmissible. The Defendants called no witness and adduced no evidence.

Pain, Suffering and Loss of Amenities

3. The Plaintiff was a third-year student in a Bachelor of Arts course in Social Science at the Chinese University of Hong Kong at the time of the accident. As a result of the accident he was unable to continue his study in the academic year of 1983-1984 and had to repeat his third year in 1984-1985. The Plaintiff was hospitalised for 75 days between 30th October. 1983 and 13th January 1984. The leg was put on traction and on 3rd November 1983 an open intramedullary nail was inserted into the left femur. He had pbsyotherapy treatment between November 1983 and February 1984. He started to walk with the help of two crutches in November 1983. In mid-December 1983 he was able to walk with a crutch, and after February 1984 he was able, to dispense with the crutch. He was further hospitalised for three days in August 1985 for the removal of the intramedullary nail. He had a good recovery and apart from a 2" scar on the buttock and a 4" scar on the left thigh he was left with no permanent impairments according to the medical reports.

4. The Plaintiff enjoyed hall games such as football, basketball and volley ball prior to the accident. He now complained that he is not able to run as fast and be so proficient as a forward at football which he particularly enjoyed before. He suffered pain and inconvenience for a considerable time prior to the removal of the nail in August 1985. He is still sufferng discomfort, and soreness in particular when the weather changes.

5. Plaintiff's counsel cited to me no less than eight cases decided between 1983 and 1988 with awards ranging between $30,000.00 to $70,000.00. There are only two cases with injuries and impairments more similar to the present Plaintiff. In Wong Yuk-seung v. Lee Tat-shu and another, HCA No. 1959/1984 (Sct. P1 File No.5/85), an award of $40,000.00 was made in January 1985 to a Plaintiff with fractures to the right femur, patella and talus. The Plaintiff was hospitalised for almost three months and had two further operations when plates were inserted. He suffered a permanent weakness of the right leg and risk of injury to the exposed knee joint, In Wong Kam-man v. Wong Kam-chuen, HCA No. 3642/1983 (Sct. P1 File No.33/85), an award of $30,000.00 was made in July 1985 to a 19 year old male construction worker who had a compound fracture of the right humerus, and a fracture of the right tibia and fibula. He suffered no permanent disability apart from sporadic spells of dizziness.

6. The Defendants referred me to five cases between 1980 and 1983 with awards from $12,000.00 to $15,600.00. Counsel for the Defendant submitted with updating, the awards should be around $27,000.00 today.

7. I am not satisfied that this case falls, as Plaintiff's counsel submitted, within the serious injury category in Lee Ting-lam v. Leung Kam-ming and others 1980 HKLR 657. There is no such disability that mass general activities and enjoyments of life as envisaged in Lee Ting-lam's case. After considering the evidence of the Plaintiff and the nature of the injuries and updating the awards in the cases cited, I award the sum of $50,000.00 under this head.

Loss of Earnings - Deferred Year

8. The Plaintiff's education was deferred for one academic year as a result of the injuries he suffered. He completed his Master degree in sociology in 1988 instead of 1987. Despite having aspirations to obtain a Doctorate degree after that the Plaintiff was prevented by personal reasons from persuing the same in 1988. He said he would certainly go abroad for a Doctorate degree next year. He was contended to claim his loss of earnings on the basis of a Master degree in view of the uncertainty. He called one Chiu Chu Hing (P.W.1) to give evidence' of her earnings between 1985 and now. She obtained a Master of Sociology from the Chinese University of Hong Kong in May 1985. She worked as a senior executive in a commercial firm after obtaining the degree at a salary of $8,000.00 per month. Her salary was increased to $9,500.00 in June 1986. She then changed employment and became a research director with a salary of $13,000,00 in October 1986. Her present salary is S22,000.00. The Plaintiff said his aspiration was to become a university lecturer. As his academic achievement was not sufficient to enable him to become a lecturer in the two universities, he applied to the Ling Nam College as a lecturer but failed to get the job. He managed to secure a position as a full-time teaching assistant in the Sociology Department of the Chinese University of Hong Kong with a salary of $7,775.00 per month since 1st August 1988. I do not find the comparison with P.W.1's position at all helpful." The aspiration of the Plaintiff was at all time and still is to be a lecturer. There is no desire to embark on a career in the commercial world. It could not be said that he had lost the income of a senior executive in a commercial firm.

9. On the other hand the Defendant urged me to deduct from the Plaintiff's loss under this head the studentship he received in 1987-1988 in the sum of $4,865.00 per month. The nature of the studentship was really in the form of assistant to graduate students to further studies, though it required them to work as a tutor in the undergraduate courses. I do not find such argument sustainable. Such studentship ought to have been awarded to the Plaintiff in 1985-1986 and 1986-1987 but for the accident; and would have been awarded prior to his obtaining the Master degree. The loss the Plaintiff is claiming under this head is in respect of the income he would have obtained after he obtained the Master degree.

10. I accept the sum of $7,775.00 to he the earnings that the Plaintiff should have been able to earn per month from 1st August 1987 to 31st July 1988 had he obtained his Master degree in June 1987 instead of June 1988. The Plaintiff rightly conceded that the award a should be the net income after tax. There is no evidence as to what the tax liabilities of the Plaintiff would be like. There is no evidence as to, what allowances would he be entitled too e.g. dependant parents allowance for his mother. He is single. I shall assess his tax liability on the basis of allowances to be given under s.42B(1)(a) and (aa)(1) only (i.e. single personal allowance and additional allowance).

(1) Tax year 1987/1988

(2) Tax year 1988/1989

Tax for 1.4.1988 to 31.7.1988 = 4/12 x $9,082.50 = $3,027.50.

(3) Total tax for 1.8.1987 to 31.7.1988 = $2,730.00 + $3,027.50 = $5,757.50

11. In the premises, the net award under this head after tax is in the sum of $87,542.50 ($7,775 x 12 - $5,757.50).

Loss of Income for 1983/1984

12. As a result of the accident the Plaintiff lost his income from giving private tuition to a student at $1,000.00 per month. He managed to recruit another student for private tuition in November 1984 at $400.00 per month. Between October 1983 and November 1984, he only managed to earn $2,500.00 doing part-time work for the Census and Statistics Department of the government. The Plaintiff only claimed sum of $9,500.00 under this head for the period between November 1983 and October 1984 ($1,000 x 12 - $2,500). No claim was made for the difference in income ($1,000 - $400) after October 1984. I also have doubts as to why $2,500 should necessarily be deducted as private tuition are often given outside normal school hours or working hours and, in any event, could easily be adjusted to accommodate the said part-time job with the government. As only a sum of $9,500.00 was claimed, I award that sum under this head.

13. The other items of special damages have been agreed in the total sum of $7,983.00 udder paragraphs 3(1) to (6) of the Amended Statement of Claim. The total award made is thus in the sum of $155,025.50.

14. There will he interest on the sum of $50,000.00 at the rate of 2% per annum from the date of the writ to the date of assessment, and on the remaining balance of the award at the rate 3 1/16% per annum from the date of the accident to the date of assessment. There will he an order nisi for costs of the assessment to the Plaintiff with certificate for counsel.

Representation:

Mrs. J. Barnes instructed by Messrs. Ng & Pang for Plaintiff.

Mr. Chu Tak instructed by Messrs. Deacons for Defendants.