Chu Wing Fai v. Lau Yuk Kuen and Another
Read the full judgment text of HCA 3003/1979 on BabelCite. This High Court CFI judgment.
1. This assessment relates to injuries received by the Plaintiff in an traffic accident on 1st January 1977.
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HCA003003/1979
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr Registrar McClelland in Chambers. Date of Judgment: 22nd December, 1981. Mr Osorio instructed by John IP & Co for Plaintiff. Miss A. Mok instructed by Stevenson LOW & Co. for 1st and 2nd Defendants. --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1. This assessment relates to injuries received by the Plaintiff in an traffic accident on 1st January 1977. 2. He was immediately admitted to the Neurosurgical Unit of Queen Elizabeth Hospital. Upon admission he was found to be conscious with multiple abrasions and lacerations over the forehead, face and neck. The left eye ball was ruptured and an operation was performed for its repair. He suffered no neurological deficit. He was detained for three days and subsequently attended Yaumatei Ophthalmic Centre for follow up treatment, where after several visits and treatment he was told the eye could not be saved. 3. A medical Board was convened on 30th November 1979 which confirmed that he had lost his vision in the left eye but that his right eye was healthy with full visual field. 4. The Plaintiff was examined by Dr. Wedderburn on 24th July 1981. At this time there was a small scar on the bridge of the nose which could only be seen by looking closely; two on the left neck below the jaw, which were not unsightly and a cluster of scars just under the chin, limited in area, and which could only be seen when the Plaintiff bent his head backwards. However, Dr. Wedderburn found that the aperture between the eyelids was different. On the left, with the eyes open, the aperture was 10 mms and on the right 13 mms. That whilst this difference seemed small, it was very obvious and could not be obscured. He assessed permanent disability and earning capacity at 30%. 5. Prior to the accident the Plaintiff worked in a watch case factory as a technician making watch cases. He alleges at the time his basic salary was $1600 per month and that in addition he worked an average of 18 hours overtime per month at an hourly rate of $9. He had also received a bonus at Chinese New Year of $100 thus making his earnings at slightly in excess of $1762 per month. 6. He did not recommence work until January 1978 when he took a job as a casual worker in a shoe factory earning $600 per month, at which factory he remained for a period of three months. He did not work again until June 1978 when he recommenced his former employment in the watch case factory at a basic salary of $1400, with no overtime. He found difficulty, because of the loss of the eye, in carrying out his work and alleges that his employer and co-workers accused of being clumsy and that the employer asked him to look for another job, and thus he left this employment in September 1978. Since then the Plaintiff has had a number of jobs of varying nature and in most of which he remained only for periods not exceeding ten days. 7. Prior to the accident the Plaintiff states that he played football, basketball, table tennis and bowling and was also interested in boxing. 8. The proprietor of the watch case factory (PW2 WONG Chung Hon) has given evidence on behalf of the Plaintiff. He confirms that at the time of the accident the Plaintiff was earning $1600 per month basic, with overtime and yearly bonus. He was not in a position to give accurate figures for overtime or bonus. The Plaintiff was "a normal worker" and as such at the end of the year he would have received bonus of between $300 to $800. The wages records of the factory had been lost or destroyed but he felt that the Plaintiff worked overtime on alternate nights. 9. He further confirmed that after the accident the Plaintiff worked for him for a period of two to three months in 1978 at a basic salary of $1400 per month. During this period his working performance was not good. The Plaintiff left his employment of his own accord and was not fired. 10. This witness still continues to employ technicians of the same experience and ability as that of the Plaintiff. Their basic salary is between $2600/3200 per month and a yearly bonus of $2000/3000. Up to the year 1981 they would also work overtime at a return of about 5% of their daily wage. During 1981 no overtime has in fact been worked because of a recession in the trade. He further stated that he would now be prepared to employ the Plaintiff but at a reduced wage of $1440 (26 days at $40 per day) per month and a maximum yearly bonus of $500. GENERAL DAMAGES 11. The Plaintiff is now aged 26 years and Mr Ozorio on his behalf, in his written submission, referred me to a number of authorities relevant to the type of injury suffered by the Plaintiff. He argues on these authorities that the present day reward under this heading should be $75,000. 12. Miss Mok for the Defendants submits that the figure should be $60,000 to $63,000 and relies on the case of Tsang Ker Heung 11 HKLJ 120. In that case the Plaintiff, a man aged 56 years, who after two operations had an lost eye replaced with a glass one, was in 1980 awarded a sum of $60,000. 13. In determining this head of damages I have also considered carefully the case of Lam Chung Chak 10 HKLJ 357 an award also made in 1980 of $67,500 ($70,000 less $2500 for a glass eye). This was in respect of a man aged 60, who also had to undergo two operations. 14. Having considered all the authorities cited and in particular the two cases above referred to, and bearing in mind that the two Plaintiffs had to undergo operations, whereas this was not necessary in the case of the present Plaintiff, and after taking into consideration the vast differences in age between those Plaintiffs and the present Plaintiff and the present inflationary trend I consider the proper award under this head to be $70,000. SPECIAL DAMAGES
15. I have found some difficulty in assessing damages under these heads and I certainly agree with Miss Mok when she says that the evidence as to earnings is most unsatisfactory. Neither is it supported by documentary evidence. She urges me not to allow for overtime, as no definite evidence was given as to payment and the amount thereof, neither has it been pleaded.
16. Under this head Plaintiff first claims 12 months loss of earnings from the date of the accident in January 1977 until January 1978 when he commenced work in a shoe factory. In evidence Dr. Wedderburn stated that in his opinion Plaintiff was in a position to resume work after a period of six months and Mr Ozorio does not and is really not in a position to challenge such opinion. Thus in respect of the first period of 6 months I will make an award for total loss of earnings. Mr Ozoria has submitted for this period there should be an award of $10,572, whereas Miss Mok has submitted a figure of $10,450. There being no material difference between the parties I award a sum of $10,572 in respect of this period. 17. As regards the remainder of the pre-trial loss of earnings the Plaintiff has been in numerous jobs in all of which he only remained a relatively short period and I believe the reason for this being that he has not properly applied and adopted himself. His pre-accident employer has stated that he re-employed him after the accident and is still prepared to do so and accordingly I propose to assess his pre-trial loss of earnings on the basis of such re-employment giving due allowance for the fact that I am satisfied he would not be as efficient as before the accident. 18. As I have said previously the evidence as to the Plaintiff's earnings from July 1977 to the date of trial is unsatisfactory and the only certain figure I have is that his former employer has stated that at the date of trial technicians were earning a basic salary of $2600/3200 per month. Mr Ozorio has invited me to accept the present basic wage to be $3000 per month and suggests that after deducting the pre-accident wages of $1760 I should divide the difference of $1240 by five being the number of years since the accident thus giving a yearly increase of $250 per month per annum on basic salary. Miss Mok has contended that the yearly increase in wages should be only $200 per month per annum. The Plaintiff was an "average" worker and having regard to this evidence I would assess his probable earnings, if the accident had not occured, to be at the date of trial to be $2900. Following the formula suggested by Mr Ozorio which I adopt the increase of wages per month per annum would be $228. 19. Again the evidence as to payment of overtime and bonus is unclear and not accurately quantified but I will accept that overtime was earned and bonuses paid, but I will have to arbitrately assess same. 20. Having disallowed the Plaintiff's claim for total loss of earnings from 1st January 1977 to 1st January 1978 and ruled that he was only entitled to total loss to June 1977 I now turn to the assessment for loss of earnings for the period July 1977 to date of trial and deal with same as follows:-
21. Accordingly I make a total award for loss of earninge of $43,452.
22. Miss Mok has argued that under this head I should award a lump sum and relies on Hui Sui-ping v. Yip Ping-Chun HKLR Volume 10 page 365. I do not consider that this is a case I should follow the approach made by the learned Commissioner. In this particular case the Plaintiff has not been thrown on the labour market. His former employer is willing to re-employ him but at a reduced wage. I consider that there is sufficient material before me to apply a multiplicand and a multiplier. 23. The present wages paid in the trade are $2600 to $3200 per month plus bonus but not presently over-time. However, in the future overtime may re-commence. I therefore consider that the Plaintiff, but for the accident, would be presently earning at least $3200 per month to include the yearly increase of $228 and bonus. If he had re-commenced work six weeks after the accident he would now have been earning $2000 per month, a net loss of $1200 per month. Following the decision in Wong Hon v. Cheng Wai and another 6 HKLJ Page 38 I consider the proper multiplier to be applied is 15 and accordingly under this head there will be an award of $216,000 ($1200 x 12 x 15). SUMMARY 24. There will be an award as follows: -
25. There will be interest on the general damages at the rate of 12.5% per annum from the date of service of the writ to date and at 6.25% per annum on $44,352 special damages at (2) and (c) above. 26. Costs to Plaintiff to be taxed in default of agreement with Certificate for Counsel. 27. Dated this 22nd day of December, 1981.
Representation: Mr Osorio instructed by John IP & Co for Plaintiff. Miss A. Mok instructed by Stevenson LOW & Co. for 1st and 2nd Defendants. |