Tam Pang v. Wong Pit Chung

HCA003180/1978

Subject Matter :

Personal Injuries - Assessment of Damages - Man 57 years old at accident and 59 at trial - Left leg and right hip broken -Unable to work 27 months - General damages for pain, suffering and loss of amenity : $40,000 - Multiplier of 5 applied to permanent partial future loss of earning capacity.

Coram: Commissioner Rhind in Court

Date of Judgment: 13 December 1979

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JUDGMENT

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1. This is an action for damages for personal injuries arising from a traffic accident on 30th May 1977 when the plaintiff was knocked down in Pokfulam Road, Hong Kong by a motor-cycle owned and driven by the defendant.

2. On the aspect of liability, it is agreed between the parties that the defendant was 70% to blame for the accident.

3. The only issues are the level of the award under the head of pain, suffering and loss of amenity, and the amount payable for loss of earnings.

4. It is common ground that at the time of the accident the plaintiff's age was 57, his age at the time of the trial now being 59.

5. The agreed medical reports showed that the injuries suffered by the plaintiff, for which he was treated in hospital, were a two lacerations of the scalp; b subtrochanteric fracture of right femur (i.e. the hip); c fracture of left tibia and fibula (i.e. the leg).

6. Those two lacerations of the scalp were sutured, and have completely healed, the only remaining effect of them now being a 3" scar on the scalp which is obscured by hair.

7. The fractures of the left tibia and fibula were treated by closed reduction and plaster of Paris immobilization for 10 weeks.

8. The subtrochanteric fracture was treated initially with skeletal traction as the plaintiff had an extensive rash, which was diagnosed by a dermatologist as psoriasis, and that too had to be treated. An open reduction of this fracture was done with the insertion of a nail, plate and screws on 20th June 1977.

9. Immediately after his accident until 20th July 1977 he was at Queen Mary Hospital, and then he spent four months in Sandy Bay Convalescent Hospital where he underwent physiotherapy. On discharge from there he was on crutches for a month, and after that he needed a stick to walk until July 1979.

10. As the result of the accident his left leg finished up shortened by 7/8ths of an inch and the right leg by about ¼".

11. The union of the fractures of the left leg is sound and the alignment excellent.

12. The fracture of the right femur is well united, but he has finished up with some restriction of movement of the right hip joint. He can now only bend that leg at the hip through 110^o instead of the usual 140^o and external rotation is reduced from the normal 50^o to 20^o.

13. In practical terms the effect of his injuries is that he will no longer be fit to carry heavy weights - a circumstance of some significance to this plaintiff who was engaged on work of a manual nature at the time of his accident. Of that there will be more to say in due course. Also, although he can walk all right now, he cannot do so quickly. The extent of his recovery can be gauged by the fact that he can now walk up the stairs to the seventh floor of a building without holding on to the banisters, but from the eighth floor onwards he needs the banisters. By the plaintiff's own personal standards that indicated to him he was no longer very good at walking, but by the standards of the average 59 year old man it sounds, I would have thought, as if he is in fairly good shape when it comes to climbing stairs. As I am convinced the plaintiff was genuinely disappointed in himself for now needing the banisters after the seventh floor, I can only conclude that he must have been a remarkably fit man prior to the accident.

14. In terms of percentages, the agreed medical evidence was to the effect that the impairment to his left leg is 5%, to the right leg 12%, with a resulting total impairment to the whole man of 7%. That in turn is translated by the medical reports into a 20% permanent disability in so far as pursuing his pre-accident employment is concerned.

15. Although plaintiff suffered some pain while he was in hospital, he fortunately no longer does.

16. The prospect of a further short spell of a week or so in hospital still awaits him because the metal bone plate used in the fixing of his femur has sprung away from the bone due to the working loose of the screw holding it. At the moment the only effect of this is a prominent swelling on the side of the thigh. So far he has decided not to have the operation necessary to rectify this state of affairs, but if ulceration occurs then the metal will have to be removed. In the light of the above I will now move on to consider the heads of damages.

I Pain and suffering and loss of amenity

17. Whereas Mr Chan for the plaintiff suggests the award under this head should be towards the top end of the range $40,000 to $50,000, Mr Suffiad for the defendant urges me that the bottom end of the $30,000 to $40,000 bracket would be more appropriate. Both counsel assisted me enormously by citing awards in previous cases which shared somewhat similar factual backgrounds to the present case. That certainly helped to give me a general idea of the "tariff" but, as I am sure each counsel would agree, each case depends largely on its own peculiar facts. The cases cited to me in this regard were Goodwin v. Li Wing-hung 1977 H.K.L.J. 395; Chow Wai Ting v. Li Ka-wah 1979 H.K.L.J. 198; Chan Wai Ho v. Chow Lin-wai 1977 H.K.L.J. 394; and Fuk Nui v. Lai Man-wai 1978 H.K.L.J. 256.

18. Doing the best I can with the material available to me, I assess the award under this heading at $40,000.

II Loss of Earnings

19. It is common ground that at the time of the accident plaintiff ran a small-scale family-type business with his wife and son re-cycling old cement bags by refashioning them in such a way that they could be used as wrappings for fish.

20. There is agreement that as the result of the accident he experienced total loss of earning capacity from the date of the accident until August 1979, and that, after then, he has suffered and will continue to suffer partial loss of earning capacity.

21. Disputes of fact arose on his pre-accident earnings. They will have to be resolved in order to arrive at an appropriate multiplicand which will be relevant to both the special damages for loss of earnings to date, and the general damages for loss of future earnings.

The Multiplicand

22. In his pleadings plaintiff showed the net profits from his business to be $2,600 per month, whereas in court he stated them to be $2,800. I am sure that discrepancy is in no way due to any dishonesty on his part for I found myself immensely impressed by him as a witness. Far from being given to deliberate exaggeration, his tendency was, if anything, to understate, e.g. his evidence he did not have much pain from what to me sounded like rather horrible injuries, and the part about his recovering to the extent where he can now walk up the stairs of seven storeys without needing to hold on to the banisters. That is not the evidence of a man seeking falsely to inflate his claim.

23. That discrepancy about the net earnings from his business arose, I am sure, because he was making estimates of what he thought the average earnings of his business were, and estimates will inevitably be imprecise. From the evidence it appeared that the level of his business activity fluctuated from time to time, and, because on one occasion he comes up with an estimate of $2,600 while on another the figure he gives is $2,800, does not cause me to have doubts about his general credibility.

24. Mr Suffiad did a calculation which showed that on one view of the figures plaintiff gave to the court relating to his level of production, expenses and sale prices, a figure closer to $2,400 was indicated for the net earnings from the business. That calculation of Mr Suffiad's proceeded on the assumption of a certain level of production per day whereas plaintiff claimed that sometimes his production was slightly higher.

25. I do not think anything would be gained by my analysing plaintiff's evidence on the ins and outs of the running of his business in detail. Such a course would be artificial because plaintiff's evidence only amounted to generalisations about what happened in his business, and it was not the type of evidence on which one could base an audit of the business.

26. Although plaintiff's evidence could be characterised as somewhat impressionistic, I am satisfied he was doing his best to be honest, and I think justice will be done all round if I settle on a figure of $2,500 per month for the net earnings of his business.

27. How much of that $2,500 p.m. should be apportioned to the plaintiff, and how much to his wife and son is a further area of controversy. Undoubtedly, plaintiff was the one who devoted most time and effort to the business, and I accept his evidence that on average the amount finding its way to the other family members was several hundred to one thousand dollars per month.

28. That is somewhat vague, but doing the best I can with it I will treat $1,000 p.m. as the amount of net business profits attributable to the mother and son, so that the remaining $1,500 p.m. was plaintiff's share.

29. That figure of $1,500 is the multiplicand.

30. Having determined the multiplicand, I can now move on to the next stage of determining the special and general damages for loss of earnings.

Special Damages for Loss of Earnings till Date of Trial

31. It is common ground that from the date of the accident till August 1979, plaintiff's loss of earnings was total. For that period of 27 months at the rate of $1,500 p.m. his entitlement is $40,500.

32. From then till the date of trial was a period of three months. Then, it is agreed, he was earning $850 p.m. in his present occupation of watchman. Taking the difference between his pre-accident earnings of $1,500 p.m. and post-accident of $850 per month, one arrives at a result of $1,950 for this 3 month period.

33. Adding together $40,500 and $1,950, his total entitlement for loss of earnings up to the date of trial amounts to $42,450.

General Damages for Loss of Future Earnings

34. It is not disputed that he will never be fit to resume his pre-accident work.

35. Both sides agree that for the purpose of assessing future earnings the multiplicand should be his pre-accident rate of earnings less his current rate of earnings i.e. $1,500, less $850, which gives a result of $650. Annualised, the resulting figure is $7,800.

36. The only problem remaining now is to choose a multiplier based on the number of years the plaintiff might have been expected to continue his pre-accident work from the date of trial, had it not been for the accident. His estimate for this was from four to six years, an estimate of time which is not inconsistent with the medical evidence on this aspect of the case.

37. The multiplier I have decided upon is five. While that makes allowance for vicissitudes and the fact he will receive accelerated payment in the form of a lump sum, it also recognizes that he is a man of conspicuous character and fortitude who would not have given in easily to the waning of physical powers which inevitably accompanies increasing years.

38. The multiplier of five, applied to the multiplicand of $7,800, gives a result of $39,000 for the damages under this head.

39. My award can be summarised as follows :-

Special Damages

General Damages

40. Adding the special and general damages together, one arrives at a total of $122,940.

41. The agreement being that the defendant is 70% liable, the amount for which the plaintiff gets judgment is $122,940 x 70%, namely $86,058.

42. It is also agreed that on the special damages there will be interest at 4% from 30th May 1977 till today and at 8% on the general damages from 19th September, 1978 (the date of the issue of the writ till today).

43. I will now hear the parties on costs and any other orders they seek.

Representation:

Mr W. Chan (D.L.A.) for plaintiff

Mr A. R. Suffiad (J. Ip & Co.) for defendant