Wong Sam Mui v. Fan Yiu Sum t/a Fan's Stevedores

HCA001817/1994

1994 No.A1817

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

____________

____________

Coram : Master P.H. O'Donnell in Court

Date of Hearing : 2 February 1995

Date of Assessment of Damages : 6 March 1995

____________________________

ASSESSMENT OF DAMAGES

______________________

1. Interlocutory judgment was entered on 8th June 1994 for the Plaintiff against the Defendant for failing to give notice of intention to defend with damages to be assessed and costs to be taxed. The writ had been issued on 25th February 1994 in respect of an accident which took place on 20th September 1984. The limitation defence has not been raised by the Defendant in this case and the Court will not disallow this claim for the same reasons as set out in recent assessments relating to the same point.

2. Counsel for the Plaintiff had filed notice under Section 47 of the Evidence Ordinance and Order 38 of the Rules of the Supreme Court to produce the following documents:-

3. The only evidence called at this assessment was from TAM Yeung Kung, the son of the accident victim, TAM Wan-loong, who had since died from unrelated causes on 1st July 1990. He produced a written statement relating to his evidence. He said his mother lived at home and did not work and had looked after his father until his death. In his statement he did say his father had worked 3-4 days a month since the accident doing casual and lighter transportation work. The evidence was rather scanty and sparse in this case, although a statement taken from accident victim, TAM Wan-loong, was produced by notice under Section 37 of the Evidence Ordinance.

4. In his statement taken on 12th July 1985, TAM Wan-loong,, said he was employed by the Defendant as a casual coolie on a daily basis earning $116.00 a day with monthly earnings on average of between $1,000.00 and $2,000.00. On 20th September 1984 at about 10 a.m., when he was 56 years age, the Defendant was working near Hang Hau, Junk Bay, Kowloon. The crane operator on the site lifted up some iron tubes from the ground which were tied up with wire. The load on the crane swung towards him when it was one foot from the ground. He said he ran but it was too late as his right foot was struck by the iron tubes. After the accident we were taken to United Christian Hospital for treatment and later transferred to Queen Elizabeth Hospital until 26th September 1984 when he was transferred to Kowloon Hospital until 12th October 1984 when he was discharged. He attended follow-up out-patient treatment at Queen Elizabeth Hospital and physiotherapy at South Kwai Ching polyclinic. In this statement TAM Wan-loong said his right foot had recovered by July 1985 except when he walked for a long distance and it felt powerless and weak. He said he was granted sick leave until 22nd March 1985. Apart from a loan of $3,500.00 from the Defendant he had received no other compensation. He had spent $330.00 for hospital fees, $310.00 for follow-up medical treatment and physiotherapy, $800.00 for consulting a Chinese bone-setter and $300.00 on travelling expenses. He had not resumed working as he had not been able to find suitable work.

5. The medical report from Dr. MAN Chi-wai of Queen Elizabeth Hospital confirmed that TAM Wan-loong was admitted to the orthopaedic ward on 20th September 1984 after his foot was crushed by a heavy object. Examination revealed two lacerations of 10cm and 8cm on the dorsum of his right foot which was also swollen. X-rays showed undisplaced fractures of his 2nd and 3rd right metatarsal bones. The 10 cm was sutured and daily dressing given. The patient was transferred to Kowloon Hospital and discharged on 12th October 1984. He had follow-up treatment at the orthopaedic specialist clinic and was given sick leave from 20th September 1984 until 22nd March 1985. He was assessed to have 2% residual disability for pain and deformity on 24th April 1985. This is confirmed by the Certificate of Assessment from the Employees' Compensation (Ordinary Assessment) Board which assessed 2% loss of earning capacity for his permanent incapacity.

6. The claim for the accident victim fell into two categories, general damages for pain, suffering and loss of amenities, and special damages including loss of earnings from the date of the accident up to the date of his natural death in July 1990.

7. As to general damages the only medical report is that from Dr. MAN Chi-wai of Queen Elizabeth Hospital which has already been referred to in this assessment. Following the authority referred to by Counsel for the Plaintiff in his submission, namely, LAM HOK SUM v. A.G. & ANOTHER HCA A2319/1985 where Master Betts awarded $35,000.00 under this head for similar but more serious injuries a claim for $25,000.00 is made if the award were made in 1985. Taking account of inflation over this 10 year period since 1985, an award of $50,000.00 will be awarded for pain, suffering and loss of amenities.

8. Regarding the claim for special damages the sums referred to in the accident victim's statement set out above appear reasonable and will be allowed as claimed. As for loss of earnings the accident victim remained unemployed except for about 3 to 4 days of casual work each month since his sick leave expired on 22nd March 1985 until about 6 months prior to his death from other causes on 1st July 1990. This was a period of approximately 4 years 9 months (57 months). His pre-accident earnings were $116.00 a day for monthly earnings of between $1,000.00 and $2,000.00. Taking his monthly earnings at $1,750.00, which is only 15 days work each month at the daily rate of $116.00, his earnings for the 6 month sick leave period totals $10,500.00. Adopting a 60% increase for inflation over the 5 year period until 1990, his monthly earnings would have increased to $2,800.00. The median monthly earnings is thus $2,275.00. Assuming he worked 31/2 days a month after his sick leave period the median daily wages of $116.00 plus 60% ÷ 2 are $151.00. His loss of earnings per month are calculated as ($2,275.00 - ($151.00 x 3.5 days)) = $1,746.50. This figure ($1,746.50) should be multiplied by 57 months to give a total of $99,550.50 which when added to the loss of earnings for the sick leave period ($10,500.00) gives a total loss of earnings figure of $110,050.50. This sum will be allowed. In the circumstances of this age and permanent incapacity and general health, I am not prepared to hold that he should have found further suitable alternative employment without further evidence on this matter.

9. A summary of the damages awarded are as follows:-

The Master is not sure whether the loan of $3,500.00 from the Defendant should be deducted from the total damages or whether that sum has been repaid.

10. There will be interest on the general damages at 2% per annum from the date of this assessment and interest on the special damages at 5% per annum from the date of the accident to the date of this assessment.

11. Costs of the action and this assessment to the Plaintiff against the Defendant to be taxed. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

Representation:

Mr. Y.T. Chong instructed by Legal Aid Counsel for Plaintiff Defendant not present or represented