Ip Yiu Fai v. Chan Che Kwong t/a Hong Kong Riding Union

HCPI000445/1998

HCPI-445/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINSITRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 445 OF 1998

__________

__________

Coram : Ms. Registrar Chu in Court

Date of hearing : 8 January 1999

Date of handing down of judgment : 16 January 1999

_____________________

Assessment of Damages

_____________________

1. This assessment of damages arose out of an accident which occurred to the Plaintiff on 24.10.1995 when he was in the Defendant's employment.

Background

2. At the material time, the Defendant was enmployed by the Defendant as a stable assistant working at the Defendant's horse riding school in Shek Kong, New Territories. On the day in question, the Plaintiff was inside a sand paddock exercising a horse. Also present were his 2 colleagues and their respective horses. His horse was caught by a rope which was used by one of his colleagues to divide the sand paddock into sections. The Plaintiff was likewise caught, as a result of which, he fell on to the ground with his horse also fell down and landed on top of him. He was admitted into Pok Oi Hopsital and was diagnosed to be suffering from a fractured right pelvis rim.

3. On 11 December 1997, the Plaintiff was awarded $105,740 as employees' compensation.

4. The Writ herein was issued on 1.5.1998. The Defendant gave no intention to defend. Interlocutory judgment was entered against him on 10 .6.1998 with damages to be assessed and costs to be taxed.

The Evidence at the Assessment

5. The Plaintiff gave evidence at the assessment hearing. The medical reports, the receipts evidencing the medical expenses and the documents relating to the employees' compensation claim were also produced by means of hearsay notice. The Defendant called no evidence. He had initially indicated that he wished to call some of the Plaintiff's former colleagues to testify that the Plaintiff made no complaint of discomfort or residual injury when he returned to work after the accident. He explained that he had not complied with the direction regarding preparation of witness statements and had also not arranged for the witness to attend court because he was ignorant of the need to do so. Mr. Leung who appeared for the Plaintiff objected to an adjournment to enable the Defendant to call witness on the basis that the evidence to be adduced was irrelevant and also the adjournment would operate to the Plaintiff's prejudice. The Defendant did not take issue with Mr. Leung's submissions. I agree with Mr. Leung and directed that the assessment should proceed.

6. The Plaintiff gave evidence that he was 31 at the time of the accident and is now aged 35. He received education up to secondary school level. Before working for the Defendant's horse riding school, he had worked as a factory worker, a clerk and also a travel escort guide. He had been employed by the Defendant for about a month when the accident happened. His average monthly income, including the value of his free accommodation, was about $6,800. He returned to work for the Defendant in early December 1996, after the sick leave expired. He did not resume the same duties. He was instead assigned with clerical duties at another horse riding school of the Defendant at Shatin. He resigned in mid July 1997. On 11.9.1997, he began working for a floral shop as the driver of a light goods vehicle. Occasionally, he also helped to move the flowers and plants. His present monthly salary is $9,500.

7. The medical reports indicated that the Plaintiff was first admitted to Pok Oi Hospital. X-ray showed that he had fracture of the right pelvis rim. He was then transferred to Tuen Mun Hospital where open reduction and internal fixation were performed. He later experienced difficulty in passing urine. Catheterization of the bladder was done. He started walking exercise in December 1995. On 21.12.1995, he was transferred to Margaret Trench Medical Rehabilitation Centre for physiotherapy treatment. He was discharged on 29.3.1997. Upon discharge, he was able to walk unaided while indoor and had to use one stick while outdoor. He could walk unaided in November 1996. His sick leave expired on 8.11.1996. He is still attending follow up treatment.

8. The examination in May 1997 showed that the bony union is satisfactory, with no obvious asymmetry of pelvis or migration of hip. Urination is no longer a problem. Dr. Lam Kwong-chin, who examined him, considered that no specific treatment was required and the removal of the implants is optional.

9. The Plaintiff now complains of occasional dull pain over the injured part. He said he could not lift heavy objects and would experience pain after doing so for a long time. Dr. Lam is of the opinion that the Plaintiff is unfit for work that required prolonged standing, climbing or squatting, but he can manage light to moderate manual labour. He assessed him to be suffering from a 7.2% impairment of the whole person and a 7% loss of earning capacity.

Pain Suffering and Loss of Amenities

10. The Plaintiff was hospitalized for about 5 months during which he had one operation. He was granted 326 days of sick leave. He cannot now handle heavy manual labour. As he will experience pain if the pelvis and hip are under stress, the doctor advises against prolonged standing, squatting and climbing as well as horse riding. The Plaintiff will therefore have to give up horse riding, which he had in past enjoyed.

11. Mr. Leung submitted that the Plaintiff's case falls slightly below the "serious injury" category in Lee Ting Lam v. Leung Kam Ming [1990] HKLR 657. He referred to the cases of Lee Ching Por v. Ban Wu (1990) HKLD J.56 and Ip Lam Yuk Lin v. Yeung fat & anor. [1991] 2 HKC 480 as relevant comparables. In the first case, the Plaintiff suffered from a fractured femur and was placed at the lower end of the serious injury category. In the second case, the Plaintiff had fracture of femur as well as fracture of radius. She was awarded $70,000 for pain suffering and loss of amenities. That was equivalent to slightly less than 50% of the lower end of the award for serious injury category.

12. In the case of Leung On v. Chan Pui Ki Civ. App. 263 of 1995, the lower end of the serious injury category had been revised upward to $400,000. The effect of inflation between 1996, when the case was decided, and 1997 has been set off by the negative growth since late 1997. Mr. Leung therefore submitted that, in line with the second case, an appropriate award herein would be $200,000, representing 50% of the lower end of the present level of award for serious injury category.

13. I agree that Ip Lam Yuk Lin v. Yeung fat & anor provides an useful indicator as to the appropriate award for this head of claim. Although the injuries of the plaintiff therein are more serious than the present Plaintiff, that is compensated by the fact that the Plaintiff herein has to give up horse riding, being his favourite hobby and interest. I consider that $200,000 is an appropriate amount for pain suffering and loss of amenities.

Loss of Earnings

14. At the time of the accident, the Plaintiff was paid a basic salary of $3,000 per month. He received allowance for taking care of his horse and hardworking allowance of $2,500 and $1,000 respectively. In addition, he was provided with free accommodation, the cash value of which was said to be $300. None of these items was disputed by the Defendant. The Plaintiff's total monthly income was thus $6,800. He was granted sick leave up to 8.11.1996. For calculating the loss of earnings, Mr. Leung is prepared to adopt a round figure of 12 months.

The loss of earnings is therefore :-

$6,800 x 12 months (24.10.1995 to 8.11.1996) = $81,600.

Loss of Earning Capacity

15. There is no claim for future loss of earnings as the Plaintiff has been in continuous employment after the end of his sick leave period. His evidence shows that his resignation from the Defendant was not occasioned by the injuries he sustained as a result of the accident. The Plaintiff, however, claims for loss of earning capacity to be calculated on 18 months of his present salary.

16. The relevant principles governing a claim under this head is set out in Lam Nam Fui & Ors. t/a Hop Shing Furniture Manufactory v. Wong See Mo [1990] 2 HKC 319, which applies the English Court of Appeal case of Moeliker v. A Reyrolle & Co. [1977] 1 WLR 132. The test is whether there is a real or substantial risk that the Plaintiff will lose his present employment during his estimated working life; and, if there is such a risk, the assessment will depend on the degree of the risk, the time when the loss of employment may arise and the factors affecting the Plaintiff's chances of finding new employment. Actual evidence is required to prove the extent of the risk and to show how far the Plaintiff's earning capacity will be adversely affected by his disability : See Li Ping Sum v. Chan Wai Tong [1985] HKLR 176, at p.183.

17. Mr. Leung submitted that there is a real risk that the Plaintiff would lose his present job at some time in the future and before the estimated end of his normal working life. He based his argument on the fact that the Plaintiff is relatively young, that he has pain and stiffness in his pelvis region from time to time and that he is unable to lift heavy objects whereas his present job is not a pure clerical job.

18. I do not accept that the Plaintiff has demonstrated a real or substantial risk of losing his present employment during his estimated working life. His medical condition has been stable since the end of his sick leave. He has been with the same employer since September 1997 and there is no suggestion that he finds difficulties in handling the work demanded of him. Although the Plaintiff had mentioned in his evidence that he feared that he might not be able to continue with the present job if some other physical problems should occur, there is no medical evidence to suggest that there may be complications in future. On the contrary, Dr. Lam's report is very positive about the recovery he made. In his opinion, the Plaintiff should be able to discharge light to moderate manual labour work without difficulties. It is true that the Plaintiff is not presently engaged to perform pure clerical duties, his work as a driver and his additional duties in helping to move plants and flowers do not involve heavy manual chores. In my view, the risk of the Plaintiff losing the present employment during his working life is too small and remote to justify an award under this head.

19. Even if the Plaintiff were to lose his employment in the foreseeable future, it has not been demonstrated that he will encounter difficulties in finding new employment over and above those experienced by others of a similar background. The Plaintiff had received up to secondary school education and possesses no special skill, nor has received any vocational training. Before the accident, he had worked in several fields and trades, all for a short time. He had mentioned that after his resignation from the Defendant's employment, he had made several unsuccessful attempts to look for clerical work before he obtained the present employment. So far as he knows, the attempts failed either because of his academic qualification or because of his lack of experience. The fact, however, remains that he was able to secure the present employment within 2 months from his resignation. There is no evidence to show that the Plaintiff suffers or will suffer a handicap in the labour market as a result of the injuries sustained.

20. Accordingly, I make no award under this head.

Other Special Damages

21. The claim for medical expenses in the amount of $11,480 is supported by the documents adduced. The travelling expenses totalling $1,954.80 is also of a reasonable amount. I allow these claims in full.

Interest

22. There will be interest on the special damages at the rate of 6.5% p.a. from the date of the accident to the date of the assessment. Interest on the general damages will be at 2% p.a. from the date of the Writ to the date of the assessment.

Conclusion

23. The total sum awarded is therefore $211,885.40, the breakdown of which appears as below :-

24. I also make an order nisi that the Plaintiff shall have the costs of the assessment to be taxed against the Defendant, if not agreed, and that the Plaintiff's own costs be taxed in accordance with the Legal Aid Regulation. The order nisi to be made absolute after the expiration of 14 days from the date of the handing down of the decision on the assessment.

Representation:

Appearances : Mr. C.S. Leung of the Legal Aid Department for the Plaintiff

The Defendant appeared in person