Au Leung v. Yip Yim Choi

HCA002432/1984

1984 No. 2432

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

Coram: Master Crawshaw in Chambers

Date of Hearing: 18 December 1984

Date of Delivery: 2 January 1985

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ASSESSMENT OF DAMAGES

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1. The Plaintiff, now aged sixty, was the victim of a serious assault on or about 21.2.82 at the hands of the Defendant. His principal complaint stems from a heavy blow just behind the right eye causing cerebral concussion, right oculo-motor nerve palsy, right optic nerve injury, and a fracture of the right anterior fossa - the basal skull.

2. As a result he has a 100% functional disability of the right eye which has retracted backwards into the orbit, and there is a large and deep depression in the right temporal region behind the eye.

3. He has lost the sense of smell.

4. He was admitted to the Kwong Wah Hospital from 21.2.82 to 4.4.82 where he      underwent three operations. Thereafter he attended as an out-patient on forty occasions, and indeed he is still obliged to go to the hospital once a week to obtain eye-drops.

5. The first two items of Special Damages consist of his own and his relatives travelling expenses. He has given evidence in support of the very modest sums claimed and I allow them at $79.20 and $72.00.

6. His claim for customary tonic food I allow, following Mui Ling Kwong v. Wong Yin Wah 1973 HKLR 465 applied in Yu Ki v. Chiu Kin Lam & another 1981 HKLR 419 for 42 days $420.00, and for his ordinary daily clothing ruined by bloodstains at 100.00.

7. He told me that he resumed his work as a casual plumber on 2.8.84 but that not only was his rate of pay less, so too was the frequency of his employment. Whereas formerly he could expect to work for 20 days a month at $50 per day, he now obtains work on 10 days of the month at $30, i.e. some $700 p.m. less than formerly and I accept and use this figure as the basis of my calculation of his loss of earnings from the date of the assault to 2.8.84.

8. Mr Hamblin urges upon me for consideration of future loss of earnings two cases - Chan Kit HCA 7692/82 59 years, multiplier of 6, and Tam Pang HCA 3280/78 57 years, multiplier of 5, and he referred me to certain tables which, for the plaintiff, give a multiplier of 314. He thought a multiplier of 5 would be reasonable and I agree with that, but I am then asked to make the simple calculation of $700 x 5 x 12 to arrive at the lump-sum figure for loss of future earnings upon the basis apparently that this is the customary method of calculation in Hong Kong.

9. This seems to me to be wrong, because the plaintiff will get more than the Court sees fit to award. In other jurisdictions the calculation is made to ascertain  what sum, if invested at x%, will be exhausted by drawing $y p.m. for z years?

10. For the time being however I shall follow our rule and I award $42,000.

11. In support of his claim of general damages Mr Hamblin cited the following authorities

12. These figure must be viewed in the light of the recent decision of the Privy Council upholding in Li Ping Sum's case the Court of Appeal's enhancement of 50% upon Lee Ting Lam's 1980 case, to take inflation into account.

13. Mr Hamblin suggests that this is a borderline case between serious injury and substantial injury as those terms were used in Lee Ting Lam's case but, on the basis of Dr Wong's assessments of a 30% total body disability in respect of the eye, and making allowance for the loss of smell I find that the claim comes at the upper end of the serious injury category. The range in such cases being $90,000 to $120,000.

14. The general damages will comprise the plaintiff's 100% loss of eye function, some award for his loss of smell and for his cosmetic disability, and as to this last, I want to say that although he has indeed suffered a terrible injury and has a deep depression in the side of his head yet his personal appearance is not such as to arouse feelings of revulsion in the beholder. There is very little scarring and the skin has a normal appearance. He presents a  visage exciting more sympathy and compassion than anything else. I do not think his cosmetic disability will affect his social intercourse in any way.

15. I award a lump sum of $130,000 under this head.

16. There will be interest on the award at the usual rates.

17. That is 7% on Special Damages and 2% on General Damages.

18. Costs to Plaintiff to be taxed if not agreed Plaintiff's own costs to be taxed according to Legal Aid Regulations.

Representation:

Mr Hamblin of Legal Aid Department for Plaintiff

Defendant in person (absent)