Hung Fung Chin v. Yu Ping Kuen

HCA006264/1984

1984 No. 6264

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

Coram: Master O'Donnell in Chambers

Date of Hearing: 5 February 1985

Date of Delivery:  28 February 1985

_________________________

ASSESSMENT OF DAMAGES

_________________________

1. The Defendant, Yu Ping Kuen, appeared in person and was advised of the procedure to be followed and of his rights in that regard. The Defendant explained that the vehicle in question had been insured at the date of the accident with an insurance company which was in liquidation.

2. At 12.30 a.m. on 29th September 1981 Plaintiff who was then aged 58 years, was crossing Aberdeen Main gad on a pedestrian crossing when she was struck and knocked down by a motor vehicle owned and driven by the Defendant and travelling east on the said road. The Plaintiff was admitted to Queen Mary Hospital after the accident on the same date and found to be conscious with the following injuries :-

(1) a laceration of her upper lip and fractures of her upper left incisor and nasal bone;

(2) a haematoma on her left cheek and bruising on her elbow;

(3) fractured left tibia and fibula.

The Plaintiff was transferred to the Hospital's Orthopaedic Unit on the 3rd October 1981 and moved to the Sandy Bay Convalescent Hospital on 13th October 1981 before she was eventually discharged home on 18th December 1981. The Plaintiff received out-patient physiotherapy treatment until July 1982 when her sick leave was terminated.

3. As a consequence of this accident the Plaintiff still suffers pain over her left cheek extending to her left forehead which Dr Wedderburn in his report considers to be a mild form of neuralgia which should eventually clear up. The fractures of the Plaintiff's left tibia, in particular, and her left fibula have resulted in an abnormality in her left knee-joint. Dr Wedderburn concludes that the Plaintiff's mobility is restricted to a marked degree and that she will develop osteo-arthritis in her left knee in the form of aching and discomfort in humid weather but that this will not seriously affect her until she is nearly aged 70. The Plaintiff's impairment of her left leg is assessed by Dr Wedderburn as being 5% which is 2% impairment of the whole man and that this total impairment will probably rise to 4% by age 70.

4. The medical evidence in this case is not challenged and is accepted. The heads of damages are dealt with as follows :-

1     Pain Suffering and loss of Amenities

Although this head of damage was not specifically pleaded in the Statement of Claim, Mr Whitley for the Plaintiff, referred to several 1983 decisions in similar cases showing a range of $18,000 to $30,000. The Plaintiff spent almost 3 months in hospital including 6 weeks with her left leg in plaster and received physiotherapy for her injured left knee for a further 6 months after her discharge. She walks with a limp and claims she can only walk for 20 minutes at a time. The Plaintiff will develop osteoarthritis in her left knee from which she will suffer increasing discomfort in the future. The assessment under this head will be $25,000.

2.    Loss of Earnings

The Plaintiff's evidence regarding her employment and earnings of $2,000 per month as an assistant in a mahjong school at the date of the accident is accepted. For 2 months from the date of the accident the Plaintiff appears from her evidence to have been paid a full salary of $2,000 per month which included $800 per month as her share of bonus and tips. From December 1982 until 7th July 1982 when her sick leave terminated she was only paid her basic salary of $1200 per month (or $40 per day). Although there is reference at the top of page 3 at Dr Wedderburn's medical report that the Plaintiff returned to work as a cashier at the mahjong school for 2 months, she made no reference to this in, her evidence and it was not put to her. I would accept that this was the position. The Plaintiff did admit working for 70 days washing dishes in a restaurant for $1,400 per month (according to voucher from Restaurant) since her employment in the mahjong school ceased. The Plaintiff claims she can only do part-time housework for a few hours a day but that she has been unable to find such work. The Plaintiff's husband is in employment and supporting her. Loss of earnings by the Plaintiff will be assessed as follows :

(1)	At $800 per month from December 1981 until 7th July 1982 - $800 ×7¼= $5,800.
(2)	At $600 per month for 70 days worked in Tai Cheong Restaurant -
	$600 × 2	1	= $1,400.
		3
(3)	At $2,000 per month from 18th November 1982 (taking into account 2 months in which she resumed work at the mahjong school and 70 days employed in the restaurant) to date of assessment -

	$2,000 × 26	3	= $53,200.
		5

Therefore, the total sum awarded under this head is $60,400.

3.     Loss of Future Earnings

Taking into account that the Plaintiff is now 62 years of age, the appropriate multiplier to be applied is 4. The Plaintiff's earning capacity has been reduced partly by her increasing age and partly by this injury. Taking into account the Plaintiff's difficulty in obtaining suitable part-time employment the multiplicand of $1,500, which may be generous in the circumstances, will be used so that the award for loss of future earnings will be $1,500 ×12 ×4 = $72,000.

4.    Special Damages

	(a)	Travelling Expenses for Plaintiff in travelling by taxi at $20 a round trip for out-patient physiotherapy and other specialist treatment over a 6 months period and supported by documentary evidence is allowed at	$1,200.00
	(b)	Travelling expenses for Plaintiff's husband in visiting her daily in hospital over a period of 80 days at an average of $12.50 a round trip is allowed at	$1,000.00
	(c)	Loss of husband's wages ($1,360) as restaurant waiter while on leave without pay from 1st October to 24th December 1981 to cook special food for his wife and to visit her daily in hospital	$3,800,00
	(d)	Medical expenses supported by documentary evidence is allowed at	$670.00
	(e)	Special nourishment and Chinese medicine for the Plaintiff has been claimed at $11,000. On the basis of accepted authority on this point the sum of $10.00 a day will be allowed for the time that the Plaintiff was in hospital and for 1 month thereafter	$1,100.00

Summary of Assessment

5. There will be an award of damages as follows :-

(1)    General Damages

(2)    Special Damages

6. There will be interest on the General Damages at the rate of 2% per annum from the date of service of the writ to the date of judgment.

7. There will be interest on the special Damages except for item (2)(b).- Loss of Future Earnings - at the rate of 6.5% per annum from the date of the accident.

COSTS ON THIS ASSESSMENT OF DAMAGES TO THE PLAINTIFF.

8. Plaintiff's and costs to be taxed under the Legal Aid Regulations.

Representation:

Mr Whitley of D.L.A. for Plaintiff

Defendant Yu Ping Kuen present in person