Wu Chun Keung v. Hui Man Kin and Another

HCA000307/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Jones in Chambers.

Date of Judgment: 7th April, 1973.

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DECISION

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1. This is an assessment of the plaintiff's damages against the 1st defendant arising as a result of personal injuries which he received in a road traffic accident that occurred on the 22nd September 1968. On that date the plaintiff was travelling as a passenger in a motor car driven by the 1st defendant and owned by the 2nd defendant along Deep Water Bay Road when it ran off the road and crashed into the hillside near to the junction of Shouson Hill Road.

2. Interlocutory judgment in default of appearance for damages to be assessed against the 1st defendant was entered on the 4th October 1972. The proceedings issued against the 2nd defendant were dismissed with costs by Mr. Justice Leonard on the 5th March 1973.

3. The 1st defendant did not attend the hearing of the assessment. Following the accident the plaintiff was taken to the Queen Mary Hospital where he remained until his discharge on the 16th October 1968. The plaintiff sustained abrasions to his left forearm, bleeding from his left ear and blood clots on both nostrils whilst the left half of his face was paralysed. The cause of the paralysis was a fracture at the base of the skull. The plaintiff's condition upon his discharge from hospital was described as quite good except for the facial palsy.

4. The paralysis has resulted in the plaintiff's lips being twisted to the left side of the face, some impairment of hearing in the left ear and difficulty in closing the left eye. In fact the plaintiff can only close the left eye with the assistance of his hand. Since the accident the plaintiff has had to wear glasses. Medical evidence given on behalf of the plaintiff recommended that operative treatment be carried out in order to close the eye for the purpose of protecting the eyeball and plastic surgery to improve the plaintiff's facial features. The estimated cost of this operation including hospital charges is $4,000. Although the plaintiff's cosmetic appearance can be improved the paralysis to the left side of the face affecting the eye ear, mouth and facial muscles will be permanent.

5. The plaintiff who is single is now aged 25 and was at the time of the accident a professional musician. He was the leader of a group that played in the Rainbow Bar Wanchai where he was a guitarist and singer. The plaintiff's total earnings per month including tips and fees received from tuition that he gave on the guitar amounted to between $1,200 - $1,500. Evidence was given that the leader of a similar group today would earn $1,900 per month exclusive of tips. The plaintiff said that he has been unable to continue to play the guitar professionally since the accident due to his defect in hearing which has prevented him from learning new tunes. Since his discharge from hospital the plaintiff has worked in an unskilled capacity for his father who is the sole proprietor of Ka Wah Medicated Factory which manufactures medicated oils. He receives $500 per month as wages, but his father gives him a further $2,000 - $3,000 per year at various times when he needs extra money.

6. I accept the plaintiff's evidence that it was his intention had it not been for the accident to pursue his career as a musician. This has considerably reduced his earning capacity for he has no qualifications to command the same wages that he would receive as a musician in any other field.

7. In respect of the claim for special damages I shall allow the sums of $63 for hospital charges, $150 damage to the plaintiff's suit, and $350 being the cost to replace a set of false teeth that was damaged. I shall allow $500 for the cost of taxi fares to enable the plaintiff's parents to visit the plaintiff whilst he was in hospital. The expenditure of $2,000 for special food will be disallowed in the absence of medical evidence to justify this claim. The sums of $1,070 and $8,400 in respect of loss of wages and partial loss of wages set out in the statement of claim will be allowed. Accordingly special damages are assessed at the sum of $10,533.

8. General damages will be assessed under three heads viz. loss of future earnings, pain and suffering and loss of amenities. In calculating a multiplicand and multiplier I have taken into account that the chosen profession of the plaintiff as a musician is one of uncertainty and there is no guarantee that he would have been employed as such for many years. Having regard to the age of the plaintiff and the vicissitudes of life I shall adopt a multiplicand of $1,000 per month and a multiplier of 10. Accordingly damages for loss of future earnings will amount to $120,000 i.e. $1,000 x 10 x 12. Taking into account the cost of the operation that has been recommended I shall assess damages under the other heads at $15,000. General damages will therefore amount to $135,000. However, as the plaintiff is entitled to receive a lump sum immediately this figure must be discounted. I shall therefore award the sum of $108,000 as general damages. Added to this figure will be the special damages of $10,533 with the result that the total award is $118,533. Upon the principles enunciated in Jefford v. Gee (C.A.) 1970 2 Q.B.D. at page 146 I shall award the plaintiff interest on the special damages at the rate of 4% from the date of the accident until today and at 8% upon the sum of $12,000 being the damages as discounted awarded for pain and suffering and loss of amenities from the date of service of the writ, the 23rd May 1972, which is four days from the date of posting to the 1st defendant in accordance with the order for substituted service. The plaintiff is entitled to costs with a certificate for counsel.

9. Dated this the 7th day of April, 1973.

Representation: