Law Kun Mee v. Lai Bun and Another

HCA001546/1974

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Cruden in Chambers.

Date of Judgment: 8 January 1979

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DECISION

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The plaintiff was injured while working at the Tsuen Wan Wharf on 12th September, 1971. He was struck by a load of cargo carried by a crane. The crane was owned or operated by the defendants. Interlocutory judgment was entered against the 1st defendant on 17th December, 1975. On 24th October 1978, Notice of Discontinuance against the 2nd defendant was filed. I am consequently now solely concerned with the assessment of damages for the plaintiff against the 1st defendant.

The plaintiff suffered head injuries. He bled from the left ear, had a 1½ inch laceration over the left parietal region, epidural haematoma, contusion, has impairment of vision of the right eye and total blindness of the left eye. As a consequence of the accident he has also been impaired mentally. The brain injuries have also caused him to be unsteady on his feet. There is the likelihood that he will suffer from epilepsy in the future.

...(illegible) the date of the accident he was 36 years old. He is now 43. He has not worked since the accident and I am satisfied that he is now only capable of ...(illegible), at most, a minimal income. At the time of the accident he was a married man with 5 children who are now aged 17, 16, 14, 11 and 10 respectively. Prior to the accident he had worked at the Tsuen Wan Wharf for 6 years. While his income fluctuated it does appear that in 1971 his average monthly income was about $1,400. The statement of claim alleges his monthly income was $1,000. His claim was formulated on that lower figure which I accept has been proven. In addition to no longer being able to work, I am satisfied that since and as a direct consequence of the accident, sexual relations between the plaintiff and his wife have ceased.

Turning to the damages to be awarded on these findings I have come to these conclusions:-

1.Pain, suffering and loss of amenities:

I was referred to Law Ngan v. Ng Kai-hau & Anor O.J.A. No. 2789 of 1975 (1977) 7 H.K.L.J. 140, 141, where on appeal $50,000 was awarded for the loss of one eye and reduced vision in the other. The present plaintiff's vision is a little better than the vision of the plaintiff considered by the Court of Appeal. However, here there has also been brain damage and loss of sexual relations. In respect of brain damage I was referred to the $90,000 awarded by the Court of Appeal in Lee Woon-sun v. Wong Kin-keung & Ors. Civil Appeal No. 26 of 1976, (1977) 7 H.K.L.J. 140, but again the brain damage in that case was more severe than in the instant case. I am also mindful of the observation of the Court of Appeal in that case of the danger of comparing awards under this head.

Taking all the relevant factors into account I consider the proper award for pain, suffering and loss of amenities is $90,000.

2.Pecuniary loss:

I am satisfied that the plaintiff is incapable of earning other than a minimal income. I am prepared to accept that he has suffered a monthly loss of income of $1,000. As he was aged 36 at the date of the accident a proper multiplier would be 12. The period from the date of the accident to date represents approximately 88 months, which produces damages of $88,000, for that period. The future balance of 56 months, based on a multiplier of 12, produces damages of $56,000. I therefore award a total of $144,000 for pecuniary loss.

Medical fees of $850 were claimed, but no evidence was adduced to prove this item as special damages, so no award can be made.

In the result the damages payable are:-

There will be interest on the $88,000 at the rate of 4% from the 12th day of September 1971 until today. The total damages are to be paid into Court within 14 days. On payment in there will be payment out to the plaintiff. The plaintiff is entitled to the costs of the action against the 1st defendant and of and occasioned by this assessment; to be taxed in accordance with the Legal Aid Regulations. There will be a certificate for Counsel. There will also be liberty to apply.

Dated the 8th day of January, 1979.

Representation:

Mr. W. Yeung instructed by Helen A. Lo & Co. for the Plaintiff.

1st Defendant in person.