Lai Po Wah v. Chan Woon Sum and Another

HCA004314/1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Master Betts in Chambers

Date: 30th MAY, 1983

Appearances: Mr N. Pirie instructed by Messrs F. Zimmern & Co for the Plaintiff

Both Defendants in person and absent

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Assessment of Damages

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1. In June 1979 the Plaintiff, then aged 19 years, was operating a scraper in a construction site. A truck driven by the 1st Defendant and owned by the 2nd Defendant injured him.

2. The liability of the defendants has not been denied and interlocutory judgment has been entered against both.

3. The injury was to the Plaintiff's lower left leg. He was admitted to Princess Margaret Hospital, fully conscious, where it was found there was a near circumferential laceration, exposing fractured bone ends and tendons. There was no circulation to, or movement of, the toes. The left tibia and fibula were fractured.

4. Exploratory surgery was carried out the same day shooing that all nevrovascular bundles were completely torn and thrombosed and all muscles were severed. The distal lower limb was not viable debridgement was performed and the fragment temporarily immobilised in a plaster cast. After two days the wound became gangrenous and the leg was amputated five inches below the knee.

5. In due course the Plaintiff was transferred to the Rehabilitation Centre in Kwun Tong where he was supplied with a prosthesis and learned to cope with his handicap.

6. He then went through a period of. trying various types of job, having his prosthesis adjusted and so on. Having heard his evidence I am quite satisfied that he was making genuine efforts to work and that the periods when he has not worked have been because he really has not been able to.

7. He has adapted himself extremely well and tells me he can walk for anything up to four hours. Dressed, one would not know of his handicap. Since his accident he has married and his wife is expecting their child.

8. Before the accident he played football, went swimming and attended classes in Martial Arts twice a week. I accept that Martial Arts and football are no longer available to him; although marriage may well have curtailed them in any event.  It is a pity if he no longer goes swimming as there is no reason at all he should not. However, he was a healthy and active young man whose activities are inevitably going to be limited for the rest of his life and who is entitled to have that reflected in this assessment.

9. In considering damages for pain, suffering and loss of amenities Mr Pirie has referred me to two earlier decisions.

10. The fist in Tsang Sun-keung v Chan Pui-ching [Action 1979 No. 3543] where the injury was inflicted in 1978 and the assessment made in 1981. This involved an amputation above the knee in a man aged 22. That was a more serious disability than the present and the assessment was $80,000.

11. The second reference is Chui Kit v Tong Yiu-kay [1982 No. 7692] where the injury was inflicted in 1979 and the assessment made in 1982. The Plaintiff there was aged 59 and there was no amputation. $60,000 was awarded but I find that to be of little assistance as a considerable element in that case was the prolonged and painful treatment required for a wound which refused to heal. I find the first of the two cases much more useful. I bear in mind the drop in the value of money in the last two years. I also distinguish that the award in Tsang the learned Judge took into account the possibility of loss of marriage prospects and the possible difficulty in achieving a harmonious sexual relationship. Happily those possibilities have been shown not to arise for this Plaintiff. In all the circumstances I allow the sum of $75,000.00 for pain, suffering and loss of amenities.

12. Having heard the evidence I allow the following special damages:

13. At the time of the accident the Plaintiff was earning $3,000 a month with double at Lunar New Year.

14. He now works for a flat letting agent and, with commissions, earns about $1,700.00 a month. His prospects are uncertain, his educational standard not high, and heavy work will continue to be beyond him.

15. I have been given figures for the Plaintiff's actual earnings since the accident to date and average figures in the construction industry for those doing the work he used to do. They confirm the figures in the Statement of Claim showing a loss of earnings up to may 1982 of $53,600.00 which is awarded. From then to day I find the loss to be $1,400 per month for 12 months - $16,800. For future loss of earnings it is not possible to be accurate. I can only assume that the present differential will continue and, in view of his age, apply a multiplier of 14. This gives as his future loss of earrings $1,400 x 12 x 14 = $235,200.00.

16. There will be interest on the special damages at the rate of 5.5% per annum from the date of the accident to judgment and on the sum of $75,000.00 from the date of the writ to judgment. No interest is awarded on the award for loss of future earnings. Credit is to be given for any sum paid to the Plaintiff by way of Workman's Compensation. There will be an Order for costs to the Plaintiff with a certificate for counsel and for the Plaintiff's own costs to be taxed under the Legal Aid Regulations.

Representation:

Mr N. Pirie instructed by Messrs F. Zimmern & Co for the Plaintiff

Both Defendants in person and absent