Huang Pei Nam v. Cheung Sai Kit

HCA002042/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar O'Dea in Chambers.

Date of Judgment: 14th November, 1978.

Mr. Barretto instructed by Peter C. Wong & Co. for Plaintiff.

Mrs. V. Bokhary instructed by H.A. Hoosenally & Co. for Defendant.

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DECISION

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1. On 6th June 1976 whilst walking along Po Tung Road, Sai Kung the plaintiff was knocked down by a vehicle driven by the defendant which mounted the pavement. Judgment was entered in favour of the plaintiff on 25th day of September, 1978 for damages to be assessed.

2. At the date of the accident the plaintiff was 20 years of age and had arrived in Hong Kong from China only 5 days previous. He was living with and employed by a relative who was the sole proprietor of a provisions store in Sai Kung.

3. On admission to Queen Elizabeth Hospital the plaintiff was found to have suffered the following:-

4. He was discharged from hospital on 11th June, 1976 and returned to live with his sole relative in Hong Kong where he has remained up to the present time.

General Damages

(a) Pain, Suffering and Loss of Amenities

5. Apart from the usual degree of pain associated with multiple lacerations and abrasions the plaintiff does not complain of any long-term suffering. During follow-up treatment an impairment of his mental functions was detected with consequent loss of memory. The plaintiff underwent a number of neurosurgical examinations with Dr. John Hunter involving a radiological examination of the skull, electrogram tests and a psychometric evaluation. The conclusions reached by Dr. Hunter after analysing the results of these examinations presents a picture of a young man who has suffered a severe memory disturbance with a high risk of epileptic or cerebral seizures eventuating within the first five years after the accident.

6. The effect of this impairment on the plaintiff were outlined by Doctor W. Green after he had conducted a psychiatric interview. Dr. Green pointed to five areas of abnormality:-

(i) Loss of Spontaneity:

7. The plaintiff has become withdrawn and there is an absence of the usual curiosity in new experiences or places.

(ii) Emotional Loss:

8. The paucity of emotion which has resulted creates a barrier to the plaintiff's ability to socialize with other people in a normal way.

(iii) Communication:

9. The plaintiff exhibits a tendency to confuse or misinterpret what is said or asked of him. His responses are accordingly confused.

(iv) Intellectual Deterioration:

10. Lack of concentration and an inability to grasp simple concepts will inevitably lead to difficulties in performing new skills.

(v) Frustration:

11. Irritability and tension are displayed by the plaintiff when he finds he is unable to perform a task resulting finally in his complete abandonment of any further attempts.

12. Dr. Green has concluded that the plaintiff has suffered a severe intellectual and emotional loss consistent with brain damage. He will lack personality and ambition and is condemned to a relatively emotionally isolated and deprived future.

13. The severity and permanence of these abnormalities will obviously call for a substantial award under the head of loss of amenities. A number of English and Hong Kong decisions were cited to me where awards for similar injuries ranged between $50,000 and $90,000. I am satisfied that the plaintiff, as a result of this accident, will be deprived of many abilities and pleasures which he could otherwise have expected to benefit from and enjoy and damages at the upper end of the scale should be awarded. My assessment under this head is $90,000.00.

(b) Loss of Earning Capacity

14. As previously mentioned the plaintiff arrived in Hong Kong only five days before this unfortunate accident. It is clear from the evidence that he came to work for a relative in his Sai Kung store at an agreed salary of $800 per month on the understanding that should his work prove to be satisfactory he would receive $1,000 per month after a period of three months had elapsed.

15. Evidence was given that during the whole time the plaintiff was off work and up to the present he has been continually remunerated by his relative at a rate of $800 per month and that this arrangement will continue in the future. Counsel for the defendant has submitted that, this being the case, there is no loss of future earnings. With respect, I cannot agree. Loss of future earning capacity is a head of general damages which does not confine the Court to a strict formula that if a plaintiff is likely to earn the same salary in the future as he did prior to the accident there is no loss. What the Court must decide is whether there has been a loss of earning capacity and, if so, whether the plaintiff would have exercised that capacity and acquired greater earnings than he is now capable of. This principle was outlined by the Court of Appeal in Lee Woon-sun v. Wong King-keung [1976] H.K.L.R. 296 where the distinction between loss of future earnings and loss of earning capacity was acknowledged particularly when there is a loss or impaired specific faculty.

16. In the recent English Court of Appeal decision of Cook v. Consolidated Fisheries Ltd. [1977] I.C.R. 635 Lord Denning pointed out recent developments on the principles which apply to "loss of earning capacity" over the last three or four years and made it clear that where a man suffers an injury which results in his being unable to work or if there is an actual loss of earnings he is compensated under the head "loss of future earnings". Where, however, he suffers a disability but no loss of earnings he is compensated under the head "loss of future earning capacity".

17. Applying these principles to the plaintiff's position it is clear immediately that but for the generosity of his employer/relative he would not have been receiving wages during the period he was off work and since resuming work it is unlikely that he would be earning as much as $800 per month. Both Dr. Green and his employer regard the plaintiff as being only capable of carrying out simple tasks - one gives this as his professional opinion, the other from his practical experience of working with the plaintiff.

18. I have decided to attempt to fix a sum which I consider the plaintiff is worth to an employer today and another sum which he would have been worth today but for the accident. I believe that the difference in these two figures would give a fair assessment of his loss of future earning capacity. The plaintiff's employer gave, what I consider to be, an honest opinion when he said the plaintiff was not worth $800 per month. At best I consider a sum of $600 per month would be a fair salary for the plaintiff.

19. Two other fellow employees of the plaintiff are receiving $1,500 per month. While the plaintiff's employer had only a very short time to assess the plaintiff's competence prior to the accident he spoke of him as being intelligent, and a good worker. This is, perhpas, supported by the fact that he successfully completed a full high school education before leaving China. I do not consider it unrealistic to find that the plaintiff would now have probably been earning a similar wage to his two fellow employees and I propose to assess the loss of earning capacity at $900 per month.

20. The plaintiff is now aged 22 years and in the ordinary course of events would have at least 20 years of working life ahead of him. After making a discount for the usual unknown factors I propose to adopt a multiplier of 15 and assess damages as ($900 x 12 x 15) = $162,000.00

Special Damages

21. Under this head is a claim for loss of earnings. The evidence which has been given discloses that the plaintiff continued to receive $800 per month despite his inability to work. There is however the matter of an agreement that his salary would have increased to $1,000 per month after a probationary period of three months. I am prepared to accept his employer's evidence that the plaintiff would have received such a raise and will award him this additional $200 for a period of two years.

22. The other items of special damage were not disputed and special damages are as follows:-

23. Interest will be earned on the special damages at 4% from the date of the accident. The plaintiff will have his costs with a certificate for counsel to be taxed in accordance with the Legal Aid Regulations.

24. Dated the 14th day of November, 1978

Representation:

Mr. Barretto instructed by Peter C. Wong & Co. for Plaintiff.

Mrs. V. Bokhary instructed by H.A. Hoosenally & Co. for Defendant.