Sin Sau Mui v. Yuen Sai Kwong and Others

HCA011319/1993

1993 No. A11319

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Betts in Court

Date of Hearing: 4 November 1996

Date of Handing Down: 6 Novebmer 1996

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ASSESSMENT OF DAMAGES

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1. On 18 April 1991, the Plaintiff, who was then aged 67 was walking along Tong Mei Road. At the same time, the 1st Defendant was pushing a trolley loaded with fabric along a slope. The trolley overturned and part of the load fell onto the Plaintiff injuring her right wrist.

2. The Writ in this Action was issued in December 1993 against the 1st Defendant and two others. The proceedings concerning the other two Defendants are not relevant to this Assessment.

3. The Writ was served on the 1st Defendant and on 3 May 1994 interlocutory judgment in default of acknowledgment of service was entered.

4. Evidence before me consisted of medical reports and the Plaintiff herself has given evidence in support of her witness statement although she very fairly told me that she is illiterate and cannot now remember the details of the statement. She does remember, however, that the solicitor instructed by her went through the statement with her and she was satisfied, at the time, that it was accurate.

5. I am not in the least surprised that she cannot now remember the contents of that statement as, although it is short, it is largely composed of details of special damages, the expenses of medical treatment and so on.

6. I accept the truth of this statement and I accept the accuracy of the medical reports. They have not been challenged by the Defendant.

7. The main consequence of the accident was a displaced Colles' fracture of the Plaintiff's right wrist which was treated by close reduction and immobilization in a plaster cast for three months.

8. I bear in mind that the Plaintiff is no longer young and the permanent disabilities include weakness and pain in her right hand, which is her preferred hand. There is weakness of right hand grip and some deformity of the right wrist with tenderness over the wrist joint space.

9. Dr David Lee assessed her permanent disability at 10% and a loss of earning capacity of 99%.

10. At her age, this amounts to unemployability.

11. At the time of the accident, the Plaintiff was employed as a cleaning worker earning $110.00 a day for an average of 26 days a month. If she did not take any sick leave for a whole month, she would receive 2 additional days' wages by way of bonus.

12. I am satisfied that she has made some efforts to find employment since the accident but has failed. She would have expected to continue working up to the age of 75.

Pain, Suffering and Loss of Amenities

13. Mr Gidwani very helpfully referred me to a number of authorities all suggesting that this type of injury attracted an award, under this heading, of anything from 20% to 50% of awards made under the category of serious injuries. He has also referred me to authority that such injuries tend to be more serious in the case of elderly plaintiffs. In particular, he referred me to the dictum of Sachs LJ in Frank v. Cox (1967) 111 SJ 670, Kemp & Kemp para 3-003, where the judge said:

"... when one has a person in advancing years, in some respect, an impairment of movement may perhaps be more serious than it is with a younger person. It is true ... that he has to live with this discomfort, pain and impairment of movement. But it is important to bear in mind that as one advances in life, one's pleasures and activities particularly do become more limited and any substantial impairment in the limited amount of activity and movement which a person can undertake, in my view, becomes all the more serious on that account."

14. I very respectfully agree with the sentiment expressed and, under this head, make an award of $200,000.00.

Loss of Earnings

15. As I have said I accept the medical evidence that this lady is now unemployable. I also accept the evidence that she might well have continued working to the age of 75.

16. Her pre-accident monthly wages amounted to $2,970.00 and applying, as counsel suggested, a simple inflation rate of 10% per annum, her monthly salary today would be $4,783.00 giving a median of $3,877.00. 67 months have passed since the date of the accident and her pre-trial loss of earnings is therefore $3,877 x 67 = $259,759.00.

17. I applied a multiplier of 2, so the future loss of earnings is $4,783 x 12 x 2 = $114,792.00.

Miscellaneous Expenses incurred up-to-date

18. I have no hesitation in allowing, in full, the expenses claimed for medical treatment and occupational therapy treatment in Hong Kong, and for nourishing food.

19. Evidence was given, however, that the Plaintiff visited Zhao Qing, where she also obtained medical treatment. I asked her whether it has done her any good, and she frankly replied that her son asked her to go back to Hong Kong before the treatment had any beneficial effect.

20. In the absence of any substantive evidence that this treatment was beneficial, or even that she believed it was beneficial, I do not believe it is a proper expense that should be passed onto the Defendant.

21. I, therefore, disallow all items claimed in that respect but do allow the figure of $6,790.00 for miscellaneous medical expenses and nourishing food.

22. Damages assessed are summarised as follows:

Pain, Suffering and Loss of Amenities of life	$200,000.00
Loss of Earnings	$259,759.00
Loss of Future Earnings	$114,792.00
Medical Expenses and Nourishing Food	$6,790.00
	$581,341.00
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23. There will be interest at the rate of 6% per annum on the special damages from the date of the accident to judgment and 2% per annum for general damages from the date of the Writ to judgment.

24. There will be costs against the 1st Defendant and the Plaintiff's own costs will be taxed in accordance with Legal Aid Regulations.

Representation:

Mr V T Gidwani on the instructions of Wilkinson & Grist for the Plaintiff

1st Defendant - unrepresented - present