Tang Lin Fat v. Chan Sham and Another
Read the full judgment text of HCA 12362/1983 on BabelCite. This High Court CFI judgment.
1. The plaintiff was employed during 1980 at Fu Tao Mansion as a cleaning worker. One of his duties was to remove rubbish from Fu Tao Mansion to an Urban Services Department Refuse Collection Point at the corner of Soy and Sai Yee Streets, Kowloon. He had been doing that work since March 1980. The plaintiff's practice was to arrive at the Collection Point at about 6.30 a.m. and wait for an Urban Services Department Transtaina Motor Vehicle to arrive and unload a large rubbish container which was
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HCA012362/1983 Personal injuries - claim for damages by privately employed cleaning worker injured when depositing rubbish at an Urban Services Department Collection Point into a container forming part of a mechanised Urban Services Department Transtaina - 4 fingers of preferred right hand amputated but 3 fingers other than index finger later reimplanted - reimplanted fingers useless except as an opposing force to the thumb and for cosmetic benefit -injured worker aged 52 because of injuries unsuitable for open employment and unable to obtain employment under Labour Department Selective Placement Scheme - only $10,284 of Employees Compensation award of $49,266.66 paid by employer - Held: 1. Defendants 70% negligent; plaintiff 30% negligent; 2. Net damages $232,510; 3. Plaintiff required to give credit to defendants under Employees Compensation Ordinance only for lesser sum of $10,284 paid and not for probable irrecoverable unpaid balance. IN THE SUPREME COURT OF HONG KONG HIGH COURT ______________ H.C. Action No.12362 of 1983
_______________ Coram: Deputy High Court Judge Cruden Date of Hearing: 15th, 16th and 17th September 1986. Date of Judgment: 24th September 1986 ___________ JUDGMENT ___________ 1. The plaintiff was employed during 1980 at Fu Tao Mansion as a cleaning worker. One of his duties was to remove rubbish from Fu Tao Mansion to an Urban Services Department Refuse Collection Point at the corner of Soy and Sai Yee Streets, Kowloon. He had been doing that work since March 1980. The plaintiff's practice was to arrive at the Collection Point at about 6.30 a.m. and wait for an Urban Services Department Transtaina Motor Vehicle to arrive and unload a large rubbish container which was then left at the Collection point as a receptacle for the deposit of rubbish brought during the day to the Collection Point. 2. On the morning of 8th November 1980 the plaintiff, in accordance with that practice, arrived at the Collection Point at about 6.40 a.m. and the Transtaina motor vehicle arrived shortly before 7 a.m. The plaintiff stated that after the container was unloaded but before the hoist was fully raised and the motor vehicle departed, he stood on a crate and began to unload baskets of rubbish into the container. While doing so his right hand, which had gripped the top rim of the container, was injured by the moving hoist. 3. While the precise manner in which the injury was suffered is disputed, it is common ground that the four fingers of the plaintiff's right hand were amputated of which the middle, ring and 5th fingers were later reimplanted. The plaintiff is left without the index finger of the right hand, while there is substantial permanent disability in relation to each of the remaining fingers. The plaintiff alleges that the injuries were caused by the negligence of the defendants. The 1st defendant was the driver of the Transtaina motor vehicle employed by the Crown through the Urban Services Department. The defendants deny all the allegations of negligence and in the alternative plead that the injuries were caused or contributed to by the negligence of the plaintiff. Liability: 4. The plaintiff called Mr. LI Chi Chiu, a driving instructor, employed by the Urban Services Department. In evidence he stated that his duties included instructing drivers how to drive and operate a Transtaina motor vehicle. He also assisted in the preparation of an Urban Services Department operational memorandum on the use of a Transtaina which is circulated to all drivers. A copy of the memorandum was produced. I accept Mr. Li as an expert on the operation of the Transtaina. The memorandum expressly refers to the usual operation of the vehicle by the driver alone without any loader or other human assistance. 5. Mr. Li stated in evidence that after the container is lowered and rests on the ground, the driver must then walk around the whole of the container to ensure that the 4 chains connecting the container to the hoist are unhooked. After the chains are unhooked from the container they are fixed to the hoist. If the chains are too taut to enable the hooks to be released from the container the driver must further lower the hoist for a short distance to looser the chains sufficiently to enable them to be unhooked. There are 2 chains on each side of the container. After the container is fully lowered it is necessary for these chains to be unhooked before the hoist can be raised; the stabilisers also raised; and the motor vehicle driven away leaving the container resting by itself on the Ground at the Collection Point. 6. The plaintiff stated that on the morning of the accident the only Urban Services employee present to his knowledge was the driver. After the Transtaina motor vehicle was reversed to the position where the container was to be left, the plaintiff stated that he personally unhooked the chain closest to the driver's cab on the driver's side of the vehicle. The plaintiff stated that on most mornings more than 110 cleaning workers were assembled by the time the driver arrived and they usually assisted by unhooking the chains. The driver merely got down to the ground near the cab to work the levers of the hoist and did not walk around the vehicle or the container. After the container had been fully lowered and the chains unhooked, the plaintiff stated that he stood on a carton to be at a sufficient height to empty his rattan. rubbish baskets into the container. The container was more than 6 feet high. The plaintiff was well under 6 feet tall. He stated that he stood on the crate in a position near to where he bad earlier unhooked the chain and followed his normal practice of emptying a basket in turn into the container and then throwing the empty basket down onto the ground. To complete the latter task, he turned his back to the container and holding onto the top rim of the container with his right hand, threw the basket to the ground with his left hand. He was right-handed. 7. On the morning of the accident the plaintiff stated that he had emptied the contents of 3 or 4 baskets into the container and was in the process of throwing an empty basket to the ground, with his right hand holding onto the container rim. At that moment the plaintiff asserted that the driver, without any warning, operated the controls; the hoist moved; the plaintiff's fingers of the right hand were cut off. The plaintiff further stated that as he commenced to run off for assistance the driver, standing at the front of the vehicle said to him "I am sorry, I did not see you." At the material time Madam TUNG Shiu Ying another cleaning worker who regularly attended the. Collection Point, recovered 4 of the amputated 5 fingers and took them with the plaintiff to Queen Elizabeth Hospital where the 4 fingers were reimplanted. 8. Madam Tung, an elderly lady, also gave evidence and stated that she was working with the plaintiff on that morning and was handing both his and her own baskets up to him so that he could empty them into the container. I am able only to give limited weight to her evidence. In relation to times and the number of baskets emptied into the container before the accident I am satisfied her evidence is quite unreliable. In evidence she agreed that the accident had happened a longtime ago; she did not clearly remember everything that occurred; she stated that she suffered from dizziness. However, there were other parts of her evidence not involved with times and numbers, which were credible and corresponded with evidence of other witnesses. She stated that the plaintiff often unhooked the chains. Initially she stated that he had unhooked one of the chains on the morning of the accident but later indicated that she was not quite sure whether he did so on that particular morning. She stated that the driver after the accident said he was sorry For 5 or 6 years she had daily attended at the Collection Point and the same procedure was followed. On previous occasions but not on this particualr morning, she had heard warnings given to the workers. A lot of people usually gathered and she said they did not listen to the warnings. Whoever was first present went up and unhooked the chain. 9. For completeness I should add that Mrs. Tung also stated that just before the accident someone told the driver that one of the chains on the other side of the container was still unhooked anal it was after he received this information that the driver started up the hoist again and it was at that point the plaintiff was injured. The plaintiff also referred to having learned subsequently that one chain on the far side was unhooked. But his evidence on that point was entirely hearsay and must be disregarded. 10. Mr. CHAN Sham, the driver, gave evidence. His evidnece was twofold. First, he acknowledged the contents of a written statement and sketch plan he made on the afternoon on the accident in 1980. The sketch showed that .the driver stood just to the rear of the cab in front of the levers which operated the hoist. The plaintiff is shown as being about midway along the lowered container. The considerable extended length of the vehicle, at this stage, is about 40 feet. The sketch is not to scale but, the distance between the driver and the plaintiff is more than 20, feet and probably approaching 30 feet. The written statement does, not refer to any other Urban Services Department staff at the Collection Point. In the statement the driver records that he inspected the surroundings for safety and then operated the mechanism to lower the container to the ground. According to the driver's estimation in 1980, the plaintiff was not employed by the Urban Services Department and had no idea of the operation of the vehicle or the steps of lowering the container to the ground. The driver records that after the container steps on the ground the hoist continues to drop a little further in order to release the chains. The driver stated that at the moment of that further drop of the hoist, to release the chain, the plaintiff's fingers were cut off. 11. The oral evidence given at the hearing by the driver was helpful on a number of grounds in clarifying the written statement. The driver stated that he did riot personally observe the accident, so the final portion of his written statement as to how the accident occurred,was supposition on his part. The theme which dominated the driver's oral evidence was that he lowered the container principally reliant on the directions he received from the Urban Services Foreman at the Collection Point. The driver stated that he regularly drove his vehicle to this Collection Point, unloaded the container and then drove his vehicle off elsewhere. On the morning of the accident he arrived at the Collection Point at 6.45 a.m. by which time the foreman and two Urban Service Department loaders were present. The loaders directed him to the parking space where he heard the foreman tell the cleaning workers present, to keep away from the vehicle. 12. After he had parked the vehicle the driver stated that the foreman took up a position on the far side of the vehicle and was able to observe that side of the vehicle obscured to the driver by the container. The loaders, the driver stated, stood at the rear of the container. The driver stated he alighted and stood on the driver's side of the vehicle in front of the levers controlling the stabilisers and the hoist. After lowering the stabilisers the driver stated he checked to ensure that workers were keeping away from his side of the container. He then looked at the foreman standing on the other side, who waved him to lower the container. The driver stated that during the whole of the lowering operation he carefully watched the foreman and relied on him to observe the far side. As to the driver's own side, he stated that he relied on the loaders giving him any warnings but war already aware that there was no one standing close to the container on his side. Just as the container touched the ground, the driver stated he heard someone about out that a person's hand had been injured. He immediately stopped the hoist. He saw the plaintiff and after taking one or two steps towards him, rushed away to the other side of the vehicle to telephone for assistance. He denied ever speaking to the plaintiff and in particular denied saying that he was sorry or that he had not seen the plaintiff. 13. The driver stated that he had been driving a Transtaina for 1 year before the accident and had regularly delivered containers to this Collection Point. He was familiar with the Urban Services Department Operational memorandum produced in evidence. He agreed that he had not walked around the vehicle after the container was lowered but pointed out, that was not necessary at this Collection Point, as he was assisted by the foreman and 2 loaders. He was emphatic that at the time of the accident all 4 chains were still hooked to the container. He agreed that he never saw the plaintiff until after the accident and felt sorry for him. He agreed that during tile lowering operation he exclusively directed his attention to the foreman on the far side of the vehicle and did not look back to check his own side of the vehicles. Further, he agreed that it was also his duty to watch his own side and that had he seen anyone getting close to the container he would immediately have stopped the hoist. 14. Before the container was lowered the driver stated he heard the foreman shout out to others to keep back but never heard any warning given by the loaders. He never inspected the vehicle or container afterwards, to ascertain whether there was any blood or other signs, indicating where the.accident precisely occurred. However, he agreed that it was the sweeping action of the moving hoist against the container, which severed the plaintiff's fingers. As to who unhooked the chains, the driver stated that task was the loaders responsibility. However, he agreed that after a loader had unhooked one hook, it happened that before he could unhook others, cleaning workers present unhooked them. The driver went on to say that the Urban Services Department staff had unsuccessfully tried to stop those other workers assisting. The possibility that the accident was caused when the driver lowered the hoist a second time, to enable a remaining fourth chain to be unhooked, was put to the driver. He denied that happened and pointed out that at the time of the accident all 4 chains were still hooked to the container. 15. The foreman, Mr. CHAN Kam Hung, also gave evidence. He had been employed by the Urban Services Department since 1967 and had been a foreman since 1973. Each day he and the two loaders reported to the collection Point at 6.30 a.m. All three were present when the Transtaina arrived on the morning of 8th November 1980. He stated that on arrival of the vehicle, he told all the 7 or 8 non-Urban Service Department workers present to move away from where the vehicle was going to park. He further stated that he then gave the driver hand signals to lower the container but at that stage did not speak to other persons in the vicinity. He then heard shoots from the driver's side that someone's hand was injured. 16. On a number of factual issues there is a direct conflict of evidence, however, on several material matters there is little dispute. It is undisputed that the driver on alighting stood in front of the control levers and remained in that position until after the accident. It is undisputed that the plaintiff was standing on the same side as the driver. It is undisputed that the driver never saw the plaintiff prior to the accident. It is undisputed that at the time of the accident the plaintiff's right hand eras gripping the upper rim of the container. It is undisputed that cleaning workers, not employed by the Urban Services Department, at times assisted in the unloading operation of the container by unhooking some of the chains. It is undisputed that the accident occurred after the container had been lowered to the ground. 17. A major factual conflict is whether the plaintiff's fingers were severed after he had emptied several baskets of rubbish into the container or whether they were severed much earlier in the interval between the container reaching the ground and the chains being unhooked. This conflict is more relevant to credibility than liability. The plaintiff states that he had already unhooked a chain on his side and emptied 3 or 4 baskets into the containers. Madam Tung generally confirms that evidence although she considered that he had emptied 7 or 8 baskets. I reject her evidence on this point as I find her evidence as to numbers and times too unreliable to be given any weight. As to her evidence whether the plaintiff unhooked a chain and emptied rubbish into the container, I am only prepared to find that her evidence is not inconsistent with his allegations. 18. The driver's written statement was more general than his oral evidence. In his statement his speculation was that the accident may have occurred when the hoist was being further lowered to release the chains. His oral evidence was more detailed and perhaps went further by stating that all 4 chains were still connected to the container, when the accident occurred. The difficulty he faced was that he never saw the plaintiff before the accident nor was he looking in his direction. at the time of the accident. In those circumstances his evidence necessarily includes a substantial element of reconstruction after the event. On these points the foreman's evidence is silent. 19. From the evidence I am able to infer that the accident at least occurred very soon after the container was lowered. At most the plaintiff could only have emptied very few baskets into the container and certainly not more than the 3 or 4 mentioned by him. When I review the whole, of the evidence I find it is more probable than not that the plaintiff had unhooked one of the chains and had commenced unloading baskets into the container. From that finding I infer that it is more probable than not that the hoist near the plaintiff was sufficiently raised to enable him to empty baskets into the container without interference. The container is more than 6 feet high and I am satisfied that at the time of the accident the plaintiff must have been standing on the crate as he alleged, in order to be able to grip tire top rim of the container with his right hand. 20. The evidence relating to the possibility that one chain remained hooked requiring an additional movement down of the hoist, is, I appreciate, one explanation for the movement of the hoist which the plaintiff had not anticipated. However, the evidence on that point is quite unsatisfactory being largely of speculation. I .am not satisfied on that point and wholly disregard that possibility. On the evidence the precise movement of the hoist and the reasons for that movement, remain in doubt but the manner in which the injury occurred is sufficiently clear. 21. I appreciate that Urban Service Department drivers operating these vehicles alone, have what at times must be a difficult task. However, in relation to this accident the Urban Services Department vehicle was parked at an authorised Urban Services Department Collection Point and was I am satisfied manned by an Urban Services Department foreman and two loaders. The regular presence of 10 or more cleaning workers waiting at the Collection Point for the arrival of the container and anxious to deposit their rubbish, was well known to the driver and the other Urban Services Department workmen regularly present. The driver was aware that although warnings were given to these non-Urban Service Department workers to stand back, they frequently assisted in the unloading of the container at least by removing some of the chains, although this was not their responsibility. 22. Clearly, until the chains were removed, the hoist raised and the motor vehicle driven away, these steps include an element of danger to persons assisting in those steps. Equally, it is the duty of the persons responsible to carry out those steps, to take reasonable measures to ensure that non-Urban Services Department workers or other persons are not involved and are kept a safe distance away from the Transtaina until the unloading is completed. 23. On the morning of the accident such reasonable measures, at least in regard to the presence of the plaintiff, were not taken. The plaintiff was on the same side of the vehicle as the driver as shown by the driver's own sketch. The driver limited checking his side of the vehicle to one initial look before the unloading operation had commenced. On his own admission, he never looked again but directed his attention to the foreman's signals on the other side of the vehicle. If he had even only periodically checked his own side again, he must have seen the plaintiff. If he had done so, he agreed he would have stopped the unloading operation. Where the evidence of the plaintiff and the driver conflicted I prefer the evidence of the plaintiff. I find that it is more probable than .not that the driver after the accident told the plaintiff. He was sorry and had not seen him. 24. On these facts the evidence establishes several of the particulars of negligence pleaded. The defendants activated the crane system when the driver knew or ought to have known that it would be dangerous and likely to injure the plaintiff; failed to stop the hoist in time; failed to observe the presence of the plaintiff and ensure that.the plaintiff would be safe before operating the hoist; failed to ensure a safe practice of operation of the system. 25. If negligence were established against the defendant, the defence pleads contribution. The plaintiff submits that there is no evidence of contribution. The defendants submit that if there is liability, there is a very large element of contributory negligence on the part of the plaintiff. 26. In considering contributory negligence I take into account that the accident occurred at an authorised Urban Services Department Collection Point at which there were present 4 Urban Services Department employees and 10 or more non-Urban Services Department workers. The unloading operation which was the sole responsibility of the Department and its employees, was mechanical, involved and potentially dangerous. I accept the express evidence that the non-Departmental workers were told to move away while the vehicle was being parked. But there was no evidence that any further warning was given for them to continue to keep away when the subsequent unloading operation commenced. Even, if such a warning were given, it is clear that the non-Departmental workers were permitted not only to approach the unloading operation but regularly to participate in that operation by removing chains. The number of non-Departmental workers did not substantially exceed the number of Department employees present. It is not necessary to go into detail but it would clearly have been reasonably practical, by barriers or otherwise, to have segregated and kept the other workers at a safe distance from the unloading operation,until it was completed. The plaintiff continued on the morning of the accident to follow the same procedure which had been tolerated by the defendants at the Collection Point for several months. 27. The plaintiff in his fifties was, like Madam Tong, simply a menial worker with far less knowledge of the risks involved in the practice which had become established at this Collection Point, than the defendants. I accept that he must have heard on earlier occasions if not on this particular morning, the warning to keep away from the parking area at least while the vehicle was being parked. I am also satisfied that he was aware that after the container was lowered the hoist had to be raised before the vehicle drove away. I find that he should have known it was necessary to exercise care during this period. I am satisfied that on this occasion the plaintiff was careless but his lack of care was far less than that of the defendants. I find that the negligence which caused the accident may properly be apportioned as to 30% on the part of the plaintiff and 70% on the part of the defendants. Quantum: 28. Turning to quantum I am satisfied that the plaintiff has sustained considerable pain and suffering and loss of amenities. Dr. Wedderburn expressly refers to the extremely arduous nature of the reimplanting operation. The reimplanted fingers Dr. Wedderburn went on to find, are useless except as an opposing force to the thumb and for cosmetic benefit. Both Dr. Wedderburn's and Dr. Yeung's reports on loss of grip support the allegation that the plaintiff is unable to use chopsticks in his preferred right hand. Other loss of amenities is also very fully supported by the detailed report of Dr. Yeung. After considering the evidence, the plaintiff's age and observing him in Court, I accept that he has not succeeded in using his left hand to hold chopsticks and must now eat only by using a spoon. I was referred to awards for pain and suffering where .a plaintiff had suffered substantial use of the preferred hand,similar to this case of $132,000, $125,000, $100,000, $90,000 and $75,000. I award $120,000. 29. The plaintiff stated that at the date of the accident he received $1500 per month from his employer, the Camy Cleaning Service Company. When he started in March 1980 he was paid & $1150 per month which sum was increased in July or August 1980 to $1500 per month. He also stated that he earned more than a further $600 per month by carrying out other tasks for residents of Fu Tao and from the proceeds of soft drink containers scavenged in the course of his work. The proprietor of the Camy Cleaning Service Company, Mr. LAI Man Yee, gave evidence. He stated that his Company's records for 1980 were no longer available but that the plaintiff was initially employed on 1st March 1980 at $1150 per month which was increased about 6 months later. He was not sure of the exact amount of the increase but stated that it would have been in the region of $1300 to $1500 per month. The original contract of employment dated 1st March 1980, signed by both employer and employee was produced which recorded that the initial wage was $1150 per month. Mr. Lai also stated that he was aware that his cleaning workers supplemented their wages by doing extra work for residents and from proceeds from scavenging. 30. On the evidence I find that the plaintiff received from his employer at the date of the accident $1500 per month and I am prepared further to find that he supplemented that wage by $600, to produce a monthly wage of 2100 per month in 1980. 31. As to current wages for cleaning workers, Counsel for the plaintiff informed the Court that the Census and Statistics Department did not have a separate category for cleaning workers but that their wages equated with watchmen. A Departmental Schedule of average wage rates for watchmen in September 1984 was produced which indicated that average monthly basic wages ranged from $1379 to $3174. These figures produce an overall average of just under $1900 per month as at September 1984. A further schedule but for different categories of employees, as at March 1986, was also produced which referred to a very wide category of "supervisory technical, clerical and miscellaneous non-production workers" with average monthly wages ranging from $4838 to $1713. The latter average wage did expressly include sanitary worker but was clearly a different category to the 1984 schedule. 32. The broad nature of these schedules and their reliance on averaging, limits any direct application to the present circumstances. However, they are consistent with Mr. Lai's evidence that the current monthly wage of a cleaning worker carrying out in 1986 the kind of work done by the plaintiff in 1980, is in the region of $2000 per month. I accept his evidence. Counsel for the plaintiff was content J to claim no similar increase for the established 1980 supplementary income of $600, submitting that the current wages of the plaintiff but for the accident, would have been $2600 per month. The median monthly wage for the 70 months since the accident, on those figures, would be $2350 per month. 33. Three matters arise relevant to whether pre-trial loss of earnings should be allowed for the whole 70 months claimed. First, whether the plaintiff was able to resume work during that period. He was in hospital from 8th November 1980 and after discharge received physiotheraphy for 6 weeks. On examination on 9th May 1981 the Medical Board reached the conclusion that his condition could not be further improved and the certification of sick leave ended. Since then he has been unable to obtain work. He has tried to obtain work. as a caretaker but failed. Attempts by the Selective Placement Service of the Labour Department to find work have also beer. unsuccessful. The right hand damaged is his preferred hand. The reimplantation of the four fingers while successful has resulted in gross distortion, substantial restriction in movement and loss of grip. The Medical Board found a total loss of function of the index finger; 70% functional loss of the middle finger; 85% of the ring finger; and 90% of little finger. The Board were satisfied that he could not return to his former job nor cope with any other open employment. It concluded that sheltered employment, if available, may be possible. These findings accord with Dr. Wedderburn's detailed report. I accept that reasonable attempts have been made to find sheltered employment but that they have been unsuccessful. 34. Earning capacity of a handicapped person,as Dr. Yeung's report records, depends on a number of factors including hand dominance, age, motivation, manual dexterity and personal adaptability. I appreciate that in absolute terms the plaintiff's right hand injury is less than the loss of the whole of the right hand. In medical terms he is not totally disabled. But his right hand is of minimal use and is also his preferred hand. In addition, his age reduces his potential degree of adaptability. Further, his personal skills limit him to manual or similar labour. After taking these practical realities into account I find that the injuries would have resulted in a total loss of income for the pre-trial period. 35. Secondly, as to whether the plaintiff would but for the accident have continued to work during the 70 month pre-trial period I record that at the date of the accident he was 52 and he is now 58 years old. Mr. Lai, his former employer, stated that a cleaning worker in good health could expect to work to about 58 and subject to continuing good health could then obtain a caretaker's job until he reached the age of 65 years. I am prepared to accept that evidence. 36. Thirdly, in cross-examination the plaintiff agreed that he had recently spent 8 months in hospital for heart and chest complaints unconnected with the accident. He also stated that in the past 2 years he suffered from rheumatism. The plaintiff stated that the hospital treatment had been successful but he was still continuing a 6 months period of medication. The defendants apparently learned, of this period in hospital because of a prior adjournment of the hearing of the action on that ground. The Court's difficulty is that there is no medical evidence in relation to any of these other matters. The only evidence is the plaintiff's statement that he was in hospital for those 8 months and that the treatment was successful. It was open to the defendants to have had the plaintiff medically examined before trial in relation to his present medical condition but that was not done. 37. In the circumstances I am left with the plaintiff's own evidence, as to the length of his period in hospital and his present condition. The law is well settled that a defendant in a personal injuries action, is entitled to have subsequent events which affect the plaintiff's condition but are unconnected with the tortious act, taken into account in his favour, if they reduce the actual loss. I infer that this particular plaintiff would in any event not have been in receipt of wages during the 8 months he spent in hospital unconnected with the accident. I deduct that period and allow 62 months of the pre-trial period at $2350 per month which amounts to $145,700. 38. Turning to loss of future earnings I record that the plaintiff has now reached the age at which I accept his employment as a cleaning worker would probably cease. Counsel for the plaintiff recognised this fact but pointed out that the probabilities were that he would have then found alternative employment as a caretaker. On that basis, it was submitted, it was reasonable to assume a future monthly income of $2000 per month. If he worked to 65 that represented a 7 year period. I was referred to a number of other cases for guidance on multipliers and it was submitted that on the ground of age alone a multiplier of 5 or 6 would be appropriate. However, Counsel for the plaintiff conceded that even though there was no medical evidence, the plaintiff's previous chest and heart complaints and his present rheumatism were to be taken into account and suggested a reduced multiplier of 4 to produce damages for future loss of earnings of $96,000. 39. Counsel for the defendants submitted that the non-accident complaints were substantial and invited me to observe the difficulty the plaintiff had in walking in Court presumably due to his admitted rheumatism. In the absence of medical evidence the difficulty is to determine to what degree those factors, to the extent they are established in evidence, affect the plaintiff's future earnings. Clearly at 58 Years of age he would in any event be nearing the end of his working life. Although there is no medical evidence on his non-accident complaints, there is the undisputed fact that, he eras recently in hospital for 8 months for chest and heart problems while his admitted rheumatism affected his mobility in Court. 40. As to earrings if the accident had not occurred, I adopt a future loss of earnings rate of $1800 per month. I record I do not take into account non-accident complaints in arriving at that figure. However, the non-accident complaints, even in the absence of medical evidence, may properly be taken into account, by reducing the multiplier I would otherwise have selected, to 3. This produces a sum of $64,800. Special damages other than pre-trial of earnings were agreed. 41. In terms of my findings and that agreement, gross damages amount to $332,157 made up as follows: GENERAL DAMAGES:
SPECIAL DAMAGES
42. I have already held that the plaintiff was 30% negligent so the gross damages have to be reduced as follows:
43. The plaintiff is entitled to interest at 2% on the net general damages for pain and suffering and loss of amenities of $84,000 from the date of service of the writ to the date of judgment. Interest on special damages from the date of the accident to judgment is also allowed at the rate of 7%. 44. From the total damages payable there must be deducted compensation under the Employees' Compensation Ordinance Cap.282. This deduction was recognised in paragraph 7 of the Statement of Claim which states that the plaintiff was awarded compensation of 349,266.66 and that the plaintiff "will give credit to the same." A certificate of the Deputy Registrar of the Kowloon District Court was produced certifying that under that Ordinance on 24th February 1982, in KDC ECC No .159/81, the plaintiff was awarded the sum of $49,266.66. At the trial Mr. Lai stated that his Company was in financial difficulties and to date only $10,284 had been paid. He then gave conflicting evidence that he would in a few months commence to pay the balance by instalments; that he had taken part in discussions over payment with the Director of Legal Aid on behalf of the plaintiff; that he understood that the plaintiff and the Director were now not going to pursue payment of the balance of $338,982.66. 45. Counsel for the plaintiff submitted that credit to the defendants should only be given for the sum of $10,284 actually received. Counsel for the defendants submitted that credit should be given for the whole sum of $49,266.66 awarded. At first that submission appeared attractive and if the plaintiff's pleading had been unambiguous the contrary submission may well not have been open to the plaintiff. However, the pleading concludes in the meaningless words "and will give credit to the same". Counsel for the plaintiff submits that there is no realistic chance of recovery of the balance from the employer and if there were the employer would have the statutory right under the Employees' Compensation Ordinance to recover the same from the defendants. I accept the latter proposition. In the circumstances I prepared to order that credit shall be given to the defendants only for the sum of $10,284 actually received. 46. There shall also be an order nisi, pursuant to Order 42 Rule 5B(6) RSC, that the costs of the action shall be paid by the defendants to the plaintiff in accordance with the Legal did Regulations to be taxed if not agreed. Unless an application is made to vary the same, such order shall become absolute, 14 days after the date of this judgment. Liberty to apply in relation to any consequential matters is reserved.
Representation: Mr. M. Bharwaney instructed by the Director of Legal Aid for the plaintiff. Mr. J. Elkinson and Mr. J. Yam, Crown Counsel, for both defendants. |