Wong Yuk Seung v. Lee Tat Shu and Another

Case No.HCA 1959/1984

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA001959/1984

Action No. 1959 of 1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

WONG YUK SEUNG

Plaintiff

and

LEE TAT SHU

MA CHUN KEUNG

1st Defendant

2nd Defendant

________

Coram: The Hon. Mr. Justice Hunter.

Date of Hearing: 10th January 1985.

Date of Delivery of Judgment: 23rd January, 1985.

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JUDGMENT

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1. On 24th August 1982 a collision occurred between a van driven by the plaintiff in the course of his employment and a truck driven by the 1st defendant and owned by the 2nd defendant. The 1st defendant, who was later convicted of careless driving, has filed no defence and taken no part in these proceedings. The inference that he has no means is obvious. Unhappily the 2nd defendant's insurers are in liquidation and he was represented at the hearing by counsel instructed by the Official Receiver. Liability having now been admitted by the 2nd defendant I am concerned only with the assessment of damages.

2. The collision was head on, and the impact trapped the plaintiff in his seat. He suffered shock, lacerations and abrasions to his head and right hand, and more serious injuries to his right leg where the right femur, patella, and talus were all fractured. The fracture of the patella was so serious that it had to be removed; and the right femur had to be restored with plates and screws. His initial recovery was slow and no doubt painful. He was detained in hospital until 12th November 1982 and then underwent protracted out-patient treatment for some five months until 8th April 1983. He was not able to return to light duties as his former work until the end of July 1983. He had to return to hospital again for some five weeks in April/May 1984 for two further operations: one for the removal of the plates and screws from his femur, and the other for the removal of some foreign body from his right hand.

3. In consequence the plaintiff now suffers principally from permanent weakness in his right leg. This is shown by a wasting of the thigh muscle above the right knee of more than five centimetres. The leg functions reasonably well in normal use but sudden or special exertion exposes its shortcoming and causes pain. There must be some risk of further injury to the exposed knee joint. Taking all these circumstances into account, counsel for the 2nd defendant fairly accepted that he could not dissent from an award of $40,000 for pain suffering and loss of amenity, and I agree with him.

4. The facts and figures relating to loss of earnings past and present were by the end of the hearing not in issue and were as follows:-

(1)

Prior to his accident the plaintiff received a basic monthly wage of $2,300: normally received $1,282.75 a month for overtime working: and was entitled to a lunch allowance and to an end of year bonus. During his absence from work from 24th August 1982 to 29th July 1983 he:-

	(a)	received from his employers by way of basic salary and bonus a total of $27,432.
	(b)	lost the benefit of overtime working and his lunch allowance in the total sum of $17,542.25.
(2)	The plaintiff was dismissed from this employment for accident related reasons on 31st October 1983 and remained out of work until 10th December that year. During this period he lost $14,360.79.

	(3)	During his period in hospital in 1984 he lost $5,400.
	(4)	His present job is comparable in skill to his previous job but marginally worse paid. His loss here was agreed at $12,420.
	(5)	On 27th September 1983 an award was made in the plaintiffs favour against his original employers under the Employees Compensation Ordinance in the sum of $40,939.94. But this expressly included the said sum of $27,432 for which credit was given to the employers. Further the net balance of $13,507.54 which the employers were required to pay into court included $4,280 which was "to be paid out to the DSW being refund of TAVAS". So the additional benefit to the plaintiff from this award was $9,227.54.
	(6)	Proceedings were then instituted by the employers against the present defendants under section 25(1)(b) of the Ordinance. These were compromised on the terms of an Order of 27th July 1984 whereby:-

	(a)	the 2nd defendant made an exgratia payment to the employers of $20,000 plus a sum of costs.
	(b)	the employers were free to pursue their claim against the 1st defendant but have not done so.

5. It is in the light of these facts and figures that I have to determine the impact on this case of the proviso to section 25(1)(a) of the Employees Compensation Ordinance which requires the court to "have regard to the amount which, by virtue of paragraph (b), has become or is likely to become payable to" the former employers by the defendants herein. A literal reading of this provision would point only to the figure of $20,000 because it does not seem to me "likely" that the claim by the employers against the 1st defendant will ever be pursued. But the words used are "have regard to" not "shall deduct". The purpose of this provision is to prevent double recovery: Chan Yuk-sum v. Wong Pai-kwan (1973) HKLR 250. A broader approach therefore seems to me to be appropriate. I think I must look beyond the settlement figure, where extraneous circumstances like the insurers insolvency may well have intruded, and consider the ingredients of this award and what deduction requires to be made to avoid double recovery.

6. Taking separately the three elements in the award of $40,939.94 the position is:-

	(1)	$4,280. This, it is agreed by counsel is wholly extraneous and should not be deducted.
	(2)	$27,432.40. This was paid by the employers in any event and was never "lost" by the plaintiff. It is immaterial for the purposes of calculation whether it is brought in as part of the special damages and then deducted as part of the award; or whether it is ignored for both purposes; so long as it is not counted twice.
	(3)	$9,227.54 represents the only true benefit received by the plaintiff under this award. It is therefore in my view the only sum which falls to be deducted in any event.

7. In my judgment the proper sum to be awarded for damages in respect of loss of earnings and earning capacity is the total of the sums of $17,542.25, $14,360.79, $5,400, and $12,420 i.e. $49,723.04: less $9,227.54. This produces a total of $40,495.50. To this must be added an agreed figure of $1,500 for the remaining items of special damage.

8. Judgment must accordingly be entered for the plaintiff against both defendants in the total sum of $81,995.50 with costs.

(D.S. Hunter)

Judge of the High Court

Representation:

Mr. Kumar Ramanthan instructed by D.L.A. for Plaintiff.

Mr. Herman Poon instructed by Messrs. T.S. Tong & Co. for 2nd Defendant.