Mak Man Wah v. Lam Tin Sung and Another

Case No.HCA 6553/1983

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA006553/1983

LU/KRD/LA 91/82 HMGS (PIL)

1983 No. 6553

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

	MAK MAN WAH	Plaintiff

	and

	LAM TIN SUNG	1st Defendant
	LEUNG CHUN FAI	2nd Defendant

Coram: Master Clay in Chambers

Date of Hearing: 16 February 1984

Date of delivery: 21 MAR 1984

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ASSESSMENT OF DAMAGES

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1. On the 5th December 1981 the Plaintiff was riding his motorcycle along Fung Mo Street when it collided with a taxi driven by the 1st Defendant and owned by the 2nd Defendant. Interlocutary judgment for damages to be assessed was entered on the 28th October 1983.

2. Following the accident the Plaintiff was admitted to the Queen Elizabeth Hospital. On admission the Plaintiff was fully conscious but with pain and tenderness over the left side of his chest and abdomen. An x-ray showed a fracture of the left seventh rib. On an emergency operation the Plaintiff's spleen was found to be ruptured and bleeding and it was removed. The Plaintiff recovered uneventfully and he was discharged from that hospital on 15th December 1981. He was then transferred to Kowloon Hospital being finally discharged from hospital on 15th January 1982.

3. The Plaintiff was examined by Dr. R.S.M. Wedderburn and a report of Dr. Wedderburn dated 31.12.82 was submitted. At the time of his examination the Plaintiff's chest pain had resolved although he occasionally had twinges of back pain at the back of his chest. From an examination of an x-ray Dr Wedderburn found a small notch on the front of the 6th Thoracic Vertebra, the region of the pain at the back of the Plaintiff's chest. He considered that the Plaintiff had a fracture of the body of the vertebra which he doubted could have been diagnosed on x-ray at the time of the accident or shortly afterwards. He confirmed that the Plaintiff had mild discomfort after meals but had learned how to minimise them. He did not consider that there will be any permanent impairment.

Damages for Pain Suffering and Permanent Disability

4. Mr Leung referred to four decisions where similar injuries were sustained. The most recent being Chan Yuet Ling H.C.A. 3545 of 1981 a decision of Mr Justice Hooper. In that case a Plaintiff who had suffered injuries which were more serious than the Plaintiff's here was awarded $20,000 under this head. The other cases referred to by Mr Leung were some 10 years old and I therefore regard Chan Yuet Ling's case as being of the most assistance. Mr Leung urged me that bearing in mind the extent of the Plaintiff's injuries and the effect on awards of the decision of the Court of Appeal in the case of Li Ping Sum that the proper award for the Plaintiff is $20,000. I agree with that and award $20,000.

Special Damages

(a) Loss of Earnings

	Mr Leung has described this as the most problematic of the Plaintiff's claims and so it is. At the time of the accident the Plaintiff had two jobs, a day time job and an evening job - a not uncommon situation in Hong Kong. During the day time, he was employed as a Courier and during the evening he delivered video tapes. For the former he was earning $2,000 per month and for the latter $2,200 per month. The Plaintiff returned to work for the daytime employer on 22nd May 1982 but has not so far returned to working in the evening. The Plaintiff told me that he has not returned to his evening job as that job was quite heavy and heavy work leads to him having a breathing problem. He told me that he had tried to get work after 6 p.m., had found a job with a Cloth Company but he could not do the work as it was too heavy. He also told me that he was not working between 16 February 1982 and 22nd May 1982 although during that period he had no sick leave certificate.
	Mr Leung has submitted that the Plaintiff is entitled to claim for loss of earnings for the period he was actually off work notwithstanding his failure to obtain sick leave certificates. I do not agree; if the plaintiff were as ill as his evidence suggests during that period he would have needed to see a doctor and could easily have obtained a sick leave certificate.
	Secondly Mr Leung submits that the Plaintiff should be entitled to claim for future loss of earnings in respect of the evening job. The Plaintiff at the time of Assessment is 27 and the multiplier should therefore be 15. However I note the opinion of Dr Wedderburn that firstly the Plaintiff will not have any permanent impairment and that he noted at the time of his report that the Plaintiff did not then feel fit to resume evening work but the Doctor thought it probable that the Plaintiff in one year's time could resume this extra work without difficulty.
	I am prepared therefore to allow the Plaintiff loss of earnings in respect of the evening job from the date of the accident to 31st December 1983 only.
	I therefore assess the Plaintiff's loss of earnings as follows:-
	1) Day job - $2,000 × 2½ months = $5,000.
	2) Evening job - $2,200 × 24½ months = $53,900

	(b)	Hospital Expenses
		The Plaintiff has produced receipts for $50 and I allow this sum.
	(c)	Travelling Expenses
		The Plaintiff has justified his claim for $507 and I allow this.
	(d)	Bonesetter's Fees
		I allow the sum of $266 claimed.
	(e)	Tonic food
		I allow the sum claimed.
	(f)	Damaged watch and clothing
		I allow these sums.
	(g)	Baby sitting expenses
		The Plaintiff has claimed the cost of employing an amah at $800 per month for 4 months to look after the Plaintiff's infant child. The justification advanced by the Plaintiff for this was that his wife had to devote her full time and care to him. I see no justification in the evidence for this. I can see that during the period the Plaintiff was in hospital if parents and friends were unable to look after the baby someone would have to be employed for visits to hospital and so on. I am therefore prepared to allow a sum of $600 for that period.

Summary
General Damages

	Pain and Suffering	$20,000
Special Damages

	Loss of earning	$58,900
	Hospital Expenses	187
	Travelling Expenses	507
	Bonesetter's fees	266
	Tonic food	2,500
	Seiko watch	350
	Damaged clothing	380
	Baby sitting expenses	600
		______
		$83,690
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5. There will be interest on the General Damages at the rate of 2% from the date of issue of the writ to judgment and on the special damages at 5.5% per annum from the date of accident until judgment. There will be an Order for payment of the Plaintiff's Costs by the Defendants with a certificate for counsel and for the Plaintiff's own costs to be taxed under the Legal Aid Regulations.

(S.A.M. Clay)

Master

Representation:

Appearances: Mr F. Leung instructed by DLA for Plaintiff

Defendants present in person