Wong Shui Ming v. Yeung Chun Fai and Another
Read the full judgment text of HCA 3619/1982 on BabelCite. This High Court CFI judgment.
1. On the 23rd of October 1979 the plaintiff was crossing Chatham Road Kowloon when he was struck by a taxi driven by the 1st Defendant in the course of his employment with the 2nd Defendant. The Plaintiff was then aged 48. The writ in this action was issued on the 6th May 1982 and on the 7th October 1983 Deputy Judge Evans by consent ordered that Judgment be entered for the Plaintiff for 55% of the quantum of liability and damages to be assessed by a Master.
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HCA003619/1982 L.A. No. LA/K/RD 501/81 IN THE SUPREME COURT OF HONG KONG HIGH COURT ACTION No. 3619 OF 1982 BETWEEN
Coram: Master Clay in Chambers Hearing Dates: 12th January 1984 and 22nd February 1984 __________________________ ASSESSMENT OF DAMAGES __________________________ 1. On the 23rd of October 1979 the plaintiff was crossing Chatham Road Kowloon when he was struck by a taxi driven by the 1st Defendant in the course of his employment with the 2nd Defendant. The Plaintiff was then aged 48. The writ in this action was issued on the 6th May 1982 and on the 7th October 1983 Deputy Judge Evans by consent ordered that Judgment be entered for the Plaintiff for 55% of the quantum of liability and damages to be assessed by a Master. 2. Immediately following the accident the Plaintiff was admitted to Queen Elizabeth hospital. He was found to have sustained two fractures of the right femur, a sub-trochanteric fracture near the upper end of the bone and a second fracture of the lower end of the femur involving the knee joint. On 14 December 1979 the sub-trochanteric fracture was treated by the insertion of a nail attached to a bone plate secured to the shaft of the femur with bone screws. On 30th October 1979 the lower fracture was operated on and two bone screws secured it in position. On the 2nd April 1980 a drainage operation was carried out an abscess on the upper wound and on 19th May 1981 the plate and nail were removed. On the 12th June 1982 the screws were removed from the lower fracture site. The Plaintiff has a marked restriction of the hip joint and cannot straighten his knee. There is mild restriction of the ankle joint movement because of disuse of the leg. X-Rays carried out show there is considerable disorganisation of the femur at the upper end of the shaft and the medical condyle at the knee is broadened and the joint space is diminished and the upper surface of the Tibia, bone of the lower leg, at the knee is irregular. The Plaintiff has a marked osteo-arthritis of the knee. Pain Suffering and Loss of Amenities 3. I heard evidence from 2 doctors, Dr R.G.M. Wedderburn and Dr J.P.J. O'Donovan. Dr Wedderburn, who was called by the Plaintiff, had seen the Plaintiff on 2 occasions, firstly in May 1981 and then in April 1982. Dr O'Donovan saw the Plaintiff in December 1983. By the end of Dr O'Donovan's evidence it was apparent that there was little disagreement between the doctors. Whilst there was some difference between them as to the extent of the impairment of the knee joint and hip joint both agreed that there was an 18% impairment of the whole man with Dr Wedderburn putting permanent disability at 25%. The only other difference between the two doctors was on the question of what the Plaintiff was capable of achieving now by way of work and movement generally. 4. Dr O'Donovan considered that the Plaintiff is now capable of a greater degree of mobility than that suggested by Dr Wedderburn although both agreed that the Plaintiff will always need to walk with a stick and will feel pain if he has to walk a significant distance. Dr O'Donovan did, however, consider that the Plaintiff was capable of resuming his previous occupation as a carpenter although he did accept that if the Plaintiff was required to stand for long hours by the end of the day he would be in considerable pain. Dr Wedderburn took the view that only a simple form of repetitive work close to home could be done by the Plaintiff. Dr O'Donovan had seen the Plaintiff shortly before the hearing and in so far as the differences between the doctors are material to the assessment I accept Dr O'Donovan's views based as they were on a more recent examination of the Plaintiff. 5. Both Doctors agreed that the Osteo-Arthritis of the knee will deteriorate further and there was a chance that a further operation to fix the knee joint would be needed in the future. 6. For the Defendant Mr Leung submitted that the appropriate award under this heading is in the range of $40,000 to $65,000 after taking into account the effect of the decision of the Court of Appeal in Li Ping Sum v Chan Wai Tong and others, Civil Appeal No. 53 of 1983. He referred me to two decisions. 7. Lam Choi Tai v Kwok Man Cheung HCA 1983 No. 5114 a decision of Master Hansen given on 3rd November 1983. The Plaintiff there suffered a fracture of the neck of the femur and a hip replacement operation was performed. The Plaintiff was assessed to have a 5% impairment of the whole man and was awarded $50,000. The injuries described are less severe than in the present case. 8. Yu Shee Pui v Urban Council HKLJ 1981 415 a decision of Liu J. given on 19th May 1981 the Plaintiff suffered a fracture of the neck of the femur and was assessed to have a disability of 8%. He was awarded $50,000. The injuries were again less severe than those suffered by the Plaintiff in the present case. 9. Mr Murray for the Plaintiff urges me that this case falls within the category of serious injury as defined in Lee Ting Lam v Leung Kam Ming Civil Appeal No. 11 of 1980; i.e. where the injury leaves a disability which mars general activities and enjoyment of life but allows reasonable mobility to the victim. I note that Dr O'Donovan in his report says that "there is no doubt that the Plaintiff had suffered severe shock, several periods of severe pain, considerable worry and loss of livelihood and enjoyment of life as a result of the accident." In my view the evidence of the doctors and of the Plaintiff himself demonstrates that the Plaintiff's injuries fall within this category. After taking into account the decision in Li Ping Sum on the level of damages I award the Plaintiff $90,000 under this head. Loss of future Earnings 10. The Plaintiff told me that immediately before the accident he had been employed as a caisson worker on a casual basis with the Leung Ching Co. digging both earth and stone wells. He was paid $130 per day for a 24 day month - receiving his pay half monthly. He told me that he worked overtime but from his evidence this depended partly on whether his employer had work for him and partly on whether he felt like doing it even if it was available. There was no evidence that the overtime worked was regular. I do not therefore take overtime into account in calculating the Plaintiff's wages under this heading. 11. The Plaintiff told me that whilst caisson work was risky he did it because the pay was high and he needed the money to support his young family. He said that he intended to continue working as a caisson worker until 60. He conceded that the normal retirment age for a caisson worker would be 55 and this evidence was supported by his witness Mr Chung Shan, another caisson worker. Mr Chung however gave evidence that caisson workers in good health could and did continue working beyond the age of 60. Both the Plaintiff and Mr Chung agreed that beyond the age of 50 a caisson worker would only work about 20 days per month. Mr Chung gave evidence that in 1982 and 1983 he had been earning $170 p.d. as a caisson worker for excavating both earth and rock wells although his evidence did suggest that some employers pay workers less for excavating earth wells. Mr Chung was unable to give evidence as to rates of pay for this kind of work in 1984 as he had been unemployed since the end of 1983. 12. The plaintiff told me that he had made no attempt since the accident to find any kind of work although he conceded that his sick leave certificates had ceased in September 1982 and Social Welfare Department officers had told him to get some plastic work to do at home. The Plaintiff said that he could not do such work. 13. Mr Leung has urged me that the appropriate multiplier for this Plaintiff bearing in mind he was aged 48 at the time of the accident is 7. In Yu Shee Pui a multiplier of 8 was used for a P.L.B. driver on the basis of the late retiring age of P.L.B. drivers. Mr Leung in his calculation deducted that period in respect of which pre-trial loss of earnings would be granted from the multiplier and then arrives at the multiplicand by grossing up the Plaintiff's earnings at the date of the accident by the percentage disability in accordance with the formula used by the Court of Appeal in Li Ping Sum and then applying the reduced multiplier. On this basis Mr Leung arrives at a figure under this heading of $33,048. 14. Mr Murray on the other hand urges me that the multiplier in the special circumstances of this case should be higher at 8 or 9. He says that the Plaintiff, with his young family, had every incentive to continue working as a caisson work for as long as he could and it is therefore likely to be the case that he would work as such up to 60 albeit with a shorter working week. The Plaintiff is now 52 and I consider that the appropriate multiplier in this case is 5. 15. I now turn to consider the appropriate multiplicand. As I have indicated Mr Leung suggests that I should take the Plaintiff's monthly earnings at the date of the accident and gross them up by the disability. Mr Murray suggests a different approach, namely that I take what his monthly earnings could be expected to be now i.e. $170 x 20 i.e. $3,400 up to 60. Thereafter assuming that the Plaintiff would have returned to his previous job as a carpenter, at $120 p.d. x 20 = $2,400. He suggests that I take the figure midway between them, of $2,900 and take that as what he would be earning but for the accident, From that would have to be deducted what the Plaintiff should have been earning now. Mr Murray asks me to consider the likelihood of the Plaintiff getting work in view of the doctors evidence. He concedes that there is no evidence to support it but suggests I assume Plaintiff could earn $50 per day. On that basis the Plaintiff would earn $1,300 p.m. giving a loss of $1,600 p.m. He suggests that there is some support for this figure in the fact that the Plaintiff's evidence was that this sum was received by him from the S.W. Department. After deducting 3 full years in respect of the pre trial loss the calculation is as follows:-
16. In principle I accept Mr Murray's approach. However I cannot ignore Dr O'Donovan's evidence that the Plaintiff is capable of resuming the occupation of carpenter. That evidence suggests that the plaintiff's injuries would mean that he could not work for as long nor perform all the tasks that a healthy man could do. Evidence has been given that a carpenter would earn about $120 per day and doing the best I can I consider that the Plaintiff should be earning about $80 per day, $1,600 per month. Deducting this sum from $2,900 gives a figure of $1300. The calculation therefore is 1300 x 12 x 5 = $78,000 and I award this sum. Special Damages
Summary General Damages
Special Damages
17. In accordance with the Judgment of Deputy Judge Evans the Plaintiff is awarded 55% of this sum. There will be interest on the Special Damages at 6.75% p.a. from the date of accident to the date of final judgment and on the damages for pain suffering and loss of amenities at the rate of 2% p.a. from the date of service of the writ until judgment. 18. The costs of the Assessment have already been provided for in the judgment of Deputy Judge Evans.
Representation: Appearnces: Mr R. Murray instructed by Roger S.K. Wong & Co for the Plaintiff Mr F. Leung instructed by Messrs Woo, Kwan, Lee & Lo for the Defendants |