Lam Ngai Chung v. Cheung Wan Chuen
Read the full judgment text of HCA 12683/1983 on BabelCite. This High Court CFI judgment was delivered on 22 June 1984.
1. The Defendant Mr Cheung Wan Chuen was informed of the procedure to be adopted, his right to cross-examine, give and call evidence and to make submissions. Apart, however, from firstly explaining that the Insurance Company, which had issued a policy covering him at the time of the accident, was in liquidation and secondly making an offer of payment he took no part in the proceedings.
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HCA012683/1983
IN THE SUPREME COURT OF HONG KONG HIGH COURT BETWEEN
Coram: Master Clay in Chambers Date of Hearing: 7th May 1984 Date of Delivery: 22 June 1984 _________________________ ASSESSMENT OF DAMAGES _________________________ 1. The Defendant Mr Cheung Wan Chuen was informed of the procedure to be adopted, his right to cross-examine, give and call evidence and to make submissions. Apart, however, from firstly explaining that the Insurance Company, which had issued a policy covering him at the time of the accident, was in liquidation and secondly making an offer of payment he took no part in the proceedings. 2. On 16th July 1981 the plaintiff, who was then aged 28, was riding his motor cycle along the Tsuen Wan By-Pass when a goods vehicle owned and driven by the Defendant changed lanes and collided with him. The writ in this case was issued on 18th October 1983 and interlocutory judgment for damages to be assessed was entered on 27th January 1984. 3. Immediately after the accident the Plaintiff was taken to Princess Margaret hospital and on admission was found to have redness over his chest wall, abrasions over his right shoulder, right arm, right knee and face and an 8 cm laceration over his right forearm with a torn brachioradialis muscle. The muscle was repaired and the laceration treated by a skin graft. The plaintiff was in hospital from 10th July 1981 to 15th July 1981. Dr Wedderburn in his report dated 21.9.82 found that the Plaintiff has a superficial abrasion scar on the outside of his right knee, a small faint flat scar on his upper right chest, a 'T' shaped abrasion scar on the front of the upper arm 2½" across and 4" long stretching down in front of the right elbow, a graft scar 3" x 1 1/8 " across the front of the right forearm and a 4" x 4" scar on the right thigh, the donor area for the skin graft. The Plaintiff also complained of scattered areas of numbness on the right arm. On examination Dr Wedderburn discovered wasting of the deltoid muscle at the shoulder and found that the plaintiff could only exercise a 50 lb grip with his right and preferred hand compared with an 80 lb grip with his left hand. He also had difficulty in moving his arm away from the body against pressure of the examiner's hand. Dr Wedderburn concludes that there can be no doubt that the plaintiff injured the Branchial Plexus, the intersection of nerves in the neck and shoulder. The damage tore only a few fibres so the effects are limited both in the motor enervation of muscles and sensory distribution. The Plaintiff notices no loss of co-ordination except in the limited movements using thumb and forefinger. Dr Wedderburn considered that this condition could not have been diagnosed or even suspected at the time of the injury. Damages for Pain Suffering and Loss of Amenities 4. The Plaintiff told me that he still feels numbness because of the damage to the nerve and has restricted movement of his arm. His hand, he says, is not as good as before the accident. He told me he no longer wore 'T' shirts because of embarrassment over the scars on his arm. 5. Mr Mak referred me to one Hong Kong decision. 6. Cheung Mok Kai v Lee Hing Chuen H.C. Action 4989 of 1979 reported at H.K.L.J. 1982 Vol. 2 No. 3 Page 392 a decision of Power J. 7. The injuries referred to in this decision comprised a fracture of the forearm, some minor scaring and a slight weakness of fine finger movement. The Plaintiff was awarded $6,000. These injuries are less serious than these sustained by the Plaintiff in the present case. Mr Mak also referred me to a number of English decisions. I did not regard these as being of any more assistance than showing the general approach of the English Courts to injuries of the sort suffered by the plaintiff. I regarded them as being of no assistance in deciding the level of an award in Hong Kong. 8. The most important of the injuries sustained by the plaintiff was the damage to the nerves in his neck and shoulder and Dr Wedderburn assesses this as a 1% impairment of the whole man. 9. After taking into account the level of award in Cheung Mok Kai's case and inflation since that award I award the plaintiff $15,000 under this head. Loss of Future Earnings 10. The plaintiff called his employer Mr Hung Cheong Shing to give evidence in support of his claim both for pre-trial loss of earnings and loss of future earnings. Mr Hung proceeded to give evidence which was at variance with that of the plaintiff himself in many respects. Mr Hung's oral evidence, I noted, was in conflict with a certificate of earnings which he had supplied previously and which was annexed to the plaintiff's notice under Order 38 of the R.S.C. It was apparent that the plaintiff was but one of a number of employees of Mr Hung. The best that could be said of Mr Hung's evidence about the plaintiff was that it was vague, unsure and at times contradictory. Where the evidence of the plaintiff and Mr Hung is at variance I accept the evidence of the plaintiff. 11. The plaintiff's evidence was that before the accident he was a tailor and remains so now. In that work he usually uses his right hand; the work involves the use of scissors, sewing machines and needles. He told me that since the accident he finds difficulty in doing the job, his hand quivers when he uses needles, using scissors is more difficult and his hand and arm get tired more quickly. Now he has to work 13-15 hours to complete what before the accident took 10 hours. He described his hand as not being as deft as before the accident resulting in him doing poorer needle work than before. Because of this his employer is less confident in him and is offering less work to him. He told me that since the start of 1984 he has been earning $2,500 - $2,800 compared with his fellow employees who in the good busy part of the season have been earning $5,000. I accept the evidence of Mr Hung that a tailor in his shop at present earns $4,500 - $5,000 per month. I propose to adopt a multiplier of 14.
12. I award this sum to the plaintiff.
13. Interest on the Special Damages will be at the rate of 6.75% p.a. from the date of accident to the date of judgment and on the damages for pain suffering and loss of amenities from the date of service of the writ until judgment. 14. There will be costs to the plaintiff to be paid by the Defendant. The plaintiff's own costs will be taxed in accordance with the Legal Aid Regulations:
Representation: Appearances : Mr Mak of DLA for the plaintiff Defendant CHEUNG WAN CHUEN present unrepresented |