Cheng Chi Hong v. Lo Chi Hung
Read the full judgment text of HCPI 330/2004 on BabelCite. This High Court CFI judgment was delivered on 28 April 2005.
1. By the Statement of Claim filed herein dated 20 April 2004, the Plaintiff claimed against the Defendant for damages for personal injury, loss and damages arising out of the negligent driving of a private vehicle bearing registration number JU2622 (“the Vehicle”).
Cited by 3 cases · Cites 9 cases
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HCPI 330/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 330 OF 2004 ______________________ BETWEEN
______________________ Coram : Before Master Hui in Court Date of Hearing : 18 February 2005 Date of Judgment : 28 April 2005 ___________________________ ASSESSMENT OF DAMAGES ___________________________ Background 1.By the Statement of Claim filed herein dated 20 April 2004, the Plaintiff claimed against the Defendant for damages for personal injury, loss and damages arising out of the negligent driving of a private vehicle bearing registration number JU2622 (“the Vehicle”). 2.Interlocutory judgment on liability was obtained on 1 September 2004 with damages to be assessed. The Plaintiff’s Case 3.On or about 4 January 2002, the Plaintiff was a front seat passenger of the Vehicle driven by the Defendant. At about 0835 hours, while the Vehicle was traveling along the 2nd lane of Castle Peak Road (North Bound), the Defendant suddenly cut into the 1st lane of the said road and as a result of which the said Vehicle collided with the nearside rear of a bus. By reason thereof, the Plaintiff suffered serious injuries. 4.The Plaintiff was born on 5 October 1979. He was 23 years old when the accident took place. He was 26 at the time of this assessment. 5.After the accident, the Plaintiff was sent to the Tuen Mun Hospital where he was diagnosed to have suffered
6.Operative treatment was arranged on the same day. The right hip was reduced by open method. The bone fragment was removed and the facial laceration was sutured. The Plaintiff was discharged home on 12 January 2002. After the facial wound healed, a contracted, hypertrophic scar was found at the lateral side of his right eyebrow. 7.Thereafter, the Plaintiff received follow-up treatments at the Orthopaedic clinic of Tuen Mun Hospital until late 2003. 8.In or about November 2002, the Plaintiff started to have back pain. MRI scan revealed mild degeneration of the L4/5 and L5/S1 intervertebral disc. There was also mild disc protrusion at L4/5 level. 9.On 3 June 2004, the Plaintiff was admitted to the Anaesthetics Department of Tuen Mun Hospital to receive pain treatment for his back pain. The Plaintiff was discharged home on 7 June 2004 and is still on long term medication for pain relief. After the accident, the Plaintiff had attempted to return to work as a driver but quitted 2 days later owing to persistent back and right hip pain. 10.The Plaintiff was granted sick leave from 4 January 2002 to 26 May 2003 and from 3 June 2004 to 19 July 2004 respectively. 11.The Plaintiff complained in his Revised Statement of Damages dated 6 October 2004, that he was still suffering from
12.The Plaintiff was examined by Dr. Danny Tsoi (for the Defendant) on 19 February 2004. In his report dated 23 February 2004, Dr. Tsoi gave the following diagnosis and prognosis:
13.The Plaintiff was examined by his doctor, Dr. Lam Kwong Chin, on 26 February 2004. In his medical report dated 9 March 2004, Dr. Lam gave the following diagnosis and prognosis:
14.The Plaintiff was the only witness. He confirmed the contents of his written statement. He was unemployed after the accident. Prior to the accident, he worked as delivery worker to perform delivery of goods and manual lifting works. The goods were normally about 10 odd to 20 lb of weight. The Plaintiff complained of suffering from back pain and right hip pain after prolonged (1 to 2 hours) standing, walking or sitting. 15.The Plaintiff said that sometimes he was waken up by the pain. After the accident, he had tried to drive but the pain at his right leg nearly caused traffic accident. The Plaintiff had found a job as driver in 2003. However, he just worked for 2 days as the pain prevented him from going on with the job which involved moving goods and prolonged waiting inside a light goods vehicle. 16.It should be noted that during cross examination, the Plaintiff said that after prolong walking for 4 to 5 hours, he needed to find a place to sit down and take a rest. Further, he sat inside the Court giving evidence for more than 2 hours without feeling any discomfort since he had taken pain killers. 17.It is further not under dispute that the Plaintiff started to learn driving medium goods vehicle in May 2004 and obtained the driving licence in June 2004. However, the Plaintiff maintained that he had no intention to work as a professional driver as prolonged sitting will cause him pain. Further, the Plaintiff’s right leg will also become less dexterous and driving will be very dangerous. Pain, Suffering and Loss of Amenities 18.A surveillance video record taken on 20 May 2004 was shown in Court. It appears that the daily activities of the Plaintiff are not affected by the back/hip pain. He walked with a normal gait. 19.Mr. Hemmings, Counsel for the Defendant, submitted that the award under this head ought not exceed $250,000. The following are the authorities relied on by the Defendant.
20.Mr. Lau, Counsel for the Plaintiff relied on the following cases and submitted that an award of $400,000 was appropriate.
21.The Court when considering this head had, apart from the cases referred to by the parties, also considered Ku Chiu Chung v Tang Tin Sung, HCPI 288/2001 (20 September 2002), PSLA award $375,000
22.In all the circumstances of this case and in the light of the authorities aforementioned, the reasonable and fair award under this head is $300,000. Loss of Pre-trial Earnings 23.It is common ground that the Plaintiff worked as a driver-cum-delivery with an earning of $10,000 per month. 24.He was granted sick leave for 2 periods of time:
25.The loss of earnings for those periods are:
26.The Court has now to decide whether the Plaintiff suffered any loss for the following periods:
27.The Plaintiff accepted that he was able to earn at least $8,000 per month as a cleaner. The Defendant however contended that the Plaintiff was able to return to his pre-injury work and would have suffered no loss. 28.It should be noted that Dr. Lam (the Plaintiff’s doctor) was of the view that the Plaintiff should be able to work as a driver although he was not fit for works that need prolonged standing, weight lifting, climbing or squatting. This, however, should be read in the light of Dr. Lam’s findings and assessment that the Plaintiff had a satisfactory weight bearing capacity. According to the Plaintiff, the goods which he handled were around 10 odd lbs. That should be within the capacity of the Plaintiff. 29.Further, the Plaintiff started to learn driving medium goods vehicle in May 2004 (towards the end of the Plaintiff’s first sick leave period). Should the Plaintiff really suffer from pain which prevented him from driving, there is no reason for the Plaintiff to learn to drive medium goods vehicle at all. He well appreciated his problem – cannot stand prolonged sitting and thus cannot return to his previous job. Why should he receive training as a medium goods vehicle? In fact, the learning process might have caused him further pain. 30.For the reason aforesaid, I found that the Plaintiff was able to work as a driver and also fit to return to his previous job. In the premises, the Plaintiff is not entitled to any other pre-trial loss of earnings except as provided for hereinabove. Loss of Post-trial Earnings 31.Likewise, the Plaintiff is not entitled to any award under this head. Loss of Earning Capacity 32.The Plaintiff submitted that $128,000 is a reasonable award under this head. The Defendant contended no award should be made. 33.As Browne LJ said in Moliker v A Reyrolle & Co Ltd [1977] 1 WLR 132, 142 A-C
34.While I found that the Plaintiff was able to work as a driver, he was handicapped in various ways: not fit (i) to deliver heavy objects, (ii) for excessive climbing, squatting and lifting. By reason of these, I found that the Plaintiff had established the requisite risk to satisfy the test. 35.The Plaintiff had submitted that for the purpose of post-trial loss of earnings, the multiplier should be 16. He relied on Tang Ming Kwan v Yip Chi Ming [1986] HKLY 419 (22 at accident; 26 at trial; multiplier 16) and Ng Tat Ping v Cho Shui Leung [2001] HKLY 428 (26 at trial; multiplier 16). 36.The Court has considered some other authorities:
37.Having considered the cases, in my judgment, the reasonable multiplier in this case for loss of future earning, if any award is to be made, is 14. 38.Following the judgment of Yu Kok Wing, I use 14 as multiplier and award a sum of HK$10,000 x 14 = $140,000 under this head. Special Damages 39.It is agreed at $11,136.50. Summary of Quantum 40.In summary, the award is as follows:
Interest 41.Interest at half judgment rate will be awarded or special damages from the date of the accident to the date of judgment and thereafter at judgment rate until payment. Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment. Costs 42.I make an order nisi, to become absolute within 14 days from the date of handing down of this judgment, that the Defendant do pay the Plaintiff the costs at District Court Scale to be taxed if not agreed. Certificate to Counsel. The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.
Mr. Lau instructed by Messrs. Cheng, Yeung & Co. for the Plaintiff. Mr. Hemmings instructed by Messrs. Yip & Partners for the Defendant. |
Cases cited in this judgment