Chan Man Kit Nicky v. Mak Wah Fung
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DCPI1012/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO. 1012 OF 2008 ________________________ BETWEEN
________________________ Before: Her Honour Judge H C Wong in Court Date of Hearing: 23 November 2009 Date of Delivery of Assessment of Damages: 23 November 2009 ____________________________ ASSESSMENT OF DAMAGES ____________________________ 1.The plaintiff claims against the defendant for damages and loss arising from a traffic accident caused by the defendant on 4 July 2006 at 9.20 am. 2.The plaintiff was riding on his motorcycle on the south-bound side of the Cross Harbour Tunnel when a car in front stopped due to traffic condition, the plaintiff, therefore also stopped his motor vehicle. However, the defendant failed to stop his car and crashed into the plaintiff’s motorcycle from behind, causing the plaintiff to be thrown from his motorcycle hitting into the back of the private car in front of him. The accident resulted in the plaintiff injuring his neck and spine and damages to the motorcycle and his personal items, including his watch. 3.The defendant was convicted of careless driving on 24 October 2006 at the Eastern Magistracy. Interlocutory judgment was entered against the defendant on 5 August 2008. 4.At today’s hearing of assessment of damages the parties agree to the following compensation:
5.The issues in the dispute remaining are:
6.The parties agree that should the court consider there to be loss of future earnings, the multiplier is agreed at 15. 7.At closing submission, the plaintiff’s counsel, Mr Lam, agreed that the amount on future medical expenses, the item for payment of massages in Shenzhen, is no longer pursued. 8.The plaintiff, Mr Chan, suffered from injuries included neck, back and left knee after the accident. These injuries were confirmed by the doctors’ reports from the Queen Mary Hospital where he was admitted for four days’ treatment after the accident. Dr Ng Fu Yuen of the Department of Orthopaedic Surgery reported the following on 12 January 2007:
9.Mr Chan’s present complaint is:
10.As the parties have reached an agreement on PSLA and special damages, I shall concentrate on the disputed areas of damages; i.e., pre-trial and future loss of earnings; loss of earning capacity and future medical expenses. 11.Mr Chan is able to return to his job as the supervisor in the roast meat section of a restaurant after the accident. Though his pre-accident monthly income was $17,000 his present salary in the same job is now $16,000. He does not blame his injuries for the reduction in income and he is not claiming the difference. However, he claims he is no longer able to earn an extra $2,000 per month in his four rest days a month when he worked part-time as a lorry attendant making $500 per day. He claimed he was paid in cash at the part-time job and there were no receipts given. He claimed he would tell his bosses ahead of time his work schedule so that work arrangements could be made for him to be a lorry attendant on the Mondays or Tuesdays he took as his rest days from the restaurant. 12.After the accident he could no longer lift heavy weights including furniture and electrical equipments he would be expected to move in his job as a delivery worker or lorry attendant. 13.I refer to Dr Lam’s medical report on 11 December 2008 where he said in paragraph 2:
14.In paragraph 6 he continued:
15.Mr Chan claimed it is up to the individual to decide whether one should take up part-time work on one’s rest day. He considered he has no choice because he is married and his wife is not working. He also has an obligation to contribute to his mother’s living expenses as well as to tend to his own and his wife’s needs. He is obviously eager to increase his income by working on his rest days. 16.I notice Mr Chan has a right shoulder injury in 2002 which took him one year to recover. He also has a left knee contusion due to the 4 July 2006 accident. Though these have less impact on his person than the injury to the neck and back, they too would have a bearing on his general health condition in the long run. The pre-existing degeneration of the L5/S1 intervertebral disc with right S1 root compression evidently complicated the effects on the injuries he sustained at the 4 July 2006 accident. Though Mr Chan’s QMH doctors and Dr Lam have isolated the injuries sustained at the 4 July 2006 accident with the pre-existing degeneration of the L5/S1 intervertebral disc, the fact that he had begun to suffer from the left lower limb subjective neurological symptoms two months after the accident showed the two are not necessarily unrelated; for example, the phenomenon of the right knee feeling tender after injury to the left knee is not a strange one for most people, the reason being one relies heavily on the right leg after injury to the left leg. Therefore, instead of sharing the weight between the two limbs, the uninjured limb took most of the weight became over-stressed. These symptoms usually appear sometime after the accident. 17.For Mr Chan, his pre-existing degenerative intervertebral disc may not have affected him much until he suffered injuries to his neck, back and left knee. The strain on his already degenerated spine therefore is magnified and the degeneration increased prematurely though the doctors did not explain this in their reports. Dr Lam did not say Mr Chan was faking his discomfort or limiting his movement and complained of his symptoms at the time he was examined by Dr Lam, therefore the discomfort and pain that Mr Chan feels must be real. The onset was two months after the accident, it is close enough for an association to be made. 18.However, I agree with Mr Gidwani that Mr Chan perhaps should not be taking up part-time delivery work at all, given his condition with his back. 19.On the other hand, I am not prepared to award the $2,000 per month pre-trial loss of earnings or the future loss of earnings because I am not satisfied that he has proved he was earning $2,000 a month working part-time four days or four times a month. I am not satisfied that he has produced sufficient evidence to support this claim. There were no tax return that showed he was making $2,000 extra per month. There were no receipts from his boss and none of his delivery work employers have come forward and give evidence in court. No evidence was produced in support, therefore, I am not awarding the pre-trial loss of earnings based on the extra $2,000 for delivery work a month, nor a loss of future earning based on the extra $2,000 a month. Loss of earning capacity 20.On the other hand, I am prepared to award a sum equal to six months’ earning of Mr Chan’s pre-accident earning for his loss of earning capacity to protect him in the future should he need to seek alternative employment because I accept he has suffered in the labour market due to his injuries. Dr Lam has put it at 2% for his loss of earning capacity. The sum, therefore, is: 6 x $17,000 = $102,000. Future medical expenses 21.I am not satisfied with the massage treatments Mr Chan received in Mainland China is a recoverable item. There is no medical evidence in support that these massages are curative rather than for temporary relief and relaxation. However, due to the discomfort he is currently suffering from and the fact that he is at present undergoing a course of physiotherapy at the Queen Elizabeth Hospital, in spite of the fact there is no physiotherapist’s report produced, I accept he may require future physiotherapy and medical treatments, and to cover the future medical expenses and physiotherapy expenses, I am awarding the sum of $10,000. 22.Summary
23.Interest on special damages at half judgment rate from the date of accident to the date of judgment, interest on general damages at 2% per annum from date of writ to date of judgment, thereafter at judgment rate. 24.Cost to the plaintiff to be taxed if not agreed with certificate for counsel.
Mr Vincent Lam, instructed by Cham & Co., for the Plaintiff Mr Victor Gidwani, instructed by Messrs Deacons, for the Defendant | ||||||||||||||||||||||||||||||||||||||||
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