Huang Xiao Chun v. 蔡榮全

HCPI 368/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 368 OF 2010

BETWEEN

Coram : Before Master K. Lo in Court

Date of Hearing : 6 February 2012 and 28 May 2012

Date of Judgment : 11 September 2012

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J U D G M E N T

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Background

1.Plaintiff claimed loss and damages for personal injury arising out of an accident on 6 August 2007 whilst he was working, in breach of conditions of stay in Hong Kong, as a visitor, for the defendant as an employee as a decoration worker at 1^st Floor, No 56 Fung Shue Wo Tsuen, Tsing Yi, New Territories.

2.Plaintiff obtained an interlocutory judgment on liability against the defendant with damages to be assessed and costs on 7 July 2011.

3.This is the hearing for assessment of damages.

4.Defendant is absent.

Injuries and treatment

5.Plaintiff said he was operating an electrical saw when its rotating blade hit the hand metal and ricocheted.  The rotating blade hit his face, resulting in facial laceration across his right forehead, eyelids, eyeball, nose and lips.

6.According to medical records before the court, after the accident, he was sent to Princess Margaret Hospital where CT scan revealed fractured right maxillary sinus and ruptured right eyeball.  He received urgent operation to suture the eyelids, facial lacerations, and repair of right eyeball.  He was discharged on 15 August 2007.

7.On 15 August 2007 and 17 August 2007, he attended Accident and Emergency Department of Queen Elizabeth Hospital and United Christian Hospital for right eye pain.  Eventually on 20 November 2007, Caritas Medical Centre removed his right eyeball and he was set to receive an orbital implant insertion.

8.On 27 March 2008, the plaintiff had reconstructions of right eye socket in Shanghai after his repatriation to Mainland in December 2007.  He was advised to undergo further operations in preparation for false eye insertion.

9.Dr Ho Sze Yuen, the plaintiff’s ophthalmologist expert in his report dated 13 September 2010 said his examination of the plaintiff on 4 August 2010 showed that the left eye of the plaintiff was normal and not injured although the plaintiff said the visual acuity of left eye was 0.4.  The right eyeball was then already removed and the empty socket was shallow.  The mucous membrane of the socket was mildly congested and there was adhesion between the lower eyelid and the mucous membrane of the surface of the socket.  Dr Ho said this was the reason why he said the false eye could not fit.

10.Dr Ho also noticed a linear scar extending from the right upper part of face to left lower part of face.  The same transected the plaintiff’s forehead, the upper and lower eyelids, nose and extended to upper lip.

11.Dr Ho said plaintiff told him that before the accident, he used to be a management staff in a shoe factory.  Dr Ho said plaintiff should be able to return to such job but he would have fewer job opportunities with only one eye and poor external appearance.

12.Dr Ho says the plaintiff retains normal ability to perform activities of daily living with reserve capacity.  He would however have impaired distance and depth perception and difficulty in driving.  He was also told by the plaintiff that he had intended to learn driving before the accident.  Dr Ho says plaintiff would also not be able to perform duties which required precise depth perception and distance judgment, as in some decoration works.  He would also have difficulty in playing ball games.

13.Plaintiff said after the accident, he had dizziness, loss of memory and concentration and headache.

14.The Certificate of Review of Assessment (Form 9) dated 4 May 2010 assessed the plaintiff as suffering from multiple injuries resulting in right eye visual loss, right face scar, nose disfigurement, post-concussional syndrome (including headache, dizziness and deterioration in memory).

15.Period of absence from 4 August 2007 to 15 August 2007, 17 September 2007 to 21 September 2007, 15 October 2007 to 17 December 2007 were also endorsed as necessary.

16.Dr Ho considered sick leave granted to the plaintiff for these periods appropriate.

17.Dr Ho also opines that the plaintiff needs at least one more operation to revise the right socket so that he can fit in the artificial eye.

18.The plaintiff said in his witness statements and in court that he had subsequently upon return to Mainland seeked treatments from various hospitals and clinics, for treatment of inflammation in the right eye socket.

19.He said, later, he attended 復旦大學附屬眼耳鼻喉科醫院 for the reconstruction of the right eye socket to facilitate insertion of his right artificial eye.  He also patronized a subsidiary of the 復旦大學附屬眼耳鼻喉科醫院 in Shanghai for the making and insertion of his artificial right eye in September 2010.

20.Plaintiff said as he was feeling uncomfortable after the insertion of the false eye in Shanghai, he later in June 2011 had another operation in 泉州醫院 removing the artificial eye and inserting another artificial eye.

21.Dr Yu Yuk Ling, plaintiff’s neurology expert conducted an examination on the plaintiff on 5 August 2010.  Dr Yu was told by plaintiff that he had lost consciousness for about 5 minutes after the accident and he later left the accident site and went outside to wait for the ambulance.  He said he passed out again in the ambulance and woke up at the Accident and Emergency Department (AED).

22.According to the A&E record, plaintiff was fully conscious and alert at the AED.  He was also able to talk to the doctors.

23.Plaintiff complained of dizziness and headache only 3 days after the accident and was admitted to United Christian Hospital.

24.He was given analgesic and anti-dizziness drugs on a need to basis.

25.Plaintiff presently still complain of headache, dizziness.  These complaints are relieved by taking analgesic or anti-dizziness drugs.  Plaintiff said he took about 15 tablets per week.  He said dizziness occurred once every 2 days with duration of each attack lasting 3 to 4 hours.  Plaintiff said he finds it difficult to concentrate and his performance in mental tasks had deteriorated.  He has become forgetful and absentminded.

26.He complained to Dr Yu that he became irritable easily and would scold his family over trivial matters.  He was frustrated about his job prospects and livelihood.  He was however independent in daily activities and could manage public transport and carry out bank transactions.

27.Dr Yu was told that prior to the accident, plaintiff used to play table tennis, badminton, basketball, soccer and volleyball.

28.Dr Yu said plaintiff had sustained a mild head injury with negligible post traumatic amnesia.

29.He noted CT brain did not show any traumatic intracranial lesion and that plaintiff’s complaints are compatible with post concussional syndrome (“PCS”).

30.Dr Yu says it is not necessary for plaintiff to receive further treatment.  He only needs to consult his family doctor for symptomatic treatment of headache and dizziness on a need basis, say 4 times in the next 12 months.  Fee for such consultation in Hong Kong is about $300.

31.Dr Yu said so far as PCS is concerned, plaintiff could resume his pre-accident employment as a decoration worker with mildly compromised work capacity.  He could also have other jobs as he had received college education, such as clerk, cashier or shop assistant.  His work capacity in these jobs are said to be mildly affected by PCS.

32.In relation to PCS, appropriate duration of sick leave is said by Dr Yu to be 6 months.

Discussion

33.As defendant did not enter appearance in these proceedings, he also did not appoint any medical expert in this case.  Both Dr Ho’s report and Dr Yu’s report were therefore unchallenged.  I have no reason not to accept their findings and expert views.

34.The scar on the face of the plaintiff was mainly on the right side and was easily visible but at a distance of about 8 feet, the nose disfigurement was not apparent.

35.The plaintiff attended the hearing alone, unaccompanied.

Pain, suffering and loss of amenities (“PSLA”)

36.Mr Dennis Law, Counsel for the plaintiff invited the court to consider the case of Kan Kwok Cheung HCPI 947/2008.

37.In that case, the plaintiff had been suffering from bilateral glaucoma with visual acuity in the left eye bearing light perception to hand movement whilst that of the right eye was 0.1 to 0.2 (ie about 50%) prior to the accident.

38.After the accident, plaintiff’s left eye deteriorated and he felt painful and there was decreased left eye vision.  He received intermittent treatments and painkillers and eye drops.  The left eye conditions deteriorated despite treatments and the left eyeball content had to be removed as a result of serious bacterial injection.  Artificial eye had to be fixed to the left eye socket for cosmetic purpose.  Plaintiff was referred to ocularist for cosmetic prosthesis and later an artificial left eye was installed.  Later, there was infection in the left eye wound, he was treated and recovered.  However, later he was presented with conjunctival lesion and exposed melpor implant with entero bacterial infection, which made the plaintiff difficult to wear the artificial eye.  He was again treated.  Repair of left conjunctival wound, revision of the left orbital implant and lid reconstruction were performed. Later, there was complication and repeated operations involving reconstruction of left eyelid with tarsoconjuntival flap and orbital reconstruction for orbital implant exposure were done.

39.Due to number of operations, the plaintiff’s left eye socket and left eyelid no longer could wear an artificial eye.  He could not accept his cosmetic appearance following loss of his left eye with sunken left eye socket and dark eyelid that were full of scars and wrinkles.

40.Plaintiff was depressed and unable to look into the mirror and had to wear sunglasses when he went out.  He lost confidence and feared discrimination by others.  He stayed at home all the time and did not want to go out.  His mood became unstable and irritable and lost temper with his wife and child. There was loss of body weight following the accident.

41.Plaintiff was also worried about deterioration of his right eye vision, as he would become totally blind.  Psychiatric medication was prescribed.

42.He was diagnosed of suffering from adjustment disorder though he had symptoms similar to those of post traumatic stress disorder and was on regular psychiatric treatment.

43.Period of sick leave in that case was 19 months and continuing.

44.In that case, Master Ng awarded the plaintiff $680,000 under this head.

45.She had considered the case of Lee Ping Foon HCPI 541 of 1997 where Master Chu (as she then was) awarded the plaintiff the sum of $600,000 under this head.  Plaintiff in that case had poor right eye vision and good eye sight in his left eye before the accident and had been working as a decoration worker.  He was injured in the good eye.  After the accident, he could only make out a blurred outline of objects in front of him.  He has not been working since then.

46.Plaintiff was hospitalized for nearly 5 weeks in total and had undergone 3 eye operations.  He was granted approximately 11½ months sick leave. Plaintiff was virtually unable to see.

47.Master Chu put plaintiff’s injuries within the category of “serious injury” since plaintiff was left with “a disability which mars his general activities and enjoyment of life”.  She also made an upward adjustment in the award to reflect the graver consequences, hence the greater suffering by the plaintiff, of the loss of the remaining good eye.

48.Master Ng in Kan Kwok Cheung had also reviewed 8 cases from Hong Kong Personal Injury Service Vol 2 paras. V [1004] – [1054.15] at pp. V/304 – V/307 J ie for total loss of vision of 1 eye together with other injuries and the PSLA awarded ranged between $450,000 to $600,000.

49.Although Mr Law did refer the court to the case of Chan To Wai v Rigid Plumbing Ltd and anor HCPI 1334/1996 (unreported, 27 January 1998) where Wang J awarded $800,000 and had ruled the injuries of the plaintiff who lost one eye and had suffered schizophrenia as a result of the accident as “gross disability”, he agreed that the injuries of the present plaintiff should fall within the “serious” category as depicted in the case of Lee Ting Lam v Leung Kam Ming (1980) HKLR 657 instead.  He agreed that the award of $800,000 in the Chan Wai To case might be out of line with the other decided cases.

50.The case of Cheng Cho Fai was also discussed in the case of Kan Kwok Cheung.  The plaintiff there suffered orthopaedic, dental, maxillofacial, ophthalmic and psychiatric injuries as a result of a traffic accident.  His left eye was sunken with double vision, enophthalmos, diplopia and ptosis of the left eye.  He had 7 operations.  He was awarded $500,000 for PSLA for the eye injury.

51.I agree that the injuries of the plaintiff in our present case falls within the “serious category”.

52.I find the case of Kan Kwok Cheung most helpful.  The injuries of the plaintiff in our present case closely resembles that of Kan although in that case, the plaintiff did not manage to have the artificial eye fixed which left Kan with a more serious cosmetic problem than the plaintiff in our case.  The court is however aware of the sizeable and noticeable scar on the face of our plaintiff here.

53.The psychiatric condition of the plaintiff in the Kan case is obviously more serious than that of the plaintiff here.  The plaintiff in Kan case also had to fear the deterioration of the remaining eye.

54.Having observed the plaintiff in court and heard his evidence and after considering the authorities, I award the sum of $600,000 under this head.

Pre-accident earnings

55.At time of accident, plaintiff was a visitor in Hong Kong and he was in breach of condition of stay when he worked for the defendant.

56.In court, plaintiff said that immediately before his trip to Hong Kong he worked as an electrician earning ¥4,500 salary per month with an extra ¥1,000 per month allowance.  He worked in Shenzhen, Zhuhai and 泉州.  He said few years back, he used to be a manager in a shoe factory earning ¥3,500 per month but he was later dismissed.

57.Plaintiff did not produce any document in support of this pre-accident employment apart from a letter dated 23 December 2010 from 深圳市建築裝飾集團有限公司 which merely said plaintiff was employed by them in year 2006, on year before he came to Hong Kong.  He explained in court that he was always paid in cash and as his company was not a formally registered company, he had no tax return to substantiate his alleged employment.

58.Strangely, when he was assessed by Dr Ho, his own ophthalmologist expert on 4 August 2010, he told Dr Ho that before the accident, he was a management staff of a shoe factory.

59.According to the section headed “Background of Mr. Huang” in Dr Ho’s report, plaintiff was said to be a decoration worker for five to six years before his joined a shoe factory as a manager and he came to Hong Kong and worked as a short term decoration worker.

60.Further on page 3 of the same report, under “Present complaints of patient”, it was said that plaintiff was dismissed by the shoe factory on his return to China in December 2007 and that he could not find another job because of poor external appearance.

61.On page 4 of the report of Dr Ho, under point 5 of the “Discussion” section, plaintiff was said to be able to resume his pre-accident job as a management staff in a shoe factory after the accident on his return to the Mainland.  It was said also that plaintiff had claimed he was dismissed because of his external appearance.

62.Plaintiff did not seek to correct or clarify the above.

63.A day later, when he was assessed by Dr Yu and he told Dr Yu that he was a decoration worker.

64.This court finds it difficult to accept plaintiff’s version 6 months later in his witness statements filed in February 2011 that his pre-accident job in Mainland was a decoration worker.

65.In court, plaintiff says his wife now work in a shoe factory on part time basis earned ¥2,500 to ¥3,000 a month.  However, when asked how much a full time worker would earn in this shoe factory, he said it would be ¥2,500 to ¥3,500, depending on the amount of work done as the worker was paid on piece basis.

66.This contradicts what he said in his witness statement where he says his wife was unemployed since July 2010.

67.Plaintiff said because of his cosmetic problem, he could now only work as a caretaker earning ¥900 to ¥1,200 a month.  He said because of his appearance, the employer would probably pay him only ¥900 per month.

68.In fact, plaintiff also told Dr Ho on 4 August 2010 that he was dismissed by the shoe factory because of his appearance and that he could not find any other job.

69.When he went to Dr Yu the next day (ie on 5 August 2010), he again told Dr Yu that despite attending job interview, he could not secure a job.

70.However, in his supplementary witness statement dated 5 September 2011, plaintiff said he was in fact employed by 深圳市建築裝飾集團有限公司 between 1 March 2010 and June 2010 earning ¥4,000 per month (¥3,500 salary and ¥500 meal allowance).  He said he was dismissed because he made mistake due to poor memory and poor eye sight.

71.Plaintiff did not explain why he related to Dr Ho and Dr Yu on 4 August 2010 and 5 August 2010 that he was unable to find any job or why he told them different pre-accident job.

72.In fact, in both the Revised Statement of Damages and the Amended Revised Statement of Damages filed on 23 March 2011 and 3 June 2011 respectively, the plaintiff maintained that he was not able to perform work duties as a decoration worker due to residual disabilities and that he could not find any gainful employment because of his external appearance and the fact that he lost 100% vision of his left eye.

73.The fact however clearly was that he, on his own admission, was still employed after the accident, whether as a shoe factory manager or as a decoration worker.

74.Dr Ho said plaintiff could return to his job in the shoe factory and Dr Yu said plaintiff could return to his job as a decoration worker.

75.At time of accident, plaintiff was said to have been paid $350 a day.  On the basis that he worked 26 days a month, he would earn $9,100 a month.

76.He would however run the risk of being arrested and sent to prison.  One would reasonably infer that his income in Mainland must be substantially less for him to run this risk.

77.It should further be noted that after plaintiff came to Hong Kong on 13 July 2007, according to him, he was only able to start work on 28 July 2007. He therefore could not work 26 days a month.

78.In the Amended Revised Statement of Damages filed on 3 June 2011, plaintiff said he used to work as a decoration worker earning ¥4,500 per month (¥150 x 30 days) and he also had an extra monthly allowance of ¥1,000 making his monthly total earnings ¥5,500.

79.Mr Law said at time of accident, the exchange rate of RMB to HK dollars and about 1.07 and therefore a monthly income of ¥5,500 as alleged by the plaintiff would be $5,885.  Considering the much higher cost of daily living in Hong Kong, the exercise appears to be unworthy.

80.Initially, plaintiff said as he met the accident on 6 August 2007, and the notional date for the trial is 7 November 2011, he said the pre-trial loss of earnings on full loss basis is: -

RMB¥5,500 x 51 months = ¥280,500

81.In view of his conflicting evidence as to pre-accident job and what he said in his supplemental witness statement, the claim is not proved.

82.On 25 February 2011, when plaintiff made his first witness statement, he mentioned that at time of accident, his wife was working part time in a factory earning ¥1,200 a month and that since January 2010 she was unemployed.

83.In court, however, he said his wife was earning ¥2,500 to ¥3,000 a month even as a part time worker although he added when asked that if one worked full time on the job, the monthly earnings would be between ¥2,500 to ¥3,500.

84.I must say I do not find plaintiff’s evidence as reliable or credible.

85.In the Amended Revised Statement of Damages, the plaintiff asked for total loss of earnings for 51 months (ie date of accident to 7 November 2011) at ¥5,500 per month = ¥280,500.

86.During the assessment hearing, Mr Law for the plaintiff initially in his submission seeked for awards under subparagraphs a), b), c) and d).

87.Later, he abandoned the claim under subparagraph (a) and the court therefore needs only to deal with items b), c) and d).

b)  Loss of earnings incidental to sick leave granted in China

(i)  3 months from 20 December 2007

88.This period of sick leave was given to the plaintiff by a doctor of the 惠安縣東園中心衛生院.  It is said to be issued as a result of the inflammation in the right eye socket after removal of right eye.  Treatment was said to be “Anti-inflammatory”.

89.It is noted that the plaintiff had his right eyeball removed in November 2007 in Hong Kong.  There is no other medical notes which explains why 3 months is appropriate and, apart from the issuer being described as a doctor of 衛生院, the court is at a loss as to the qualification, experience, and specialty (if any) of this doctor.  Further, there was no documentary evidence before this court that the plaintiff did incur any medical fee for consultations or treatment during the sick leave period.  This appears illogical because if the medical condition of the plaintiff were so serious that it warranted a 3 months sick leave, how could he manage without medical treatments during this period.

90.However, considering the fact that the right eyeball was removed in November 2007 and there are inflammation problems, I am willing to accept 2 months as reasonable.

ii)  6 months from 1 May 2008

91.Again, this period of sick leave was apparently issued by the same doctor.  The diagnosis was inflammation after orbital implant.

92.Again, there were no medical notes to explain the reason for such substantial length of sick leave.  Save for the medical record of 解放軍第180醫院眼科中心 dated 30 April 2008 and a receipt for ¥50 issued by 中國人民解放軍醫療單位專用收費票據, the plaintiff did not seem to have received medical treatment or consultation nor did he produce any documentary evidence showing that he had during this period received medical attention.

93.He only produced receipts for medical treatments between March and April of year 2008.  I do not find this six months’ period of sick leave reasonable.

iii)  1 month from 22 September 2010

94.This period of sick leave was issued by a doctor at 復旦大學附屬眼耳鼻喉科醫院 in relation to complications after the implant of the artificial eye.

95.Plaintiff did produce a number of receipts evidencing treatments received from the same hospital shortly before the sick leave certificate was issued.  I find the sick leave period reasonable.

iv)  1 month from 1 April 2008

96.In fact, the same hospital had on 1 April 2008 issued 1 month sick leave to the plaintiff.  The plaintiff was diagnosed to be suffering from the adhesion between the lower right eye lid and the inner surface of the right eye socket.

97.As said, its sick leave certificate was issued following the plaintiff receiving number of treatments from various hospitals including that of the issuing hospital in March 2008.  Plaintiff was hospitalized in the same hospital between 26 March 2008 to 1 April 2008.  I find the sick leave period reasonable.

v) hospitalization dates not covered by sick leave certificates

98.According to medical receipts produced, plaintiff was hospitalized in 復旦大學附屬眼耳鼻喉科醫院 from 26 March 2008 to 1 April 1008 (7 days), 23 May 2009 to 28 May 2009 (6 days), and 17 September 2010 to 22 September 2010 (6 days), totally 19 days.  Although these periods were not covered by sick leave certificates, plaintiff should be entitled to loss of earnings during these hospitalization periods.

99.The total sick leave period approved under subparagraph b) is therefore 4 months and 19 days.

100.Having regard to the inconsistent and conflicting evidence of the plaintiff, I find that prior to his arrival to Hong Kong, the plaintiff used to work as he told Dr Ho in a shoe factory and that he could still return to such job, although his work capacity would, as said by Dr Ho and Dr Yu be mildly affected.

101.According to Dr Yu, whom was told by the plaintiff that he was a worker in interior decoration, the plaintiff he could also return to such job, with mildly affected work capacity.

102.What was his pre-accident monthly earnings working in the shoe factory?

103.Plaintiff testified in court that in year 2005 when he worked in the shoe factory, he was earning ¥3,500 per month.  That was the only evidence I had concerning his income from work at the shoe factory.  I accept the same as his pre-accident monthly earning in Mainland.

104.As said, I am not persuaded to accept the evidence of the plaintiff, that he was earning ¥5,500 per month before he came to Hong Kong, as alleged by in the amended Revised Statement of Damages, equivalent to $5,885 (calculated at the exchange rate of ¥1 = HK$1.07 in year 2007 as Mr Law stated) that he would risk his liberty and offend the law in order to work here in Hong Kong earning $350 per day when he might not be able to find work everyday and considering the high cost of living in Hong Kong.

105.In fact, according to plaintiff’s evidence, he came to Hong Kong on 13 July 2007 and was only able to secure a job on 28 July 2007.  Although plaintiff said he was employed at $350 per day, according to paragraph 10 of his witness statement, he started his work on 28 July 2007 and up to 2 August 2007, he was only paid cash of $1,500, ie he was actually paid only $300 per day for the 5 days’ work.  If one was only to get work for 26 days a month, he would earn $7,800 per month only.  It would hardly pose an incentive to work illegally in Hong Kong had plaintiff, as he alleged, been earning $5,885 per month back in Mainland.

106.The loss of earnings under this head for 4 months and 19 days would be ¥3,500 x 4 19/30 = ¥16,216.70.

e)  Loss of earnings for pre-trial period in China from December 2007 to 6 February 2012

107.As for the period covering partial loss of earnings since the plaintiff returned to Mainland in December 2007.  This court is not informed the date when plaintiff was repatriated but that date would be after 17 December 2007 as the plaintiff had obtained loss of earnings in the Employees Compensation proceedings for that day.

108.So from 18 December 2007 up to 6 February 2012, ie 49 months and 19 days less the 4 months and 19 days aforesaid, the period under consideration is 45 months.

109.Plaintiff said in his supplemental witness statement that he earned ¥16,000 during this period.  In view of the undesirable quality of his evidence, I do not place much weight on his evidence.

110.What is the monthly earnings of the plaintiff after the accident?

111.Considering the views of the medical experts, the work capacity of the plaintiff would seem to be only mildly affected as he was said to be able to return to pre-accident jobs as he described.

112.I do not accept evidence of the plaintiff that he could only secure a caretaker job earning ¥900 a month.  In fact, according to his own evidence, he managed to return to his pre-accident job in the shoe factory earnings ¥3,500 a month or obtain a decoration job earning ¥4,000 per month.

113.It would be reasonable to expect plaintiff would be able to return to his pre-accident job earning ¥3,500 per month.  The monthly income might be reduced because of his slightly reduced work capacity.

114.I will make a 20% deduction in his income in this regard and therefore the multiplicand would be: - ¥3,500 x 20% = ¥700.

115.The loss of earnings under this item would therefore be ¥700 x 45 = ¥31,500.

116.The pre-trial loss of earnings is assessed at ¥31,500.

Value of services/loss of earnings of wife

117.Plaintiff had produced a “certificate” dated 26 February 2011 from a 名郎（福建）鞋業有限公司 which says that the plaintiff’s wife had been employed by the company as a part time worker in year 2006 earning an average monthly salary of ¥1,200.

118.It is also difficult to understand the relevance of the certificate as it only mentioned the year 2006 instead year 2007 or period covering the period after the subject accident.

119.When interviewed by Dr Ho on 4 August 2010, plaintiff told Dr Ho that he used to be the only income source of the family.  After the accident, his wife works on some low paid jobs to support the family.  The wife should therefore be unemployed at time of accident.  The authenticity of the certificate was in doubt.

120.Plaintiff’s wife did not testify in court.  The only evidence regarding her loss of income therefore came only from the plaintiff and the “certificate”.

121.I do not find the employment of the wife in the pre-accident stage proved but I am prepared to find that the wife did come to Hong Kong to look after the plaintiff immediately after the accident and also accompany the plaintiff to places including Shanghai for treatments and operations, thus incurring travelling expenses and other incidental expenses.

122.I am prepared to assess the value of gratuitous services provided by the wife at the rate of ¥1,200 per month.  This was in fact same rate as the income from the part time job of the wife alleged by the plaintiff in his first witness statement made on 25 February 2011.

123.According to evidence of the plaintiff, he was alone in late September 2010 when he went to Shanghai for treatment and for some trips prior, his wife did accompany him.  I would award a sum of ¥9,600 representing 8 months of service by the wife in looking after the plaintiff husband whilst he received operations and treatments.

124.Plaintiff also claimed ¥3,696 for expenses incurred by his wife in travelling, meals and accommodation whilst she travelled to Hong Kong and Shanghai to look after/accompany the plaintiff for treatments and operations.  Plaintiff however was only able to produce receipts for a small part of these expenses. However the sum claimed was modest and as I find these trips were made by the wife, I will allow it in full.

Future loss of earnings

125.Plaintiff was aged 42 at time of assessment hearing.

126.Mr Law invited this court to adopt a multiplier of 14.  He relied on the case of Chan Kam Hoi v Draggages et Trauaux Publics [1958] 2 HKLRD 958 in which the Court of Appeal held that 12 years was the appropriate multiplier for a man aged 45 for future earnings up to the age of 65.  This court has reviewed the authorities and finds multiplier of 13 appropriate in this case. Accordingly, loss of future earnings is ¥700 x 13 x 12 = ¥109,200.

Loss of earning capacity

127.Plaintiff claimed as a result of his injuries and disabilities he would be disadvantaged in the labour market.  He claimed loss of earnings capacity in the sum of RMB¥32,400 representing 36 months of his income as a sedentary job according to his Amended Statement of Damages.

128.As I had concluded, agreeing with the views of medical experts, that the plaintiff could return to his pre-accident job, the loss of earning capacity would merely be that he would have less jobs opportunity with only one eye and poor external appearance.  Having regard to the foregoing and having observed the plaintiff in court, I agree that the plaintiff might have longer period of unemployment between jobs.  The amount claimed by the plaintiff is ¥32,400, I find it reasonable and I allow this claim.

Future medical expenses

129.The amount claimed by the plaintiff under this head was ¥5,000.  The claim was not supported by any medical opinion.  I accept because of the artificial eye, the plaintiff might need some medical attention over the years. I will allow ¥3,000 under this head.

Special damages

Medical fee

130.The plaintiff in this Revised Statement of Damages dated 23 March 2011 claimed ¥33,131.98.  He claimed the same amount in his Amended Revised Statement of Damages dated 3 June 2011.

131.The plaintiff in his supplemental witness statement dated 5 September 2011 says that in June 2011 he had another operation in a Fujian Hospital replacing his artificial eye.  He was hospitalized for 5 days and had to attend follow-up once every 2 to 3 months.

132.He said he had incurred ¥7,000 and an extra cost of ¥3,400 for the new artificial eye.  He said there was also ¥2,500 spent on tonic food.

133.He did not produce a single document, whether medical note or receipt for any of these treatments received.  He said during quarrel, his wife had torn these documents into pieces.  He said that the hospital refused to issue duplicate documents for him despite his request.

134.In the absence of medical records or notes or sick leave certificate substantiating the existence of the operation, I am unable to accept this evidence.  Moreover, there was no medical expert evidence which supported the necessity/reasonableness of this replacement exercise.

135.It was only at the adjourned hearing that he was able to produce copy receipt from 惠安惠光眼科醫院 dated 13 June 2011 in sum of ¥10,355.

136.Coming to the claimed amount of ¥33,131.98, the plaintiff was able to produce prior to the first day of hearing receipts for medical treatments totalling ¥25,017.60 (¥8,029.64 for period 26 March 2008 to 1 April 2008, ¥8,087.88 for period 23 May 2009 to 28 May 2009 and ¥8,900.08 for period 17 September 2010 to 22 September 2010) as laid out in Table 63A of the Trial Bundle and medical fee receipts totalling ¥1,134.10 as laid out in Table 63B of the Trial Bundle, they added up to ¥26,151.70.

137.Complied with the newly produced copy receipt, the total receipted amount in support of the claim is therefore ¥26,151.70 + ¥10,355 = ¥36,506.70. As his claim under this head is only ¥33,131.98, I will allow this claim in full at ¥33,131.98.

Travelling expenses

138.As for his claim for travelling expenses in sum of ¥6,190, he only managed to produce receipts totalling ¥4,281 but, having regard to the number of treatments he had, I am prepared to award ¥6,190 as claimed.

Tonic food

139.He did not produce any receipts under this head.  Having regard to nature and extent of his injuries, I will allow $3,000 under this head.

Eye ointment fee

140.Plaintiff claimed ¥3,000 under this head.  I disallow this item as it was not supported with receipts or was it supported with medical opinion.

141.I make no award under this head.

Other related meals fee, accommodation fee and communication fee

142.This court is not prepared to make any separate award for meals and communication as I do not find it proved that these expenses were incurred as a result of the accident.

143.As for accommodation expenses, the plaintiff was able only to produce a receipt for accommodation in sum of ¥140 only.  In the absence of other receipts, this court is not satisfied that he had incurred such other expenses.

144.I award ¥140 under this head.

145.Accordingly, special damages was assessed at ¥33,131.98 + ¥3,000 + ¥140 = ¥42,461.98.

Summary

146.I summarize the awards as follows: -

147.There be interest on damages for PSLA from the date of the Writ of Summons to the date of judgment at 2% per annum and interest on special damages at half judgment rate from the date of accident to date of judgment, and thereafter at judgment rate until payment.

148.I therefore grant judgment in favour of the plaintiff against the defendant in the sum as stated above with interest thereon as set out in the above paragraph.

Costs

149.There is no reason why costs should not follow event.  I grant a costs order nisi that the defendant do pay the plaintiff costs of the assessment of damages (including all costs reserved, if any), the same to be taxed if not agreed, with certificate for counsel.  The order nisi is to be made absolute on the expiration of 14 days from the date of handing down of this assessment.

Mr. D Law instructed by Jimmie K. S. Wong & Partners, for the plaintiff

蔡榮全, the defendant, absent