CHOW YU v. YUEN LAM HIN AND ANOTHER

bjbj HCA003358/1978 LU 692/78 JDC 1978 No. 3358 IN THE SUPREME COURT OF HONG KONG HIGH COURT ----------------- BETWEEN CHOW YU Plaintiff YUEN LAM HIN 1st Defendant CHAN HOK CHI 2nd Defendant ----------------- Coram: Mr. Registrar Barrington-Jones in Chambers. Date of Judgment: 11th August, 1979. Mr. J.D. Campbell of D.L.A. for Plaintiff. Mr. A. law instructed by Vincent Lo & Co. for 1st & 2nd Defendants. --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- This is an assessment of damages consequent upon injuries suffered by the plaintiff when he was involved in a traffic accident on the 13th June, 1977. On the 15th November, 1978 interlocutory judgment was entered for the Plaintiff against the defendants with damages to be assessed. On admission to Princess Margaret Hospital on the date of the accident the plaintiff was found to have sustained:- Laceration of scalp over left occipital region; Fracture of tibia and fibula of both legs; Laceration and deformity over anterior aspect and tenderness of both legs. Surgical toilet, debridement, suturing of lacerations and close reduction of both legs was carried out and long leg plaster of paris applied to both lower limbs. A change of plaster was carried out on the 9th September, 1977; and on the 10th October, 1977, a bone grafting was done for the delayed union of the right tibia and fibula. The plaintiff was finally discharged from hospital on the 8th November, 1977. After his discharge the plaintiff used crutches for three months and then walked with a stick, but now walks unaided. The Plaintiff has sustained a 7/8th" shortening of the right leg and suffers restriction of movement in the right ankle, and now walks with a limp. Dr. Wedderburn in his report advises that the Plaintiff will certainly end up with some impairment, but thinks that the pain in the right leg will gradually disappear, and that the right ankle movement will improve with the passage of time. At the date of the accident the plaintiff was 37 years old, and he is now 39. Before the accident the Plaintiff was a vegetable farmer living in a hut on rented land in the New Territories, where he kept pigs and cultivated vegetables and sold piglets and vegetables. I am satisfied that his average monthly income at that time was about $4,000.00, but his monthly outgoings for rent, pig feed, services of boar, insecticide etc., amounted to $435.00 per month. After his discharge from hospital the Plaintiff returned to his small-holding where his fields were overgrown and his pig breeding abandoned, and they remained in that state until December, 1978; when the Plaintiff began cultivating again on a limited scale; the first crop being sold in February, 1979. The Plaintiff is not able to undertake pig breeding now. As Dr. Wedderburn said the Plaintiff is a determined man, and it is quite evident that he will do his best to farm his property commensurate with his disabilities. General Damages Pain, suffering and loss of amenities: I was referred to Fuk-Nui v. Lai Man Wai (1978 H.K.L.J. 256) and Goodwin v. Li & Lee (1977 H.K.L.J. 395). Leung Wai Ling, Stephen v. Tsui & anor. (H.C. 1453 of 1977 (unreported)). Pang Yau v. Cheung (1977 396) and Ng Cheung Wai v. Lau Chei (1977 H.K.L.J. 149). The Plaintiff suffered serious injuries which will to some extent be with him for the rest of his life and, he will have continuing difficulty to get around the farm and cultivate his fields. I have reflected future loss under this head. I have done this after considering Morliker v. Reyrolle (1977 (1) All E.R.9), a case which McMullin J., adverted to in the Court of Appeal in Lee Woon-sum and Wong Kin-keung and others (1976 H.K.L.R. 296). It is quite clear from the evidence that the risk arising from the plaintiff's capacity to farm in the future is extremely difficult to assess, and I am satisfied that this is not a case to apply a multiplier. I have also included an element representing partial loss of earnings from this assessment until February next year. Thus taking all the relevant factors into account I consider that the proper overall award for pain, suffering and loss of amenities should be $45,000.00. Special Damages I have assessed that the Plaintiff lost $3,565 per month from the date of the accident (13th June, 1977) until he sold his first crop in February, 1979, and I will allow that sum for the whole twenty month period. $3,565 x 20 = $71,300 I am satisfied that from February, 1979 the Plaintiff has been able to sell vegetables and thus earn $1,000.00 per month; but it is going to take another year before the plaintiff is able to bring all his fields under cultivation. I will therefore allow a loss of $2,565.00 for the period February, 1979 to June, 1979. $2,565 x 5 = $12,825.00 A total of $132.00 is claimed for Hospital fees etc. this is not disputed, and is allowed. In the result the damages payable are :- General Damages Pain suffering and loss of amenities $45,000.00 Special damages Loss of earnings $84,125.00 Hospital fees etc., $ 132.00 ----------------- $84,257.00 Total $129,257.00 =========== There will be interest on General Damages at 7% from the 2nd October, 1978 until today, and interest on the Special Damages at 4% from the 13th June, 1977 until today. The total damages are to be paid into Court within 14 days. On payment in there will be payment out to the Director of Legal Aid. The Plaintiff is entitled to the costs of the action against the defendants and of and occasioned by this assessment; to be taxed in accordance with the Legal Aid Regulations. There will also be liberty to apply. Dated this 11th day of August, 1979. (J. Barrington-Jones) Ag. Assistant Registrar. Representation: Mr. J.D. Campbell of D.L.A. for Plaintiff. Mr. A. Law instructed by Vincent Lo & Co. for 1st & 2nd Defendants. 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