CHU SHUN KWOK v. LEE SAU KING

HCA000572/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO.572 OF 1976

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BETWEEN
CHU SHUN KWOK Plaintiff
and
LEE SAU KING Defendant

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Coram: Morley-John, J. in court

Date of Judgment: 28th June 1976.

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JUDGMENT

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1. This judgment relates only to the matter of the quantum of damages to be awarded to the Plaintiff, 100% liability having been admittedby the Defendant.

2. The injuries suffered by the Plaintiff arose as a result of a traffic accident which occurred on 11th August 1975. These injuriesincluded concussion, bruising, and lacerations, one of the latter has left a very noticeable scar two inches long running verticallyfrom near the margin of the left lower lip over the edge of the jaw. The Plaintiff also suffered a fracture and slight displacementof the pelvis and a serious fracture to the right arm. The fracture to the right arm was what is known as a Monteggia fracture, thatis where the ulna, i.e. the bone of the forearm on the fifth finger side is fractured and at the same time the head of the radius,that is the bone of the forearm on the thumb side is dislocated. However in this case there was the added complication that the radiusas well as being dislocated was also broken. Evidence was given that this type of fracture is very difficult to treat. The Plaintiffwas in hospital for 22 weeks.

3. So far as the fracture of the pelvis is concerned, according to the medical evidence which was not challenged, this fracture hasunited well and the Plaintiff has full movement of his hip joint, however, he is likely to develop a mild degree of osteo-arthritisof the hip but this is unlikely to develop before the age of 50 and will form an inconvenience after that age but it will not besevere and will not affect his earning capacity before the age of 65. He will have at the most a 2% disability ultimately from osteo-arthritisof the hip.

4. The most serious injury suffered by the Plaintiff was the fracture of the forearm. The dislocation of the head of the radius hasbeen reduced but intra-medullary nails still traverse the whole length of both bones. As a result of this injury the Plaintiff hasat present a marked limitation of movement of the hand at the wrist and of the fingers. He cannot fully clench his fist and the gripof his right hand is now of only two pounds’ pressure. The grip of his uninjured left hand is of eighty pounds’ pressure and theorthopaedic specialist who gave evidence estimated that the Plaintiff had a grip of about a hundred pounds from his right hand beforethe accident. The orthopaedic specialist gave it as his opinion that disability being related to a person’s earning capacity, becauseof the type of work that the Plaintiff was doing before the accident he estimated that the Plaintiff’s present disability is at least50%. However, he estimated that permanent disability would be in one year to eighteen months reduced to about 30% disability.

5. Before the accident and for a number of years the Plaintiff had been making caster-moulds for plastic toys, and not only did he makethe moulds but he also designed them, he could make moulds from his own design or from drawings. Again medical evidence was giventhat the Plaintiff will not be able to make such moulds in the future and in fact at present he cannot even hold a pencil correctlyto draw the designs to be moulded. The Plaintiff has great difficulty even in writing his own name and when asked to do so by theortho-paedic specialist he took fifty seconds to write his name, and according to the specialist the standard of writing was verypoor, equivalent to that of a seven to eight-year-old child.

6. The company for whom the Plaintiff was working before the accident very kindly re-employed him in March 1976 but merely in a supervisorycapacity, but as he is no longer able to design and make moulds his salary is $750 a month whereas before the accident the Plaintiffwas earning a monthly salary of $1,500. The orthopaedic specialist said he was very impressed by the conduct of the Plaintiff whois trying his very best to overcome his disability under conditions when many persons would just give up. He says that he thinksthat the Plaintiff’s disability will decrease but as I have said he estimates a permanent disability of 30% and although he cannotsay that the Plaintiff will never again be able to make moulds it would appear that it is highly unlikely.

7. The Plaintiff also told me that before the accident he used to paint pictures in his spare time and sometimes sell them, which issomething that he can no longer do and he also used to enjoy playing table tennis at least once a week which he cannot do any moreand also he says he dare not swim because of the injury to his right arm. The Plaintiff also says that he can now no longer drivea car.

8. With regard to loss of amenities I am in a somewhat difficult position as I have no evidence before me as to whether the Plaintiffwill ever be able to paint, play table tennis or drive a car again. The orthopaedic specialist went no further than to say that therewould be a permanent disability to the Plaintiff’s right hand of 30%.

9. As to the actual quantum of damages, so far as special damages are concerned with the exception of the first head of loss of earningsfor the months of September 1975 to February 1976 inclusive the special damages have been agreed. As to loss of earnings the Plaintiffis claiming the sum of $9,000 being six months’ salary at $1,500 per month for the months of September 1975 to February 1976 inclusive.Counsel for the Defendant submitted that from this sum should be deducted $750 as the Plaintiff had agreed in cross-examination thathe was in a similar physical condition in February when he was discharged from the hospital as he is now and therefore the Plaintiffshould have taken up employment at $750 per month in February and not waited until March. I consider this to be a petty argumentand in addition reference to the evidence of the Plaintiff’s employer will show that his offer to re-employ the Plaintiff was thatre-employment should commence on 1st March 1976. I therefore allow the Plaintiff’s claim under this head of $9,000. As I have saidall other special damages have been agreed and I therefore assess special damages in the total of $14,789.

10. As to the question of general damages the Plaintiff is a married man of 35 years of age. I have already made mention of his lossof amenities such as sports and past-times, his injuries and the time he spent in hospital. For pain and suffering and loss of amenitiesI award the Plaintiff the sum of $30,000.

11. As to the loss of future earnings my attention was called to the case of Moeliker v. A. Reyrolle & Co., Ltd. and Nicholls v. National Coalboard reported in the Times Newspaper of the 5th February 1976 and also to the case of Lee Woon v. Wong Kin Keung and others(1). However, counsel for the Plaintiff has invited me to assess damages under this head as loss of future earnings only and not to considerloss of future earning capacity. Unlike Moeliker’s Case although the Plaintiff is in employment at the date of this trial he is being employed at half his previous salary and, therefore,there is clearly an ascertainable loss that can be calculated in this case. The Plaintiff’s employer says that he is willing to continueto employ the Plaintiff in this supervisory capacity indefinitely but that he is doubtful if he will be able to increase the Plaintiff’swages in the foreseeable future, as to earn his previous higher wages the Plaintiff would have to be able to once again design andmake moulds for plastic toys. However, it would appear that the Plaintiff is assured of employment in the foreseeable future.

12. Taking all the circumstances of this case into consideration, including the age of the Plaintiff, the degrees of his disability andthe vicissitudes of life I intend to employ a multiplier of 12 and therefore assess the damage for loss of future earnings at $108,000.The total for general damages is therefore $138,000. This added to the sum awarded as special damage makes a total of $152,789 andthere will be judgment for the Plaintiff in this sum together with costs. I also award interest at the rate of 4% from the date ofthe accident to the date of the trial on the special damages awarded, and interest at the rate of 8% from the date of the serviceof the writ to the date of the trial on the award of $30,000 being the sum awarded for pain and suffering and loss of amenities.

(M. Morley-John, J.)

28th June, 1976.

Representation:

Mr. Dennis Chang instructed by (Gunston & Chow) for the Plaintiff

Mr. Wesley W.F. Wong instructed by (John Ip & Co.) for the Defendant.

(1) H.K. App. Case No. 26 of 1975.