LEE MAN LEUNG v. CHOI CHUN FUNG AND ANOTHER

HCA000701/1976

1976 No. 701

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

—————–

BETWEEN
LEE MAN LEUNG alias LEE LEUNG Plaintiff
and
CHOI CHUN FUNG 1st Defendant
LEE KWOK LEUNG 2nd Defendant

—————–

Coram: Mr. Registrar O’Dea in Chambers.

Date of Judgment: 26th April 1976.

Mr. C.A. White of the Legal Aid Dept. appeared for the Plaintiff.

No appearance entered by either Defendant.

—————–

DECISION

—————–

1. On the 19th May, 1973 at about 11.30 a.m. the Plaintiff was a passenger in a goods vehicle No. AS6443 owned by the 1st Defendantand driven by the 2nd Defendant. The Plaintiff was seated on top of approximately 7 tons of goods loaded on the rear tray of thevehicle.

2. The vehicle was being driven in a southerly direction along Pokfulam Road and as it passed through the intersection with VictoriaRoad the goods on the rear tray section fell causing the Plaintiff to fall to the roadway as a result of which he received injuries.

3. No appearance was entered by either defendant and interlocutory judgment was entered against the 1st Defendant on the 23rd November,1976 and against the 2nd Defendant on the 3rd February, 1977 for damages to be assessed.

4. The Plaintiff was employed as a labourer at the time of his accident and he had been engaged in this occupation since his arrivalin Hong Kong 30 years ago.

5. He was rendered unconscious for a short time after the accident and was admitted to Queen Elizabeth Hospital where he remained for15 days. He had lacerations of the scalp which were sutured and a fractured skull. He encountered bleeding from the right ear fora month after the accident. He also sustained a partial right sided facial paralysis and a 2 inch laceration under the chin. Hisdentures were also broken as a result of his fall.

6. The fracture to the skull in the region of the right ear had two effects:-

(a) damage to the right ear;
(b) pressure on the 7th cranial nerve which supplies all the muscles of the face.

7. Apart from a comprehensive report prepared by Dr. Wedderburn there was little other medical evidence.

8. Apart from the lacerations which have now healed the Plaintiff’s injuries appear to fall under two heads, namely, partial deafnessto the right ear and damage to the facial nerve.

9. Dr. Wedderburn has assessed the loss of hearing to the right ear as being 70%. The hearing in the left ear is normal. This loss ofhearing was not regarded as being sufficiently serious to impede the Plaintiff’s ability to hear normal conversation in quiet surroundingsbut there would always be a tendency for the Plaintiff to favour his other ear and he may have some difficulty in hearing when hewas in a noisy environment.

10. The effect of the damage to the facial nerve is mainly related to the right side of the Plaintiff’s face. He cannot completely closeor raise the right eyelid but this does not interfere with his vision. Because the eyelid does not completely close, he is proneto inflammation or infection of the eye. This condition can be treated with eyedrops.

11. Dr. Wedderburn considered that the injuries should not seriously impede the Plaintiff’s earning ability although he concedes thatthere is some loss involved.

12. The permanent total disability resulting from the accident is assessed at 16%.

Special Damages:

(a) Cost of replacement of broken dentures was claimed to be $200.00. Unfortunately no receipts or bills were produced to support thisitem but the claim would appear to be reasonable and will be allowed in full.
(b) Loss of earnings:
(i) The Plaintiff has claimed $1,500 per month for total loss of earnings between 19th May, 1973 and 1st November, 1973 at $1,500 permonth. Dr. Wedderburn has concluded that the time the Plaintiff was out of work was reasonable and I am satisfied that there wasa total loss of earnings for a period of 5 ½ months at $1,500 per month or $8,250.00.
(ii) A further claim for partial loss of earnings from 1st November to 1st May 1975 @ $1,200 per month is not supported by the Plaintiff’sevidence. He has told me that since resuming his employment he has earned around $1,400 per month and accordingly there will be noaward for partial loss of earnings under this head.
(iii) As to the claim for future loss of earnings I note Dr. Wedderburn has stated that the Plaintiff has lost some earning capacity. Theevidence before me suggests that the difference in the Plaintiff’s earnings before and after the accident is approximately $300 permonth and I will accept this as being the true loss. The Plaintiff was 53 years old when he resumed employment and could expect tocontinue employment for another 8 to 12 years. The appropriate multiplier in this case appears to me to be 10. The equation willbe $300 x 12 x 10 or $36,000.

General Damages:

13. The degree of pain and suffering was considered by Dr. Wedderburn to be more in the nature of discomfort although the Plaintiff hastold me he still suffers from some dizziness if he bends over. The partial paralysis to the face does result in a possible tendencyfor the Plaintiff to be afflicted with eye infections but the principal disadvantages are of a cosmetic nature which can have littlesignificance to a 55 year old male.

14. The partial loss of deafness is going to inconvenience the Plaintiff but will cause no serious impediment to his enjoyment of life.

15. I have considered a number of cases which were referred to me and assess damages for pain, suffering and loss of amenities at $20,000.

16. In accordance with the principles laid down in Jefford v. Gee (C.A.) 1970 2 Q.B.D. at P. 146 there will be interest on the specialdamages at 4% from the 19th May, 1973 and at 8% on the general damages from the 7th September, 1976. The Plaintiff is to have hiscosts of the action and this assessment to be taxed in accordance with the Legal Aid Regulations.

17. Dated this 26th day of April, 1976.

(P.G. O’Dea)
Acting Assistant Registrar

Representation:

Mr. C.A. White of the Legal Aid Dept. appeared for the Plaintiff.

No appearance entered by either Defendant.