POON SUI LU v. KWONG TAI-CHOI

HCA001829/1975

1975 No. 1829

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN
POON SUI LU Plaintiff
and
KWONG TAI-CHOI Defendant

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Coram: Mr. Registrar O’Dea in Chambers.

Date of Judgment: 25th August 1977.

Mr. C.A. White of Legal Aid Department for Plaintiff.

Mr. Herman Poon instructed by Messrs. Johnson, Stokes & Master for Defendant.

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DECISION

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1. At about 12.40 a.m. on 19th August, 1972 the Plaintiff was crossing Tai Po Road in the vicinity of Tung Low Wan Village, New Territories.A private car being driven by the Defendant towards Kowloon struck the Plaintiff causing him to receive multiple injuries.

2. On the 11th May 1977 interlocutory judgment was entered for the Plaintiff against the Defendant for damages and costs to be assessedon the basis that liability be apportioned two thirds to the Plaintiff and one third to the Defendant.

3. The Plaintiff, as a result of the accident was admitted into Queen Elizabeth Hospital with injuries to his head and chest. His immediateinjuries can be categorised as follows:-

(a) Concussion;
(b) Contusion of the brain;
(c) Fracture of the left and right clavicles;
(b) Fractures of the right 2nd and 3rd ribs and the left 1st rib;
(e) Bilateral haemopneumothoraces.

4. After initial treatment he was transferred to the Thoracic Surgical Unit at Kowloon Hospital for his chest injuries and was laterreturned to the care of the Neurosurgical Unit at Queen Elizabeth Hospital. He was finally discharged from hospital on 19th October1972. The Plaintiff continued to attend out-patient clinic and also consulted several private doctors.

5. I now turn to consider the various heads of general damages claimed.

Pain, Suffering and Loss of Amenities

6. The Plaintiff undoubtedly suffered considerable pain and suffering from his injuries. The multiple fractures involved would havecaused substantial restriction of movement for some time and the head injuries have resulted in the inevitable headaches and nauseawhich are common after cerebral concussion of the degree sustained by the Plaintiff.

7. The more lasting complaints which he attributes to the accident are as follows:-

(1) Impaired function of the left shoulder and arm;
(2) Occasional headaches;
(3) Partial loss of hearing in the left ear;
(4) Coughing causing chest discomfort;
(5) Impairment of vision;
(6) Loss of memory function;
(7) General lassitude, bad temper and loss of energy.

1. The deformity of the left shoulder and arm is clearly the most serious consequence of the accident. Dr. John Hunter described thisimpairment as permanent and Dr. R.G.M. Wedderburn has assessed the restriction of movement to be equivalent to a loss of 140o of abduction or 15% impairment of the arm. Fortunately, the Plaintiff is right-handed but he will never be able to lift heavy objectsand will suffer some pain when performing simple movements such as dressing or bathing.

2. The occasional headaches complained of are a result of the combined effects of cerebral concussion and contusion. Dr. Hunter doesnot believe these will get worse and places little emphasis on them.

3. The loss of hearing to the left ear is assessed by Dr. George Choa as approximately 30% and he attributes it to the concussionsustained in the accident. There is additional slight loss of hearing to the right ear of about 10%.

8. The Plaintiff’s wife did comment that before the accident his hearing was slightly poor. Despite this I do consider that it has beensubstantially impaired as a result of the accident and damages will be assessed on that basis.

4. While the Plaintiff certainly sustained serious injuries to the chest the medical opinions obtained all speak of an improvementto a degree that complaints of pain when coughing are now negligible.

5. Dr. W.J. Heffernan examined the Plaintiff following his complaints of blurred vision and constant tiredness of his eyes. Spectacleswere prescribed and no further visual difficulties are being experienced. Dr. Heffernan considered the blurred vision as being attributableto Presbyopia which is normal in persons of the Plaintiff’s age.

6. One of the Plaintiff’s principal complaints is a loss of ability to remember things he has said or is required to do. His wifehas supported his complaint. Mr. P.N. Gilchrist carried out a psychometric evaluation and agreed there was some evidence of a milddegree of impairment in auditory short-term memory. Dr. Hunter reports after his latest examination an improvement in concentrationand memory.

7. One of the most disturbing aspects of this hearing has been the evidence of the Plaintiff’s wife who stated that since his dischargefrom hospital he has been bad-tempered and irritable. He has displayed impatience with his children and the marriage is not a happyone. I have thoroughly perused all the medical evidence before me and I cannot find any direct relationship between the accidentand this change in the Plaintiff’s behaviour pattern. It may well be that the Plaintiff has chosen to vent his frustrations on hisfamily but there is nothing to suggest that this is in any way attributable to the injuries he received.

9. As I have already found this Plaintiff suffered severe injuries in the accident. For the most part he has now recovered apart fromthe permanent loss of movement of the left shoulder and arm and the partial loss of hearing. A number of his complaints are not nowsupported by medical evidence and I am inclined to the view that he is a man who is feeling very sorry for himself and reflects thisfeeling in his relationships with his family and life in general.

10. I consider the appropriate award for damages under this head to be $35,000.00.

Loss of Future Earnings

11. The Plaintiff is now aged 43 years and is married with three children. Prior to the accident he had been employed as licensee andbook-keeper of a mahjong school earning $1,500 per month or $50 per day. He returned to this employment after the accident in themiddle of November 1972 but because of his inability to concentrate and an impairment of his memory function he was unable to resumehis book-keeping duties and his earnings were reduced to $20 per day. Sometime in November 1974 the business was transferred to anew proprietor and the Plaintiff was forced to leave this employment in October 1975. Since that time he has been employed irregularlyby his brother-in-law earning about $400 per month.

12. When Dr. Hunter examined the Plaintiff in June 1977 he reported that he thought he was capable of working in, at least, a similarcapacity to his pre-accident occupation. The Plaintiff has made little attempt since October 1975 to find steady employment. Theapproaches he has made have been extremely casual and I am satisfied on the evidence before me that had he seriously sought employmenthe would be earning an income considerably in excess to that which he now receives. I am only prepared to assess his future lossof earnings at $200 per month and I come to this finding after taking into consideration that he is not now able to assume any formof employment which involves heavy manual labour and is thus restricted in his choice.

13. Turning to the question of what multiplier is to be adopted, I have been referred to a number of cases which have determined appropriatemultipliers in circumstances such as these. Taking into account his age and the usual exigencies I consider the multiplier shouldbe 10 and I therefore assess damages for future loss of earnings at $24,000 ($200 x 10 x 12).

SPECIAL DAMAGES

(1) Loss of Wages:

14. I am satisfied that between the date of the accident and 15th November 1972 the Plaintiff is entitled to his claim for the loss ofthe wages he was receiving prior to the accident. I am also satisfied that on resuming employment a reduction in income of $20 perday can be attributed directly to the accident. The medical evidence which suggests that the Plaintiff is now able to assume similaremployment to that which he was engaged in before the accident was founded on an examination conducted shortly before this hearing.It would be fair, therefore, to allow the Plaintiff partial loss of earnings between 15th November 1972 to the date of that examinationat the rate of $20 per day.

(2) Loss of Property:

15. The Plaintiff gave evidence that at the time of the accident he was carrying $10,000 in cash, a Pentax camera valued at about $800and two Parker pens worth $100. He alleged that all these items disappeared after the accident. The cash was placed in his trouserpocket and the camera was around his neck. He stated that he intended to loan the cash to a friend and that the purpose of carryingthe camera was just to take pictures. The defendant gave evidence that after the accident the Plaintiff lay in the middle of theroad while an ambulance was called. He stated that nobody went near him. The Police arrived about 10 minutes after the accident andcarried the Plaintiff to the side of the road. A police constable searched the Plaintiff’s clothing for some form of identificationand found some documents and several dollars. The Plaintiff was then taken on board an ambulance. At no time did the Defendant seeany articles lying in the vicinity of where the Plaintiff was lying. I find it extremely difficult to imagine how such a large sumof cash could disappear unless it was actually removed from his pocket by someone at the scene. This again is unlikely as the Plaintiffwas lying in the middle of the road in full view and the Defendant maintains that nobody approached him until the Police arrived.To establish this claim the Plaintiff must satisfy me on the balance of probabilities that the cash and camera were lost as a resultof the accident. On the evidence before me I am not so satisfied and will disallow the claim for the loss of the cash, pens and camera.I will accept the Plaintiff’s claim for damage to clothing.

16. The following special damages are awarded:-

(a) Loss of wages from 19.8.72 to 15.11.72 @ $50 per day $4,300.00
(b) Loss of wages from 16.11.72 to 20.6.77 @ $20 per day $33,500.00
(c) Damage to clothing $100.00
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$37,900.00

17. All damages awarded will, of course, be reduced by two thirds in accordance with the terms of judgment as to liability.

18. Interest will be awarded on damages assessed for pain, suffering and loss of amenities at 8% p.a. from the date of service of thewrit, namely, 8th July 1976 and on special damages at 4% p.a. from the date of the accident.

19. The Plaintiff is to have one-third of the costs to be taxed in accordance with the Legal Aid Regulations.

20. Dated this 25th day of August, 1977.

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

Representation:

Mr. C.A. White of Legal Aid Department for Plaintiff.

Mr. Herman Poon instructed by Messrs. Johnson, Stokes & Master for Defendant.

1975 No. 1829

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Between
POON SUI LU Plaintiff
and
KWONG TAI-CHOI Defendant

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CORRECTION TO DECISION

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In Paragraph 3 on page 6 the words “one-third” are to be replaced by the words “two-thirds”.

In the final paragraph on page 6 the words “two-thirds” are to be replaced by the words “one-third”.

Dated the 31st day of August, 1977.

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

Representation: