LO SIU NING v. CHAN KAI HING & LING KA KUI HCPI 301/2004

S’s words:-
I posted this case in my blog due to one major reason, that is, there are lots of useful case authorities being quoted, in particular, for the issue of PSLA that involves not only orthopaedic but also psychiatric evidence being considered.
Another interesting is that, the claim of the husband of the Plaintiff has been accepted by the Court. I am of the view that his claim should not an exceptional one of which it was not unreasonable for him to resign his work in order to take care of the Plaintiff for avoiding her suicide mind.
The judgment itself has not explained how the Court would agree that the Plaintiff could not earn more than $6,000.00 a month. Is it possible that the Court is now more willing to adopt a reasonable figure to ascertain the loss of future earnings?

--- quote from judgment ---

Date of Judgment : 31 August 2007

Interlocutory judgment on liability was obtained on 20 May 2004 with damages to be assessed.

PSLA
Mr. Lam had referred me to the following authorities and submitted that an award of HK$600,000 is appropriate.

Post-traumatic Stress Disorder and Depression
(a) Yan Kwok Yue v Dong Shu Kei Beau (High Court Personal Injuries Action No. 923 of 2000, Deputy High Court Judge Longley, 22nd January 2002, [2002] HKLJ 213) – an award of HK$500,000;
(b) Tsui Ho and Others v The Incorporated Owners of Albert House and Others (High Court Personal Injuries Action No. 828 of 1997, The Hon. Suffiad J., 17th September 2001, [2001] HKLJ 534) – an award of HK$525,000;
(c) Ng Pak Mui and Others v The Incorporated Owners of Albert House and Others (High Court Personal Injuries Action No. 828 of 1997, The Hon. Suffiad J., 17th September 2001, [2001] HKLJ 532) – an award of HK$430,000;
(d) Joan Carol Boivin v Wong King Yin and Another (High Court Personal Injuries Case No. 195 of 2000, The Hon. Suffiad J., 14th February 2001, [2001] HKLJ 171) – an award of HK$475,000;
(e) Yu Heung Yuk v Ho Man and Others (High Court Personal Injuries Action No. 57 of 1998, The Hon. Longley Deputy J., 12th August 1999, [1999] HKLRD 386) – an award of HK$440,000;

Orthopaedic Injury
(f) Yu Pun Yuen v Ng Kwok Man trading as East Mountain Engineering Company (Bankrupt) and Others (High Court Personal Injuries Action No. 293 of 2002, The Hon. Suffiad J., 9th May 2003, [2003] HKLJ 494) – an award of HK$450,000;
(g) Li Kwok Lo v Café de Coral Holdings Limited (High Court Action No. 804 of 2001, The Hon. Day Deputy J., 5th November 2002, [2002] HKLJ 723) – an award of HK$360,000; and
(h) Chow Wai Ming v Chan Yuk Charm (High Court Personal Injuries Action No. 1111 of 1996, The Hon. Woolley Deputy J., 13th October 1999, [1999] HKLJ 492) – an award of HK$300,000.

Mr. Lin, Counsel for the Defendant, referred the Court to the following authorities:

(i) Chan Sui Youn v Ng Kam Man (HCPI 533/1999, Recorder Ronny Wong, SC, 28 July 2000);
(ii) Chiu Wing Sze Karby v Chan Ying Wai (HCPI 616/1999, Deputy Judge Muttrie, 2 April 2001); and
(iii) Yung Wun v Kum Shing (K.F.) Construction Company Ltd (HCPI 679/2004, Deputy Judge Muttrie, 27 June 2007).

Mr. Lin submitted that the award under this head should not exceed $150,000.

It should be noted that, from orthopaedic view, the Plaintiff had made a good recovery from her physical injury though there is residual pain for the soft tissue injuries of the back and lower limbs.

While Dr. Wong and Dr. Chung were of the view that the Plaintiff suffered from post-traumatic stress disorder, they differed about the seriousness of depression that the Plaintiff was suffering.

I have considered the authorities cited by counsel and the disabilities suffered by the Plaintiff. In all the circumstances of this case, the reasonable and fair award under this head is $400,000.

Post-trial loss of earnings
The Plaintiff was 40 years old at the time of the accident and is now almost 45 years old.

Mr. Lam submitted that the court should adopt a multiplier of 10 and refer the court to the following authorities:

(a) Kwan Shek Sang v Chan Kam Wah trading as Wing Wah Air-Conditioning Engineering (a firm) (HCPI 872/2000, Suffiad J, 9 June 2003)
(b) Ho Shu Yau v Lo Siu Ling (formerly trading as Chi Wo Civil Engineering Company) and another (HCPI 1336/2000, Master M. Yuen, 31 January 2002)
(c) Luk Chi Yin v Wong Fung Shing (HCPI 496/1997, Deputy Judge Jackson, 6 November 1998)
(d) Sung Fuk Wah v Lam Wai Leuk (HCA 3676/1994, Master O’Donnell, 13 March 1995)

I am of the view that a multiplier of 9 is appropriate in all the circumstances of this case.

I accept Mr. Lam’s submission that the Plaintiff could earn at the most $6,000/month by reason of her disability and the conditions of the current labour market.

Loss of Earning Capacity

As Browne LJ said in Moliker v A Reyrolle & Co Ltd [1977] 1 WLR 132, 142 A-C

“The consideration of this head of damages should be made in two stages. (1) Is there a “substantial” or “real” risk that a Plaintiff will lose his present job at some time before the estimated end of his working life? (2) If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the Plaintiff will suffer if that risk materialize, having regard to the degree of the risk, the time when it may materialize, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the Plaintiff’s chances of getting a job at all, or an equally well paid job.”

It is clear that the Plaintiff is handicapped to certain extent by reasons of her residual disabilities and mental problems. I make a global award of $50,000 under this head.

Loss of earnings of the Plaintiff’s husband
Mr. Ma, who was a delivery worker earning $9,000/month, quitted his work on 18 August 2004 in order to take care of the Plaintiff and to prevent her from killing herself. Mr. Ma returned to work in October 2006.

The Plaintiff only claimed such loss for 18 months totaling $162,000 ($9,000 x 18).

I accept the evidence of Mr. Ma and find that it is reasonable for him to adopt the course as he did in order to take care of the Plaintiff.