Fok Shu Woon v. Katherine Poon Ling-yee and Another

Case No.HCA 290/1978

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA000290/1978

1978, No. 290

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN
	FOK SHU WOON	Plaintiff
	and
	KATHERINE POON LING-YEE	1st Defendant
	JONG KIN-SHUM	2nd Defendant

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Coram: Mr. Registrar Barnett in Chambers.

Date of Judgment: 31st May 1978.

Mr. Herman Poon (Messrs. Johnson, Stoke & Master) for Plaintiff.

Mr. Brian De Souza (Messrs. W.S. Lo & Co.) for both Defendants.

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ASSESSMENT OF DAMAGES

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1. The Plaintiff was injured in a traffic accident while riding his motor-cycle on 19th July 1977. He was ultimately taken to Queen Elizabeth Hospital where he was detained for 2 days. He underwent an operation for repair of a ruptured left eyeball and received stitches for facial lacerations.

2. Unfortunately, after discharge from hospital the Plaintiff developed left traumatic cataract which has developed to such an extent that he now has total loss of vision in that eye. He will have to undergo a further operation during the next two or three months for the removal of the cataract. This will require regular follow-up treatment for at least one year.

3. Dr. Wong Tak-cheung gave evidence that was not seriously challenged. He rated the chances of a successful operation on the cataract as fairly high and, based on such success, he explained the handicaps that would still remain. I can do no better than quote from Dr. Wong's report dated 18th April 1978:

"	(1)	The left eye will be hypermetropic to the degree of at least 10 Dioptres and unaided visual acuity will be only about 3/60. Correction in the form of spectacle lenses is impossible because of gross imbalance between the two eyes. As a result contact lens is the only solution. Unfortunately the success rate of contact lens is only about 50% in normal individuals, and even less after eye operations.
	(2)	Even if contact lenses were successful, accommodation, i.e., the ability to alter focus for objects in various distances, will be lost. Thus there is no flexibility and the patient will only be able to see objects at a fixed distance as pre-determined by his contact lenses. For objects in all other ranges stereoscopic or three-dimensional vision will be lost. With that handicap certain occupations or activities which involve fine detail discrimination or good judgment of space or distances is out of the question.
	(3)	Any eye which has sustained penetrating injury and has been operated upon twice is invariably prone to long-term complications. He has to be followed up almost indefinitely and there is no guarantee that what has been achieved will not be lost in future due to complications.
	(4)	The patient's left eye will be plagued by frequent, relatively minor irritations for the rest of his life. These include glare, easy fatigability, congestion or redness, itchiness, gritty sensations etc."

4. Even after a successful operation, Dr. Wong assessed a residual disability of the total body at 25 - 30%.

5. The Plaintiff is aged 24, a teacher by occupation. Primarily he teaches physical education but has other subjects. He has been able to return to his former employment without any loss of earnings. As might be expected, he likes physical sports in his spare time and teaches the use of the trampoline once a week. At present he does not have the confidence to indulge in the jumping and somersaulting necessary to physical education and the trampoline. It was suggested that his confidence will return in future but in view of para. (2) of Dr. Wong's report I am of the view that the Plaintiff will not regain the confidence or ability and thus the same enjoyment and satisfaction that he had before the accident. Further, Dr. Wong recommends that the Plaintiff should not take part in ball-games.

General damages:

6. For pain, suffering and loss of amenities, I was referred to various cases in the Hong Kong Law Journal. These cases involved complete loss of an eye or included other injuries. They indicated that an award in respect of eye injuries would not exceed $60,000.

7. The most comparable case is perhaps Wong Hon v. Cheng Wai & Another (O.J.A. No. 3117 of 1975) reported at 1976 H.K.L.J. p. 387 in which I awarded $45,000 for 100% loss of vision of one eye and scarring. The injury was regarded as a 24% disability of the whole man. In the present case the Plaintiff's troubles are by no means over; he has a further operation and follow-up treatment, he will at best be constantly suffering from irritation to his eye as mentioned in para. (4) of Dr. Wong's report and he will be unable to enjoy to the full his enthusiasm and skill at physical activities.

8. The Plaintiff has some residual scarring to his face. At present the scars are not very noticeable because of the glasses he is obliged to wear. When he changes to contact lenses the scars will become noticeable but I do not consider them particularly unsightly.

9. I regard this case as more serious than Wong's case. I award $55,000.

10. I also award $12,000 for the cost of the operation and follow-up treatment and for contact lenses. Dr. Wong made a rough estimate of $7,500 in respect of the operation. If there is to be an error, it should be in favour of the Plaintiff. I have always made such awards on the basis of private treatment rather than treatment in a government hospital. This has not, so far as I am aware, been challenged. The Plaintiff will also have to bear the cost of replacing his contact lens from time to time. According to Dr. Wong, the Plaintiff will probably need a special new soft lens which costs $600 - $700.

11. Total general damages are therefore $67,000.

Special damages:

12. A total of $1,620.00 was claimed. The various items have been fully proved except for $40 in respect of loss of earnings. I award $1,580.00.

13. I award interest on the special damages at 4% from the date of the accident and interest at 8% on the general damages from the date of service of the writ.

14. A sum has been paid into court. The balance, if any, of the award and interest is to be paid to the Plaintiff's solicitors within 14 days.

15. There will be the usual order for costs on a party and party basis, with a certificate for counsel.

16. Liberty to apply.

17. Dated this 31st day of May 1978.

	(N.J. Barnett)
	Assistant Registrar

Representation:

Mr. Herman Poon (Messrs. Johnson, Stoke & Master) for Plaintiff.

Mr. Brian De Souza (Messrs. W.S. Lo & Co.) for both Defendants.