Re Lai Hing

HCA000385/1975

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 385 OF 1975

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Coram: Mr. Commissioner Liu, Q.C. in Court

Date of Judgment: 29th September, 1977

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JUDGMENT

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1. This is a running down case in which the Plaintiff claims against the Defendant for damages for negligence. On the 18th of February, 1972, at or about 5.30 p.m., whilst the Plaintiff was a passenger in the car driven by the deceased, he was injured in a traffic accident.

2. The deceased was subsequently prosecuted for careless driving to which he pleaded guilty, and he was fined $75 by the learned Magistrate. It is evident from the documents in Court that the deceased as defendant in the careless driving case admitted the facts laid before the learned Magistrate which formed part of the exhibit which has been produced in this Court and marked Ex. P1. In the summary of facts admitted by the deceased as defendant in the traffic prosecution case, the deceased conceded that he felt sleepy prior to the accident. It was furhter admitted by the deceased that the weather was fine and the road surface was good. The combination of these is, in my view, evidence of negligence. Apart from the conviction for careless driving and the admission of the deceased as defendant in that traffic prosecution, there is no other evidence of negligence led by or on behalf of the Plaintiff in this action. The Defence has called no evidence. In my view, there is sufficient evidence to support the Plaintiff's claim against the deceased for negligent driving of the vehicle on this particular occasion.

3. The substantial dispute between the Plaintiff and the Defendant in this action is centred on the question of damages. Negligence having been established by the Plaintiff, the Plaintiff has, by himself and/or his medical evidence, sought to establish the items of special damages as set out in paragraph 5 of the Statement of Claim some of which have duly been conceded on behalf of the Defendant. The Defence complains strongly of items 8, 12 and 13 i.e. family visits, Chinese medicine charges and extra nourishment. There was no evidence led on behalf of the Plaintiff that any of these items was necessary for the material benefit of the Plaintiff, and obviously these claims should be disallowed save for some fees impliedly paid by the Plaintiff for consultation of a certain bone surgeon, Mr. Harry Fang.

4. For damaged clothings I would allow $150. (2) The damaged wrist-watch which was repaired for several tens of dollars: to do the best I could, I would allow $40 for that. (3) Hospital expenses is admitted at $48. (4) Taxi fares from hospital to home on the day of discharge $10 was also not disputed. Item (5) Consultation fees including medical report from Dr. da Rosa at $200 is also not disputed. Item (6) X-ray fees $120 is also not challenged. Item (7) $35 at a dollar per day for 35 days during the period of the follow-up clinic after the Plaintiff's discharge has been established, and item (8) is travelling expenses for the wife to visit the Plaintiff for 24 days, which item I find no justification for, and I disallow that. Item (9) Travelling expenses for follow-up treatment as an out-patient at $3 per day for 35 days, the total $105 is supported, in my view, by the evidence led. Item (10) $15 for boat fares and taxi fare for consulting and "English" doctor is also allowed. Item (11) Medical report from Queen Elizabeth Hospital is agreed at $50. Item (12) is disallowed save for consultation fees paid, by implication, by the Plaintiff to Dr. Harry Fang which I would allow at $200. The rest claimed in that item and in the item (13) is disallowed. Item (14) Lost of earnings is agreed between the parties in this action at $25,970.

5. The Plaintiff was confined in hospital for less than a month, and he was treated as an out-patient for a little over a month. He suffered no compound fractures, and his conditions were not serious. Suffice it for me to say, from the medical report of the Queen Elizabeth Hospital, that his confinement and treatment were uneventful. Mr. Oram told the Court that his present conditions are acceptable as those that could flow from a normal operation for the injuries sustained by the Plaintiff. The surgeon told the Court that it is necessary for the Plaintiff to have a further operation the cost of which would not exceed $3,000 and that he would be required to stay in hospital for a period of about 7 days.

6. There is no evidence that the Plaintiff could not have sought medical advice for the requisite further operation earlier than the time when he finally consulted Mr. Oram in 1976, and it could have been a difficult question as to whether the Plaintiff has contributed to his present conditions.

7. However, the injuries were minor. Confinement and medical treatment were uneventful. Miss Chua agreed to loss of earnings up to the end of 1975, and the Plaintiff does not seek further loss thereafter. The present conditions of the Plaintiff's are not unexpected or exceptional. In view of the meagre estimated medical expenses of $3,000 for the further operation, delay, if any, in consulting a surgeon for the further operation loses much of its significance. However, the Plaintiff has experienced no great pain, and he should not be attached any blame for not attending at a surgeon's consultation room earlier than 1976.

8. I have been referred to divers awards in other cases, but naturally each case will have to be judged on its own merits. In view of the conditions of the Plaintiff's injuries and bearing in mind his medical history, in my view a sum of 6,000 would be sufficient to compensate for the 4% disability assessed by Mr. Oram for the injured thigh and hip. For the injury caused to the lower part of the Plaintiff's right leg, that could be remedied by a further operation at, on my assessment, $3,000 (inclusive of loss of earnings for a week). General damages would therefore be $9,000. Together with special damages which I have allowed, the award is $35,945. I award interests on the special damages at 4% per annum from the date of accident to today and on the general damages at 8% per annum from the service of the writ also to the date of judgment. The Plaintiff is to have the cost of this action against the Defendant.

Representation:

Mr. Patrick Woo instructed by Messrs. H.M. So for Plaintiff.

Miss Filan Chua instructed by Messrs. Deacons for Defendant.