|
HCA000493/1976
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
-----------------
| BETWEEN |
|
|
| |
CHO SUK CHUN |
Plaintiff |
| |
and |
|
| |
CHUNG KAI YAN |
1st Defendant |
| |
THE KOWLOON MOTOR BUS CO. (1933) LTD. |
2nd Defendant |
-----------------
Coram: Mr. Registrar Cameron in Chambers.
Date of Judgment: 27 January 1977.
Mr. F. Eddis, Counsel instructed by Messrs. H.H. Lau & Co., Solicitors for the Plaintiff.
Mr. A. Brown, Counsel instructed by Messrs. Deacons, Solicitors for the Defendants.
-----------------
DECISION
-----------------
1. On 27th January, 1975, the Plaintiff, a married female aged about 60, was a passenger in a Kowloon Motor Bus bearing the registration number AD398 owned by the 2nd Defendant and driven by the 1st Defendant. When the Plaintiff was alighting from the said bus at a bus stop at Broadway, Mei Foo Sun Chuen opposite site Stage 3, the 1st Defendant closed the door of the said bus before the Plaintiff had fully descended. The Plaintiff thereby lost balance and fell to the ground but as she was still partly trapped in the closed door she was dragged along the ground as the said bus moved away from the bus stop.
2. Judgment by consent was entered on 15th November, 1976, against the Defendants for damages to be assessed.
3. The Plaintiff was admitted to Queen Elizabeth Hospital and on examination was found to have:-
| |
(1) |
A very extensive degloving injury involving the whole of the back of her left calf exposing the underlying muscle. |
|
| |
(2) |
Bruising and tenderness of the outer aspect of her left ankle. |
|
| |
(3) |
Loss of movement of her left ankle. |
|
| |
(4) |
Fractures of upper and lower ends of left fibula. |
|
| |
(5) |
An avulsion and a split fracture of left calcaneum. |
|
| |
(6) |
A fracture of the 3rd, 4th and 5th left metatarsals. |
|
| |
(7) |
A chip fracture of proximal phalanx of left big toe. |
|
4. An operation under general anaesthesia, in which surgical toilet, debridement and open reduction with K-wire fixation of avulsion fracture of left calcaneum was done on 28th January, 1975. A second debridement was done on 8th February, 1975, due to certain patches of skin over the left calf undergoing gangrene. A third debridement and the removal of the metal wires were carried out on 18th March, 1975. On 1st April, 1975, a skin graft was done but as part of the graft was rejected a second skin graft was done on 10th May, 1975. On 13th May, 1975, the Plaintiff was transferred to Kowloon Hospital for convalescence. On 21st May, 1975, she was allowed to walk with crutches. On 25th June, 1975, she was discharged from hospital but attended at regular intervals there after as an out-patient until being re-admitted on 20th April, 1976 for a 3rd skin graft which was done on 27th April, 1976.
5. Prior to re-admission for a 3rd skin graft on 20th April, 1976, a Medical Board held at Queen Elizabeth Hospital on 22nd October, 1975, assessed the Plaintiff's incapacity as 30% based on the 1st Schedule to the Workmen's Compensation Ordinance, Cap. 282. The Board found that the Plaintiff had the following disabilities:-
| |
(1) |
Residual pain and marked deformity of the foot. |
|
| |
(2) |
Stiffness of left knee and ankle joint. |
|
| |
(3) |
Shortening of left lower limb by about one inch. |
|
6. The Plaintiff was examined by Dr. Wedderburn on 2nd March, 1976, again prior to the 3rd skin graft. The Plaintiff at this time was still using crutches as she was unable to bear weight on her left leg. On examination Dr. Wedderburn found that nearly all of the muscle of the left calf was avulsed and that the whole of the calf was covered in scars, the main scar running behind the knee to the medial side to join a scar running across the front of the knee. The scars then continued to the ankle. There were other scars and skin graft areas which covered the whole of the front and the back of the leg over the lower two-thirds of the leg. On the back of the leg just above the ankle there was an open wound which discharged constantly. There was also another small open wound on the back of the calf. The Plaintiff could only bend the hip 20o and could not completely straighten the hip so that when she lay down the leg was held bent 10o at the knee. She only had 20o of movement of the knee joint instead of 140o. She only had 20o of flexion of the ankle. Dr. Wedderburn was of the opinion that at that time the Plaintiff had a 90% impairment of the whole leg which was a 36% impairment of the whole man (woman). Now that the open wounds no longer exist he assesses her impairment at about 30%. Dr. Wedderburn also was of the opinion that if the Plaintiff were younger, she being then over 60, amputation might be advised. He did not consider it likely, however, that the Plaintiff would be able to learn now to use an artificial leg.
7. The Plaintiff spent a considerable period in Hospital mostly confined to bed. Initially, she suffered intense pain and even now her leg aches and acute pain is felt from time to time. She is unable to walk without crutches and as it seems unlikely that the movements of her hip, knee and ankle will improve, she will require to use crutches in the future. There is extensive scarring of the leg and her ankle is deformed. As a result of her injuries the Plaintiff has difficulty in doing ordinary things such as housework. She is unable to squat. She now employs an amah. Prior to the accident she gave private tuition in Chinese Literature and History. She has not resumed this tuition due, she says, to her ill-health. She can no longer drive a car.
8. As regards General Damages, I will deal with these under the following heads:-
| |
(1) |
Pain and Suffering and Loss of Amenities |
| |
|
The nature of the accident and the injuries sustained by the Plaintiff conjure up a horrifying picture. When she was admitted to the Hospital, she was conscious and suffering a lot of pain. During her fairly lengthy period of hospitalisation, some of the treatment involved considerable pain and although at present there are no open wounds she still experiences some pain which at times can be acute. |
| |
|
The Plaintiff is now severely restricted in getting about. She is unable to bear weight on her left leg and is compelled to use crutches. She is unable to drive a car although it does appear she has not driven for some time. It was suggested to her that she could use a wheelchair, but even if she did the benefits, if any, would be minimal. |
| |
|
Mr. Eddis for the Plaintiff asked me to liken her injuries to a putative above the knee amputed and indeed considered the Plaintiff in this case was worse off. Mr. Eddis referred me to the following Hong Kong cases:- |
| |
(1) |
O.J.A. 1297 of 1974. In this case the Plaintiff, a man aged 18 years, had his left leg amputated just above the knee after being knocked down and run over by an oil tanker. The Plaintiff was in hospital for nearly six months and during this time fitted with and taught to use an artificial leg. He made a better than average recovery and could walk reasonably well, manage staircases and get to his place of employment by mini bus or by walking. A sum of $55,000 was awarded for pain and suffering and loss of amenities. |
| |
(2) |
O.J.A. 819 of 1974. In this case the Plaintiff, a girl aged almost 8, had her left leg amputated below the knee. She was able to walk almost normally and could run although not smoothly. For pain and suffering and loss of amenities she was awarded $50,000. |
| |
(3) |
Action No. 863 of 1976. In this case the Plaintiff, a male aged about 50, had both legs amputated, one through the knee the other below the knee. He was fitted with artificial legs but had little confidence in them and spent most of his time in a wheelchair. There was medical evidence that if he agreed to be fitted with replacement prosthesis there was no reason why he should not achieve a great measure of mobility. He was awarded the sum of $120,000 for pain and suffering and loss of amenities. |
| |
|
Mr. Eddis also referred me to the following English cases:- |
| |
(1) |
HEWSON v. DOWNS [1970] 1, Q.B. 73 (KEMP & KEMP 10/115). In this case the Plaintiff, a male aged 66 ½, had his right leg amputated above the knee. Award for pain and suffering and loss of amenities was £4,500 equivalent to about $65,000 H.K. at the then rate of exchange. |
| |
(2) |
WILSON v. FOWLER (KEMP & KEMP 10/156). In this case the Plaintiff, a female aged 70, had her right leg amputated above the knee and was awarded General Damages of £9,850. This was in 1972 and was equivalent to about $143,000 H.K. |
| |
(3) |
NEWMAN v. TYRES (KEMP & KEMP 10/159). In this case the Plaintiff, a male aged 58, had his leg amputated through the right knee joint and was awarded General Damages of £9,000. This was in 1975 and was equivalent to about $108,000 H.K. |
| |
(4) |
HUTCHINSON v. MCKARNESS (KEMP & KEMP 10/372). In this case the Plaintiff, a female aged 49, suffered fractures of her right leg. The leg was now stiff and the foot turned outwards. She was in constant pain, left with ugly scars and leg positive disadvantage in doing housework and enjoyment of everyday life. Pain and suffering and loss of amenities was assessed at £7,500. This was in 1975 and was equivalent to about $90,000 H.K. |
| |
Mr. Allman-Brown for the Defendants submitted there was a distinction between this present case and those referred to by Mr. Eddis. He asked me to assess damages on the basis this was not an amputation case. He pointed out that a Medical Board had assessed her incapacity at 30%, a figure confirmed by Dr. Wedderburn, whereas the figure is 40% for loss of a leg below the knee. Mr. Allman-Brown stated that if I treated the Plaintiff as an amputation case she would benefit. He also referred to O.J.A. 1297 of 1974 in which CONS, J. mentioned that conventional awards in Hong Kong for pain and suffering and loss of amenities for serious and permanent injuries of the leg requiring operations but not amputation had an upper limit of $25,000 to $30,000. In fairness to Mr. Eddis he had brought this to my attention but he asked me to accept that the Plaintiff in this present case was worse off than an amputee. |
| |
From the medical evidence it appears that had an amputation been performed the Plaintiff would not be suffering as much pain and discomfort as she does now. I consider that the Medical staff of Queen Elizabeth Hospital acted properly in doing everything they could to save the limb. Dr. Wedderburn stated that he would not advise amputation now due to the Plaintiff's age and the fact she is a woman. |
| |
Having regard to the evidence and the decisions in cases involving injuries to the lower limbs, I assess damages under this head at $75,000. |
| |
(2) |
Loss of Future Earnings |
| |
|
Prior to the accident the Plaintiff was giving private tuition in her own home in Chinese Literature and History to 3 children, all of the same family. Formerly she had been a school teacher but had stopped teaching in a school since 1973. The period of tuition was 2 hours a night, 5 nights a week, 12 months a year, and for this the Plaintiff received $450 per month. She claimed that she would be unable to give tuition now due to her ill-health. She added that her memory was bad and she often fell dizzy. |
| |
|
Mr. Eddis submitted that as the Plaintiff was 60 or thereabouts she could have continued with private tuition for a long time. He suggested that a multiplier of 6 to 8 applied to an annual income of $5,000 would not be unreasonable. |
| |
|
Mr. Allman-Brown stated that there was some doubt as to the Plaintiff's true age. She had informed Dr. Wedderburn that she was 69. Her identity card which was produced showed her date of birth as being 8th September, 1915. Having seen and heard the Plaintiff, she appeared to be nearer 60 than 70. Mr. Allman-Brown also submitted that it was not certain that her monthly income would have continued at the same rate as she might not always have a family of 3 children to tutor. He suggested that the multiplier should not be as high as 6 to 8. |
| |
|
The only evidence before me that the Plaintiff can no longer continue with private tuition is her own evidence. The medical witnesses were not asked about this though because of the nature of her injuries both doctors agreed that her loss of earning capacity was 30%. The Plaintiff claimed that her memory now was poor and that she was often dizzy. During the period she gave evidence, although the accident and her injuries weighed heavily on her mind, there were no signs of either a poor memory or dizziness. I am of the opinion that once these proceedings are concluded her mental outlook will improve and as she gave private tuition in her own home, I see no reason why she cannot resume in the near future and earn what she was earning before. |
| |
|
I am therefore prepared to make only a nominal award under this head of $2,700 ($450 x 6). |
| |
(3) |
Cost of Amah |
| |
|
From the 1st of July, 1975, the Plaintiff has had the daily services of an amah. The amah does all the household chores including cooking and washing which were formerly done by the Plaintiff. The amah is paid $800 per month. She does not receive double pay at Chinese New Year. |
| |
|
Mr. Eddis for the Plaintiff submitted that $800 a month for an amah was reasonable and that the Plaintiff's condition rendered it necessary to have an amah. |
| |
|
Mr. Allman-Brown for the Defendants considered $800 a month for an amah was high and pointed out that other members of the family benefited from the employment of an amah. He also suggested that as the Plaintiff's anxiety and worry recedes there might be improvement in her mobility. |
| |
|
I do not consider that $800 a month for an amah is unreasonable nor do I consider that this sum should be reduced because other members of the family are benefiting. The Plaintiff is clearly unable to perform household chores and she has had to find someone to do these for her. The amah is only doing what the Plaintiff herself did prior to the accident. Mr. Allman-Brown's suggestion that in time the Plaintiff might become more mobile is not supported by the medical evidence. |
| |
|
I consider that a multiplier of 6 is appropriate. I therefore assess damages under this head at $800 x 12 x 6, i.e. $57,600. This takes into consideration that the payment would be a lump sum payment, the known facts and the uncertain factors or vicissitudes of life. |
| |
|
The total General Damages are therefore $135,300. |
9. As regards Special Damages, I will deal with those in the order shown in the Statement of Claim:-
| |
(a) |
Wages to Amah |
| |
|
The amah commenced service on 1st July, 1975. The sum I will allow in respect of this item is $14,000 ($800 x 17 ½ ) being the loss from 1st July, 1975 to 15th December, 1976, the date of hearing of this assessment. |
| |
(b) |
Past Loss of Income |
| |
|
Having decided that the Plaintiff should be able to resume giving tuition within 6 months of the hearing of this assessment, she is therefore entitled to receive for past loss of income the sum of $10,125 ($450 x 22 ½) being the loss from 1st February, 1975, to 15th December, 1976, the date of hearing of this assessment. |
| |
(c) |
Hospital Charges |
| |
|
The sum of $298 was claimed. Mr. Allman-Brown did not dispute this claim. The sum of $298 is therefore allowed in full. |
| |
(d) |
Medical Report Fees |
| |
|
The sum of $200 was claimed which was not disputed. The sum of $200 is therefore allowed in full. |
| |
(e) |
Traffic Expenses incurred by Plaintiff's Husband |
| |
|
The sum of $1,200 was claimed, being $8 per day for 150 days. Mr. Eddis originally wished me to increase the sum as the number of days should have been stated as 240 days. He later withdrew this and suggested the following calculation:- |
| |
|
(1) 150 days x $8, i.e. $1,200 |
| |
|
(2) 17 days x $10, i.e. $170 (to cover travelling expenses of the Plaintiff's husband when she was in hospital in April and May 1976 for the 3rd skin graft). |
| |
|
Mr. Allman-Brown agreed with this calculation. The sum of $1,370 is allowed in respect of this item. |
| |
(f) |
Traffic Expenses incurred by the Plaintiff |
| |
|
Mr. Eddis withdrew his claim in respect of this item. |
| |
(g) |
Damages to Clothing, etc. |
| |
|
A total of $1,999 was claimed in respect of this item. The three main articles were an Omega gold watch, Jade bracelet and a ring. The Plaintiff claimed she was wearing these 3 items of jewellry at the time of the accident. She was not aware of losing them but she did not have them after admission to Hospital. The value she put on these items was approximate. Whilst I am prepared to accept that she did lose these articles, I am not prepared, in view of the rather vague evidence given, to allow this item in full. The sum of $1,500 is allowed. |
| |
(h) |
Expenses incurred by Plaintiff travelling to Taiwan for treatment |
| |
|
Mr. Eddis sought to add this additional item to the Plaintiff's claim for Special Damages. The sum claimed was $4,619. |
| |
|
There is no doubt that the Plaintiff did go to Taiwan in December, 1975, accompanied by her son, that she attended the Veterans General Hospital and that she returned to Hong Kong accompanied by her husband at the beginning of January, 1976. The evidence in support of this claim was vague and unsatisfactory. It does appear that the Plaintiff went to Taiwan expressly for the purpose of obtaining medical treatment. No attempt was made, however, to show that it was necessary for the Plaintiff to go to Taiwan for treatment which could not be obtained in Hong Kong. |
10. The claim in respect of this item is disallowed.
11. The total Special Damages are therefore $27,493.
12. There will be interest at the rate of 8% on the General Damages of $75,000 from the date of the service of the Writ on the 2nd Defendant - 16th March, 1976, to today and interest at the rate of 4% on the Special Damages of $27,493 from 27th January, 1975, also to today.
13. The total damages are to be paid into Court within 14 days. On payment in there will be payment out to the Plaintiff.
14. The Plaintiff is entitled to the costs of this assessment and the action.
15. Certificate for Counsel.
16. Dated this day of January, 1977.
| |
(P.A.G. Cameron) |
| |
Assistant Registrar |
Representation:
Mr. F. Eddis, Counsel instructed by Messrs. H.H. Lau & Co., Solicitors for the Plaintiff.
Mr. A. Brown, Counsel instructed by Messrs. Deacons, Solicitors for the Defendants.
|