Chan Wai Ho v. Chow Lin Wai and Another

HCA001589/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 1589 of 1976

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Coram: Zimmern, J.

Date of Judgment: 16th May, 1977.

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JUDGMENT

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1. The Plaintiff on 29th December, 1974, was standing immediately behind a stationary car when another car driven by the 1st Defendant and owned by the second collided with it and the Plaintiff's legs were caught between the bumpers of the two cars whereby he suffered injuries. At the commencement of the hearing, Mr. Allman-Brown, for the Defendants, admitted negligence which means liability and Mr. Huang for the Plaintiff admitted 10% contributory negligence and this was accepted by Mr. Allman-Brown.

2. The injuries suffered by the Plaintiff consisted of the usual abrasions, and more seriously, compound fracture of the lower third of left tibia and compound comminuted fracture of upper end of right tibia and fibula. He was admitted to the Kwong Wah Hospital on the same day. Closed reduction and plaster of paris immobilisation of the fracture were done. While the fracture of the right leg healed satisfactorily he had a chapter of misfortunes with the fractures of his left leg. On 20th January, 1975, the reduction on his leg was found unacceptable and open reduction and internal fixation with plate and screws was done. There was found to be non-union and signs of infection. On 12th March, 1975 the screws and plate were removed and the bone curetted and full leg plaster was applied. On 17th April, 1975 he was sent to the Medical Rehabilitation Centre at Kwun Tong, was discharged on 7th August, 1975 and attended follow up clinic thereafter. But the bone infection did cause the Plaintiff serious inconvenience. Dr. Wedderburn was called by the Plaintiff and produced two reports dated 7th April, 1976 and 1st February, 1977 Exs. 3 and 4 respectively. He said in his first report:

"On the area of operation on the left leg there is a discharge of pus daily, it might clear up for a few days but would then re-open. He was sent back to the Kwong Wah on 6th August, and discharged the following day. He reported back daily to the Kwong Wah for dressings and was seen by an Orthopaedic Surgeon at weekly intervals. He was told to come back to the Hospital daily for the dressings."

In his second report he said:

"He has constant pain and discomfort in the wound but he can walk about one mile, after this he has to rest because of the pain. He has not had any episodes of generalized infection with fever, his temperature was 97.8 i.e. normal, but his pulse rate is raised to over 100 - this is due to the infection from the skin. X-Ray shows that there is a small gap in the cortex of the Tibia in the area of the wound and a small track leads to a Brodie's Abscess in the centre of the shaft. A Brodie's Abscess is an abscess in the bone and around the margins the bone is thickened, this thickening of the bone can be seen on X-Ray. The circle of dense bone is not more than 1 cm. in diameter. A Brodie's Abscess will not heal because the dense bone acts as a barrier sealing off the abscess except for the track running to the surface of the bone. This dense bone also prevents antibiotics given either by mouth or by injection from reaching the abscess so there is no means of overcoming the infection in the centre of the abscess. The appearance of a Brodie's Abscess on X-Ray is now apparent and it was not apparent in April. There is only one treatment for this abscess and that is to open up the bone and excise the abscess and the thick surrounding bone in its entirety and this would be a comparatively simple procedure. When the bone is exposed at operation a probe can be passed down the track into the abscess and it is only ½ in. from the surface. The abscess thus accurately located, the overlying cortex is opened and the abscess can be chiselled out in one small solid block. After this procedure the bone should heal rapidly."

3. Dr. Wedderburn admitted he was wrong to say there was only one treatment for the abscess and that by surgery for the bone infection eventually responded to antibiotics but the wound did not heal till April of 1977. Dr. W.J. Oram called by the Defence had examined the Plaintiff on 19th April, 1977. He produced his report Ex.5. Both he and Dr. Wedderburn are agreed that the right leg suffered a fracture through the upper tibia into the articular surface of the knee joint. Dr. Oram said that oseteo-arthritis will develop in some future years but as the patient was slightly built he saw no reason to expect much disability to occur before 40 to 50. The Plaintiff is now aged 29. Dr. Wedderburn was more emphatic and said oseteo arthritis in the knee will increase slowly but steadily and will seriously impede walking by the time he is 40.

4. The Plaintiff's present position is that he has very good movement with his right leg and not much discomfit. The impairment to his left leg is minimal. Both doctors are agreed that the injured knee joint is a weight bearing joint and would not be fit for heavy manual work or work which did not allow him to sit periodically. His left leg is badly scarred and discoloured including an ugly patch on the thigh due to skin grafting.

5. The Plaintiff is a married man and at the time of the accident had two children. He received his education in Hong Kong but only up to Primary V. He has worked in factories doing divers jobs since the age of 12. He was at one time a knitting machine operator but for sometime up to November 1974 he was employed in a factory as supervisor of the ironing section and paid a salary of $250 per month plus piece rates. In his claim for special damage he claims loss of earnings at $900 per month. In his evidence he said he was earning more but no doubt that was a bit of opportunism. At the end of November, 1974 he lost his job and to tie things over until he could find another job he ventured into hawking a week before the accident. He has not worked since the accident that is to say now for some 28 months. As I have said, he has claimed, as special damages, loss of earnings at $900 per month from 29th December, 1974. Mr. Allman-Brown suggested that over that lengthy period he could have earned if not a living certainly some money by doing some sedentary work. Perhaps he could have, but until April, 1977, his left leg was infected and discharging pus. Dr. Wedderburn said by reason of the infection he was intermittently running a fever. He could neither stand nor walk for long. He could not have held a job for long. It would have been unreasonable to say he was bound to work to mitigate his damages in that condition. Under this head I award him $900 per month for 28 months, that is $25,200. The other three items of special damages totalling $364 have been agreed by the Defence. Total special damages then comes to $25,564.

6. Turning to general damages, there is the head under pain and suffering and loss of amenities. He said he used to play football, basketball and swim. Strenuous ball games he cannot now play. The wound of his left leg did take a long time to heal. He was in pain for long periods and underwent surgery. I award him $30,000 under this head. As to his loss of capacity and future earnings counsel on his behalf argues that osteo-arthritis is a very big factor and that his knee-joint might become fixed and require replacement. Dr. Wedderburn said that the Plaintiff has a very serious anatomical abnormality of the knee and that when the knee joint replacement technique developes he might need it at a later stage. That may or may not be so and the technique may or may not develop, but what concerns me now is that here is a young man, hardly literate, who has worked since the age of 12 in factories by reason of his accident finds himself presently only fit for sedentary work. When fit he is worth $900 as a factory employee. Dr. Wedderburn says he can do any sedentary job, any job not involving a lot of walking and standing. Dr. Oram says much the same thing. No evidence was led as to the specific types of work the Plaintiff can now do and the pay such work will fetch. For example would he be fit for the job as supervisor of an ironing section, a post he held before the accident? If he is not now would he be in a few months' time when his legs have been used more than they have been since the accident. Mr. Huang suggested that his future loss amounts to two thirds. This is unrealistic. Factories abound in Hong Kong. There must be jobs, albeit sedentary, for an experienced and versatile worker like the Plaintiff. Indeed Dr. Wedderburn says the Plaintiff seems to be a good and determined character and can get over his handicap with resolution. However the field of work open to him is narrowed and he has undoubtedly lost capacity and is handicapped. I assess his loss of future earnings at $200 per month. This is a case for a multiplier of 15. At $2,400 per year this comes to $36,000 which with the award of $30,000 makes $66,000.

7. There will be judgment for the Plaintiff in the sum of $82,407.60 with interest at 4% per annum on the sum of $23,007.60 from 29th December, 1974 and at 8% per annum on the sum of $27,000 from date of service of the writ of summons both to date of judgment and costs to be taxed in accordance with Legal Aid Regulations. Order for payment out of $75,000 paid into Court on 15th April, 1977 to the Plaintiff's Solicitors.

Representation:

M. Huang (Director of Legal Aid) for Plaintiff

Allman-Brown (Johnson, Stokes & Master) for Defendants.