Lo Chun v. Ng Kwok Ming and Another
Read the full judgment text of HCA 2076/1976 on BabelCite. This High Court CFI judgment.
1. This is an assessment of damages for personal injuries pursuant to interlocutory judgment entered against both defendants on 14th February, 1977.
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HCA002076/1976
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Stapp in Chambers. Date of Judgment: 19th August 1977 Mr. H.C. Miu instructed by Messrs. Gunston & Chow for the plaintiff. Mr. R.F. Taylor of Messrs. Johnson, Stokes & Master for the defendants. ----------------- ASSESSMENT OF DAMAGES ----------------- 1. This is an assessment of damages for personal injuries pursuant to interlocutory judgment entered against both defendants on 14th February, 1977. 2. On the morning of 25th November, 1973, the plaintiff, who was then aged 35, was a passenger in a goods vehicle owned by the 2nd defendant, and driven by the 1st defendant. As the vehicle was being driven along Castle Peak Road, Kowloon, it overturned near Chung Shan Terrace. 3. The injured plaintiff remained in hospital on the first occasion from 25th November, 1973 to 10th January, 1974. Upon admission to Queen Elizabeth Hospital, a physical examination showed a compound fracture of the radius and ulna of the left arm, with rupture of the extensor tendons to the fingers and thumb. An emergency operation was performed, in which the fracture was reduced with metal pins. In addition, the ruptured tendons were repaired, and the arm was placed in plaster. 4. He was transferred to Lai Chi Kok Hospital on 30th November, 1973 for convalescence, and later transferred back to Queen Elizabeth Hospital on 31st December, 1973, for skin grafting of the left forearm wound. He was discharged on 10th January, 1974 to attend the outpatient clinic. 5. He saw Dr. Wedderburn in January 1975, who advised a further operation. Finally, as a result of much persuasion, he was admitted to Queen Elizabeth Hospital on 24th March, 1975, where an open reduction and fixation of the fractures with metal plates was carried out on both bones of his left forearm. Subsequently he was sent for convalescence at Kowloon Hospital, and was discharged at the end of April, 1975. For the next four months he attended Kowloon Hospital six days a week for physiotherapy, and also reported every two weeks to Queen Elizabeth Hospital. 6. When examined again by Dr. Wedderburn in January, 1976, the fractures were well united. He now has ½11 shortening of the left forearm and slight deformity, in that the wrist and hand are bent slightly forward. The left wrist remains swollen and movements of pronation and supination are limited to 400 and 200 whereas they should both be 800. 7. He has considerable limitation of movement of the thumb and all fingers. Dr. Wedderburn assessed impairment of the arm at 61% which is 37% impairment of the whole man, from which 5% should be deducted because he is right handed, leaving a 32% impairment of the whole man. The grip pressure of the left hand is greatly reduced, but he can hold light objects. He is incapable of any work which necessitates the use of the left hand, except to hold and carry occasional light objects and use it as a steadying force. Dr. Wedderburn assessed his disability from an earning point of view at about 50%, bearing in mind his limited education and intelligence. He considered that the plaintiff could have saved himself considerable pain and suffering if he had undergone the second operation a few months earlier, but that there was no significant difference in the end result, as a result of the delay. He agreed that the plaintiff could wear appropriate clothing to cover the unsightly disfigurement of the left hand. 8. The plaintiff was employed by the second defendant, delivering fairly heavy gas cylinders, at the time of the accident. He was earning $650 per month. He was off work from the day of the accident until mid-February, 1977, when he began working as a casual odd-job worker at the Sze Tat Dyeing Factory in Tsuen Wan. He works about 16 days per month, averaging $320 per month. The job entails carrying cloth, which he does with his right hand. Dr. Wedderburn was of the opinion that the plaintiff should have been fit for such work at the beginning of January, 1976. 9. Prior to the accident, the plaintiff sometimes played footfall and basket ball, and swam, and was learning to motor cycle. Since the accident he no longer does these things. Pain and Suffering and Loss of Amenities 10. The plaintiff has sustained a permanent, serious and deforming injury to his left arm and hand, which hampers his ability to work, and to enjoy previous recreational activities. Considerable pain and suffering was involved, and a certain amount of discomfort will continue. 11. As stated above, Dr. Wedderburn assessed the permanent disability of the plaintiff as 32% impairment of the whole man. 12. In the somewhat analogous case of Chu Shun-kwok v. Lee Sau-king (1976 H.K.L.R. 604) a comparable injury to the right hand, albeit of a right-handed man, resulted in an estimate of 30% eventual disability. In that case there were other injuries, including a fractured pelvis, with an estimated maximum 2% future disability from osteoarthritis of the hip. For pain and suffering and loss of amenities the plaintiff was awarded the sum of $30,000. It is to be noted that the estimated overall impairment was approximately the same as in the case before me. 13. Bearing in mind all the circumstances, I award the sum of $23,500 as damages under this head, which allows a deduction of $500 for unduly prolonged pain and suffering, due to the plaintiff's own delay in going ahead with the second operation. Special Damages 14. Loss of earnings is claimed at the rate of $650 per month, which he was receiving at the time of the accident. The medical evidence was that the plaintiff was fit for work as at the beginning of January 1976, but he did not in fact commence working again until mid-February this year, at the reduced rate of $320 per month. I therefore assess damages under this head as follows:-
15. I also allow hospital charges of $162 and travelling expenses for out-patient treatment of $62.40. Damages under this head therefore total $23,074.40 Loss of Future Earnings 16. Having regard to all the circumstances, I consider that the multiplicand should be the difference between his pre-accident and present rates as his working capacity is clearly reduced to that extent. Taking into account such factors as the age of the plaintiff, the vicissitudes of life, and payment of lump sum, I propose adopting a multiplier of 12. Such damages are therefore assessed at $47,520 (12 x $330 x 12). Judgment 17. General damages amount to $71,020, which added to special damages, total $94,094.40. There will be judgment for the plaintiff in that sum, together with costs. I award interest on the sum of $23,074.40 special damages from the date of the accidont to date, at the rate of 4% per annum, and interest at the rate of 8% from the date of the service of the writ to date, on the sum of $23,500 awarded for pain and suffering and loss of amenities. Sick leave payments of $5,980.20, together with workmen's compensation payments of $19,991 are to be deducted. 18. Dated this the 19th day of August 1977
Representation: Mr. H.C. Miu instructed by Messrs. Gunston & Chow for the plaintiff. Mr. R.F. Taylor of Messrs. Johnson, Stokes & Master for the defendants. |