Chow Fat v. Yu Yuk Lun

HCA002232/1977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Cameron in Chambers.

Date of Judgment: 3rd January, 1978.

Mr. W. Yeung, Counsel, instructed by Messrs. H.H. Lau & Co., Solicitors for the Plaintiff.

Mr. K.H. Woo, Counsel, instructed by Messrs. Kenneth K.C. Wong & Co., Solicitors for the Defendant.

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DECISION

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1. On 1st July, 1976 the Plaintiff, the owner and driver of a goods vehicle bearing the registration number AN9964, was sitting in the said vehicle which was parked by the kerb of Sha Tau Kok Road when the Defendant, the owner and driver of a goods vehicle bearing the registration number BC5878, drove his vehicle into the rear of the Plaintiff's vehicle causing it to overturn and as a result the Plaintiff sustained injuries.

2. Interlocutory judgment for the Plaintiff was entered by consent against the Defendant on 17th October 1977 for damages to be assessed.

3. The Plaintiff was admitted to the Neuro-surgical Unit, Queen Elizabeth Hospital and on examination was found to have -

4. The Plaintiff was treated with Halter's traction to the neck and physiotherapy and waxbath to his hands. There was gradual disappearance of pain and return of strength to both hands. He was discharged from hospital on 26.7.76 and for a time thereafter received physiotherapy as an outpatient.

5. The Plaintiff was examined by Dr. Wedderburn on 6th October 1976. An X-Ray which was taken at that time showed very marked changes in the area of cervical 4, 5 and 6. Dr. Wedderburn states in his report that despite these marked changes the Plaintiff has remarkably little limitation of neck movement. He can turn his head to both sides through the normal range and extend his head normally. He has some limitation of tilting the head to the left and right sides and when he makes these movements he can feel and hear a grating movement from the bones of his neck. He still has some discomfort in the hands, some pain and difficulty grasping objects with the thumb and index fingers of both hands and a slight loss of sensation in both thumbs and index fingers. Testing of reflexes in the arms indicated there was some slight permanent damage to the nerves to the arm. Dr. Wedderburn was of the opinion that the changes in the neck will continue and in five years' time, if not sooner, the Plaintiff will have very restricted neck movement and probably develop pain and weakness of both arms and neck. Dr. Wedderburn considered that it was likely that in time the Plaintiff would require an operation to fuse the vertebrae unless process of nature brought this about. In any event he thought it unlikely that the Plaintiff would be able to drive after the age of 60.

6. Whilst it would appear from the medical evidence that the Plaintiff's spine had already undergone certain degenerative changes prior to the accident, both Dr. Fenn and Dr. Wedderburn who gave evidence for the Plaintiff agreed that the symptoms above detailed were the result of a "whiplash" injury to the neck of the Plaintiff caused when the Defendant's vehicle ran into the rear of the Plaintiff's vehicle.

7. As regards General Damages I will deal with these under the following heads:-

(1) Pain and Suffering and Loss of Amenities

8. I am told that the Plaintiff who is 54 years of age and a lorry driver by occupation initially suffered pain which however was not very severe. This pain gradually diminished and although he now experiences pain from time to time it is minimal. There is also some loss of sensation in both thumbs and index fingers. Whilst there has been improvement in the Plaintiff's condition since the accident, the changes in the bones of the neck will increase and in five years' time or sooner he will have very restricted neck movements and will probably develop pain and weakness of both arms and neck. An operation might be necessary to relieve discomfort. It was thought that it would be unlikely that he would be able to drive a truck after the age of 60.

9. I was referred to inter alia O.J. 1711 of 1973 in which Mr. Registrar Barnett awarded $23,000 under this head to a man who had suffered similar but somewhat more severe injuries.

10. Having regard to the evidence before me I would assess damages under this head at $18,000.

(2) Loss of future earnings

11. The Plaintiff returned to work in February 1977 which Dr. Wedderburn considered quite early in view of the injuries he sustained. The Plaintiff impressed me as a person who was trying hard to overcome any discomfort he felt. He stated that prior to the accident he had worked 27 to 28 days a month but since his return to work this had fallen to 21 to 22 days a month. I consider this reasonable in the circumstances. Whilst the Plaintiff was paid a flat rate of approximately $100 per day for transporting vegetables, he, as the owner of the vehicle, was responsible for the running costs. It has not been possible to fix accurately the net daily rate but doing the best I can with the figures that were presented, I will fix the net daily rate at $65. Using this figure the Plaintiff prior to the accident had a net monthly income of $1,820. Since his return to work his net monthly income is $1,430. The monthly loss is therefore $390. Mr. Yeung, Counsel for the Plaintiff, suggested I adopt a multiplier of 10. Mr. Woo, Counsel for the Defendant, suggested a multiplier of 5. Bearing in mind the medical evidence regarding future complications, the age of the Plaintiff and other relevant factors, I will adopt a multiplier of 8.

12. I, therefore, assess damages under this head at $390 x 12 x 8 i.e. $37,440.

13. The total General Damages are $55,440.

14. As regards Special Damages I will deal with those in the order shown in the Statement of Claim:-

(a) Cost of repairs to Plaintiff's vehicle

15. A total of $710 was claimed. Of this sum $210 was the price of a new battery. Receipts were produced. Whilst the battery was not damaged in the accident, a new one was required as a result of the Plaintiff's vehicle lying unused until the Plaintiff returned to work. I will, therefore, allow the claim for $710.

(b) Hospital Fee

16. The sum of $75 was claimed. A receipt was produced. There was no objection to this and accordingly the sum of $75 is allowed.

(c) Fee for physiotherapy

17. A total of $225 was claimed. The Plaintiff attended for out patient treatment following his discharge from hospital. He attended a total of 45 times at $1 a time. He travelled by taxi which cost $4 return making $180 in all.

18. I will allow a total of $90 in respect of this claim.

(d) Loss of earnings for 221 days at the rate of $80 per day

19. Mr. Woo, Counsel for the Defendant, suggested that the Plaintiff could have hired a driver for his vehicle whilst he was off work. However, in view of the evidence given by the Plaintiff in this matter I consider it unlikely that he would have been able to do this. The Plaintiff was off work from the beginning of July 1976 to the beginning of February 1977, a period of 7 months. I have already stated that I would fix his net income at $65 per day and I have accepted that prior to the accident he worked 28 days a month. I will allow the sum of $12,740 (being $65 x 28 x 7) in respect of this claim.

(e) Nutritious food

20. A sum of $2,210 was claimed. I will allow a sum of $500 in respect of this.

21. The total Special Damages are $14,115.

22. There will be interest at the rate of 8% on the General Damages of $18,000 from the date of the service of the writ - 24th August 1977 to today. The Special Damages amounting to $14,115 will carry interest at the rate of 4% from 1st July 1976 also to today.

23. The total damages are to be paid into Court within 14 days. On payment in there will be payment out to the Plaintiff.

24. The Plaintiff is entitled to the costs of this assessment and the action.

25. Certificate for Counsel.

26. Dated the 3rd day of January, 1978.

Representation:

Mr. W. Yeung, Counsel, instructed by Messrs. H.H. Lau & Co., Solicitors for the Plaintiff.

Mr. K.H. Woo, Counsel, instructed by Messrs. Kenneth K.C. Wong & Co., Solicitors for the Defendant.