Leung Yui Kin v. Lai Ping Sun and Another

HCA002579/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar O'Dea in Chambers.

Date of Judgment: 27th October, 1978.

Mr. J.D. Campbell for D.L.A. (Plaintiff).

Mr. N. Pirie instructed by Haldane & Co. (Defendants).

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DECISION

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1. This is an assessment of damages consequent upon injuries received by the Plaintiff on the 12th May 1975 when he was a passenger in a Public Light Bus which was owned by the first defendant and being driven by the second defendant. The vehicle concerned collided with the central railing in Chatham Road and overturned.

2. Interlocutory judgment was entered in favour of the plaintiff against both defendants for damages to be assessed on 16th day of February, 1977.

3. The plaintiff is now aged 53 years and was admitted to Queen Elizabeth Hosptial on the date of the accident suffering from abrasions over the forehead, chest, elbows, left hand and left knee. He also complained of pain and tenderness in the lower spinal region. X-rays revealed a compressed fracture of T12 spine and after conservative treatment he was transferred to the Buddhist Hospital and eventually discharged on 26th May, 1975. He continued to attend Queen Elizabeth Hospital as an outpatient for some considerable time and still suffers from some discomfort.

General Damages

(a) Pain, Suffering and Loss of Amenities

4. The fact that the plaintiff's recovery has been somewhat prolonged is the subject of some surprise and conjecture by the specialists who have conducted subsequent examinations. The plaintiff initially consulted Dr. R.G.M. Wedderburn in February, 1976 and the consequent report confirmed the hospital's finding that he had suffered a fracture of the body of the 12th or last vertebra in the chest. Natural fusion of the 11th and 12th vertebra was anticipated by Dr. Wedderburn thus eliminating any possibility of subsequent pressure on the nerves emerging from the spinal cord and a substantial recovery was foreseen within 6 months. The plaintiff was again examined by Dr. Wedderburn in September, 1976 when it was immediately noted that the anticipated improvement within 6 months had not materialised. He reported that the plaintiff continued to suffer a steady and moderate degree of pain which became severe if he sat for a period of one hour. Dr. Wedderburn's observations of the plaintiff convinced him that this was not a case of malingering but he had difficulty in explaining why recovery had become arrested. A Myelogram was performed to ascertain whether there existed any pressure by tissue on the nerve roots and the result proved to be negative. A spinal brace was subsequently fitted in June 1977 and although this equipment served to relieve the pain while it was worn, discomfort returned after it was removed.

5. Dr. Wedderburn gave evidence that natural fusion would continue and although the pain would never completely disappear it would become an annoyance rather than a disability. He estimated his permanent disability at 25%. Reference was also made to a thyroid operation which the plaintiff underwent in 1951 and the possibility that a thyroid deficiency would impede recovery and slow the plaintiff's speech and general actions.

6. This latter observation was confirmed by Dr. P.A.L. Horsfall who examined the plaintiff on behalf of the defendants. Dr. Horsfall reported that the possibility that the thyroid function was deficient could well have retarded recovery and might well be a factor in the plaintiff's inability to perform his normal occupation. He considered that no significant changes could be expected in the plaintiff's condition and his present disability status should be regarded as final.

7. It is, of course, trite law that one takes one's victim as he finds him and the existence of a possible thyroid function deficiency and its effect on the plaintiff's recovery need not be a matter that would greatly influence me an assessing damages under this head.

8. A number of decisions were cited which have assisted me in coming to a decision on the appropriate figure to be awarded for pain, suffering and loss of amenities. I believe the plaintiff has suffered considerable pain and will continue to be disabled although to a lesser extent. The spinal injury will obviously hamper his ability to move freely and the probable necessity to wear the spinal brace in the future will be a cause of annoyance. In all the circumstances I propose to award the sum of $30,000.00.

(b) Future Loss of Earnings

9. Prior to the accident the plaintiff was employed by an engineering company earning $49.80 per day. The manager of the company gave evidence that workers engaged in a similar occupation to the plaintiff now earn $65 - 68 per day. The plaintiff's existing employment realises a wage of $52 per day and as these figures were not disputed I find that the difference of $13 per day or $338 per month is a realistic figure upon which to calculate his future loss. As regards a multiplier I am satisfied that the figure of 9 would effectively reflect the plaintiff's circumstances and take into account the allowance normally given for the vicissitudes of life.

10. Damages under this head are ($338 x 12 x 9) - $36,504.00.

Special Damages

11. The main claim for special damages is under the head of loss of earnings. The plaintiff did not commence employment after the accident until February 1978. Some doubt has been expressed on behalf of the defendants as to whether such a lengthy period off work can be justified. Reference is made by Dr. Wedderburn to the fact that the plaintiff was engaged in some form of employment in June 1977. The plaintiff explained that this was only casual work which he abandoned after three or four days. The significance of Dr. Wedderburn's reference is that it seems that he felt the plaintiff was physically able to engage in some form of light work at that time.

12. While I realise that the plaintiff had only recently been fitted with the spinal brace I do consider that he was able to perform light work shortly after June 1977 and I am not disposed to allow loss of earnings after the end of July 1977. Damages for loss of earnings will be allowed at the rate of $1,300.00 per month between 13th May 1975 to 31st July 1977 - ($1,300 x 26 ½) - giving a total of $34,450. From this amount I will deduct the social welfare payments which he received whilst out of employment amounting to $1,137.00 thus reducing the final figure to $33,313.00.

13. A further claim for special food amounting to $5,000 was made. No medical evidence was tendered to support the need or desirability for such an expenditure and while I accept that special food to supplement that available in the hospital is normally allowable the claim for $5,000 cannot be sustained and I will reduce it to $500.00.

14. The other items of special damages have not been disputed and the following damages are therefore awarded:

15. Interest will be awarded on special damages at 4% p.a. from the date of the accident and the plaintiff will be entitled to his costs to be taxed in accordance with the Legal Aid Regulations.

16. Dated this 27th day of October, 1978.

Representation:

Mr. J.D. Campbell for D.L.A. (Plaintiff).

Mr. N. Pirie instructed by Haldane & Co. (Defendants).