Tao Mei Ho v. Hui Kwong Yat

Case No.HCA 819/1974

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA000819/1974

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 819 of 1974

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BETWEEN
	TAO MEI HO (an infant) by her father & next friend TAO Lee	Plaintiff
	and
	HUI KWONG YAT	Defendant

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Coram: Mr. Registrar Barnett in Chambers.

Date of Judgment: 29th October, 1975.

Mr. Woolley for Director of Legal Aid on behalf of Plaintiff.

Mr. Sakhrani instructed by Hoosenally & Co. for Defendant.

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ASSESSMENT OF DAMAGES

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1. The plaintiff is a girl of almost eight. On the 28th August 1971, when she was about 3 ½, she was knocked down, while walking on a "zebra" crossing, by the defendant's goods vehicle. Her left foot was badly crushed and subsequently her left leg was amputated some 4" below the knee. Judgment was entered for the plaintiff by consent, with damages to be assessed.

2. From the agreed medical reports, it appears that the plaintiff was admitted to Queen Mary Hospital and operated upon the same evening. Surgical toilet and debridement and K-wire fixation of the fractures were carried out. The plaintiff was put on antibiotics. However the foot became infected and the big and second toes became gangrenous. A second operation was carried out on the 1st September for the purpose of draining the foot. On the 2nd September, against medical advice, the plaintiff's father discharged her from hospital.

3. The plaintiff's parents took the plaintiff to a herbalist who could not cope with the situation and, on the same day, 2nd September, the plaintiff was admitted to the Hong Kong Sanatorium by Dr. K.T. Poon. Because of the gangrene and severe toxic infection, Dr. Poon amputated the left leg. The plaintiff was discharged on 13th September.

4. On 30th May, 1973, Dr. Poon readmitted her to the Sanatorium because of persistent pain and infection of the amputation stump for the past week. Exploration was done and the plaintiff was discharged on 2nd June and followed up in the clinic.

5. According to the plaintiff's father, who gave evidence, the plaintiff had to attend for treatment every day for half a month following her discharge from hospital after the amputation, then once every two days for half a month. She then recovered totally and stopped going. An artificial leg was fitted.

6. While she is still growing, the plaintiff will have to have a new artificial leg fitted every 2 years. The leg will also have to be slightly lengthened every 6 months.

7. The plaintiff now walks normally (or almost normally. When she walked around my chambers there was a just perceptible halting movement or jerk in the left leg). She goes to school and plays often in the playground, sometimes at table tennis. She runs but not as smoothly as she walks. At home, which is on a boat, she never wears her artificial leg but, as her father agreed, this was because of inconvenience rather than discomfort.

8. The plaintiff will always need to wear trousers. Fortunately, her school uniform is trousers.

9. Dr. Wedderburn, in his report, describes the plaintiff as emotionally extremely well adjusted, bright and attractive however, her impairment may affect her mentally when she grows up. It will affect her prospects of marriage, although it will probably not affect her employment.

10. Significantly, the plaintiff's father has heard her say to her brother, "You've got a leg, you've got a foot. I haven't. When I grow up, I won't be able to do anything."

11. Mr. Woolley referred me to a number of cases. In Lee v. Manchester Corporation 1953 (to be found in Kemp & Kemp, 3rd Edition p.533) a girl aged 5 had her leg amputated below the knee. She had several operations including painful skin grafting which left severe scars on her abdomen. On appeal, £7,000 was reduced to £4,000. Having regard to the grafting and scars, Mr. Sakhrani submits this was a more serious case and also points out that there is no mention of time spent in hospital, which could be relevant.

12. In Tse Chuen-kan v. Tai Kai-ping and K.M.B. O.J. 3187/75, on 30th September 1975, Li, J. awarded $45,000 for amputation below the knee, not including loss of future earnings. Mr. Sakhrani again thinks this not helpful since the award was hypothetical, the plaintiff's claim having been dismissed. The plaintiff was a man of 19. There was no other real or relevant information as to the exact injuries or period in hospital. Mr. Woolley, however, stresses that this is the only Hong Kong case relating to an amputation below the knee.

13. In Lee Koon-keung v. Ng Chi-yat and Mobil Oil O.J. 1297/74, on 30th January 1975, Cons, J. awarded $55,000 for pain, suffering and loss of amenities for an amputation above the knee. Mr. Sakhrani points out that the plaintiff was aged 18 and spent 6 months in hospital. He also draws my attention to the following passage:-

	"Pain and Suffering and Loss of Amenities
	I am told that in Hong Kong there is no reported decision dealing with the loss of a leg. I was therefore referred to English cases. In Mard v. James⁽¹⁾ Lord Denning put the usual pattern of awards for loss of a leg at £4,000 to £6,000. That was nearly nine years ago. The pattern is now much higher. The author of a note at 1974 New Law Journal 279 puts it at £7,000 to £10,000. Individual cases recorded in recent issues of the Current Law Year Book confirm this level. However, I would respectfully agree with the comments made in this Court in Lung Chun Ming v. Yeung On⁽²⁾. The correct approach is not to decide what would be awarded in England and then convert into Hong Kong dollars. Damages of this kind must in general be related to the way, standard and cost of living in the jurisdiction in which they are awarded. To hold otherwise would leave litigants at the mercy of rates of exchange. It would be intolerable for example that the general level of damages in Hong Kong should be reduced overnight because the United Kingdom authorities thought it desirable to devalue the pound sterling.
	Conventional awards in Hong Kong for serious and permanent injuries to the leg which require one or more operations but fall short of amputation have an upper limit in the region of $25,000 to $30,000. In a recent case before the Full Court, The China Motor Bus Co., Ltd., v. Oram⁽³⁾, the plaintiff had sustained serious injury to his hip which would in time require an operation to replace it completely with an artificial joint. There were other lesser but still important injuries. His damages were assessed at $35,000. Bearing these matters in mind I think a proper figure in the present instance should be $55,000."

14. Mr. Woolley also cited Lai Wan-lin v. Wong Sing-por O.J. 1037/71, to be found in H.K.L.J. Vol. 5, p.113. The plaintiff, a girl of 14, was awarded $25,000 for the amputation of all the toes of the left foot. She had difficulty walking and taking part in "all the usual activities for a young girl". Mr. Sakhrani tried to persuade me that this case was worse than the one with which we are dealing. He fails. I do not think this case particularly helpful except to show that the award should exceed $25,000. Residual disability was estimated at 20% according to Dr. Wedderburn, in the instant case it is 36%

15. There has been no effect on future employment. That is clear from the medical reports. So I take no account of that in assessing damages.

16. The plaintiff will have her disability for virtually the whole of her life. She will never know the freedom of two sound legs. The medical reports state that she is well adjusted at present, but there is already an indication that she is aware of the difference between her and her brothers and sisters. The changing of the artificial leg at intervals until she is grown is not only inconvenient but a constant reminder of the difference between her and other children. This is likely to continue for another six or seven years in view of her age.

17. An adult who suffers similar injury may well be slower to adjust but the adjustment is likely to be final. The full extent of the disability will be well understood. The plaintiff is still a child. In my view, in many ways the worst is still to come in the nature of delayed shock when plaintiff, perhaps in mid-teens, becomes fully aware of all that is involved. She will be precluded from wearing dresses and will have to wear trousers to hide an ugly artificial leg. Although she can now walk smoothly, clearly "usual activities" such as hiking, dancing or running will be difficult if not impossible. A visit to the Beach where her disability will be plainly apparent to all will be a most uncomfortable experience.

18. Dr. Wedderburn states that her prospects of marriage will be affected. No doubt men are less ready to approach disabled girls.

19. I am therefore of the opinion that the proper award for a girl who, at the age of three and a half years, suffered the injury and consequent disability as I have set out, is $50,000.

20. Special damages have been agreed at $1,523 and I also allow this sum.

21. The defendant is to pay the total damages into court within 21 days.

22. The amount of special damages may be paid out to the plaintiff's next friend, her father.

23. The general damages will be invested by the Registrar at his discretion, with liberty to apply.

24. The plaintiff will have her costs which are to be taxed in accordance with Legal Aid Regulations.

25. Dated the 29th day of October, 1975.

	(N.J. Barnett)
	Acting Assistant Registrar

Representation:

Mr. Woolley for Director of Legal Aid on behalf of Plaintiff.

Mr. Sakhrani instructed by Hoosenally & Co. for Defendant.

(1) [1966] 1 Q.B. 273 at 297

(2) [1963] H.K.L.R. 572 at 582

(3) Civil Appeal No. 36 of 1974