Chow Wai Hing v. Cheung Chun Wai Peter

HCA001451/1975

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISLICTION

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Coram: Mr. Registrar Wong in Chambers.

Date of Judgment: 24th November, 1975.

Mr. E.T.S. Woolley of Legal Aid Department for Plaintiff.

Mr. H. Poon (Counsel) instructed by T.S. Tong & Co. for Defendant.

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DECISION

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1. The Plaintiff sustained personal injuries and loss in a traffic accident which occurred on 3rd March, 1973 and brought this action for damages. Judgment was entered, by consent, in his favour on the basis that the Defendant was 70% to blame and the Plaintiff was contributorily negligent to the extent of 30%. The issue before me is the assessment of damages.

2. He was taken to Queen Elizabeth Hospital shortly after the accident. Medical examination showed that he had multiple bruises over his forehead, two dislodged teeth with gum bleeding, laceration over the lower lip and a fractured pelvis. He was treated for the fractured pelvis in Queen Elizabeth Hospital until 15th March 1973 when he was transferred to Laichikok Hospital for convalescence. He was discharged on 10th May but continued to attend follow-up treatment up to 2nd September of the same year.

3. Subsequently the Plaintiff applied for and was granted legal aid to commence proceedings against the driver and was examined in April 1974 by Dr. Wedderburn, F.R.C.S. Edinburgh. Part of Dr. Wedderburn's report reads:-

"On examination he has no pain on pressure of the Pelvis. His hip movements are normal. There is slight limitation of full flexion of the right knee and the movement of bending of the knee is accompanied by Crepitus i.e. a grating feeling. I took an X-Ray of his knee to see if there were signs of Osteo-Arthritis and was surprised to see that he had had a fracture to the lateral condyle of the Tibia. The lateral condyle is broadened and depressed. While the depression is only between ¼ and one-third of an inch and the broadening is half an inch this is the articular surface of a weight bearing joint. This type of distortion of the joint surface has a severe effect on the joint; in the shaft of a bone such a mild displacement would have little effect but it has a severe effect when it involves joint surfaces especially of a weight bearing joint."

4. Obviously the fracture to the lateral condyle was not discovered when he was in Hospital and was not treated. There is no clear evidence to show how the omission had occurred except that no X-Ray was taken of the knee and the Plaintiff made no complaint of pain in that part of his body. Some evidence, however, suggests that some pills and tablets used for treatment of rheumatism were given to the Plaintiff while he was in Laichikok Hospital.

5. Dr. Wedderburn's report went on to state:-

"His fractured Pelvis has healed completely without any residual disability but he does have a fracture involving the right knee joint which has set up an Osteo-Arthritis which will be progressive over the years. In 10 years he will have a fairly stiff knee which will ache and be painful with walking and the movement of the knee joint will gradually become reduced. It will interfere with his ability to walk and would interfere with any job requiring the use of his leg and foot but it would not interfere with any job which is sedentary or does not involve standing all the time. In percentage he has at present a 3% disability but this will gradually increase over the years to a disability in the region of 8 to 10%. With regard to his sewing machine job I would think that he could use his left foot for control of a pedal with almost the same degree of skill as he previously used with the right."

6. Dr. Wedderburn further explained that it would take 10-15 years before the Plaintiff's fractured knee reached the maximum disability of 10%. According to him, if the fractured knee had been discovered and treated in time, the percentage of disability would be 1% increasing to a maximum of 5% although the Plaintiff would still have contracted Osteo-Arthritis. He considered that the Plaintiff could have been able to return to work after 3-4 months instead of the 7 months if the fractured knee had been discovered and treated in time.

7. The Plaintiff was a sewing worker in the Wing Sun Garment Factory earning $600 a month prior to the accident. He was unable to return to work for a period of 7 months and as a result he lost that job. However, he found another sewing job in another factory after the 7 months when he was unable to work and has been working normally earning about the same amount of wages as before.

8. The only point raised by the Defendant is whether the failure on the part of the hospital authority to discover and treat the fractured knee constitutes a novus actus interveniens thereby reducing the amount of damages. Mr. Poon who appeared for the Defendant referred me to the following authorities:-

I think I need only deal with the last case which is a decision of Morley-John J. The point in issue and the circumstances in Wong Hok Chung's case were identical with the present one. In that case, the plaintiff attended hospital after the accident but the injury to his right foot was not discovered and not treated resulting in a deformity of that foot. The plaintiff claimed that by reason of the injury to his right foot he was unable to drive his public light bus for as long as he used to do so before the accident thereby causing a loss of earnings. The defendants contended that the plaintiff's disability was not due to the original injury but to the negligence of the hospital authority which constituted a novus actus interveniens. The decision in Rothwell v. Caverswall Stone Co. Ltd. was relied upon. After having carefully examined and reviewed the authorities, Morley-John J. held that:-

9. On the evidence before me, I am not satisfied that the negligence of the medical authority in the present action is such as to render them liable in damages. I find that the injury to the knee was the direct and natural consequences of the accident and would proceed to assess damages on this basis.

10. The first and indeed the major item of damages would be for pain and suffering. In Tam Chiu-kang v. Eddie Tsui & Others (V.C.J. Action No. 5804 of 1975), Judge Jones awarded a sum of $8,000 to the plaintiff who was a man aged 47 suffered a fracture of the radius over the right wrist and a fracture of the lateral condyle of the right tibia extending into the knee joint. He was hospitalized for a month and was able to return to work about two months after discharge. He was in a plaster cast for three weeks during the period he was in hospital. After his discharge he used two crutches for a month and received physiotherapy treatment three times a week for five weeks. In the present action, the Plaintiff was hospitalized for over two months and had to attend follow-up treatment for nearly four months. All the time when he was in Laichikok Hospital he used two crutches and on discharge he had to use two walking sticks till September i.e. some 7 months after the accident. In addition to his fractured knee and pelvis, the Plaintiff also suffered the loss of two teeth and had multiple bruises over his forehead and laceration over his lower lip. In my view, his pain and suffering were much greater than those suffered by the plaintiff in V.C.J. No. 5804 of 1975 and I would therefore assess damages under this head at $11,000.

11. The next item of damages is the loss of earnings. The Plaintiff was out of work for 7 months and at $600 a month the total amount would be $4,200.

12. The last and third item of damages is the loss of future earnings. The Plaintiff is 45 years of age and can reasonably be expected to have a working life for another 20 years. According to Dr. Wedderburn, the maximum disability at 10% would only have accumulated about 15 years later and it is at that stage his earning capacity would be impaired by 10%. The loss of his future earnings calculated at 10% of $600 a month for five years would be $60 x 12 x 5, - $8,600.

13. There must also be added the agreed special damage of $60.

14. In summary, the damages to which the Plaintiff is entitled under the various heads are as follows:-

15. The sum of $18,860 must be reduced by 30% to $13,202 because of the Plaintiff's contributory negligence. There would be judgment for the Plaintiff for $13,202 with costs to be taxed in accordance with Legal Aid Regulations, and on the Upper Scale of the District Court Civil Procedure (Costs) Rules.

16. Dated this the 24th day of November, 1975.

Representation:

Mr. E.T.S. Woolley of Legal Aid Department for Plaintiff.

Mr. H. Poon (Counsel) instructed by T.S. Tong & Co. for Defendant.