Sin Chui Chun v. Kam Tin Po and Another
Read the full judgment text of HCA 2333/1974 on BabelCite. This High Court CFI judgment.
1. This case concerns an action for damages sustained by the plaintiff as a result of a collision between the plaintiff and a motor-cycle owned by the 2nd defendant and driven by the 1st defendant as his agent, servant or permitted driver.
Cited by 1 case
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HCA002333/1974 IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) ACTION NO. 2333 OF 1974 -----------------
----------------- Coram: Morley-John J. Date of Judgment: 12th November, 1975. ----------------- JUDGMENT ----------------- 1. This case concerns an action for damages sustained by the plaintiff as a result of a collision between the plaintiff and a motor-cycle owned by the 2nd defendant and driven by the 1st defendant as his agent, servant or permitted driver. 2. It is common ground that the collision took place on a pedestrian studded crossing on the north bound carriageway of the Cheung Sha Wan Road near its junction with Tung Chau Street in Kowloon at about 11.30 on the night of the 29th September, 1972. It is also agreed that at this point Cheung Sha Wan Road is a long straight stretch of road divided down its centre by iron railings and carrying three lanes of traffic on the north bound carriageway. I am satisfied from the evidence adduced that this so called pedestrian studded crossing was not an uncontrolled on zebra crossing established and delineated in accordance with the provisions of Regulation 3 of the Road Traffic (Road Crossing) Regulations and therefore pedestrians making use of this crossing would not have the statutory precedence within its limits over vehicular traffic as provided for by Regulation 4 of the Road Traffic (Road Crossing) Regulations. Adopting the dictum of Hogan, C.J., in the case of Chiang Shu-cheong v. Reg. (1) it appears that the area within this studded crossing is not given any particular status by legislation. This does not however mean that as a matter of commonsense and good manners as well as proper care and consideration for the safety of others motorists or others can ignore such markings. Commonsense indicates that pedestrians are likely to cross the road at such points consequently drivers should exercise particular care when approaching them so that they do not through excessive speed or other misuse of the vehicle which they control, and it is a vehicle which can easily become a lethal instrument, endanger the lives or physical safety of others. 3. The plaintiff, Sin Chui-chun, aged 65, gave evidence that she and her daughter, Ko Kit-ching, aged 48, were on their way home from the factory in which they worked and at about 11.30 on the night in question they were crossing Cheung Sha Wan Road by way of the studded crossing. She said that they had successfully crossed the south bound carriageway of the road and had reached the gap in the railings in the middle of the road, which I shall hereinafter refer to as the "pedestrian refuge". She said that she was about to cross the north bound carriageway, that she then took two paces out from the pedestrian refuge and then paused to allow a bus to pass. After the bus had passed she looked to her left and saw a motor-cycle approaching, that the motor-cycle was some distance away, but she stayed where she was waiting for the motor-cycle to pass over the studded crossing in front of her and that her daughter was two paces behind her still on the pedestrian refuge. She said that when she first saw the motor-cycle it was travelling along the middle lane of the carriageway but when it got closer to her it seemed to sway and swerved towards her. She said that she tried to step backwards to avoid being struck by the motor-cycle but that she could not do so in time and before she could start to move back towards the pedestrian refuge the motor-cycle struck her. She said that she had never expected the motor-cycle to suddenly swerve towards her, and taking into account the width of the carriageway she thought that it would pass in front of her. After the motor-cycle had struck her the next thing that she said she remembered was recovering consciousness in hospital. It was suggested to the plaintiff that she ran across the road. She denied this and her evidence was corroborated by her daughter and also when he gave evidence the 1st defendant made no allegation that the plaintiff ran across the road. 4. The plaintiff's daughter, Ko Kit-ching, gave evidence which to a great extent corroborated the evidence given by the plaintiff. She agreed that there had been heavy rain that evening and that it was still drizzling slightly and that the roads were wet. She described how she and the plaintiff crossed the south bound carriageway of Cheung Sha Wan Road by way of the studded crossing, that they paused on the pedestrian refuge for a bus to go by on the north bound carriage-way. She said that she checked with the traffic and saw a motor-cycle approaching as she described it "far away", that she could see its head light along the long straight stretch of road. She said that she stood on the pedestrian refuge with her mother standing just in front of her on the studded crossing. She said that the motor-cycle when she first saw it was travelling along the centre lane of the carriageway and so she and her mother waited for it to pass as she thought it would pass in front of them. She said that she had the impression that her mother had also seen the approach of the motor-cycle and she was standing still just two paces ahead of her and that she continued to stand there, but the motor-cycle suddenly swerved towards her mother and hit her. She said that when she first saw the motor-cycle it was travelling in a straight line down the centre lane but then it started to zigzag when it got close to them. 5. A statement made to a police officer soon after the accident was put to this witness in which it was alleged that she said that her mother was standing six or seven feet from the pedestrian refuge and that her mother ran across the road. This witness said that she never said this and that she never gave any definite measures of distance to the police officer who took the statement. She said that at the time she gave the statement which was given in answer to questions she was very upset and feeling frightened and dizzy. From the evidence of the 1st defendant it is clear that he never alleged that the plaintiff was standing at a distance of six to seven feet from the pedestrian refuge. He said two or three paces. And as I have already said the 1st defendant did not allege that the plaintiff ran across the road. The statement was produced by the defence as an exhibit and the police officer who took the statement was also called to give evidence. Considering the statement as a whole its contents and the way it was taken I do not place any weight upon the contents of the statement. 6. I was impressed by the way the plaintiff and her daughter gave their evidence. They each gave their evidence in a straight forward manner without any attempt at exaggeration. 7. The 1st defendant gave evidence that on 29th September 1972 he had borrowed a motor-cycle, the property of the 2nd defendant with the latter's permission, that in fact he had borrowed this machine four or five times prior to this occasion. He said that he borrowed the machine for two purposes, firstly, to learn to drive a motor-cycle, and secondly, to get to work. The defendant is a police officer who was living at the Shek Lei Resettlement Estate, Tsun Wan, and he was stationed at Fanling, and he said he used to drive a motor-cycle to work. He said that prior to the 29th September 1972 he had driven a motor-cycle between ten to twenty times. He was in possession of a valid provisional licence. The 1st defendant said that on the 29th September, 1972 when he returned home from work he discovered that the indicators on the motor-cycle were out of order so he drove the motor-cycle to a garage in Shamshuipo for repairs to be effected. After the indicators had been repaired he commenced to drive back to Tsun Wan and at about 11.30 p.m. he was driving along the centre lane of the north bound carriageway of Cheung Sha Wan Road towards Tsun Wan. He said that the roads were wet and it was raining slightly. He said that he was quite far away from the studded crossing in question when he first saw two persons standing on the pedestrian refuge. He said that the distance was such within which he could control his motor-cycle. He said that these two persons were standing still but they appeared to be trying to cross the road. He said that he saw no bus in the vicinity. He said that this time he was travelling at a speed of a little over 30 miles per hour. He said that he saw one of the pedestrians start to cross the road and the other seemed to be following. He also said that at this stage as he intended to drive over the fly-over to Tsun Wan which was some distance from the other side of the crossing he swerved into the right hand lane of the carriageway that is the lane nearest to the centre railings, but seeing the pedestrians he slowed down to about 20 miles per hour. That when he slowed he applied the foot brake harder than usual as a result of which the motor-cycle became less steady. He said that at this time he noticed that one of the pedestrians had stepped two to three paces onto the road. He said that as soon as he saw the two pedestrians attempting to cross the road he tried to slow down. The 1st defendant then said that he started to slow down when he was at a distance of about 25 feet from the two pedestrians (he indicated this distance from the witness box to a position in the court which measured about 25 feet). He said that he did this because one of the pedestrians had stopped after taking two to three paces onto the road and he feared he might hit her. He said that the first pedestrian, to whom I shall refer hereinafter as "the plaintiff", did something as if she was trying to get back to the pedestrian refuge. He said that this gave him a shock. The 1st defendant was asked if the plaintiff had turned back into the path of his motor-cycle, but he replied that she had turned away from the path of his motor-cycle. However, his motor-cycle then came into contact with the plaintiff and knocked her down, When he was asked how this had happened the 1st defendant said, and I quote his evidence:
When pressed as to distances the 1st defendant said that at the time he was quite inexperienced in driving and after he had got "that shock" all he was trying to do was to avoid the plaintiff and he could not estimate any distances. By "that shock" I take it that the 1st defendant was alluding to the action of the plaintiff in fact stopping two or three paces from the pedestrian refuge and trying to step backwards. It was put to the 1st defendant that the plaintiff in fact did not actually step backwards and he said that the accident book place so suddenly that he could not say whether she actually stepped back or not. He said that he originally thought that the couple would continue to cross the road. When asked if he blew his horn when he saw the two women crossing the road he said that he did not because at the time he was too much concerned in trying to slow down his motor-cycle. He said that he had formed the impression that when he first saw them both the women were trying to cross the road and he agreed that when he changed lanes he did change direction towards the two women. Finally, the 1st defendant said that if he had been prepared to stop then he could have stopped safely without going onto the crossing, but that under the circumstances he was not prepared to stop and that if he had had to stop the motor-cycle might have skidded on forwards. That when he braked he could feel the motor-cycle skidding slightly, that he got a fright, and that now he dared not say that he was in full control of the motor-cycle at the time. 8. Counsel for the defendants submitted that it was difficult to see how this accident happened on this long straight stretch of road. He said that the plaintiff had agreed that she knew she had no priority over motor traffic on that crossing, and that therefore he submitted that she had a duty to take reasonable care and that she was negligent in stepping out onto the carriageway as she did. He submitted that the 1st defendant was taken by surprise by the plaintiff's action in trying to get back to the pedestrian refuge and that when she did this she was too late for the defendant to avoid colliding with her. 9. Counsel for the plaintiff submitted that the defendant was 100% to blame for the accident and he invited me to find that from the 1st defendant's evidence his intention was to ride between two women who were attempting to cross the road and that this was an unsafe thing to do. He contended that having seen these two women the 1st defendant should have stopped or at least taken some avoiding action on this very wide road and that the defendant's speed of 30 miles an hour as he approached the crossing, under the prevailing conditions and taking into account his limited driving experience was an unsafe speed. He submitted that the action of the plaintiff in trying to get back to the pedestrian refuge when she saw the 1st defendant swerved towards her was a perfectly natural reaction. 10. As to the question of liability, from the evidence that I have already described I am satisfied that the 1st defendant drove the 2nd defendant's motor-cycle as his agent, servant or permitted driver in a negligent manner and that his negligence contributed to a very major degree to the accident which injured the plaintiff. On his own admission the 1st defendant was driving at about 30 miles an hour along a wide stretch of road. He admitted seeing the plaintiff and her daughter about to cross the road when he was some distance from them. After having seen this, he actually swerved from the centre lane of the carriageway into the lane nearest to where the plaintiff was standing and he only slowed to a speed of 20 miles an hour which meant that his motor-cycle was still travelling at 29 feet per second. Konwing that he was approaching a studded crossing and seeing that two persons were about to cross the road I do not consider that the 1st defendant exercised that particular care when approaching the crossing as should be exercised by a reasonable person under all the circumstances of this case. 11. As to whether the plaintiff was in any way negligent. Although of course it happens everyday that people stand on a wide road near the pavement or near a pedestrian refuge waiting for traffic to pass by in front of them such an action does expose the person to a certain amount of danger in case for some reason either mechanical or otherwise the vehicle should swerve in their direction. The hard fact remains in this case that if the plaintiff had waited on the pedestrian refuge for the motor-cycle to pass it is almost certain that she would not have been injured. I therefore assess the degree of contributory negligence on the part of the plaintiff to be 10%, and I therefore find find the 1st defendant 90% liable for the accident. 12. Turning now to the question of damages. At the commencement of the trial counsel for the defendants informed me that certain items of special damage were admitted subject to liability. They were items Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 12 amounting to a total sum of $696. In his final address to me counsel for the defendants also informed me that although no receipt had been produced he did not quarrel with item 3 of special damaged being hospital expenses amounting to $126 and also so far as item 11 was concerned, being travelling expenses for follow-up in Kwong Wah Hospital at $6 a day, from the evidence adduced these only amounted to $72 and not $216 as claimed, and I agree with him. Counsel also submitted that no evidence whatsoever had been adduced to support item 7 for $36 for follow-up expenses in Kwong Wah Hospital and counsel for the plaintiff also agreed with this submission. Therefore, with regard to the quantum of special damage there remains in dispute four items, namely, a claim for $950 being fees of a Chinese bone-setter; secondly, a claim of $315 being travelling expenses incurred by the plaintiff in visiting the said Chinese bone-setter; thirdly, a claim of $2,000 for extra nourishment; and, fourthly, a claim of $16,250 for loss of earnings from 1st October 1972 to 31st October 1974 at $650 per month, amounting to $16,250 and continuing. 13. The plaintiff was taken to Kwong Wah Hospital after the accident on 29th September 1972 where she was found to have sustained a double fracture of the left tibia and fibula. She also suffered from a superficial laceration would at the base of her right little finger. She was discharged from hospital on 1st December 1972. Upon her discharge from hospital her leg was still in plaster and she was supplied with two crutches (medical evidence was later given that a person suffering from the fractures sustained by the plaintiff would require to use two crutches all the time that her leg was in plaster). The plaintiff then attended the follow-up clinic regularly from the date of her discharge until 9th February 1973. On 9th February 1973 the plaster was removed to assess the union of the fractures the fractures were found to be sticky bout not solid and she was advised that a further period of plastering was necessary. However, she refused this advice and instead sought the treatment of a Chinese bone-setter. When asked why she had taken this form of action the plaintiff said that as far as she understood the bones in her leg were not in a satisfactory position, she said she was shown the X-ray photographs taken on 9th February 1973. She said after her discharge from hospital the plaster of her leg had already been changed twice before 9th February. She said that she thought the doctor should have done something to improver the position of the bones in her leg. She said that this was not suggested by the doctors, that they merely suggested replastering the leg, and that as after four months in plaster she still could not walk without help she thought that there was no purpose in having her leg replastered, as she said she had lost confidence in treatment by way of putting her leg in plaster. She also said that no one had ever suggested that she should undergo an operation on her leg. 14. The plaintiff said that prior to the accident she had been employed as a skilled worker operating washing and drying machines in a knitting factory. She had been employed in this type of skilled work for eighteen years and her wages amounted to $22 per day, but that at peak periods she could earn more by way of over time payments. She described how she visited the bone-setter from 13th February 1973 until 16th April 1973 and she produced a receipt from a Mr. Wong Chor-ting, a Chinese bone-setter, for treatment amounting to $945. She also said that she spent about $900 on special nourishment. She said that the bone-setter suggested this, although Mr. Wong Chor-ting when he gave evidence made no mention of this, and also the plaintiff had said that her daughter had brought her extra nourishment while she was in hospital so this was long before she attended Mr. Wong's clinic. 15. The plaintiff also said that she ceased attending Mr. Wong's clinic when she found that she could walk with the aid of two crutches without assistance from a third person. The plaintiff was somewhat vague as to her evidence as to when she only needed to use one crutch. However, Mr. Wong said that on the last occasion when he saw her the plaintiff could manage with only one crutch. The plaintiff said that she could walk without the aid of crutches in November 1973 but that after she had stood on both legs for 15 to 20 minutes she would start feeling pain in her leg. She said that she attempted to obtain a job in December 1973 but was unsuccessful as her previous employer did not think that she was strong enough to perform her old duties as she could not stand for eight hours a day. She said that she tried to get other employment but that she was unsuccessful because at that time factories were laying off workers rather than taking on workers. She said that from April 1975 she had been assembling plastic flowers at her home earning between $60 to $70 a month. She also said that the factory where she worked before the accident closed down in about June 1975. 16. The Chinese bone-setter, Mr. Wong Chor-ting, gave evidence as to the treatment he gave to the plaintiff, splinting the leg and applying herbal paste and massage. He said that he had practised as a Chinese herbalist and bone-setter for twenty-one years. He said that his family had been in the profession for generations and that he had studied Chinese medicine in Canton at the Ham Hing Chuen Medical College from which he graduated in either 1951 or 1952. He said that in his opinion when the plaintiff stopped coming to his clinic she was 80% fully recovered. 17. Dr. M.H. Mehal, B.Sc., M.B.B.S., gave evidence as to the treatment given to the plaintiff at the Kwong Wah Hospital. He said that the only treatment given for the fractures sustained by the plaintiff was immobilisation in a plastercast and that this was the standard treatment for such injuries. He produced two X-ray photographs taken of the plaintiff's leg on 29th September 1972 and 20th November 1972. He said that the hospital could not produce the X-ray photographs taken in January and February 1973. He said that he last saw the plaintiff in January 1973 bout that one of his colleagues examined her in February 1973. Examining the two X-ray photographs of September and November 1972 Dr. Mehal said that the process of healing was satisfactory and that the alignment of the bones was as good as could be expected from the injury in question. He did not consider when he examined the plaintiff in January 1973 that any operation on the leg was necessary. He said that by the time the plaintiff was examined in February 1973 partial weight bearing on the leg had already been allowed. Dr. Mehal was at no time asked why no manipulation was applied to the plaintiff's leg to try to improve the alignment of the bones. 18. Dr. A.C. da Rosa, M.B.B.S. (H.K.), W. Ch. Orth. (Liverpool), F.R.C.S. (England), F.R.C.S. (Edinburgh), also gave evidence that he examined the plaintiff on 8th October 1973 and again on 1st October 1975. He produced a written report of his examination of the plaintiff in October 1973 and confirmed the fractures of the tibia and fibula and he produced two X-ray photographs taken of the plaintiff's leg dated 8th October 1973. He agreed that the lower fractures of both bones were very much out of alignment. By the time he examined the plaintiff in October 1973 it was Dr. da Rosa's opinion that no further treatment would be beneficial to the plaintiff. He said that by the time he examined the plaintiff on 1st October 1975 the bones had definitely joined up. That when he examined the plaintiff in October 1973 there was 1-inch shortening of her leg but by the time he examined her in October 1975 there was a 2-inch shortening of the leg. He said this increase was caused because when a bone of this type joins it collapses and telescopes. He said that he had compared the X-ray photographs of November 1972 and October 1973 and there had been no change in the angulation of the fractures between the time that the two X-ray photographs had been taken. He also produced an X-ray photograph taken on the 1st October 1975 and said that the angulation was the same as that shown in the X-ray photograph of November 1972. He said that if the plaintiff had submitted to replastering in February 1973 and that had been the only treatment carried out then the result would have been the same as shown in the X-ray photograph of November 1972. When asked what treatment he would have prescribed in November 1972 Dr. da Rosa said that manipulation should have been carried out to try to straighten the bones as the alignment was not acceptable as it appeared in November 1972. He said that the bones should have been pushed back in November 1972 but perhaps the Kwong Wah Hospital staff had some good reason for not doing this. He said that in his opinion the plaintiff would continue to suffer pain from time to time in her ankle and knee but not from the fractures, and that such pain would get worse as time went on. He also said that with a special raised shoe the plaintiff could carry out employment that involved standing but if her job involved standing for weeks on end she would suffer occasional pains. 19. Dr. R.G.M. Wedderburn, M.B.F.R.C.S. (Edinburgh) was called by the defence. He said that he had examined the plaintiff on the 11th December 1974 and he produced his written report in which he stated that he found that both the tibia and fibula were angulated outwards through 15 0. Also that he considered that the poor union of the bones was due to the fact that the plaintiff refused further treatment, although is his opinion further treatment would probably have necessitated operative fixation of the fracture of the tibia with a bone plate and a small bone craft. In evidence Dr. Wedderburn said that the incapacity suffered by the plaintiff is caused by the angulation of these bones. Examining the X-ray photographs of the 20th November 1972 he said that according to that photograph the angulation was about 50 and that such angulation would not be acceptable. He also suggested that the treatment which should have been carried out at that time was manipulation and if that failed then an operation should have been carried out to secure the fracture. He said that manipulation was almost always successful. He said that if the plaintiff had accepted further treatment by way of replastering there would have been no change in angulation which he said was only 50 in November 1972. In his opinion Dr. Wedderburn said that the treatment by Mr. Wong actually did damage to the bones in the plaintiff's leg. He said that in his opinion if the plaintiff had submitted to further treatment by the Kwong Wah Hospital she would be able to walk better than she does now whereas she now walks with a pronounced limp. Dr. Wedderburn said that he disagreed with the findings of Dr. da Rosa that there had been no change in the angulation of the tibia between the X-ray photographs of November 1972 and October 1973. He said that the change was from about 50 to 11 to 120. 20. Counsel for the defendants submitted that firstly, there was negligence on the part of the Kwong Wah Hospital in failure to attempt by way of manipulation to correct the angulation to the plaintiff's bones; secondly, that the treatment given by the Chinese bone-setter aggravated the injury; and, thirdly, that the plaintiff's own conduct in refusing to undergo further hospital treatment and instead going to the bone-setter also aggravated her injury, and that as such these three factors constituted either individually or together a novus actus interveniens. He also submitted that if the plaintiff had continued with hospital treatment although apparently he submits that such treatment was negligent she would only have a 20 malalignment of the bones of her leg. 21. Considering firstly the alleged negligence on the part of the staff of the Kwong Wah Hospital Dr. Mehal said that in his opinion when he last examined the plaintiff the progress of healing was satisfactory and the alignment of the bones was as good as could be expected from this injury. At no time was Dr. Mehal asked why no treatment by way of manipulation was attempted. Dr. da Rosa stated in his evidence that there may have been some reason why such treatment was not given. There is no evidence before me as to this. In the case of Wong Hok-chung v. Chow Wai-kam(2) I have dealt fully with the question of the doctrine of novus actus interveniens and from the evidence adduced in this present case I am certainly not satisfied that there was any negligence displayed on the part of the Kwong Wah Hospital. 22. Considering counsel's second point that the treatment given by the Chinese bone-setter aggravated the plaintiff's injury. Evidence was adduced that the plaintiff was treated by Mr. Wong Chor-ting from 13th February to 16th April 1973. Two X-ray photographs of the plaintiff's leg were taken one on 20th November 1972 and the next X-ray photograph was not taken until 8th October 1973. Mr. Wong Chor-ting did not treat the plaintiff after 16th April 1973 and there is no X-ray photograph taken at this time to show the degree of angulation of the bones of the plaintiff's leg. Dr. Wedderburn, an experienced orthopaedic surgeon gave it as his opinion that the treatment given by Mr. Wong actually did damage to the plaintiff's leg. However, there is no evidence to show the condition of the plaintiff's leg between 13th February to 16th April 1973. Dr. Wedderburn said that the angulation increased between November 1972 and October 1973. On the other hand Dr. da Rosa, again a highly qualified orthopaedic surgeon, said that in his opinion the angulation had not changed between these dates and therefore if the angulation was the same in October 1973 as was in November 1972 then it would appear that Mr. Wong's treatment did not affect this angulation. Again from the evidence adduced I am not satisfied that the plaintiff's injury was aggravated by the treatment given by Mr. Wong Chor-ting. 23. As to counsel's third point that the plaintiff's injury was aggravated by her own conduct. In the very special circumstances existing in Hong Kong should a Chinese person such as the plaintiff be penalised if she does not seek treatment in the form of Western medicine or what, according to Leonard J. in the case of Kwan Mei-king v. Au Hong-keung(3), is generally miscalled Western medicine. Can such a person not resort to traditional treatment by a Chinese bone-setter and herbalist? Especially in such a case as this where she had lost confidence in the treatment she was receiving and as I have already stated from the evidence as a whole I am not satisfied that the treatment she received from the bone-setter did her actual harm. Under all the circumstances I do not feel that the plaintiff should be penalised because of her conduct in seeking alternative treatment. 24. So far as the quantum of damage is concerned I allow the amounts already agreed under items 1, 2, 3, 4, 5, 6, 10 and 12 of special damage amounting to $696 and also the amount of $126 claimed under item 3 and $72 claimed under item 11. I also allow the claim for $945 being the fees paid to the bone-setter and the claim for $315 being the travelling expenses to and from Mr. Wong Chor-ting's clinic. 25. In her statement of claim the plaintiff has also claimed $2,000 for extra nourishment. However, in her evidence she only said that she had paid for extra nourishment on 45 occasions at about $20 a time. Thus the sum she is actually claiming would appear to be in the region of $900. Again in Hong Kong claims for extra nourishment or special diet are invariably made in this type of case. Sometimes the courts allow such claims and sometimes they do not. Frequently these claims are grossly exaggerated and sometimes extra nourishment is ordered by a Chinese herbalist and sometimes the injured persons on their own account decide that extra nourishment is necessary. In O.J. Action 1582 of 1972 (unreported) but referred to by McMullin J. in the case of Mui Ling-kwan and another v. Wong Yin-wah and others(4) Briggs C.J. stated that a claim for extra nourishment whilst in hospital unless it was ordered by the doctor cannot succeed. In this case the plaintiff has said that certain extra nourishment was brought to her in hospital by her daughter. She did not say on how many occasions but she did say that she also obtained extra nourishment when she was attending the Chinese bone-setter. I consider that under this heading of extra nourishment that it would be fair to allow the sum of $500. 26. The last heading under the claim for special damage is for loss of earnings for 25 months from 1st October 1972 to end of October 1974 at $650 per month and continuing. The plaintiff gave evidence that she earned $22 per day and the defence say that they are not quarrelling with that sum. Since April this year the plaintiff says that she had been earning for $60 to $70 per month assembling plastic flowers at home. She also informed me that the factory at which she worked prior to the accident closed down in about June 1975 which, if no accident had taken place, would in all probability mean that she would have been out of a job from that date and at the age of 65 she would have considerable difficulty in finding alternative employment. Under the circumstances I consider that a fair award for loss of earnings would be $21,240 i.e. 33 months at $650 per month minus the earnings from plastic flowers. 27. In her statement of claim the plaintiff has also alleged that she suffered from occasional headaches as a result of the accident. In evidence she said that originally she suffered attacks of headaches and dizziness sometimes as often as twice a month, and that she still suffered these attacks about once a month as a result of which she would have to stay in bed for two days. However she did agree that the onset of these attacks commenced about five months after the accident, and the medical witness called by both the plaintiff and the defence agreed that such attacks could by no way be attributable to the accident, and under the circumstances I hold that such "injury" did not result from the accident. 28. The plaintiff also alleges in her statement of claim that she is suffering from a H-shaped scar at the base of her right 5th finger. Again medical evidence adduced by both parties agreed that although a slight scar existed there was no incapacity caused to the plaintiff's finger. 29. Under the heading of general damages for pain and suffering and loss of amenities I award the sum of $5,000. 30. I therefore assess special damages in the sum of $23,894 and general damages in the sum of $5,000. 31. As I have already stated on the question of liability I have found the plaintiff 10% liable for this accident and therefore the awards must be reduced 10% and I therefore enter judgment for the plaintiff in the sum of $21,505 special damage and $4,500 general damages and costs. In her statement of claim the plaintiff claims interest and accordingly I award interest on the special damage at the rate of 8% per annum from the date of the accident to the date of this trial. 12th November, 1975.
Representation: Mr. John Chau, instructed by (H.M. So & Co.) for the plaintiff. Mr. J.D.M. Donnelly, instructed by (Deacons) for 1st and 2nd defendants. (1) [1962] H.K.L.R. 595 (2) [1974] H.K.L.R. 506 (3) [1972] H.K.L.R. 352 (4) [1973] H.K.L.R. 465 at 477 |
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