Tam Yuen Ling v. Ngai Sum Yim and Others

Case No.HCA 3049/1973[2016] 2 HKLRD 572

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA003049/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 3049 OF 1973

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BETWEEN:
	TAM YUEN LING	Plaintiff
	and
	NGAI SUM YIM	1st Defendant
	CHAN PO CHIN	2nd Defendant
	CHIN WAI KEUNG RICHARD	3rd Defendant

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Coram: Mr. Registrar Doyle in Chambers

Date of Judgment: 2nd September, 1975.

Mr. Patrick Fung instructed by H.H. Lau & Co. for the Plaintiff.

Mr. Richard Mills-Owens instructed by Messrs. Deacons and Messrs.

Johnson, Stokes & Master for the 1st, 2nd & 3rd Defendants.

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DECISION

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1. This is an assessment of Plaintiff's damages against the three Defendants arising as a result of personal injuries which she received in a road traffic accident which occurred on the 8th November, 1972. On that day at about 18.30 hours Plaintiff was standing on the pedestrian pavement at Ma Tau Kok Road near the junction of Tam Kung Road. She was struck and knocked down by a vehicle No. AH 1004 owned by 2nd Defendant and driven by the 1st Defendant. The said vehicle had collided with another vehicle No. AK 2179 which was owned and driven by the 3rd Defendant.

2. Interlocutory judgment for damages to be assessed and costs to be taxed has been entered.

3. Plaintiff was represented by Mr. Patrick Fung and Mr. R. Mills-Owens appeared for all three Defendants.

4. Particulars of injuries and particulars of special damages are set out on pages 2 and 3 of the re-amended Statement of Claim filed herein on 11th July, 1975.

Special Damages

(1)	Damage to clothing and purse $100.
	This is not disputed and I award $100 on this head.
(2)	Loss of earnings at the rate of $500 per month for the period 8th November, 1972 to 20th November, 1973 amounting to $6,000.
	Plaintiff maintained that she was earning $500 per month just prior to the accident.
	She said she received her full wages for November, 1972 and that the amount was $500. P.W.1, one of the supervisors of the Gar Ming Primary School also stated that her total pay at the time of the accident amounted to $500 per month including $160 per month as living allowance.
	Plaintiff herself agreed that her total monthly earnings for each of the months of August, September and October, 1972 amounted to $340, which sum did not include any allowance. These figures appear in an accident report made by the supervisor of the school in connection with a claim for workmen's compensation (Exh. 2) Another document signed by the supervisor of the school (Exh. P1) states that the Plaintiff was employed there from October to November, 1972 at a monthly salary and allowance in the sum of $500.
	Having considered all the evidence on this point, I am not satisfied that Plaintiff was earning $500 per month at the date of the accident I find that she was earning $340 per month. One year's salary therefore amounts to $4,080. It is agreed that $1,749.78 paid to Plaintiff by way of workmen's compensation payment (see Exh. 3) must be deducted. I therefore award Plaintiff $2,330.22 under this head.
(3)	Loss of earnings from part-time job at the rate of $350 per month for the period 8th November, 1972 to 8th April, 1975 and continuing - $10,150.00.
	Plaintiff's evidence was that prior to the accident she was able to earn about $350 per month on average by dressmaking for school mates and colleagues. Since the accident she said she has been unable to continue doing this work because she found it difficult to pedal the sewing machine and because she could not sit for long.
	It is true that this part of the Plaintiff's claim was not made until the Statement of Claim was amended in April this year. However that may not have been the Plaintiff's fault. I am not satisfied that it was her fault. The Plaintiff's own evidence is the only evidence supporting this part of claim but having heard that evidence and bearing in mind that the income derived from her job at the school was very small I think that she probably did do this part-time work. When cross-examined as to how much she earned per month by this work it seemed to me that she was uncertain as to whether it was $300 or $350. I will allow the lesser figure of $300.
	This loss of earning power is said to be continuing. The reason given by the Plaintiff in examination in-chief for this have been referred to above. When cross-examined by Counsel for the Defendants she again gave these reasons but on being further cross-examined she said that the main reasons were that she could not concentrate and that she lacked energy.
	I am not satisfied with any of the Plaintiff's reason for not resuming this spare time work. Dr. Wedderburn said that working the foot pedal of a sewing machine would be good for the knee which was injured and Plaintiff agreed with that when it was put to her. As to being unable to sit for long that may well have been the case at first. Plaintiff was present during the hearing and it was clear that she can now remain seated for fairly considerable periods of time. As to lack of concentration Plaintiff has resumed her job at the school without difficulty as far as we know, and if she was able to do that I cannot see why she cannot resume her spare time work. There seems to be no good reason why she could not have taken up this work again at about the time when she returned to work at the school.
	On this head I allow loss of earnings at the rate of $300 per month for a period of 12 months and award $3,600.00 to Plaintiff.
(4)	Herbalist's Fees $6,500.
	There seems to be no evidence to support this part of the claim. The herbalist was not called to give evidence. Plaintiff's herself could only repeat what she had been told by her father as to the payment of the fees. Plaintiff's father was not called as a witness. There will be no award under this head.
(5)	Special Nutrition $2,000.00.
	There is only the Plaintiff's evidence to support this part of the claim and it is vague. However she was seriously injured and I think it probable that some special nutrition was necessary in the early part of her convalescence. I award $500 on this head.
(6)	Travelling expenses $1,080.00.
	Plaintiff said that her father, her brother and her aunt visited her in hospital and that taxi fares to the amount of about $10 per day were incurred. It seems to me that it might be necessary to travel by taxi sometimes. There might be no reasonable alternative. I do not think it probable however that it was necessary to travel by taxi on every occasion. I award $540 on this head.

Total Special damages amount to $7,070.20.

General Damages

5. The Plaintiff suffered fracture of the pelvis, fracture of the right intercondylar eminence and fracture of the right fibula. She also sustained a small laceration of the left forehead and a number of abrasions. She was detained in hospital for two and a half months. After leaving hospital she needed crutches for 4 months and attended Kowloon Hospital twice a week for physiotherapy for 5 months. She was unable to return to work for 12 months after the accident. I think she must have undergone considerable pain and suffering and shock and this must be borne in mind when seeking to assess general damages.

6. There has been no loss of earning power beyond the temporary loss during the first twelve months after the accident and this has already been dealt with under special damages.

7. At paragraph 5(1) of the amended statement of claim it is alleged that as a result of her injuries Plaintiff has a tendency to develop epileptic fits. Dr. Wedderburn in his most recent report has stated that he thinks it extremely unlikely that she will develop epilepsy. Dr. Michael Lee said that if she has any such tendency it is more probably inborn that due to injury. I find on the balance of probabilities that there is no tendency to develop epileptic fits.

8. The most serious consequence of the Plaintiff's injuries appears to be bladder disfunction which gives rise to frequency of micturition and bed-wetting. Dr. Wedderburn considered three possible causes of this condition, urinary infection, spinal cord damage, and damage to the sphincter. He said that in his opinion the condition was due to damage of the sphincter.

9. Dr. Lee was of opinion that the condition was due to partial spinal cord damage sustained at the time of the accident. He said that this kind of bladder disfunction is what one would expect as a result of spinal cord lesion.

10. Having considered all the medical evidence on this point I find that the probable cause of this condition is partial spinal cord damage.

11. Dr. Lee seemed to be of opinion that the condition would be permanent. I accept that.

12. Dr. Lee in one of his reports expressed the opinion that apart from bladder disfunction and some weakness in the legs there would be no other effect on the Plaintiff arising from this injury.

13. The report of the Medical Board (Exh. 4) noted that the pelvic injury may affect the mode of delivery if she becomes pregnant. Dr. Wedderburn thought that she should be able to have a child by normal delivery but added that in a case where there is a history of pelvic injury an obstetrician would resort to Caesarian Section more readily if labour were proving difficult than he would in a case where there was no history of pelvic injury.

14. Dr. Wedderburn also expressed the view that the bladder disfunction might affect Plaintiff's prospects of marriage.

15. Mr. Mills-Owens in the course of his address referred to the case of Li Woon Kin v. Chow Shuet Chin.⁽¹⁾ In that case the Plaintiff sustained fractures of the right femur andpelvis and injuries to the right side of the body and to the hands and face. As a result she had a permanent limp and was unable to lie on her right side. She was awarded $17,500 for pain suffering shock and disability.

16. Mr. Mills-Owens also referred to Sreedharan Pillai v. Joseph Yeung Kwok Fun⁽²⁾. Plaintiff was 36 years old. He sustained fractures of the left shoulder and right hip. He was in hospital for two months and for twelve months after leaving hospital he needed the assistance first of crutches and then of a stick in order to walk. He developed osteoanthritis of the right hip and it was found that an operation to improve his condition would be necessary after about 5 years. General damages were assessed at $22,000. This figure included the cost of the operation which was estimated at $10,000.

17. Having considered all the evidence, the submissions of Counsel and the cases cited in argument I have come to the conclusion that a proper figure for general damages would be $30,000. It must be borne in mind that this will be a lump sum payment and I must also make allowance for what are called the usual vicissitudes of life. Therefore the figure of $30,000 will be discounted by 20% giving a figure of $24,000. This figure together with special damages of $7,070.22 makes a total award of $31,070.22.

18. I award Plaintiff interest on the special damages of $7,070.22 at rate of 4% per annum from the date of the accident until today and interest on the general damages of $24,000 at the rate of 8% per annum from the 30th November, 1973, the date of service of the Writ until today.

19. The Plaintiff shall have the costs of the assessment with certificate for Counsel.

	(C.G. Doyle)
	Ag. Assistant Registrar
	2nd September, 1975.

Representation:

Mr. Patrick Fung instructed by H.H. Lau & Co. for the Plaintiff.

Mr. Richard Mills-Owens instructed by Messrs. Deacons and Messrs. Johnson, Stokes & Master for the 1st, 2nd & 3rd Defendants.

(1) O.J. 2714 of 1973

(2) 1966 H.K.L.R. p.366

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