Ng Cheung Wai v. Lau Che Ming
Read the full judgment text of HCA 2117/1974 on BabelCite. This High Court CFI judgment was delivered on 4 May 1976.
1. The Plaintiff was knocked down and injured by the Defendant's vehicle on 26th October 1973. He was taken to Queen Elizabeth Hospital and treated for
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Barnett in Chambers Date of Judgment: 4th May 1976 Mr. John Chau (H.H. Lau & Co.) for Plaintiff Mr. Michael Asome (Johnson, Stokes & Master) for Defendant --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1. The Plaintiff was knocked down and injured by the Defendant's vehicle on 26th October 1973. He was taken to Queen Elizabeth Hospital and treated for
2. Closed reduction was done for the limb fractures. A plaster cast was put on both legs. He was transferred to Kowloon Hospital and, apart from a period of 3 days when he was returned to Queen Elizabeth Hospital for the alignment of the plaster to be altered, remained there until he was discharged on 4th June 1974. He was in hospital for just over 7 months. 3. When discharged, the Plaintiff was using crutches to get about. He continued to use them for about a year and then changed to a stick which he still uses. He attended hospital as an out-patient for follow-up treatment and physiotherapy once a month until September 1975. 4. Dr. Sung gave evidence on behalf of the Plaintiff and Dr. Wedderburn on behalf of the Defendant. Where there is any conflict between them, I accept the evidence of Dr. Wedderburn who made a thorough examination of and report upon the Plaintiff in July 1975. Dr. Sung appeared not to have seen the Plaintiff since April 1974 when he gave a brief description of the Plaintiff's injuries and treatment therefor. 5. The Plaintiff's clavicle has healed well. Although there is some numbness in the fingers of the right hand, grip is not affected and there is no disability. His right leg, however, is shortened by ½" due to overriding of the fracture and there is some loss of flexion in the right knee. 6. The Plaintiff's left knee (the condyle of the tibia) is well united but there is some permanent abnormality which will inevitably load to osteo-arthritis. However, osteo-arthritis will not affect the Plaintiff for perhaps 10 years and even then will not be a severe crippling condition. There is 40o loss of flexion in the knee. 7. Dr. Wedderburn assessed an 11% impairment of the whole man and put disability from an earning point of view at 15%. He conceded that disability could perhaps be up to 20% if the Plaintiff's previous employment had been particularly active. 8. As a result of his injuries, the Plaintiff now has an awkward gait. He has great difficulty going up and down stairs which makes the use of public transport a problem. He uses a stick; while he could probably walk without it, it is conceded that it is useful. He still experiences pain in his legs. 9. Turning to the question of general damages, I deal first with pain, suffering and loss of amenities. I was referred to C.J. 1155/69, 445/71 and 490/70 which are reported at 1975 H.K.L.J. pp 110-111, and to O.J. 1297/74 at p.385 of the same volume. Awards for injuries of a comparable nature ranged from $4,000 to $30,000. In O.J. 1297/74, Cons, J. considered that conventional awards in Hong Kong for serious and permanent injuries to the leg requiring operations but not amputation had an upper limit of $25-30,000. 10. In a recent assessment in A.2794/75 I awarded $25,000. The plaintiff, a male of 65, suffered (inter alia) compound fracture of right patella and fractured medial malleolus of right ankle. He was in hospital for 3 months. His right leg could no longer be straightened. Impairment was put at 10% of the whole man. 11. In the present case, the Plaintiff is aged 48. He suffered injuries to both legs and right clavicle. He was in hospital for 7 months. Impairment is put at 11%. 12. I therefore assess damages for pain, suffering and loss of amenities at $25,000. 13. Secondly, I am asked to make an award for future loss of carnings. 14. The Plaintiff was a skilled worker in a plastic factory, operating an injection moulding machine, earning slightly over $900 per month on average. He has been unemployed since the accident. He says he cannot resume his former employment as he cannot stand for the long periods required. He was not really challenged on this. I think it is accepted that he can no longer undertake such employment. 15. The Plaintiff says he has looked for a job, particularly a job as a lift attendant. He has also asked the Social Welfare and Labour Departments to assist him. So far no job has been found. 16. Mr. Asome makes a number of points. He draws attention to the fact that the Plaintiff admittedly was not a steady worker but moved from factory to factory, and to the admitted recession in the plastic industry and trade generally since the accident. These are valid points. 17. He also makes great play of the Plaintiff's education. The evidence, which comes solely from the Plaintiff, is that the Plaintiff had 2 years' university education in China during the Second World War, studying construction surveying. Mr. Asome says that this enables him to look for a job in the construction industry or at least to apply for some form of bookkeeping or clerical post. Accordingly, the Plaintiff has not made as much effort as he should have done to obtain alternative employment. The Plaintiff pleads inexperience. I am bound to say that I think it is asking too much of the Plaintiff, on the basis of some nebulous education, to switch to a form of employment in which he has no practical experience. Methods and techniques have doubtless changed over the years. I have no doubt that the Plaintiff is totally unfitted for the type of jobs suggested. 18. Mr. Chan says there must be some reduced earning capacity. He suggests a sum of $300 which would take into account the Plaintiff's personal expenses as against prospects of promotion and pay rises, and a multiplier of 10. 19. It is clear that the Plaintiff is at a disadvantage on the labour market. His particular skill is no longer of any use to him. He cannot seek any physically exacting job. He will have to find his feet in new fields. It is inevitable that he will suffer some reduction in income. 20. In all the circumstances, I think a fair award for loss of future earnings is $200, with a multiplier of 10. I therefore assess this loss at $24,000. 21. Total general damages are $49,000. 22. As to special damages, I allow (a) loss of earnings until August 1974 as claimed at $9,000. Damage to clothing of $172 is not disputed. I also allow this. 23. There is a claim (b) for special nutrition of $1,600. This appears to be for the cost of visits to a bone setter and the medicated tea and wine and other ointments supplied. This took place after the Plaintiff had been discharged from hospital. In my view, this claim is untenable. While I am aware that it is now usual to award something for special nourishment for the psychological benefits allegedly derived therefrom, I think such awards are invariably confined to nourishing foods consumed in the immediate aftermath of an accident. In the absence of specific medical evidence, I do not think that a claim for a bonesetter's medicine that was not sought until at least 7 months after the accident and after discharge from hospital can be entertained. I therefore disallow this item entirely. 24. Total special damages are $9,172. 25. I allow interest on the damages of 8% in accordance withJefford v. Gee. 26. The damages are to be paid to the Plaintiff within 14 days. 27. The Plaintiff is to have his costs. 28. Certificate for counsel. 29. Liberty to apply. 30. Dated the 4th day of May 1976.
Representation: Mr. John Chau (H.H. Lau & Co.) for Plaintiff Mr. Michael Asome (Johnson, Stokes & Master) for Defendant |