Peter Thurston Piper and Another v. Nancy Francis Tang
Read the full judgment text of HCA 3094/1975 on BabelCite. This High Court CFI judgment.
1. On 27th April 1974 the car in which the second plaintiff (whom I shall refer to as the plaintiff) was travelling as a front-seat passenger was struck from behind by another car. Later that day the plaintiff began to experience severe pains in her lower back. Two days later while on duty at a nursery school where she was then working, she suffered intense pain and was forced to go and see a doctor. She was given painkillers and told to stay off school for two days.
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Barnett in Chambers Date of Judgment: 12th July 1976. Mr. W. Waung (Deacons) for Plaintiffs Mr. H. Poon (Wilkinson & Grist) for Defendant --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1. On 27th April 1974 the car in which the second plaintiff (whom I shall refer to as the plaintiff) was travelling as a front-seat passenger was struck from behind by another car. Later that day the plaintiff began to experience severe pains in her lower back. Two days later while on duty at a nursery school where she was then working, she suffered intense pain and was forced to go and see a doctor. She was given painkillers and told to stay off school for two days. 2. On 3rd May 1974, the plaintiff went to see a specialist, Dr. Da Roza, who diagnosed ligamentous strain and aggravation of pre-existing disc narrowing. Subsequently, she saw Dr. Da Roza on about 14 occasions in May and June, during which period her back was strapped for some days, liniment was applied and painkillers prescribed. 3. During the summer of 1974, the plaintiff went on leave to England with her family. She had been taking things easily and not getting so much pain. After returning to Hong Kong, she returned to work at the nursery school with Dr. Da Roza's approval. However, once she began picking up children, an integral part of her duties, her back began, as she put it, "playing up again". She managed to work through October in increasing pain but finally had to go back to Dr. Da Roza on 6th November. 4. Dr. Da Roza advised the plaintiff to give up work temporarily, and prescribed a supportive corset and various tablets including pain-killers. The plaintiff wore the corset until the beginning of February 1975. Unfortunately, the pain and symptoms persisted and Dr. Da Roza suggested a second opinion from Dr. Hodgson, which was obtained a few days later Dr. Hodgson recommended a plaster cast which was fitted a few days later. The plaintiff wore the cast for 6 weeks. The cast helped to relieve the pain a bit but not much. It gave more support than a corset. 5. During this period, upon Dr. Hodgson's advice, the plaintiff employed a full-time amah as she could do none of the housework. This situation still obtains. 6. After the plaster cast was removed, the corset was replaced. The plaintiff tried to carry on but had difficulty walking, and in getting out of bed and loosened up in the morning which used to take about ½ hour and included the use of the wall for support. Finally, on 29th May 1975, the plaintiff was in such pain that she had to lie on the floor for relief. Next day, she visited her children's school and was again in great pain. She went to see Dr. Da Roza the same day and was admitted to hospital. 7. Initially, the plaintiff underwent traction in hospital. This only made the pain worse. As a result, on 3rd June 1975 an operation was carried out on the plaintiff's spine consisting of posterior fusion of vertebrae L4-5 and L5-S1, bilateral screw fixation of the posterior joints and an onlay bone graft taken from the left sacro-iliac crest. The plaintiff was discharged after a good recovery on 19th June. She still had considerable pain in her back and left hip, the donor area, and could not sleep on her left side, which is her normal side for sleeping, for several weeks. She wore the corset with the addition of metal rods in the back and slept on bed boards. 8. During the post operative period, the plaintiff had aches and pains in her back and hip, and developed an ache in her groin. These aches persist even now, although not all at the same time. However, the pain is now definitely better than before. The plaintiff still has trouble sleeping on occasions. 9. The plaintiff returned to see Dr. Da Roza, in September 1975, who advised leaving the rods out of the corset. A month or two later, she was allowed to cease use of the corset and resume driving a car. However, in January 1976, because pain and aching in the back and hips persisted, she was advised to resume use of the corset while driving and Valium was prescribed. In March, because of pain in the groin, she was told to stop exercise and rest her legs more and take a muscle relaxant 3 times daily. 10. In June 1976, at the annual check, the plaintiff was told, because pain still continued, to wear the corset while driving, shopping and doing housework to see if it helped. It did help as it gave support. The plaintiff is still wearing it. 11. The present position is that the plaintiff has recovered well in that she has a good range of forward bending and rotation from side to side, but is stiff in backwards bending of the spine which is only to be expected after such an operation. This restriction is likely to be permanent. 12. To this point, there is no real dispute about the plaintiff's injuries and suffering. For the future, there is an unhappy divergence of opinion between the two specialists called on behalf of the plaintiff. Dr. Da Roza is quite positive that, apart from the restriction on backwards bending, the plaintiff will improve to the point where she is pain free and able, subject to the limitation, to return to a normal way of life. He says that, from experience, this type of back ache clears up after fusion once it settles down although he cannot tell how long it will take. 13. Dr. Hodgson is equally positive that there is now no chance of improvement and Valium will be necessary on a long term basis. 14. How is this difference to be resolved? Mr. Waung, for the plaintiff, points out that Dr. Hodgson has already been proved right once when, after his first examination, he predicted that operative intervention might be required. On the other hand, Dr. Da Roza has consistently been too optimistic; in February 1975, shortly before Dr. Hodgson's first examination, he was of the opinion that the plaintiff would improve yet in June she had to undergo the operation; he suggested exercise and housework but the plaintiff was unable to cope; and he allowed the plaintiff to resume work but again the plaintiff could not cope. Mr. Waung submits that all this points to the fact that Dr. Hodgson, being older and more experienced, is more reliable. 15. For the defendant, Mr. Poon in effect leaves the matter to me. 16. The plaintiff's treatment was at all times in the hands of Dr. Da Roza who manifestly did all that he could to improve the plaintiff's condition and restore her to normal. There is patently a world of difference between Dr. Da Roza's efforts to cure the plaintiff and Dr. Hodgson's opinions ex cathedra as it were. 17. Nonetheless there is a great deal of force in what Mr. Waung says. On the balance of probabilities, I find that the plaintiff's condition is unlikely to improve. 18. Happily, the experts are agreed that the plaintiff's condition is unlikely to deteriorate although she is vulnerable to injury to her back. Thus, although there is a further operation which could be carried out, it is not advised unless there is a deterioration in the plaintiff's condition which even Dr. Hodgson considers unlikely. 19. Turning to the question of general damages, I will deal with this in 3 parts :
20. I have already described the plaintiff's pain and suffering and now permanent disability in some detail. 21. Because of her condition, the plaintiff cannot go out for long periods without undue pain in her back occurring. Thus, she is unable to take her children out as much as before the accident and her social life is curtailed. Previously, she used to drive the family around; now she drives as little as possible and uses public transport. Queuing for taxis is a strain on her back and she has to squat to relieve the pain, no doubt to the astonishment of others in the queue. Shopping is difficult. 22. The plaintiff had always led an active life, particularly in England where she will shortly be returning. She took part in squash, badminton, drama and keep fit; it will either be impossible or difficult to return to these activities. She used to enjoy dancing but can now only do so in a very limited fashion. 23. I have been referred to two Hong Kong cases. In Dayus v. Lui Hoi-kau O.J.A. 1231/69 reported in 1974 H.K.L.J. p.204, (I have consulted the original decision of Mr. Registrar Jones) the plaintiff was a female of 38 and was awarded $40,000 for pain, suffering, loss of amenities, loss of future earnings and cost of an anticipated spinal fusion in respect of whiplash injuries to her neck. She was a physiotherapist but was able to return to work. Between February 1967 and June 1968 she wore a neck collar. Mr. Waung, on the basis that $30,000 was for pain and suffering, points out that the award was in 1970 and suggests that $50,000 would be by no means an exaggerated award in the present case. 24. In Liu Ying-muk v. Choi Lun-kui & Anr. O.J.A. 4004/73, Cons, J. awarded $60,000 in 1974 for pain, suffering and loss of amenities. Damage to the plaintiff's spine left him paralysed from the waist down. The plaintiff was 50; he was not expected to live beyond 60. He had been an active outdoor man. Mr. Poon with justification, says this is a much more serious case. 25. Mr. Poon also referred me to various cases in Kemp & Kemp which suggested that the average English award in comparable cases is £2,500. 26. Liu's case is comparatively recent. However, awards have unquestionably been increasing during the last year or two. As McMullin, J. said in Lee Woon Sun v. Wong Kiu-keung & Ors. Civil Appeal 26 of 1975 at p.11, "Awards under this head (pain and suffering) until fairly recently in Hong Kong have been altogether too low". That was said on 9th March 1976. I am in respectful agreement. 27. The plaintiff is 38. She has many years of life before her which will be spent, at the very least, in discomfort. She will no longer be able to enjoy many of the pleasures in her life. 28. I award $55,000 under this head.
29. It had always been the plaintiff's intention to return to active nursing, albeit on a part time basis. The evidence is that the plaintiff will not be fit enough for clinical nursing but could do administrative nursing. However, as she has never reached the grade of sister, she is technically not qualified for administrative nursing. As a part-time nurse, she might earn in the region of £1,300 p.a. at current rates. 30. Upon this evidence, Mr. Waung says that the plaintiff is entitled to loss of future earnings, employing a multiplier of not less than 12, or in that region, and a multiplicand that will take into account future pay rises and promotion. 31. Mr. Poon submits that the award under this head, if any, should be on the basis of loss of earning capacity. He points out that there are no definite figures on which calculations can be based. Further, before the accident, the plaintiff was earning $5 - 600 p.m. which she probably could not fail to earn in England. Again, nursing is the plaintiff's personal choice and it is possible that the plaintiff could earn more if she was prepared to take other employment. The plaintiff fairly concedes she could earn more as a secretary (although she has no training for this). Further, there is evidence that the present position in England as regards nursing employment is difficult, with several applicants for each available post. In all the circumstances, Mr. Poon suggests that perhaps the plaintiff's thwarted desire to return to nursing should be just another item under loss of amenities. 32. To complicate this issue, there is the question of administrative nursing. Both Drs. Da Roza and Hodgson agree that she is capable of doing this. To qualify for administrative nursing, a nurse needs to have become a sister or to have recent experience in the clinical nursing field. That is how I read p.35 of the agreed bundle of documents. Thus, the plaintiff appears to have no opportunity of returning to nursing. However, Dr. Da Roza states that it is largely a matter of supply and demand. For example, the plaintiff might have no difficulty in obtaining a post in a small country hospital where staff are hard to come by whereas she would probably experience difficulty in approaching one of the popular London hospitals. 33. Dr. Da Roza's evidence is practical and commonsense. I accept what he says. It is not a condition precedent that an administrative nurse should have been a sister, only that she should have had clinical experience which being a sister automatically entails. Therefore I find that the plaintiff will in all probability be able to resume nursing in the administrative field. Upon the documents before me, there should then be no loss of earnings. In Lee's case (supra), McMullin, J. said:
34. Discussing this distinction between loss of earning capacity and actual loss of future (earnings) Munkman concludes (page 56 3rd Edition) :
And in the Law Commission Report on Personal Injury Litigation (Law Com. No. 56), first prepared in 1965 but reprinted in 1974, the Commissioners at page 56 in para. 204 - where a footnote expressly refers to Fairley's case(1) - take up the same theme in these terms: For myself, I would think that there is a real distinction but only where a lost or impaired specific faculty is concerned and that, I think, is the meaning which the court was implicitly giving to the phrase "loss of earning capacity" in Fairley's case(1).
35. Again, I respectfully agree with the learned Judge. In the present case, because of her injury, the plaintiff will no longer be able to exercise her particular skill of clinical nursing, as opposed to administrative nursing. She clearly derived pleasure and satisfaction from such work. I am of the opinion that there should be an award for loss of earning capacity in this respect. 36. As to quantum, I have nothing to go on. However, £1750 was awarded in Fairley's case. Bearing in mind that Hong Kong awards are generally lower than English awards and the rapid decline in the value of money over the last two or three years, I award the plaintiff $15,000 for loss of earning capacity.
37. It is agreed that the plaintiff will need permanent home help in future. The plaintiff anticipates she will need help 5 days a week for 4 hours a day. This is not challenged. 38. Mr. M.H. Jackson-Lipkin gave evidence that in 1975 home help at his residence at Eaton Terrace, S.W.1, cost £1 per hour. He had some difficulty in finding help. Since 1969, the cost has risen from 2/6 per hour. 39. Upon this evidence, Mr. Waung urges me to adopt the multiplier/multiplicand approach. Based on present rates, the multiplicand would be about £1,000 p.a., but this should be increased to take into account increases in wages. The multiplier could be 12-15. 40. Mr. Poon disagrees with the multiplier approach but, in effect, leaves the matter to me. 41. I can see no alternative to the multiplier approach. I put the multiplier at 12. As to the multiplicand, the evidence of Mr. Jackson-Lipkin gives me some basis to work on. However, I have no doubt that the "dailies" of Eaton Square look for and receive something more than the "dailies" in country areas where the plaintiff will probably be living. I think therefore that a fair multiplicand will be £1,000 p.a. 42. I award £12,000 under this head which I will convert at the rate of HK$9.5:1. i.e. $114,000. 43. Total general damages are $184,000. Special damages 44. Items 1, 2, 3 as amended, 5 and 10 as amended have been agreed at $23,675. 45. Mr. Poon's only real objection to some of the other items is that they are furniture which the plaintiff will have as assets. 46. I think this is only really applicable in respect of item 12. No doubt the plaintiff will sell her amah's furniture when she leaves. I will allow this item at $375. I will allow all the other items in full. Total special damages are $36,970. 47. The first plaintiff claims $495 special damages which have been agreed. 48. I award interest at 4% on both awards of special damages from the date of the accident, and at 4% on the general damages from the date of service of the writ. 49. Damages to be paid to plaintiffs' solicitors within 14 days. 50. Plaintiffs' costs. 51. Fit for counsel. 52. Liberty to apply. Dated the 12th day of July, 1976.
Representation: Mr. W. Waung (Deacons) for Plaintiffs Mr. H. Poon (Wilkinson & Grist) for Defendant (1) (1973) 2 Lloyd's Law Reports 41. |