Chiu Yuet-chuen v. Lee Yiu-ting

Case No.HCA 744/1974

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA000744/1974

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 744 OF 1974

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BETWEEN
	CHIU Yuet-chuen	Plaintiff
	and
	LEE Yiu-ting	Defendant

Coram: Mr. Registrar Oliver in Chambers

Date of Judgment: 17th December, 1974.

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DECISION

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1. This is a claim by the plaintiff in respect of personal injuries sustained in a traffic accident which took place at 7.30 p.m. on the 20th November, 1972 when the plaintiff was standing in the roadway close to the edge of the footpath in Castle Peak Road at the Tai Yuen Fishing Pool, New Territories.

2. The plaintiff suffered the following damages:

(a)	fracture of the lower 1/3 of the left femur;
(b)	hospitalization for approximately 4 months;
(c)	surgery which involved the insertion of two pins to unite the fracture (Cross Rush Pinning);
(d)	traction for about 4 months;
(e)	two further operations for the adjustment and removal of the pins from the fracture leg;
(f)	two broad scars on either side of the left thigh and knee joint some 2 or 3 inches long.

3. Since the accident the injured man spent some three months in hospital and thereafter the only work which he has been able to obtain has been the collection of metal in scrapyards and for this he was able to earn something at the rate of $10 a day for some time but the price of scrap metal has fallen so low that he is now only able to earn he says approximately $2 a day. He is at the moment living in a wooden hut and the rent of the hut amounts to approximately $40 a month. The plaintiff is a married man whose wife is living in China. They have no children.

4. The heads of damage which I will have to assess concern

	(1)	Pain and suffering as a result of the accident;
	(2)	Special damages in respect of clothes and travelling expenses. These have been agreed in the sum of $50 and $35 respectively, and
	(3)	General damages which flow from the accident in that the injured man has lost earnings and the prospect of future employment at the rate he was receiving at the time of sustaining the injury to his leg. His employment was not however of such a permanent nature that I can hold with certainty that he would have definitely received such emoluments for a long period of time if the accident had not taken place.

5. The injured man spent just over three months in hospital. He was subjected to three operations and suffering was involved. He will never really be able to do work as heavy as that which he was performing at the time of the accident.

6. Evidence was given that at the time of the accident the plaintiff was employed in the Tsui Hing Cheong Glass Factory at Ping Shan in the New Territories as a general worker whose particular duties were to deliver heavy parcels of bottles and glassware and to go with the delivery truck for this purpose. In addition he was also employed to assist in stirring the mixture before it was made up into glass. This would entail work with a shovel and general labouring duties. He was employed at the rate of $17 a day and had been employed in October, 1972, that is to say, some 6 weeks before the accident took place. In addition to receiving $17.00 a day he lived in a dormitory maintained by the factory and he was also given four meals a day. The estimated worth of these meals was $2.50 per meal. He was paid on a day to day basis. A specific claim was made under the head of special damages for loss of earning at $450 per month and 3 full meals daily provided by employer valued at $150 per month from 20/11/72 to 30/3/74.

7. It was further alleged that the plaintiff has

(i)	swelling of the left knee joint and a wasting of the muscles of the left thigh and calf;
(ii)	he cannot straighten the left knee to the same extent as the right;
(iii)	he walks with a limp;
(iv)	he gets pain in his left knee with spasms in the muscles of his left leg after walking for about an hour;
(v)	he is unable to run;
(vi)	he has developed an arthritic condition of the left knee joint owing to the pins having to be inserted, when repairing the fracture, so close to the knee joint;
(vii)	he is still unable to do heavy work and is therefore only fit to perform employment of a light nature which he has been unable to obtain.

8. I propose to include under the head of general damages (a) pain and suffering and (b) loss of full fitness in the work market. The plaintiff had to have a pin put in his thigh and he will have anxiety if he is ever obliged to do work as heavy as that he was performing when the accident happened. Despite a slight limp, and some 3% loss of movement on the leg as estimated by Dr. Wedderburn (P.W.3) .... it seems as if the plaintiff will not be subjected to permanent injury other than a slight prospect of arthritis. A number of cases have been referred to upon the question of quantum of damages. The three I have carefully considered are:-

(i)	Ridell v. Liu Kwong Hong and Ng Kwok Wai O.J. 240 of 1972 heard by Briggs C.J. in which general damages of $15,000.00 were awarded for a bad fractured fomur: 27th June, 1974.
(ii)	Ho Kin Fun v. Leung Pak Tung and A.G. O.J. 3137 of 1973 Damages of $4,500 were awarded as general damages for a broken femur in a case in which the plaintiff seemingly made a full recovery. This case was decided by Mr. Registrar Jones on 27th June, 1974;
and (iii)	Lee Tin Yau v. Brigadier Burnett, O.J. 1077 of 1970 in which $25,000 general damages were awarded in a case in which a broken femur was involved. In this case further injuries of a permanent kind were occasioned to the leg and a total sum of $25,000.00 general damages was awarded by Mr. Registrar Jones on 1st December, 1972.

9. I assess the first i.e. pain and suffering at $7,000.00 and the second i.e. loss of fulfitxess in the work market at $8,000.00. These with the agreed special damages of $85.00 will amount to $15,085.00. There will be interest at 8% from the date of service of the writ which was on the 21st of March 1974 on the pain and suffering claim of $7000.00. Furthermore the plaintiff is entitled to costs. There will be the usual taxation in accordance with the Legal Aid (Scale of Fees) Regulations, Cap. 91.

Date this the 17th day of December, 1974.

	(J.R. Oliver)
	Registrar, Supreme Court

Representation: