Lau Chow Wing v. Tam Miu Lin

HCA001025/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1025 OF 1972

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Coram: Mr. Registrar Silke in Chambers.

Date of Judgment: 7th November, 1973.

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DECISION

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1. The plaintiff was injured in an accident which took place on the 10th May 1971 when he was driving a Public Light Bus on Kwai Chung Road from Kowloon to the New Territories.

2. The defendant's car was travelling from the New Territories in the direction of Kowloon mounted the centre safety island and collided with the defendant's Public Light Bus on the other side of the road.

3. An Order for Judgment on admission was made on the 31st January 1973 and Interlocutory Judgment for damages to be assessed was entered on the 11th June 1973.

4. This is the assessment of the plaintiff's damages arising as the result of personal injuries he received in the accident and I apologise to both parties for what I oonsider to be the inordinate delay, which is my own fault, in coming to the final assessment.

5. The plaintiff sustained lacerations of the scalp, (now difficult to see and overgrown by hair); lower lip (almost disappeared); abrasions behind and below right ear, of the right shoulder, the right back and the right forearm; tenderness on left side of chest.

6. Further and more serious a fractured skull, from which recovery has been complete; concussion to which the plaintiff attributes continuing loss of memory; contusion of the left lung and left pneumothoraz and, the most severe of his injuries, contusion and retinal haemorrhage of the left eyeball. He also suffered from shock and tenderness over the sternum and adjoining costal cartilages and ribs - which he states is continuing.

7. He now complains of present loss of vision in his left eye, the scars on his lip, top of his ear and the scalp, pain in his neck on rotation to the right, impairment of memory and the constant pain on his left chest near the left nipple.

8. He was in hospital for 11 days and thereafter treated at the Thoracic Surgical Unit and the Yaumati Ophthalmic Centre. He also attended a Chinese Bone setter of which more later.

9. Dr. T.K.C. Liu who gave evidence on behalf of the plaintiff was of the opinion that there is no useful vision in the left eye and that this disability is permanent. The cosmetic appearance of the eye is unchanged and I accept that the vision is permanently impaired to the extent stated by the doctor.

10. I also accept, having heard Dr. da Roza and the plaintiff and further Dr. Wedderburn for the defendant, that there is discomfort in the region of the sternum which will be permanent as the cartilage has separated from the bone.

11. As to special damage: It is agreed that loss of income under paragraph 17(a) of the Statement of Claim should be $1,200 and under (b) should be $8,400. Under (c) the defendant suggests $980 per month not $1,400 as the loss per month but this is contested. Mr. Davies based his submission on the wage of the employment the plaintiff entered into on 1st November 1971. He received $400 and then two increments of $50 each. Further he was fed at the factory and that this should be evaluated at $300 per month. Given his pre accident earnings at $1,680 per month - allowing for two days off -one gets the equation $400 wages + $300 food = $700 : $1,680 - $700 = $980 p.m. That is for the period 1st November 1971 to 31st May 1972 or 7 months giving a total of $6,860.00.

12. Then 1st June 1972 to 31st May 1973 there is an increment of $50 per month and the loss is $930 x 12 or $11,160.

13. For the period 1st June 1973 to 31st October 1973 there is again an increment of $50 and the loss is therefore $880 x 5 or $4,400. The total of these periods would be $22,420.

14. Mr. Liu's figures are less clear in my view and seem to be somewhat unfavourable to his client. I prefer the calculations of Mr. Davies.

15. Item 17(a)(b) and (c) will therefore be allowed at $32,020.00. Items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 16 of the specials are not disputed. Item 11 is not disputed at $11.00. This gives a total for these items of $2,207.00.

16. Item 15 'Extra nourishment' is disallowed in the absence of medical evidence to justify the claim.

17. Items 13 and 14, which depend one upon the other, are disputed. The Chinese Bone specialist did not appear, as seems common in these cases, and I have had the evidence of the plaintiff who says that after the application of herbs to his chest and shoulder, which were painful, he felt better. He also received massage. In order to get to the bone setter he used a pak pai paying $10 per visit. He could not remember the total number of times he went "but anyway I felt much better for the visits".

18. Dr. da Roza, and Dr. Wedderburn agrees with him, said the whiplash injury leaves residual symptoms. These should clear up in time.

19. I have been referred to a passage in O.J. Action No. 730/72 wherein Leonard J. said "In this case, prior to the use of Chinese herbs and to treatment by the Chinese bone-setter the plaintiff had been discharged from the care of Government doctors and from Kowloon Hospital as incurable. She has made some slight progress since her discharge and since she was attended to by the Chinese bone-setter. In particular she tells me that the pain in her arm has improvement she attributes to the Chinese herbs prescribed" and he allowed the plaintiff's claim for the sums paid.

20. The plaintiff here is in a somewhat dissimilar position - he claims he benefited from the herbs applied yes but this alleviated residual stiffness not a condition considered to be incurable. There was moreover no overlapping between the treatment by western medicine doctors and the Chinese bone herbalist and I have no evidence that this treatment was medically advised. Nor do I have any bills or records to support the sum claimed. I would however accept that the combination of herbs and massage did assist the plaintiff in his general recovery. Doing the best I can, given the paucity of evidence, I would allow Item 13 at $900. In respect of Item 14, again doing the best I can, I would allow $25.

21. The total special damages come to $35,152.00.

22. The plaintiff is a single man aged 27 years. His general damages fall to be assessed under the heads loss of future earnings, pain and suffering and loss of amenities.

23. First loss of earnings.

24. In coming to the assessment which I do I have taken into consideration the imponderables of his erstwhile position as a Public Light Bus driver, the type of employment which he now has, his general condition and what should be the multiplier and multiplicand. I take a percentage of the $980 difference arriving at a figure of $400 as the multiplicand. I accept that the plaintiff will suffer a continuing future loss of earnings which in the light of the evidence as to his present employment status is very difficult to assess. I note Mr. Liu's submission but think them to be far too high. I view this item in the light of what the plaintiff might be expected to earn during his working lifetime of 35 to 40 years taking into account the fall in the value of money, the tendency for wages to rise, the possibility of his improving his status in the market and contrasting his position before and after the accident.

25. Doing the best I can I think a loss of $400 per month to be reasonable coupled with a multiplier of 12, that is $400 x 12 x 12 giving a figure of $57,600.

26. I accept the total loss of vision in the eye, the minor nature of the scars, and the general pain still being suffered from the whiplash injury and the separation of the cartilage from the bone on the upper chest. He was unconscious on entry to hospital.

27. I was not impressed by the plaintiff's evidence as to loss of memory. At the start this is acceptable but I do not think it to have continued to the extent stated by the plaintiff. It is a matter which I shall take into consideration in assessing the general damage for pain and suffering but not something which lends itself to a quantified amount under a spearate head.

28. I note the recent trend in English decision to assess a total loss of sight in one eye at between £3,000 and £4,000 (Current Law Year Book 1972 para. 833 which cites Williams v. Scottish Gas Board (O.H.) 1972 S.L.T. (Notes) 66). Also 1973 7 Current Law (July) para. 88.

29. In assessing damages for pain and suffering and loss of amenities I take into consideration the residual pain after discharge from hospital as well as matters already referred to and come to a figure of $55,000 or a total of general damages of $112,600. To this would be added the special damages of $35,152.00 or a grand total of $147,752.

30. On the principles in Jefford v. Gee [1970] 2 Q.B.D. 146 (C.A.) I shall award the plaintiff interest on the special damages of $35,152.00 at the rate of 4% from the date of the accident until today and at 8% on the sum of $112,600 being the damages awarded for pain and suffering and loss of earnings from the date of service of the writ, 9th October 1972.

31. The plaintiff is entitled to costs with certificate for counsel.

32. Dated this the 7th day of November, 1973.

Representation: