Albert Lam Hee You v. Lee Hung

HCA001728/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Silke in Chambers.

Date of Judgment: 27th September, 1973.

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DECISION

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1. This is an assessment of the plaintiff's damages arising as the result of personal injuries he received in a road traffic accident on the 19th January 1972 when he was knocked down by a vehicle owned and driven by the defendant.

2. Judgment was entered by consent on the 4th September 1973 for, inter alia, damages to be assessed.

3. The plaintiff, who is now sixty two years, suffered haematoma over the lateral aspect of the right ankle, fracture of the fibula and impotence. He was unconscious immediately after the accident.

4. Medical reports were agreed and have been marked Exhibit Al: Dr. K.B. Fung Orthopaedic B Unit Queen Elizabeth Hospital, 27th March 1972; A2: Dr. C.W. Chin Orthopaedic B Unit Queen Elizabeth Hospital 12th April 1973; A3: Dr. K.B. Fung 10th May 1973; A4: Medical Board held on 30th June 1973; A5: Dr. Peter H.T. Wu 4th June 1973 respectively. This last report is from Dr. Wu on behalf of the defendant.

5. The plaintiff was in hospital from the 19th to the 22nd January, when on discharge he used crutches, and again from the 8th to 22nd February 1972. He had been examined on the 5th February and as a result of that he was requested to enter hospital again as a matter of urgency.

6. While in hospital on the first occasion he had very serious pain and could not sit up: a plaster was placed on his ankle.

7. At the time of his return to hospital he could not control his urine and his bowel movement was not normal. He was found to have a distended urinary bladder and an X Ray of the lumbo sacral spine showed slight narrowing of L3 and 4 with osteoarthritic changes. The urinary bladder was catheterized the plaintiff tells me that thirteen plastic bags of 1,500 c.c. of blood and urine were extracted from him over a period of ten days during his second hospitalisation. He says this treatment was not painful but it must at the least have been unpleasant.

8. The plaster was removed after two months. He still then and does now feel pain in the back especially when the weather is wet. The back pain is not normally severe - he described it as tenderness - and he finds walking, which was a recreation of his, to be somewhat curtailed. He cannot walk fast or jump. The basic cause of the pain - and indeed of his impotence - is contusion of the spinal cord.

9. I might say at this point that he struck me as a witness not given to exaggeration and who did not attempt to inflate either his injuries or the discomfort arising from them.

10. By far the most serious consequence of the injuries caused in the accident is his impotence.

11. Before the accident he led a normal sex life and was the father of eight children the youngest of whom was ten in January 1972. He and his wife, who is aged forty eight, had decided as their quiver was full to use contraceptives after the birth of this last child.

12. On cross examination he admitted quite frankly that compared with himself as a young man his capacity for sexual intercourse had diminished prior to the accident and that normally he had intercourse once in seven to eight days.

13. After the accident he did not dare try to have intercourse for a period of about nine months. Then people told him he should be back to normal so he tried but could not do so.

14. During those nine months he had no erection and has had no erection since.

15. He stated that the loss of his sexual function was a family matter and that "sometimes it can make me feel very humble". He went on to say that because he had "lost the family happiness" himself the family have also lost happiness. His relationship with his wife is not so good.

16. The plaintiff was employed by the "Arts Knitting Factory" as manager at a salary of $1,200 per month plus a motor vehicle and with a non fixed allowance. He also ran a firm of his own called "Western and Eastern" - which dealt in clothing and garments. He was the sole proprietor. In respect of his employment he claims loss of earning from 19-1-72 to 18-4-72 at $1,200 per month. He makes no claim in respect of the use of a vehicle or the "non fixed allowances".

17. In respect of his own firm he claims $1,800 per month for the same period though the evidence supports $1,500 during this period.

18. Mr. Asome, who appeared for the defendant submitted that a letter from the Inland Revenue Department (Dl) which was admitted without objection suggested that the plaintiff was inflating his earnings. The plaintiff tells me that Arts Knitting put in their own return on his behalf and it is possible that the own firm earning and the Arts Knitting salary were kept separate by the plaintiff but I do not disbelieve his estimates of his loss nor do I think them to be seriously undermined. I accept the period as being a reasonable one on the evidence.

19. Items 'c' 'd' and 'e' of paragraph 8 - the specials are agreed. Under (f) I would award $4,500 and under (g) $3,600.00.

20. As to (b) medical expenses. The claim is for $500 and relates to payments to private medical practitioners. The plaintiff says he spent $1,200 but this is not claimed in full and while noting Mr. Asome's line of questions on the availability of free medical attention think this expense to be not unreasonable and will allow it.

21. As to (a) special nutrition for six months for which $3,600 is claimed. This relates solely to double cooking of chicken with Chinese Herbs which was said to cost $20 per day and which the plaintiff took on his own advice. He received no medical advice in respect of this nor did he visit an herbalist. He felt that having lost blood he should build himself up again. Mr. Asome has referred me to the long series of decisions on both sides of the nutritional line (1) 1964 H.K.L.R. 444 allow; (2) Mr. Commissioner Morley-John O.J. 2027/70 on 9th September 1971 allow; (3) O.J. 1248/69 Blair-Kerr J. on 2nd March 1971 disallow; (4) O.J. 490/70 Briggs J. 12th February 1971 disallow; (5) O.J. 388/71 Briggs J. 22nd November 1971 disallow; (6) O.J. 1075/71 Leonard J. on 26th November 1971 disallow; (7) O.J. 215/71 Briggs J. on 2nd February 1972 disallow; (8) Choi Sing Tong v. Attorney-General Briggs J. 12th March 1973 allow; (9) O.J. 1400/71 Li J. on 16th February 1973 allow.

22. Having also considered Mr. Registrar Jones' decisions in O.J. 307/71 and O.J. 195/72 in conjunction with the above - and I apologise for the truncated method of reference - I think the priciple to be that if such nourishment is taken on medical advice or even on non medical but semi professional advice, such as bone setter or herbalist, some at least will be allowed. Here the circumstances are different and it was entirely the defendant's own decision. I shall not allow.

23. The award in respect of special damages will therefore be $8,965.00.

24. The plaintiff is entitled to special damages for pain and suffering and loss of amenities. His impotence is of course the most serious and there are few guide lines in Hong Kong on this aspect. I have been referred to Mr. Registrar Jones' decision in Wong Man Chi v. Cheung Yuk Pong O.J. 2083/72 of the 15th January 1973. There the plaintiff was 47 had an attractive thirty five year old wife and no children. He would remain impotent and sterile and he suffered as well from pain in the left hip, occasional lower abdominal discomfort not associated with activity, frequency of micturition and a tremor in his right hand (he was a tailor). He also was to receive a bouginage operation at four monthly intervals indefinitely. The pain and suffering award was $35,000.

25. I was also referred to English cases in Kemp and Kemp and Munkman.

26. Here the plaintiff is aged 62, he has residual tenderness in the back and actual pain in wet weather, his walking activities are curtailed, he underwent unpleasant treatment he was unconscious after the accident and suffered considerable pain diminishing over a period of two months. His bladder function is now normal and he is impotent.

27. I think a sum of $28,000.00 to be the sum to be assessed for pain and suffering and loss of amenities.

28. The total damages will therefore be $36,965.00. 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 i.e. $8,965.00, at the rate of 4% from the 19th January 1972 until today and on the general damages at 8% from the date of the service of the writ which was the 24th July 1972.

29. There will be costs to the plaintiff to be taxed and certificate for counsel. Execution be stayed for a period of 14 days from date hereof.

30. Dated the 27th day of September, 1973.

Representation: