Lee Wai King and Another v. Fung Wai Tung and Others
Read the full judgment text of HCA 2044/1972 on BabelCite. This High Court CFI judgment.
1. These are two running-down actions brought by passengers in a small dual-purpose van against the driver and owner of a lorry with which that van was in collision. As the action is still continuing as to liability between the lorry parties and the owner of the van, I will make no comments on that aspect except to say that on the evidence I have heard, which I understand is the total evidence that will be called, I am quite satisfied that the lorry driver was at least to some extent negligent.
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HCA002044/1972 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ----------------- ACTION NO. 2044-5 OF 1972
----------------- Coram: Cons, J. in Court. Date of Judgment: 5th December, 1973 at 9.30 a.m. Present: P. Chan (Messrs. Gunston & Chow) for Plaintiffs P. Fung (Messrs. H.H. Lau & W.S. Lo) for Defendants W. Waung (Brutton & Stewart) for 1st 3rd Party ----------------- JUDGMENT ----------------- 1. These are two running-down actions brought by passengers in a small dual-purpose van against the driver and owner of a lorry with which that van was in collision. As the action is still continuing as to liability between the lorry parties and the owner of the van, I will make no comments on that aspect except to say that on the evidence I have heard, which I understand is the total evidence that will be called, I am quite satisfied that the lorry driver was at least to some extent negligent. At the moment I am only concerned with respect to the damages due to the two plaintiffs. 2. Miss LEE, who is the plaintiff in the first action suffered multiple lacerations on her face. These have healed well, but there is left some scar tissue noticeably above the upper lip and to a lesser extent below the left eye. She pointed out further areas above both eyes but these are visible only upon very close inspection. The disfigurement is slight, but any disfigurement at all must loom very large in the mind of a single and attractive girl of only 23 years. Already she attributes to her soars a decline in the number of invitations that she receives from prospective boyfriends. It has been suggested that the soars could be completely concealed by the use of make-up. She denies the possibility and I tend to agree with her. Moreover, in the present state of fashion, heavy make-up would make her feel more self-conscious than she does already. She also has some trouble with her right eye. The tear duct is blocked. This was not brought to the attention of her doctors until some five months after the accident, but I accept her evidence that it started well before that time, only she did not at first think it was serious. The medical report confirms in any event that it was probably also the result of the accident. 3. Damage to her teeth was extensive. She eventually lost some from both the upper and the lower jaws. Those in the upper jaw were well towards the back of her mouth and the plate that she now wears in their place is apparently satisfactory. Those in the lower jaw were right at the front, and despite frequent, and I should think painful, visits to her dentist, she has a continual problem. Her natural teeth have proved too small to accommodate an effective metal plate, and it is now recommended that the gap be bridged. This will cost something over $8,000. It is possible to have it done more cheaply, but the result would be loss effective and less durable. I think the sum of $8,500 should be set aside for this purpose. 4. Miss LEE also broke both her cellar bones and received bruising to her right knee. None of this has left any permanent disability. She complains now of headaches and occasional irritability. If the headaches still occur now I do not think they can be attributed to her injuries. The medical report indicates that headaches had ceased by March of last year. 5. There was no direct loss of wages due to the accident, but Miss LEE envisages that her disfigurement may prevent her bettering her position in the future. I do not think this is likely. She is an accountant and her advancement in that career will depend upon her ability rather than her looks. I assess general damages, which include the sum for future dental work that I have mentioned, at $18,500. 6. Certain it is of special damage are not disputed by the defence that is to say, for medical expenses connected with the right eye, damage to personal effects, and dental expenses already incurred. These total $2,458. A claim for $700 is also made in respect of treatment by a Chinese herbalist. A receipt was produced which presumably supports that amount, but I cannot say for certain because no translation has yet been supplied. This is somewhat surprising in that at the trial counsel gave his undertaking that one would be supplied, and the hearing is now nine days ago. Miss LEE said she consulted the herbalist upon her discharge from Queen Elizabeth Hospital because her face and shoulder were still not healed and she was unable to use her right shoulder or right knee properly. Her discharge was only seven days after the accident. In the circumstances it was not unreasonable for Miss LEE to seek further assistance. This implies no criticism of the hospital authorities. Their beds would be needed for more serious cases. On the other hand, $700 strikes me as very expensive for mere convalescent medicine, and in default of some explanation as to why the bill was so high, I am willing to allow only what I consider would be a reasonable figure for medicine to comfort Miss LEE through that difficult period immediately upon her discharge, and that is a sum of $150. Similarly. I am not prepared to allow the claim for three months special nourishment. Miss LEE's initial and spontaneous answer is that this was taken on the advice of her mother. With prodding from counsel she added also the advice of the herbalist, but he was not called to support her claim. It may be that expert evidence is not necessary to establish that after a long or debilitating illness the natural strength of a patient must be carefully re-built with extra nourishment. But the present case is nothing of that kind. Without the evidence of the herbalist or some other expert, this particular claim cannot succeed. 7. The injuries to Mr. LAM were much worse. For anyone who did not have the advantage of seeing him giving his evidence in court, the photo - exhibit 14 - will give some indication of the extensive disfigurement to the right-hand side of his face. To this must be added a considerable impairment of speech due to the distortion of his mouth and the frequent discharge of water from his damaged right eye. Here we have the fairy tale in reverse. He was once a handsome young man. His overall appearance now is more calculated to repel than to attract. Rightly or wrongly, society will tend to shun his company and he is going to suffer grave social disadvantages for the rest of his life. In particular, his chances of finding a wife at all, let alone an attractive one, to provide him with a home and family, will be very greatly reduced. He may also suffer finencial disadvantages if, for any reason, he should lose the employment he now enjoys with the General Post Office. So far he has lost nothing apart from a small amount when he was on half-pay sick leave, but for which no special claim was made. He used to be a postman. He is no longer able to continue in that line, but he has been transferred to an inside job where his physical deformities have little effect. His salary has not been affected. For this reason the loss of future earnings will figure only very slightly in the general award. 8. Mr. LAM spent over two months in hospital. For one month of this he was in extreme pain. In addition to the injuries I have already mentioned, he is left with residual pain and weakness in his right leg in which the femur was broken and also weakness in his left hand due to the breakage of several small bones there. He is unable to eat properly and is obliged to chew his food only on the left side of his mouth. He has lost his sense of smell, though this may perhaps be only a temporary loss. He is subject to headaches as a result of concussion that left him unconscious for some ten days. The vision in his right eye is peer, and finally he has repulsive scars on his right arm and on his right thigh. For pain and suffering and loss of future amenities I assess general damages in his case in the sum of $50,000. 9. Judgment is therefore entered in these two cases against both defendants in favour of Miss LEE in the total sum of $21,108, and in favour of Mr. LAM in the sum of $50,000. 10. Are the plaintiffs legal aided, Mr. Chan?
Representation: P. Chan (Messrs. Gunston & Chow) for Plaintiffs P. Fung (Messrs. H.H. Lau & W.S. Lo) for Defendants W. Waung (Brutton & Stewart) for 1st 3rd Party |