Wong Man Chi v. Cheung Yuk Pong

HCA002083/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Jones in Chambers.

Date of Judgment: 15th January, 1973.

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DECISION

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1. This is an assessment of the plaintiff's damages arising as a result of personal injuries that he received in a road traffic accident that occurred on the 30th October 1971 when he was knocked down by a motor vehicle owned by the British Land Forces and driven by the defendant.

2. Judgment was entered by consent on the 28th November 1972 for damages to be assessed.

3. The plaintiff who is now aged 47 suffered a fractured pelvis, ruptured urethra and an injury to the right wrist. The fracture of the right superior ramus of the pelvis and the rupture of the urethra was repaired during an operation. Subsequently the plaintiff was found to have a stricture at the site of repair which necessitated a further operation to dilate it. As a result he was readmitted to hospital on the 11th November 1971 for cystourethogram which is a radiological examination to discover the result of the repair. The result proved to be satisfactory so that the plaintiff was allowed to pass urine through the normal passage. A bouginage operation was performed to dilate the stricture and the plaintiff was finally discharged from hospital on the 24th November, 1971.

4. The plaintiff's present complaints as set out in the report dated the 11th December 1972 of Lieutenant Colonel McCahon who examined the plaintiff on behalf of the defendant are as follows:-

5. Licutenant Colonel McCahon in evidence stated that the slight spinal tilt to the left referred to in his report was a compensatory posture arising from the pain in the hip.

6. The plaintiff in evidence said that after the accident he had to receive bouginage once every two months but now this period has been extended to once every four months which treatment will continue indefinitely. The plaintiff complained that this treatment is painful and on occasions causes bleeding. The plaintiff is a self employed tailor and derives most of his business from Naval vessels visiting Hong Kong. For this purpose the plaintiff has a pass to H.M.S. Tamar. The plaintiff does not actually tailor suits but visits British warships that are in the harbour where he takes measurements from customers which he then takes to a workshop in Wanchai for the suits to be made. Afterwards he returns with the finished product which is then paid for in cash. A large part of the business is done by mail order with visiting American Servicemen. Prior to the accident the plaintiff said his earnings amounted to $1,200 per month but they have now been reduced by 40%. The plaintiff said that he did not work for a period of five months after the accident due to the pain from which he was suffering. The plaintiff was a credible witness and in the absence of evidence to the contrary to show that he could have worked sooner I shall allow the claim for loss of earnings of $6,000 for the period from the 30th October 1971 to the 31st March 1972. The plaintiff attributes his reduction in earnings since he returned to work to the fact that he does not have so much energy to go on board ships as before and feels that the tremor in his hand gives some customers a bad impression Further he says that he has difficulty in climbing gangways and stair cases on the ships. The claim for 40% loss of earnings from the 31st March 1972 onwards is too high and in the circumstances I will allow for the period up to today a loss of 30% which will make a total of $3,420 i.e. $360.00 x 9½. I accept that the plaintiff will suffer a continuing future loss of earnings although it is difficult to assess. However, doing the best I can I consider a percentage loss of 15% is fair with a multiplier of 10 which will amount to a loss of $21,600 i.e. 180 x 12 x 10. In respect of the other special damages claimed a sum of $120 was agreed in respect of travelling expenses to see Government doctors and $100 for damaged clothing. A sum of $1,000 for special tonics and medicated drinks was claimed but in the absence of medical evidence to support this claim it will be disallowed.

7. The plaintiff has an attractive wife who is aged 35, to whom he has been married for 10 years but there are no children. The plaintiff said his wife had a miscarriage about five years ago. Until the accident the plaintiff said that he was in good health and he had had regular sexual relations with his wife. Since the accident the plaintiff has attempted to have sexual intercourse with his wife on six occasions but without success. Nevertheless the medical evidence was to the effect that the plaintiff would still have the desire to have sexual intercourse. As a result of these difficulties the plaintiff says that there have been quarrels between him and his wife.

8. Apart from the future loss of earnings the plaintiff is entitled under general damages to claim for pain and suffering and loss of amenities. He has suffered considerable pain and will continue to do so at various times especially when he has the unpleasant bouginage treatment. He will remain impotent and sterile so that he cannot have children. The inability to have sexual intercourse and the consequent failure to have children has already caused some unhappiness in the marriage which unfortunately may well continue. This is clearly a case for substantial general damages to be awarded for pain and suffering and loss of amenities which I assess at $35,000. The total damages will therefore amount to $66,240.00 made up as follows:-

9. There will be interest upon the damages at the rate of 8% from the date of service of the writ which was the 9th October 1972. The plaintiff is entitled to his costs and there will be a certificate for counsel.

10. Dated the 15th day of January, 1973.

Representation: