Chui Kit v. Tong Yiu-kay

HCA007692/1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

Coram: Master Betts in Chambers.

Date of Judgment: 20 December 1982

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ASSESSMENT OF DAMAGES

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1. In early September 1979 the plaintiff, then aged 59 was loading his wooden cart with rubbish in Hoi Tan Street when the defendant, driving an Alfa Romeo motor car, ran into him.

2. The plaintiff was inured, has issued these proceedings and, no notice of intention to defend having been given, has obtained judgment.

3. As a result of the accident the plaintiff was rendered unconscious and was taken to Princess Margaret Hospital. There it was found he had suffered a compound fracture of the right tibia and fibula. He was first treated with a plaster split and on the 19th September the leg was operated on and the fracture of the tibia secured by a bone plate and screws.

4. A month later shat is described as a cross flap procedure was started. This was described both in a report and in evidence by Dr Wedderburn as a procedure whereby a flap of skin is raised on the opposite leg and the flap is placed so that it covers the open wound on the affected leg. The legs are then bandaged together and so held by a plaster cast for about three weeks. After that time the flap from the donor site is divided and sutured into position. At the same time the donor site is also sutured. Dr Wedderburn described the whole process as quite painful and uncomfortable.

5. Late that November the plaintiff was discharged from hospital, but with his wound still p.n. In January  148 he was re-admitted for dressing and hygiene. In March he was again re-admitted when, amongst other things he had a split skin graft with skin being taken from the front of his right thigh.

6. In spite of all this treatment the wound continued to discharge until March 1982. Throughout the whole of that period the plaintiff attended to the dressing himself and attended at intervals to the South Kwai Chung Clinic.

7. The plaintiff is left with extensive scarring but, in a man now aged 62, I do not consider the cosmetic damage a significant factor. What is significant is that there is a ½ inch shortening of the leg with a restriction of ankle joint movement. The resulting impairment of the right leg is assessed by Dr Wedderburn as 7% from shortening and 9% from loss of ankle joint movement. That is a 16% impairment of the leg and a 6% impairment of the whole man. In view of the plaintiff's occupation at the time of the accident Dr Wedderburn would classify the impairment as a 15% disability.

8. Prior to his accident the plaintiff was a self employed man collecting rubbish from a number of multi-storey buildings. He earned about $1,200 per month whilst his wife earned some $450 per month in a garment factory. The plaintiff has not worked since the date of the accident and I accept that because of his disability and age he will certainly not be able ever to resume his former occupation. I consider it unlikely but not impossible he may find a post as, for instance, a watchman but this is sufficiently speculative that I do not take it into account.

9. The evidence I have is that apart from his injury the plaintiff was a strong healthy man who would in all probability have continued working up to the age of 70. I find no reason to disbelieve that.

10. I assess the plaintiff's damages as follows:-

1.    Special Damages

2.    General Damages

11. There will be interest on the special damages at the rate of 7.5% from the date of the accident to judgment and on the sum of $60,000 from the date of the writ to judgment. No interest is awarded on the loss of future earnings.

12. There will be an Order for costs to the plaintiff with a certificate for Counsel Plaintiff's costs to be taxed under Legal Aid Regulations.

Dated this 20th day of December 1982.

Representation:

Mrs B. Kaplan instructed by Messrs Haldane Midgley & Co for the Plaintiff

Defendant in Person absent