Lee Pak Leung v. Chan Koon Kau and Another

DCCJ003117/1978

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 3117 OF 1978

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Coram: Judge Hooper, D.J. in Court.

Date of Judgment: 17 April 1979

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RULING

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1. This is an action for damages as a result of an accident on the 6th of December 1976 when the plaintiff while walking along the pavement of an unnamed road near Kwai On Road, New Territories, was struck and knocked down by the goods vehicle driven by the 1st Defendant who was at the material time a servant and/or agent of the 2nd Defendant. Liability having been admitted interlocutory judgment has been entered for the plaintiff. I am now concerned with the assessment of the plaintiff's damages.

2. In his particulars of claim the plaintiff has given the following particulars of his injuries.

"(i) Fracture shaft of left humerus

(ii) Fracture proximal phalanges of right foot toes."

He has pleaded that he was examined by a medical borad of the Princess Margaret Hospital on the 26th of January 1978 and was found to have a permanent disability of 3%.

3. The plaintiff has also supplied particulars of special damages as follows -

4. The plaintiff is claiming general damages, special damages in the sum of $550, interest on the damages awarded and costs.

General Damages

5. The only evidence placed before this Court has been the report of Doctor R.G.M. Wedderburn Exh. P1 dated the 14th of December 1978, a medical report of Doctor K.M. Chan of the Orthopaedic 'B' Unit at the Princess Margaret Hospital dated the 27th of April 1977 Exh. P2 (a) and the proceedings of a medical board convened at the Princess Margaret Hospital on the 25th of January 1978 dated the 26th of January 1978 Exh. P2 (b).

6. I will deal with these in chronological order. The first is of course Exh. P2 (a) the medical report of Doctor K.M. Chan dated the 27th of April 1977. In this report he has stated "The above patient was admitted to our unit on the 6th of December 1976 with fracture shaft of left humerus and fracture proximal phalanges of right foot toes." He also stated "Some degree of limitation of movement of right upper limb was anticipated."

7. Next is the record of proceedings of the medical board dated the 26th of January 1978. This record which has been signed by three doctors repeats that the plaintiff was admitted to the Orthopaedic 'B' Unit of the Princess Margaret Hospital on the 6th of December 1976 with fracture shaft of left humerus and fracture proximal phalanges of right foot toes. The board went on to assess the percentages of permanent disability as 3%.

8. Finally is the report of Doctor R.G.M. Wedderburn dated the 14th of December 1978. In his report he has stated in respect of the plaintiff -

"He had an injury to the right foot and the medical board report of 26th of January 1978, says that he fractured the proximal phalanges of the right foot toes. This statement would lead one to believe that he had fractured the proximal phalanges of all five toes but I am sure that this is incorrect. The only evidence on X-ray now is of a fracture of the proximal phalanx of the 3rd toe. It is possible he fractured the proximal phalanx of the 2nd and 4th toe as well but if so they appear perfect on X-ray and if he had fractured all the proximal phalanges there is no doubt that at least two or three would show signs of united fractures even two years afterwards."

9. It is therefore necessary for me in the light of these remarks to determine the extent of the injuries to the plaintiff's right foot. The burden is of course on the plaintiff to prove the extent of his injuries. In the light of the conflicting evidence on this matter, without having the opportunity of hearing the doctors giving evidence in the witness-box, I find it impossible to hold that it has been proved on the balance of probabilities that the plaintiff suffered and injury to all five toes of his right foot. Since Doctor Wedderburn has considered the possibility that the plaintiff suffered a fracture of the proximal phalanx of the 2nd and 4th toes as well as the 3rd toe, and since the previous medical reports have been phrased in such a way to suggest that a number of toes were fractured, I will accept that it has been established on the balance of probabilities that at least 3 of the plaintiff's toes were injured. There is of course no dispute about the fracture of the shaft of the left humerus and I will come back to that later. Although the medical board has assessed the degree of permanent impairment as being 3%, Doctor Wedderburn in his report has said

"As a result of the accident both from the left arm and the right foot he has not greater than a 1½% Impairment of the Whole Man. X-Ray of the left Humerus shows that the fracture is perfectly united in perfect position."

10. Although Doctor Wedderburn did not refer specifically to the plaintiff's permanent disability, but assessed his degree of disability as at the time he made out his report, it seems clear that he is saying that the plaintiff's permanent disability would be no more than ½ a percent.

11. Again I have been deprived of the opportunity of hearing the respective doctors justify their different opinions. All the medical evidence in the form of these reports has been submitted by agreement between the parties so that the Court must look at the evidence as a whole and determine whether it supports the plaintiff's claim. So far as the findings of the medical board is concerned no reasons are given as to how this figure of 3% was reached. On the other hand Doctor Wedderburn has provided some sort of formula and given his reasons as to why there was no greater than a ½% impairment of the Whole Man.

12. In view of the divergence of opinion and the fact that Doctor Wedderburn has stated his reasons I think it is safer for me to find that there would only be a ½% permanent disability.

13. There do not appear to be any reported cases where injuries similar to those of the plaintiff in the present case had been suffered. Mr. Cheng for the plaintiff has referred me to two cases reported in Kemp and Kemp "The Quantum of Damages" Volume II. The first is Patel v. Edwards [1970] CA 285 which is reported at Page 9461. The second is Holloway v. Optical Measuring Tools reported at Page 10903 of Kemp and Kemp. In Patel and Edwards the facts are reported as follows:-

"In May 1976 the plaintiff, then age 25, was riding his push cycle in Cheltenham, when he was run into by a motor cycle ridden by the Defendant. The plaintiff suffered a fractured right humerus, and a fractured right radius. As a result he was unable to lift his right arm higher than his shoulder; and he was suffering from osteo-arthritis which would become more severe as time went on. There was no evidence of loss of earnings up to the date of the trial. Payne J. awarded £4,250 general damages, £2,000 of which was for pain suffering and loss of amenities, and £2,250 of which was for loss of future earnings."

14. In Holloway's case the facts are reported as follows:-

"Male, age 20. Engineering worker. Fractures of four toes in right foot and three toes in left foot and fracture of small cuniform bone in each foot. In hospital for four and a half weeks. Normal recovery with no complications. Still had pain in right foot. which had sensitive scar, particularly after walking. Worked sitting down. Could dance but after while this caused some discomfort in right foot. Discomfort might decrease but would probably continue for rest of life. Left foot now fractionally longer than right which restricted choice of footwear but did not bother him greatly. Off work 11 weeks. No special damages. General damages £800".

15. Mr. Cheng also referred me to the case of YAN Yuk-ki v. WONG Moi-kam reported in the Hong Kong Law Journal of 1977 page 396. The facts are reported as follows:-

16. Mr. Cheng has also referred to the case of YEUNG Yuk-kee v. Kong Tsing-bor 1977 Hong Kong Journal page 144 where the facts were set out as follows:-

"The plaintiff, a married woman, injured her right hand in a traffic accident in April 1975. She had fractures of the proximal phalanx (the bone of the finger nearest the hand) of all four fingers. An operation was performed and the fractures fixed by K wire. The plaintiff who was right-handed, suffered stiffness of all three joints of all four fingers, the fingers could not be straightened or clenched into a full grip and the medical board assessed a 10% disability in accordance with the Workmen Compensation Ordinance Cap.282. The award for pain and suffering and loss of amenities was $15,000."

17. On the strength of these authorities Mr. Cheng has submitted that the general damages should range between HK$10,000 - 18,000 and the Court should take a figure somewhere in the middle of between $15,000 - 16,000.

18. Mr. Miles for the defendant has attempted to distinguish the cases quoted by Mr. Cheng. In respect of the Patel case he has pointed out that in that case there were two fractures and secondly that the effect of the fractures was one of the deciding factors of the award because in that case the plaintiff was unable to lift his right arm higher than his shoulder which would be a serious disadvantage. Even more serious he pointed out was the presence of osteo-arthritis which might increase. He submits that Holloway's case is of slightly greater relevance because it does show that the Court does regard injuries to toes as somewhat less serious than injuries to the arm. Furthermore he points out that there were four fractures in the right foot three in the left foot and there was a fracture of the small cuboid bone and that the plaintiff was in hospital for 4? weeks and was in pain and had a sensitive scar and the possibility of permanent discomfort in his foot.

19. Mr. Miles does not wish the Court to place too much weight on either of these cases because it is accepted in Hong Kong that English authorities, while they may be used as a guide, are no more than that because of the different social and economic conditions between Hong Kong and the United Kingdom.

20. With regard to the two Hong Kong cases quoted by Mr. Cheng he has pointed out that they were both of them very much more serious in their nature than the present case. In YEUNG Yuk-kee v. KONG Tsing-bor the operation was performed and the fractures were fixed by K wire and the plaintiff who was right-handed suffered stiffness of all three joints of all four fingers and eventually a medical board assessed her permanent disability at 10%. This contrasts quite considerably with a finding of ½% permanent disability.

21. In the second case of YAN Yuk-ki v. WONG Moi-kam he points out that the plaintiff suffered considerably greater pain as a result of injury. There was continual pain in his foot for about three years and there was also the fracture of the wrist which had not been detected earlier.

22. Mr. Miles has referred the Court to two other Hong Kong authorities reported in Hong Kong Law Journal. The first is LAU Ping and others v. LEUNG Choi-yin 1977 HKLJ 392 where an award of $10,000 was made under the head of pain suffering and loss of amenities and the Registrar noted that the plaintiff had suffered quite painful injuries involving protracted treatment and convalescence with some residual disability. There the injuries were very much more serious than in the present case. The injuries were in fact described in the report as follows:-

"He was admitted to hospital and found to be suffering from a fractured left patella, a fractured right femur, slight lacerations of forehead and abrasions. The femur was treated by normal methods and a partial patellectomy was carried out on his left patella six weeks after the accident. He remained in hospital for some five months until October 1971 when he left against medical advice that he remained for a further three to four weeks for physiotherapy. He was readmitted twice for six days each in December 1971 and April 1973 because of recurrent pain and effusion of his left knee caused by osteo-arthritis. He was again admitted for five days in August 1974 for the removal of broken wires in his lef."

23. The second case referred to by Mr. Miles was KO Sun-wah v. MA Mor and anr. 1978 HKLJ 256. The facts are recorded there as follows:-

24. Mr. Miles has submitted that again this is a case where the injury was of much greater severity than in the plaintiff's case. Bearing in mind that in the present case the plaintiff was in hospital for only three weeks and the cast was removed three weeks thereafter and the plaintiff's almost complete recovery, Mr. Miles suggests that the figure of $10,000 being Mr. Cheng's minimum figure was remarkable. Having regard in particular to LAU Ping's case above-mentioned, he submits that an award of $5,000 would be appropriate.

25. I have recently given judgment in another case where the injuries are not greatly different from the plaintiff's in the present case. (V.C.J. Action No. 1156 of 1978 HO Kit-fong Plaintiff v. WONG Hon-lun and LEUNG Yun-hung) General damages were assessed on the basis that the plaintiff had suffered a fracture of the shaft of the left ulna. The evidence in that case is that there were no complications and the bones knitted together perfectly and Doctor Wedderburn expected that the plaintiff would have had complete mobility one month after the plaster came off. In that case I assessed damages for pain and suffering at $3,500.

26. The facts in the present case are set out in more detail in the 2nd paragraph of the report of Doctor Wedderburn as follows:-

27. So far as the effect of the foot injuries are concerned Doctor Wedderburn states -

"All the toes are normal except the 3rd toe right. The fracture of the proximal phalanx has united but two fragments are united side to side and not end to end. The distal half of the phalanx has moved sideways and upwards so that the end of the proximal fragment can be felt under the skin as a bony protruberance on the inside of the toe and the toe is shortened by ½ inch. If the boy were an athlete or wanted to take part in some very vigourous activity, including running, it would be better in fact to amputate the whole of the 3rd toe including the proximal fragment. I did mention this to him but he obviously will not consider it in the future as he only gets discomfort with considerable activity or if he hits his foot against a hard cornered object."

28. Taking these facts into consideration, the very minor degree of permanent disability which has resulted from the injury, also taking into consideration the various claims that have been awarded in the case which have been cited I have reached the conclusion that the conclusion of Mr. Miles is nearer the mark, and I will assess damages for pain and suffering and loss of amenities at $6,000.

Special Damages

29. The plaintiff's older brother and next friend LEE Pak-kwan was called to give evidence in respect of these items. So far as the travelling expenses were concerned he was extremely vague as he couldn't remember how many trips he had made. He did however testify that he had spent about six or seven dollars on a round trip and he had been to see the plaintiff many times mostly by taxi to the Princess Margaret Hospital, and had taken the plaintiff to see a bone setter. So far as medical expenses were concerned he testified that he had spent about $400 odd to $500 on medical expenses attending a bone setter. He testified that receipts were given to him and he had to buy something for him. None of the receipts have been produced in Court. He testified that special food was purchased for the plaintiff as a result of the injury but he couldn't remember how much. "It is about $200 odd but it is very hard to say." So far as damage to clothing goes he claimed that he spent about $100 odd for his younger brother's school uniform.

30. This last item is well in excess of the amount he has claimed in his particulars of claim of $50. This latter sum seems reasonable to me and I will allow special damage of $50 in respect of damages to clothes. So far as the medical expenses and special food are concerned there has been no evidence from the bone setter as to the necessity for the treatment or the reasonableness of the fees. Again in so far as the medical expenses are concerned the plaintiff claimed to have spent far more that the amount set out in his particulars of claim. So far as the special food is concerned nobody gave evidence as an expert as an expert witness to say that such food was necessary or desirable. Tonics and special food are now governed by WONG Yiu-wah v. HUNG Ping-kwan Civil Appeal No.6 of 1973 which requires proof of their suitability. In the circumstances I disallow the claim in respect of special food and the claim for medical expenses for which no receipts have been produced. So far as travelling expenses are concerned as some of these were incurred in visiting the bone setter they are obviously unclaimable. In all the circumstances I will award $50 under this head. The total amount therefore assessed in respect of special damage is $150.

31. I therefore give judgment for the plaintiff in a sum of $6,000 by way of general damages and $150 by way of general damages and $150 by way of special damages.

32. I am informed that the parties are agreed as to the way in which interest should be calculated and I therefore will make an order in accordance with their agreement.