Melvyn James Green and Others v. Tong Kwan Wah and Another

HCA000256/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Barnett in Chambers.

Date of Judgment: 28 March 1979

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ASSESSMENT OF DAMAGES

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1. The first and second plaintiffs are husband and wife. The third plaintiff is their baby daughter who was three months old at the time of the accident. The fourth plaintiff is the first plaintiff's employer. Judgment in default of defence for damages to be assessed was entered in favour of all the plaintiffs.

2. On the 12th May 1978 the first three plaintiffs were out for a walk. The first plaintiff was pushing the third plaintiff in a pram while the second plaintiff was walking behind. In effect, they were walking in single file along the side of the road. A car driven by the first defendant collided with the family group from behind, knocking down the first and second plaintiffs and coming to rest with the pram under its front wheels. Fortunately, the third plaintiff was thrown from the pram and was not seriously injured. The first thoughts of the father and mother were for the baby. The father, who had broken both his right arm and leg, horrified to see the pram under the wheels of the car, immediately climbed to his feet to find out what had happened to the baby, only to collapse because of his injuries. The mother ran and tried to find the baby but, being somewhat dazed, it was a passer-by who found the baby for her. The baby's forehead was covered with blood and she was crying. Subsequently, the baby went to sleep but the second plaintiff, who carried her in her arms in the ambulance on the way to hospital, thought that she was unconscious. She was terrified.

3. I have described the accident in some detail because it is material to the quantum of compensation as claimed by the second plaintiff.

4. The claim of the third plaintiff may be dealt with briefly. She was not seriously injured, merely having struck and scraped her head when she fell on the road. She did not lose consciousness but merely fell asleep. Damages in the sum of $600 have been agreed. I approve that settlement to which of course will be added her costs.

5. The second plaintiff was treated in hospital for abrasions to both knees, the back, left shoulder and left elbow. There was a laceration of the left shoulder which was stitched with about 6 stitches while a number of butterfly stitches were put on her left arm. Her left knee was bruised and she had pain and tenderness in the right calf. She was allowed home the same day. The pain in the calf persisted and it was some weeks before the second plaintiff could walk properly and it was certainly two or three weeks before she could do anything properly around the home. However, she was not granted the proper rest that was obviously necessary. Apart from having to look after the baby in the normal manner, the first plaintiff returned from hospital after only four days. Both his right arm and leg were in plaster and he was completely unable to fend for himself. The second plaintiff therefore had this additional burden. On top of this, she was affected by the accident to the extent that for some two months after the event she was waking up every night in a cold sweat over what might have happened to the baby. It is pertinent to add that the first and second plaintiffs are unable to have children and that the baby was then only recently adopted.

6. It was clear to me that the second plaintiff has now fully recovered from the accident, at least as far as her mental state is concerned. She still has some slight pain in her calf while there is an area of Keloid scarring on her left shoulder and small linear scars on her arms. These scars will not fade so there is some permanent cosmetic disability. The second plaintiff does not set too much store by this.

7. As far as damages for pain, suffering and loss of amenities are concerned, it is contended for the second plaintiff that allowance should be made for the degree of anguish which she suffered both at the time of accident and for perhaps two months thereafter. For the defendants, it is said that this is a matter which cannot be quantified unless there is sought a separate award for nervous shock supported by medical evidence, since it is implicit that in the aftermath of any accident there will be pain and traumatic experience.

8. I am satisfied that allowance should be made for the particular circumstances of this accident. For the plaintiff, two cases were cited namely Lui Yee-kwok v. Yau Tak-shing (1978 HKLJ 109) and So Mo-ching v. Kwok Ping-wah (1977 HKLJ 389). In both cases there was an allowance under this head for the unpleasant or horrifying nature of the accident. It is true that in both these cases the deaths of other persons were involved which clearly classify them as of a more serious nature than the present case, but nonetheless the principle is clearly the same.

9. The other cases cited show awards in the region of two thousand dollars for injuries of the type received by the second plaintiff. However, in John Francis Goudey and Another v. Kwok Man-wah (1979 HKLJ 98) the second plaintiff, also a married woman, was awarded $4,000 for injuries that consisted mainly of bruising and contusion. It was specifically noted that she suffered pain in her feet and knees for 6 months. Physically, I consider that the second plaintiff in the present case has suffered equally. Therefore, making an allowance for the suffering experienced mentally by the second plaintiff, I award $5,000 under this head.

10. As to special damages, the only real dispute is as to the second plaintiff's sunglasses. They had been used for two months and it was argued that a reduction in their value should be made. As the second plaintiff said, the sunglasses were of a good make, Rodenstock, and she anticipated considerable use from them. In my view, she was effectively deprived of a new pair of sunglasses which would be difficult, probably impossible, to replace from the second-hand market. Therefore, no reduction should be made.

11. It was also said that the hospital report fee should be included in the bill of costs and not as an item of special damage. As I ruled recently in Yip Hoi-kwai v. Yau For-choi (Action No. 2997 of 1977) this matter can be dealt with in either way. I shall allow it as an item of special damage.

12. Accordingly, I award special damages in full at $952.

13. As to the first plaintiff, he fractured his right fibula and upper end of the right radius, apart from general abrasions and bruising. He was discharged from hospital after 4 days with full length plaster on both his arm and leg. He was in considerable pain, particularly in his foot and leg both while in hospital and for two weeks after he returned home. During this time it was too painful for him to move around and he was forced to stay in bed while the second plaintiff looked after him. On 23rd May, the plaster on the arm was removed and the leg plaster reduced to a walking plaster. It was still very painful to walk but at least he was able to move around. He had used crutches to get home and for one or two days but thereafter used a stick.

14. The first plaintiff returned to work at the end of May. He had to be picked up by another employee of his company who had to help him down 4 or 5 flights of stairs to the car and then into the office. His proper job was to superintend the various sites and operations of his employer. He was however office bound for some 6 weeks and still suffering considerable pain. Finally, he went for physiotherapy treatment in October and November as a result of which the worst of the pain and symptoms cleared up. He still finds some pain in his right foot although the medical prognosis is that it will eventually disappear.

15. The first plaintiff however still cannot walk as fast as he used to and so has to be careful about distances to be walked. This affects both his work, for he cannot carry out inspections quite as thoroughly as before, and also his enjoyment of walking as a pastime which had previously been a family activity. He is a tennis player but is unable to join his wife in playing tennis at a club which she has recently joined.

16. In respect of general damages, the most helpful case cited was Lam Shu-chee v. Ip Koon-hung (Action No. 2588 of 1973) where there was an award of $10,000 for fractures of the right shoulder and leg. That award was in July 1974. In my view, the present case appears more serious in view of the considerable pain suffered by the first plaintiff until he underwent physiotherapy some 6 months after the accident. Bearing in mind the date of the previous award, I am of the view that the proper award for pain, suffering and loss of amenities is $16,000.

17. As regards special damages the only item disputed is that of the pram. It is argued for the defendants that a fair reduction should be made from the new cost claimed since it was not replaced and was subsequently used. The evidence was that the pram was brand-new. It was severely damaged and certainly of no re-sale value. It was used on very few occasions after the accident mainly because by the time the family were in a position to start taking walks again, the baby had out-grown the pram. Effectively, the plaintiffs lost entirely the use of a new pram. Therefore no reduction should be made.

18. I therefore award $3,104.75 which includes $23.40 for special shoes which was agreed should be added to the items claimed in the Statement of Claim.

19. I come to the final claim, which is by the first plaintiff, alternatively the fourth plaintiff, for 17 days' salary and accommodation allowance which was paid by the fourth plaintiff to the first plaintiff while he was away from work. Quantum is agreed at $5,874.00 but not liability.

20. There was no agreement or discussion between the two plaintiffs. The only evidence is that of the first plaintiff who said that his understanding was that if he received any compensation for loss of salary he would pay it to the fourth plaintiff.

21. The defendants say that this is not a recognised type of harm and that the law is very hesitant about recognising non-physical or purely pecuniary loss. They rely on Cattle v. Stockton Waterworks Co. (1875) L.R. 10 Q.B. 453 and Weller & Co. v. Foot and Month Disease Research Institute (1966) 1 Q.B. 569. In the latter case, Widgery J. (as he then was), reviewed all the earlier cases culminating in the Hedley Byrne case and said at p. 587:

22. It is significant that none of the cases reviewed by Widgery J. involved, as far as I have been able to ascertain, circumstances such as in the present case, i.e. a master and servant relationship. In my view, their essence is summed up by Hamilton J. who, in his judgment in La Societe Anonyme de Remorquage a Helice v. Bennetts (1911) 1 K.B. 243, said at p. 248:

" But all that has occurred is that in the course of performing a profitable contract an event happened which rendered the contract no further performable and therefore less profitable to the plaintiffs. That appears to me to bring the case within the authority of Cattle v. Stockton Waterworks Co."

23. On the other hand, the plaintiffs have guided me to Dennis v. London Passenger Transport Board (1948) 1 All E.R. 799 and Receiver for the Metropolitan Police District v. Croydon Corporation: Monmouthshire County Council v. Smith (1957) 2 Q.B. 154. In the former case, Denning J. (as he then was), in circumstances not dissimilar from the present case, said:

" The cardinal point to remember is that it is the defendants who are responsible for what has occurred. In my opinion, a wrongdoer is not to be allowed to reduce damages by the fact that other persons have made up to the plaintiff his wages.... The plaintiff has lost his wages. In point of law, therefore, prima facie he should have them paid by the wrongdoer."

24. An attractive piece of Denning law, but with respect lacking convincing legal reasons. Nonetheless it has never been overruled.

25. In the two latter cases, the plaintiffs failed in their claims because they were by statute required to pay the police constables who had been injured. However, at p. 162, Lord Goddard C.J. said:

"..... it follows that the only loss which the police authorities have sustained is that they have had to pay the police officers, although they were deprived of their services. That loss is exactly the loss which was recoverable, and in certain limited cases is still recoverable, in an action per quod servitium amisit. The old action of per quod was given to a master because he was deprived of the services of his servant. However, in Attorney-General for New South Wales v. Perpetual Trustee Co. Ltd. (1955) A.C. 457; (1955) 1 All E.R. 846 it was held by the Judicial Committee that in the case of a police officer, a per quod action will not lie because the officer is not a servant of the police authority but of the Crown, for he may have to act independently of the police authority. This court, in Inland Revenue Commissioners v. Hambrook, (1956) 2 Q.B. 641; (1956) 3 All E.R. 338, applied that judgment to the case of an injury to a civil servant, and expressed the view that a per quod action must nowadays be confined to the case of what is generally known as a menial servant."

26. In my view, the cases cited by the defendants can be distinguished. It is difficult to see, for example, how Mr. Cattle's problem, which was that the performance of his excavating contract was found to be more burdensome than anticipated, can attract the application of the same principles as the temporary loss of an employee's services suffered by the fourth plaintiff.

27. I therefore prefer to follow Denning J. with the added authority of Lord Goddard's dictum. The first plaintiff may not be strictly a menial servant but his services were of an essential nature to the fourth plaintiff and they could not easily or at all be replaced for a temporary period. I see no reason why a per quod action should not lie.

28. Accordingly I award $5,874.00 to the fourth plaintiff.

29. The awards of general damages will carry interest at 8% from the date of service of the writ, and special damages interest at 4% from the date of the accident.

30. Damages and interest are to be paid to the plaintiffs' solicitors within 14 days.

31. Plaintiffs' costs.

32. Fit for counsel.

33. Liberty to apply.

34. Dated this 28th day of March, 1979.

Representation:

Mr. R.F. Taylor of Johnson, Stokes & Master for Plaintiffs.

Mr. B.K. Ho instructed by Kenneth K.C. Wong & Co. for 1st and 2nd Defendants.