Yang Yi Chai v. Cheng Kam Shing and Another

HCA001788/1984

No. 1788 of 1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

Coram: Master Clay in Chambers

Date of Hearing: 19 December 1984

Date of Delivery: 12 March 1985

________________________

ASSESSMENT OF DAMAGES

_________________________

1. On 19th October, 1982 the Plaintiff was crossing Ashley Road when he was knocked down by a car driven by the 2nd Defendant and owned by the 1st Defendant. The writ in this case was issued on the 15th of March, 1984 and on the 8th May, 1984 interlocutory Judgment against the 1st Defendant for damages to be assessed was entered. At the time of the accident, the Plaintiff was aged 70.

2. As a result of the accident, the Plaintiff suffered a fracture of the neck of the right femur. He was admitted to Queen Elizabeth Hospital on 19th November, 1982 and the following day was transferred to St. Teresa's Hospital. While he was in that hospital, an operation known as an 'Austin Moore' Replacement Arthroplasty was carried out, in lay terms this was the replacement of the human bone at the head of femur by a stainless steel device. The Plaintiff was discharged home on the 31st December 1982, having spent a total of 42 days in hospital.

3. The surgeon who performed the operation, Doctor CHIEN HIO WEN was called to give evidence. He produced his written report of the 15th August 1983. The report revealed that on examination on 10th august 1983, the plaintiff had a slight limp in walking; slight discomfort and pain over the right hip after walking for 20 minutes, that the Plaintiff was unable to squat properly, that he had a ½ inch shortening of his right leg and slight limitation in internal and external rotation of the right hip joint. Doctor Chien told me that he had not examined the Plaintiff again since 10th August 1983 but he did hot think that the condition would get any better. If anything it was likely to get slightly worse. In the doctor's opinion Mr Yang, the Plaintiff was suffering from a 20% permanent disability resulting from the injury.

4. The Plaintiff told me that he was the director of a company whose business was concerned with Chinese antiques and works of art. He was solely responsible for the purchase of goods for the company and was consulted by customers for his expert opinion. His job entailed him travelling to Mainland China and to the U.S.A. to attend auctions. He said that since the injury was sustained he had had to reduce quite considerably the number of trips overseas because of the pain that he would encounter and because of the inconvenience. He told me that now he can walk for little more than 10 minutes and after standing for 10 minutes he has to sit down and rest.

Pain Suffering and Loss of Amenities

5. Mr Yu referred me to a number of authorities:-

6. FLING Siu-fun v. LI Fung, a decision of Mr Registrar O'Dea on the 26th July 1977. In that case, the injuries were more extensive than in the present case, although medical opinion assessed the Plaintiff's disability at 20%. Mr Registrar O'Dea awarded $50,000.

7. MAN Fok-yung v. MA Shing-man, a decision of Cons J. on the 18th October 1978. Again in this case, the disability of the Plaintiff was assessed 20%. Mr Yu conceded that the details of the Plaintiff's injuries and the extent of the award of the Judge were not very clear from the entry in Martin & Rhodes but he pointed out that for disability of 20%, the Judge appeared to have awarded about $55,000 by way of damages.

8. LEE Ting-lam v. LEUNG Kam-ming, Mr Yu argued that the injuries sustained by the Plaintiff in the present case fell within the lowest category that of serious injury i.e. the injury left a disability marring general activities and enjoyment of life but allowing reasonable mobility. Mr Yu also drew my attention to the decision of the Court of Appeal in LEE Ping-sum v. CHAN Wai-tong [1983] 14 H.K. Law Journal 262 which increased the level of awards referred to in the LEE Ting-lam case by 50%. In those circumstances Mr Yu urged me to award the Plaintiff sum of $90,000 under this head.

9. Mr Chow for the Defendant urges me to find that the injuries in the cases cited by Mr Yu in support of his contention that the damages should be in the sum of $90,000 are more serious than those in the present case. He urges me to find the damages should be $60,000 to $80,000 range. I propose in this case to award damages of $80,000.

Loss of Earning Capacity

10. The Plaintiff told me that the company for which he worked and of which he was a director was a family company in which he owned more than 50% of the shares. He said that his injury affects the earnings of his company to a certain degree but not to a very large extent. He told me that he now just drew a fixed salary $5,000 per month and this is no different from the sum which he drew before the accident. Mr Yu concedes that no loss of earning can be shown but urges me to make an award of $30,000 namely six months' salary to take account of the fact Mr Yang's disability may have affected his earning capacity. There has been Do evidence to show to what extent the business of Plaintiff's company has been affected by his inability to travel. I note also that he was 70 at the time of the accident and I am not told how much longer he might continue to work in his company. In the circumstances, I propose to make no award under this heading.

Special Damages

11. Mr Chow for the Defendant did not challenge the items of special damage listed in the Statement of Claim at a, d, h, i, j, and k and item 1 was agreed at £560. The remaining items listed in the Statement of Claim namely doctor's fees of $71,500, a second doctor's fees at $14,350, the hospital fees of $25,191 and nursing fees totalling $12,565 were all disputed by the Defendant.

12. The Plaintiff told me that he was originally admitted to Queen Elizabeth Hospital, a Government Hospital, but transferred to St. Teresa's Hospital on the suggestion of his daughter as Queen Elizabeth Hospital was very noisy and very crowded. He also agreed to the transfer to St. Teresa's Hospital as then he would be able to have the operation performed by doctor Chien, the first witness. He told me that he did this on the advice of a Consultant doctor at the queen Elizabeth Hospital who told him that doctor Chien was regarded as the best orthopaedic surgeon in Hong Kong. He told me also that he knew there would be nursing staff in St. Teresa's Hospital who could communicate with him as he spoke only Mandarin and no Cantonese. He told me that the nurses who were employed to look after him in St. Teresa's Hospital day and night were Mandarin speakers. Mr Chow referred me to the well-known dictum of Huggins J. in P.J. Brink (1) v. New P.G. Farm at p. 1025 of 1965 HKLR were he says this:-

"No-one can deny the right of a patient to be treated by the surgeon of his choice but it does not follow that the whole of the cost must necessarily be reflected in damages payable to him. It is a question of what is reasonable in all the circumstances. One of the considerations is whether appropriate treatment can be obtained less expensively on the spot."

Mr Chow urges me to find that as the operation could have been performed in Queen Elizabeth Hospital, the Plaintiff cannot recover the whole of the costs of the 2 doctor's fees, the hospital charges and the cost of nursing services. The Defence called no evidence to show what the costs of treatment in the Government Hospital might have been but Mr Chow urges me only to allow about 60 to 70% of the sums claimed under these heads. In my view, the first question that has to be answered is whether it was reasonable for the Plaintiff to have sought treatment from Doctor Chien rather than remaining in a Government Hospital for treatment. Mr Yang told me that he had transferred to St. Teresa's Hospital so that he could be treated by doctor Chien whom he had been informed was the best orthopaedic surgeon in Hong Kong. Confidence on the part of the patient in his doctor is, in my view, a very important factor to be taken into account. I regard it as reasonable for Mr Yang to have transferred to St. Teresa's Hospital. The second question which falls to be decided in my view is whether the fees charged by the doctor, the sums charged by the hospital and fee for the nursing services have been shown to be unreasonable. Doctor Chien told me that he did not regard the fee that he had charged as unreasonable and I see no basis on which to reduce that sum in the absence of any evidence called by the Defendant to show that it was in some way excessive. I propose therefore to allow the doctors' fees, the sums charged by the hospital and by the nursing agency in full.

Summary

13. There will be interest on the general damages at 2% per annum from the date of service of the writ to today and on the special damages at 6½% per annum from the date of the accident to judgment. There will be costs to the Plaintiff to be taxed if not agreed with a certificate for counsel.

Representation:

Mr Dennis Yu of Counsel instructed by Messrs Wilkinson & Grist for Plaintiff

Mr Stephen Chow of Counsel instructed by Messrs Chan & Lo for the 1st Defendant