Chan Yung v. Hung Ping Shun and Another
Read the full judgment text of HCA 3803/1983 on BabelCite. This High Court CFI judgment.
1. On 13 October 1980 the plaintiff was injured in a traffic accident. Her age is uncertain although her new identity card gives her year of birth as 1925. Accepting that as reasonably accurate she was about 55 years old at the time of the accident.
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HCA003803/1983 1983 No. 3803 IN THE SUPREME COURT OF HONG KONG HIGH COURT ___________ BETWEEN
Coram: Master Betts in Chambers Date of Hearing: 15 February 1984 Date handed down: 12 March 1984 __________________________ ASSESSMENT OF DAMAGES __________________________ 1. On 13 October 1980 the plaintiff was injured in a traffic accident. Her age is uncertain although her new identity card gives her year of birth as 1925. Accepting that as reasonably accurate she was about 55 years old at the time of the accident. 2. The medical evidence supports the Statement of Claim that her injuries were: -
3. She remained in hospital for six days but her broken wrist; a colles fracture; remained in plaster for about one month and received physiotherapy for about two months more. 4. The plaintiff was examined by Mr Wedderburn in October 1983 and he gave evidence on this assessment. 5. Of the injuries she received the plaintiff complains of three continuing effects with which I will deal in turn. 1. Anosmia 6. This is described in Mr Wedderburn's report as "........ a fracture of the Cribiform Plate of the Ethmoid. This is a very thin plate of bone between the nose and the brain cavity of the skull. A fracture of the bony plate interrupts the olfactory nerves so that the sense of smell is lost, a condition known as Anosmia. " In his evidence he explained that the appreciation of food is mainly through the sense of smell. Sweet, sour, salt and bitter being the only sensations the tongue can detect all other enjoyment is through aroma. Lose of the sense of smell not only affects enjoyment of food but carries some danger from the inability to detect noxious fumes. 7. In this case anosmia is total. 8. Mr Wedderburn puts that as a 3% impairment of the whole man. 2. Colles fracture 9. This has resulted in a permanent, though slight, impairment of movement and grip of the hand. Mr Wedderburn puts it at a 5% impairment of the arm which is a 2% impairment of the whole man. In practical terms it constitutes some inconvenience in her normal household duties and makes it more difficult than previously to pick up heavy pots, kettles and so on. 3. Headaches 10. The plaintiff complains that since the accident she has suffered from persistent headaches which come about three times a month and last for one or two days at a time. A Medical Board held in January 1983 recommended a 1% permanent disability based on the Employees Compensation Ordinance for the headaches. The hospital gave her some tablets to alleviate this symptom (there is no evidence what these tablets are) and from the length of time her supply has lasted she obviously does not take them very often. Although I have no doubt she does have headaches resulting from the accident I do not think they are as serious or frequent as she would have we believe. General Damages 11. Mr Leung asks for an assessment between $40,000 and $50,000. 12. In support he referred me to a number of awards ranging from $15,000 to $65,000, applies the usual allowances for inflation, differences in age and so on and arrived at his range. 13. Mr Yu invites me to make an assessment precisely of $23,649.00. 14. He arrives at that figure by taking a number of awards the injuries in which included anosmia or wrist fracture and applying strict mathematical adjustments. 15. As an example his adjustment in the case of Fong Lun-fat v Wong Kuen & another (1978) H.K.L.J. 101 where the plaintiff was a male aged 40 is:-
16. With the greatest of respect for the able way Mr Yu presented his argument his approach is misconceived. This is not a matter of exact calculation but an assessment of pain, suffering and loss of the amenities of life. Previous assessments can do no more than indicate a range of views taken in respect of different plaintiffs, of different ages and sexes usually with a different combination of injuries. At the end of the day an assessment has to be made in respect of the individual plaintiff. 17. Having considered the evidence, arguments and other assessments placed before me in this case I assess damages under this head at $55,000. Special Damages 18. A number of items have been agreed as follows:-
19. The plaintiff's claimed phobia regarding cars is totally unsupported by medical evidence. If, as he now says, she "dare not" go out into the streets unaccompanied I find it surprising that no mention of this seems to have been made to any of the doctors who examined her. I think any such nervousness she may have is grossly exaggerated for the purpose of this assessment. 20. I disallow this item completely.
21. There will be interest on the General Damages at the rate of 2% per annum from the date of service of the writ to the date of judgment. 22. There will be interest on the Special Damages at the rate of 6.75% per annum from the date of the accident to the date of judgment. 23. There will been Order for payment of the plaintiff's costs by the defendants. Certified fit for Counsel.
Representation: Mr Frankie Leung instructed by Messrs Oliver and Driver for Plaintiff Mr Denis Yu instructed by Messrs Liong, Ng & Lie for Defendants | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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