Lam Choi Tai v. Kwok Man Cheung and Another

HCA005114/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Hansen in Chambers

Date of Hearing: 3 November 1983

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ASSESSMENT OF DAMAGES

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1. Although both defendants appeared and had their rights explained to them they took no part in the proceedings. They asked no questions, adduced no evidence and made no submissions.

2. At the time of the hearing the plaintiff was aged 68 years. On the 7th December 1981 she was struck by a vehicle whilst crossing Chun Yam Street. That vehicle was driven by the 1st defendant and owned by the 2nd defendant.

3. As a result of being knocked down the plaintiff suffered a fracture to the neck of her left femur. She was admitted to Queen Elizabeth Hospital where an operation known as Moore's Prosthesis was carried out. In lay terms this was a hip replacement. The head and the neck of the femur are removed and replaced with a metal prosthesis with a spike running down the shaft of the bone. This operation was carried out on the 10th December 1981. On the 26th December the plaintiff was discharged to the Margaret Trench Rehabilitation Centre. She was finally discharged after having spent a total of 54 days in hospital.

4. A report by Dr Wedderburn was admitted under 0.38 RSC. This reveals that the plaintiff still walks with a pronounced limp and even with one stick is very unsteady. There was apparent shortening of the left leg. On examination, however, there was found to be no shortening. The plaintiff tilted the left side of the pelvis up to favour the left leg and it was this that which lead to the appearance of shortening. This, said Dr Wedderburn, was also the cause of the very marked limp. The report stated:- "she has good movement of the leg at the hip; she can fully bend it, but she has some restriction of movement of rotation. Internal rotation is reduced from 30° to 10° and external 50° to 30° and the normal measurements are those taken on the right side which are excellent degrees of movement for a woman of her age." Later Dr Wedderburn concluded by saying "she has an 11% impairment of the leg from the loss of the hip joint movement and 2% from the apparent shortening. A 13% impairment of the leg is a 5% impairment of the whole man. One cannot compare her to a younger person who probably would have recovered to a much greater extent; her age is a definite factor in a relatively poor result. I do not consider there will be any deterioration in her condition and in fact I think there will be a marginal improvement during the next year, but then a gradual deterioration as age advances."

5. The plaintiff's own evidence was that she limps badly and suffers occasional pain. Because of the accident she said she could no longer work as a packer in a knitting factory. Since the accident she said she had great difficulty in getting around and was no longer able to do housework. She could no longer climb on and off public transport. She said she had great difficulty in walking up and down stairs. She said that after the accident she spent about $2,000 on nourishing food and also $1,600 on a bonesetter. A further $270 were expended on hospital fees. Evidence was given that the plaintiff spent $30 on travelling expenses to outpatients and her son spent $540 travelling to hospital to visit the plaintiff. The plaintiff stated that her income at the time of the accident was $1,000 per month.

6. As I said earlier the evidence for the plaintiff was not challenged by the two defendants and I accept that evidence.

Pain Suffering and Loss of Amenities

7. Mr McCormick referred me to a number of authorities:-

8. Chow Wai-ting v Li Ka Wah HCA 1530/78 (Martin & Rhodes Pg 260). Here the injuries were similar and Zimmern J. awarded $45,000. However, this figure included $13,000 for the cost of a hip replacement operation. Mr McCormick submitted that after allowing for this and taken into account the fall in value of money this award represented $50,000 in today's terms.

9. Liu Siu Ping v Yip Ping Chun [1980] HKLR 565 (Martin & Rhodes pg. 264) Mr Commissioner Wei Q.C. awarded $50,000 which included a sum for loss of future earning capacity. However, it must be noted that while there was some loss of earning capacity it was unlikely to be substantial. Inflation adjusted this amounted to $65,000 said Mr McCormick.

10. Lau Chow-lam v Fung Mong-yan HCA 4716/79 (Martin & Rhodes 335). Here the degree of impairment was very similar. In October 1980 Mr Commissioner De Basto Q.C. (as he then was) awarded $35,000.

11. Yu Shee-pui v Urban Council. HCA 252/79 (Martin & Rhodes 271). This case involved many features almost identical to the present. In May 1981 Liu J. awarded $50,000.

12. Che Che v Leung Siu-fong and another HCA 2384/79. (HKLJ Vol. 12 No. 3 Pg 394). In April of 1982 Master Betts awarded $25,000 where the injuries were not as serious as those suffered by the plaintiff.

13. Chan Hong v Foo Yee-nui HCA 8170/82 (HKLJ Vol. 13 No. 3 Pg 428). In May of this year Penlington J. awarded $35,000. Again the injuries and degree of impairment were similar to those suffered by the plaintiff.

14. Mr McCormick submitted that, allowing for inflation, the range was from $40,000 to $65,000. He said he accepted that there should perhaps be some reduction because of the plaintiff's age. Having considered this factor and all the authorities and having observed the plaintiff I award $50,000.

Loss of Future Earnings

15. Dr Wedderburn in his report stated that, but for the accident the Plaintiff could have worked for another 2 years. I accept that and I also accept the evidence of the plaintiff that at the time of the accident she was earning $1,000 per month. I award $25,200 i.e. 12 months x $1,000 and a further 12 months x $1,100 (allowance of 10% for inflation.)

Bonesetter

16. The plaintiff said she felt the bonesetter could help her and indeed she believed she had received relief as a result of her treatment. Accordingly, in line with authority (see Yu Ki v Chan Kit-lan v Chan Kwai Ming [1981] HKLR 419) I award $1,600 as claimed.

Nourishing Food

17. The plaintiff claimed $2,000. I am satisfied the plaintiff took nourishing food and it was reasonable to do so. The accepted award was $10 per day for a reasonable period (To Ki v Chan Kit-lam HCA 2224/1980. Two recent decisions, taking into account inflation, have increased this figure to $15 per day (Mok Yam Tai by his next friend Mak Kan Cheung v Kwong Kwok Tai HCA 1427/83 and Wong Yiu Tsang v Yeung Cheng Kit and Stereo Ltd HCA 4281/83.) Here, I consider a reasonable period to be 90 days and accordingly I award $1,350.

Hospital Fees

18. I award $270 as claimed.

Son's Travelling Expenses

19. I award $540 as claimed.

Travelling Expenses

20. I award $30 as claimed.

Summary

21. There will be interest on the general damages at the rate of 2% p.a. from the date of the issue of the writ to judgment and on the special damages excepting loss of future earnings at the rate of 5.5% p.a. from the date of the accident until judgment.

22. There will be an order for payment of the plaintiff's costs by the defendant and for the plaintiff's own costs to be taxed under Legal Aid Regulations.

Representation:

Mr McCormick from DLA for Plaintiff

Defendants in person