Lo Shum v. Chan Chee-tak and Another

HCA001530/1979

Coram: Zimmern, J.

Date of Judgment: 26 November 1979

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JUDGMENT

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1. The plaintiff in this case is a woman some seventy-six years old. In 1977, she alighted from a tram east bound along King's Road near Tong Chong Street. Coming from the same direction was the 1st defendant driving a motor bike owned by the 2nd defendant. He said that when he came to the set of traffic lights he saw it turn amber whereupon he applied his brakes. The motor bike failed to stop in the time which if the brakes had been in good condition the bike would have stopped. He collided with the plaintiff then on the traffic light controlled pedestrian crossing.

2. Negligence in this case is admitted and Mr. Suffiad for the defendants says that there was contributory negligence by the plaintiff to her own damage. That is a matter in which the onus of proof is on the defendants and in my opinion and so I hold the defendants have failed to prove such contributory negligence.

3. The 1st defendant indeed admitted in the witness-box that he had lost control of the motor cycle. The particulars of injuries alleged by the plaintiff were:

and as a result of the injuries to the eye the plaintiff has 100% visual loss of the right eye.

4. I shall not concern myself with the haematoma and the tenderness over the dorsum.

5. According to the medical reports she was admitted firstly to the Casualty Department of the Tang Shiu Kin Hospital arriving there within the hour after the accident. On examination, there was found laceration of right eyeball with complete dislocation of lens and loss of vision. She was then treated and an ophthalmologist was called to see her and she was subsequently treated and admitted into Queen Mary Hospital. There, at the Queen Mary, it was discovered that she had a ruptured right eyeball and an emergency operation was done by the eye unit and subsequently transferred to that unit. She was treated conservatively and discharged on the 5th of November 1977.

6. Dr. Ling, Government Consultant Ophthalmologist, said he saw the plaintiff about a year later. He had not treated the plaintiff himself but he had the record of Dr. Lam who is now not present in Hong Kong and who had treated her at the Tang Chi Ngong Eye Clinic. There an operation was performed on her and the whole of the right eye socket was taken out by reason firstly that she was suffering from pain and secondly that she was blind in that eye.

7. At the time of the accident, it is said - and this comes from the plaintiff herself - that the vision of her right eye was far better than the vision of the left eye. Dr. Ling says as far as the left eye is concerned she was suffering from pathology in the macula and to all intent and purpose that eye (that is, the left eye) is medically blind. So we have now the plaintiff a blind woman.

8. Dr. Ling, in answer to the court, said: "This pathology in the macula of the left eye could also have been present in the right eye", but that will be speculation. What we do know is that the operation was performed on the plaintiff soon after the accident. The defendants are liable and they will have to pay damages as they find her - now a blind woman.

9. I will deal first with general damage. She was at the time of the accident seventy-four years of age. I do not know what her life expectancy would be at that age. There is no evidence of the things she enjoyed in life. I think Mr. Suffiad is right to suggest a figure of $50,000 to $55,000. For general damage I award her the sum of $55,000. That carries interest at the rate of 4% from the date of writ to today.

10. I now come to the special damage. The agreed special damage in the pleading is a total of $1,641. It is an agreed figure. Then there is a claim for loss of earnings at $800 per month from the 1st of November 1977 to the 31st of March 1979 and continuing.

11. It is said that the plaintiff was employed as an amah or domestic servant in the home of a Mr. Lo who gave evidence. Her salary or wages were $450 a month plus two meals a day. She attended every morning at 8.30 or 9 o'clock and left after the evening meal around 8.30. The plaintiff, prior to this particular employment which commenced at about two to three months before the accident, was over ten years a domestic help in another place and she had given up working there she said by reason of the low wages. She had rested for a month or so and somebody asked her to go back into employment. I do not know whether in the place she had been employed for such a long time she was a 'stay-in' or a 'stay-out' servant. When I say 'stay-in' I mean living with her employers and when I say 'stay-out' I mean not living but attending. She had only been with her present employer - I think it is a matter of three months. At that age it is impossible to say whether she would be and for how long be able to attend every morning, taking a tram, returning home late that night, again taking a tram. I think it will be a matter of speculation and conjecture whether she indeed would have worked a year. Except for her eyesight she is said to have been healthy but let it be noted that her left eye is now blind and not by reason of the accident.

12. I cannot see myself awarding more than a year's wage which, including the cost or the estimated cost of the meals, comes to a figure of $945. I think this would be a matter of special damage in as much as it is within the year prior to the issue of the writ. There will be nothing for the loss of prospective earnings from any date after the writ.

13. So special damages come to $9,450 plus $1,641 making it a total of $11,091 on which interest will be paid at the rate of 8% per annum from the date of the writ to today. Judgment for the plaintiff accordingly.

14. There will be costs for the plaintiff to be taxed in accordance with Legal Aid Regulations.

Representation:

H.C. Wong (D.W. Ling & Co.) for the plaintiff

A.R. Suffiad (Peter Mark & Co.) for the defendants