Chan Kan (or Kun) and Another v. Yeung Ming and Another
Read the full judgment text of HCA 1919/1977 on BabelCite. This High Court CFI judgment was delivered on 31 August 1979.
1. This is an assessment of damages consequent upon injuries suffered by the 2nd plaintiff when he was involved in a traffic accident on the 31st January, 1976.
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HCA001919/1977
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Barrington-Jones in Chambers. Date of Judgment: 31 August 1979 --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1. This is an assessment of damages consequent upon injuries suffered by the 2nd plaintiff when he was involved in a traffic accident on the 31st January, 1976. 2. On the 25th February, 1978 interlocutory judgment was entered for the 1st and 2nd plaintiffs against the defendants with damages to be assessed. 3. On the 28th February, 1979 an order was made, by consent, that the defendant pays the 1st plaintiff the sum of $32,000.00 as agreed special and general damages, and at that time the 2nd plaintiff's claim was adjourned, and fell to be heard before me on the 18th June, 1979. 4. The 2nd plaintiff was admitted to Queen Elizabeth Hospital in the early hours of the 1st February 1976 and found to have (1) a small haematoma and superficial abrasion over the forehead (2) fractured shaft of the left femur and (3) a compound fracture of the lower and of left tibia and fibula, with loss of skin. The fractured femur was treated by the insertion of a K nail. Surgical toilet and fixation of the compound fracture by McKee's traction was also done. On the 12th March, 1976 the defect in the skin was grafted and a plaster fitted. The 2nd plaintiff was discharged from hospital on the 5th June, 1976. 5. But this proved to be merely the beginning of a very long and arduous saga for the 2nd plaintiff, for after his discharge from hospital he attended at the Jockey Club Clinic at Yuen Long every second day during July and August, 1976. He then consulted Dr. Peter Tang and attended that doctor on some twenty nine occasions during August and September, 1976. In October he re-commenced attendance at the clinic at Yuen Long every second day until April, 1977, and also attended at Queen Mary Hospital every second week during the same period. 6. In April, 1977 he was re-admitted to Queen Mary Hospital for 4 days when he had a skin graft. 7. On the 25th May, 1977 the 2nd plaintiff was first seen by Dr. Wedderburn who gives a clear and concise account of his injuries at that time. Dr. Wedderburn went on to say in his report:-
8. In the same report Dr. Wedderburn noted that the 2nd plaintiff had a number of scars on the forehead, the back of the left forearm, and on the left lower leg. He also observed that the lower left leg to be markedly swollen with an open wound (1" in diameter) on the medial side of the leg in the ankle region, and a second wound (3" x 1") in the ankle region of the left foot. Dr. Wedderburn also noted that the 2nd plaintiff's difficulties were compounded by the fact that although the 2nd plaintiff, who is 5' 6" in height, weighs over 200 lbs. Finally, he advised that the 2nd plaintiff be immediately re-admitted to hospital, and recommended immediate medical and surgical treatment to avoid the possibility of an amputation. 9. The 2nd plaintiff continued his visits every second day to the Yuen Long Clinic between May, 1977 and February, 1978; and on the 28th February, 1978 he was seen again by Dr. Wedderburn. 10. Dr. Wedderburn noted that the 2nd plaintiff attended the Government Clinic for seven months but that he had only been seen by a Nurse, and had not seen a doctor. Dr. Wedderburn in commenting on the fact that he found very little difference between his condition then and at the date of his previous examination had this to say:-
11. Following on this report, the 2nd plaintiff was admitted to St. Theresa's Hospital on the 13th March, 1978 under the care of Doctors Wedderburn and Ma, and a skin graft was done on the 22nd March, 1978, the 2nd plaintiff appears to have responded well to treatment and his wounds began to heal, and he was discharged in May, 1978. He attended the Government Clinic again during June, and was then re-admitted to St. Theresa's Hospital for a further skin graft, and he was not discharged until September, 1978. 12. The 2nd plaintiff started work in November, 1978, and managed to work until January, 1979 when he was again re-admitted to St. Theresa's Hospital for a full thickness skin graft in April, and he was finally discharged from hospital in May, 1979. 13. Dr. Wedderburn submitted no fewer than twelve reports on the 2nd plaintiff, and in the light of the very unhappy history of this case, it seems to me that the 2nd plaintiff was very fortunate that Dr. Wedderburn decided to take over his personal medical care. 14. In his last report dated the 14th June, 1979 Dr. Wedderburn reported that the wound was not completely healed but was less than 1 c.m. in diameter. He advised that the base was healthy, and thought that healing would occur in the following two or three weeks, provided the 2nd plaintiff exercised reasonable care and hygiene. 15. Dr. P.A.L. Horsfall, who also gave evidence, confirmed all that had been reported by Dr. Wedderburn. And in a further report dated the 16th November, 1978 he advised as follows:-
16. Dr. Horsfall said in evidence that he would have expected the 2nd plaintiff to have made a complete recovery in 6 months with correct treatment, instead of a period of some 3½ years. 17. I took particularly noted that Dr. Horsfall concurred with Dr. Wedderburn's criticism of the 2nd plaintiff's earlier and inadequate treatment. 18. I make no apology for setting out the history of this matter in such detail, I feel it is important to do so in a case such as this. It has been a long, I might say unnecessarily long, period of treatment which has brought the 2nd plaintiff to the best recovery that he can hope for, in respect of the injuries that he received in the accident when he was sixteen years old. 19. On the question of general damages I have noted that the 2nd plaintiff suffered post-traumatic amnesia for one hour, and that he later underwent no fewer than six operations. He was in hospital for some fourteen months, he has been on crutches and in plaster of paris for four months. 20. Before the accident the 2nd plaintiff played football and went swimming. He is now very overweight and is unemployed. 21. Miss Yuen referred me to Hodgson v. U.D.S. Tailoring 10-316 (Kemp and Kemp) and to High Court Action No. 1589 of 1976 Chan Wai Ho and Chow Lin Wai and others where Zimmern J., made an award in respect of similar injuries. Miss Yuen urged that an award in 1979 should be in the region of $50,000. In regard to loss of future earnings Miss Yuen thought that the correct approach here was to take a multiplier of 15 at $800 per month; which works out at 800 x 12 x 15 = $144,000.00. 22. On the other hand, Mr. Wuang stressed that I must be satisfied on a close analysis of the evidence that all the factors during the prolonged period of recovery were directly attributable to the defendants. He also asked me to consider the factors resulting from the 2nd plaintiff's inadequate treatment and his apparent unco-operative attitude, more particularly his reluctance or indifference to medical advice on the need to lose weight. 23. There is, of course, no question of the defence of Novus actus interveniens in this case, it has never been raised. 24. Although it is quite appalling that the second plaintiff has suffered for so long, I cannot find him at fault in the way he sought medical and nursing attention for the injuries he received in the accident. He did as he was told, he accepted treatment, and attended regularly as directed by medical and nursing staff. 25. At first I thought his unco-operative attitude was an important factor in this assessment but upon reflection I have decided that it is not, if only because Dr. Horsfall has stated quite unequivocally that the second plaintiff's obesity cannot be said to have a direct bearing on his disability. Moreover, I think it is important to keep in mind that the 2nd plaintiff was only 16 years of age at the time of the accident. He was a young adolescent at the time, and I thus consider it only natural that he was somewhat indisciplined when in hospital, and I consider that he gained weight at a time when he was too immature to be able to fully comprehend the serious implications of putting on such weight whilst under treatment for his injuries. 26. I therefore unhesitatingly find that the 2nd plaintiff has established that his injuries and prolonged treatment are the direct and natural consequences of the act of the defendants. There is no doubt that his treatment in 1976 - 1977 was inadequate, I might almost say negligent; and because of this I have given instructions that a copy of this assessment be sent to the Director of Medical and Health Services for such action as he may deem expedient, and I have made a note that the Director may be given access to this file should he decide to conduct any form of inquiry into this case. 27. It may be that the defendants have grounds for an action to be taken elsewhere, but that is not the matter that affects this assessment in the light of my finding. 28. Turning to general damages for pain suffering and loss of amenities, the 2nd plaintiff said he used to play football and swim. He will not now be able to play strenuous ball games. He was in pain for long periods and underwent a series of surgical operations. Taking Zimmern J's award of $30,000.00 in 1977 as a yardstick, I award the 2nd plaintiff $44,000.00 under this head. 29. As to his loss of capacity and future earnings, the situation here is very similar to that in Mr. Justice Zimmern's case viz a young man, hardly literate, who was worked in factories and helped his father in his transport business, but by reason of his accident finds himself only fit for some form of sedentary work and is, in fact, unemployed at the present time. 30. Here the field of work open to the 2nd plaintiff is drastically narrowed and he has undoubtedly lost capacity and is handicapped. 31. I am satisfied that before the accident the 2nd plaintiff was employed as an odd job worker by the Texas Cotton Mills Ltd., with an average monthly income of $520.00 before the accident and that the 2nd plaintiff was also employed on a part-time basis by his father as a labourer in his transport business. Regrettably it is somewhat difficult to reconcile the testimony of the 2nd plaintiff with that of his father on this subject. Miss Yuen conceded that the 2nd plaintiff's evidence was rather confused and I have come to the conclusion that there was merely a loose arrangement whereby the 2nd plaintiff occasionally assisted his father in the latter's transportation business and that he was paid an occasional retainer by his father for this work. 32. In attempting to reconcile the evidence of the 2nd plaintiff and that of his father I now believe that a variable sum in the region of $200.00 was paid monthly for this work, and I will use this figure in computing loss of earnings. 33. I feel sure that he will be able to find an unskilled job in the future. I assess his loss of future earnings at $400.00 per month. This is clearly a case for a multiplier of 15, i.e., 400 x 15 x 12 = $72,000.00. 34. Turning to special damages, I would first advert to the claim for tonics and special food for extra nourishment. Nothing was advanced in evidence regarding this item, and I will therefore disallow it. 35. On the subject of the consolidated claim in respect of Dr. Wedderburn's medical fees and hospital charges, this matter was adjourned for further consideration and the parties were before me again on the 28th August, when I heard Mr. Davies on this matter when he asked me to discount certain items. I must say that it is very difficult to find one's way through these accounts. After carefully examining them, I have come to the conclusion that there is nothing to suggest that the food items in the hospital invoices are for "special" food, and I have decided that these items, where they appear in the invoices, should not be discounted. I will accordingly allow these fees and charges as shown on the re-amended Statement of Claim less $300.00 which appears to be an error in an item shown as $4,799.00, when it should have been $4,499.00, i.e. $26,967.00. 36. Special damages are allowed, as follows:-
37. General damages
38. There will be interest on the general damages at 7% from the date of service of the writ until payment, and interest at 4% on the special damages from the date of the accident until payment. 39. The total damages to be paid into Court within 14 days. 40. There will be a certificate of Counsel and the 2nd plaintiff will have his costs. 41. Costs to be taxed under the Legal Aid Regulations. 42. Dated this 31st day of August, 1979.
Representation: Miss M. Yuen instructed by W.I. Cheung & Co. for the 2nd plaintiff. Mr. W. Wuang instructed by Deacons for 1st and 2nd defendants. |