Ng Fat Sum v. Li Chor and Another

HCA002146/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Wilson in Chambers.

Date of Judgment: 14 August 1979

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ASSESSMENT OF DAMAGES

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1. The plaintiff was injured in a motor accident on 28th May 1976. He was admitted to hospital and found to have a fractured pelvis and fractured neck of the right femur. This fracture in the thigh was "pinned" and he was discharged from hospital on 12th June.

2. The plaintiff had to attend regularly for follow-up treatment until 27th November 1976. Initially he was required to walk on crutches and then was encouraged to walk with the assistance of a stick. He was seen by a Medical Board in late October and assessed as normal with no disability.

3. Thus the plaintiff had 15 days as a hospital in-patient, was on crutches for about 3 months and had to attend regularly as an out-patient for six months before he was fit for work. The doctors say that by that time he had made a good recovery and the operation "pinning" the fracture appeared then and appears now, over 3 years later, to have been a complete success. The pin remains at the site of the fracture and the probability is that it will be there for the rest of the plaintiff's life. There remains only a remote possibility that this pin could become displaced or otherwise give trouble in the future in which event a further operation could become desirable.

4. In all the circumstances I shall award $10,000 for pain, suffering and loss of amenities.

5. There is no claim for loss of future earnings.

6. There is a claim for loss of past earnings of $30,000. The plaintiff is a free-lance cameraman employed in the television and motion picture industry. By the nature of his work his earnings varied but at the time of the accident it appears he earned about $2,000 monthly.

7. I am prepared to assume he was not able to work at his particular vocation for six months. Had the plaintiff's work been more sedentary he would have been able to resume earlier than this but I accept that a film cameraman has to be a fairly agile person.

8. Based on average earnings of $2,000 the award would be about $12,000. However the plaintiff refers to and produces two contracts with the Kam Bo Picture Company which he had entered into a few days before the accident. These provided that he was to go to Singapore from June to October 1976 to film two movies and be paid $15,000 for each. He was not able to go because of the accident and lost the opportunity of going. Thus he has lost the $30,000 remuneration. Although this represents a much higher monthly rate than the plaintiff's normal earnings I accept that these contracts were in existence and he was to be well paid because of the necessity of going to Singapore with a smaller film crew than usual.

9. Each contract provided for a deposit of $1,000 and the plaintiff agreed he had received and retained this. This must be deducted. I award $28,000 for loss of earnings.

10. Damaged clothing at $150 and travelling expenses for out-patient treatment at $300 were agreed by the defendants.

11. The plaintiff claimed $5,650 for herbalist and bonesetter's fees, special foods and nourishment, and travelling expenses to visit these practitioners. He produced a receipt for $4,000 from a bonesetter and various receipts totalling $2,900 from a herbalist. He claimed to have made 35 round trips by taxi to visit these practitioners at a cost of about $530.

12. This claim was resisted by the defendants on the grounds that it was unnecessary and extravagant. Mr. de Souza referred me to Ho Kwai-loy v. Leung (1978) HKLR 72 where bonesetter's fees were disallowed. I see from that case that $600 was allowed for "extra food". I have also considered the decision of Garcia J. in Wong v. Yuen, No. A727/77, delivered on the 12th July last, and the authorities referred to in that judgment. In that case a claim for special foods was disallowed. It appears to be for the plaintiff to show proof of expenditure and then necessity or reasonableness.

13. As to bonesetter's fees Dr. K.Y. Yu, who was called by the plaintiff, said that in this type of injury bonesetter treatment was not only unnecessary but undesirable. I would not be disposed to allow anything towards bonesetter's fees in this case. There was no proof other than the oral estimate of the plaintiff as to the travelling expenses which in any event appear high. I am disposed to allow something for the herbalist but feel the amount claimed is excessive. In the circumstances I award $1,000.

14. In the result:-

15. There will be interest on general damages at 8% from the date of the service of the writ to the date of this award and interest on special damages at 4% from the date of the accident to the date of this award.

16. Defendants will pay the plaintiff's costs.

17. Liberty to apply.

18. Date this 14th day of August 1979.

Representation:

Mr. John Ip of John Ip & Co. for plaintiff.

Mr. B.L. de Souza instructed by Peter Mark & Co. for Defendant.