Cao Hao v. Liong Peng Fong and Another
Read the full judgment text of HCA 3634/1978 on BabelCite. This High Court CFI judgment was delivered on 17 October 1979.
1. In this matter the plaintiff sues the defendants for damages for injuries consequent upon an accident in which her left hand was caught in the door of a motor bus owned by the second defendant and being driven by the first defendant.
Cited by 1 case
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HCA003634/1978
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Power, J. in Court Date of Judgment: 17 October 1979 ----------------- JUDGMENT -----------------
Liability 1. In this matter the plaintiff sues the defendants for damages for injuries consequent upon an accident in which her left hand was caught in the door of a motor bus owned by the second defendant and being driven by the first defendant. 2. The evidence was not specific with regard to the age of the plaintiff however, it appeared that she was 75 at the date of the trial and 73 at the time of the incident which took place on the 22nd of December 1977 at 12.55 p.m. in Bonham Road, Hong Kong Island. The plaintiff gave evidence that as she was alighting from the motor bus her left hand was caught in the door of the bus which then started and dragged her along causing injuries to her left arm and leg. She was unable to say exactly how her arm came to be caught but her evidence overall left me in no doubt that it happened while she was descending from the bus. The first defendant was called and gave evidence saying that he did not start off the bus until he saw in his nearside rear vision mirror that the plaintiff had both of her feet out of the bus onto the roadway. He said that he was unable to see where her left arm was at that time. It was argued by Mr Eddis on behalf of the defendants that the burden of proving that the accident was caused solely by the negligence of the first defendant lay on the plaintiff and that her evidence was so lacking in particularity, as to the way in which the accident had happened, that she had failed to discharge this burden, and that she must, therefore, bear at least some part of the blame for the accident. 3. Having considered all of the evidence I have no hesitation in finding that the accident occurred while the plaintiff was descending from the bus and before she had been able to get her body fully clear from the bus and that the accident was caused wholly by the negligence of the first defendant. Damages 4. I turn now to the question of damages. At the time of the accident the plaintiff was employed as a domestic amah by a Mrs Mabel Kwok. Her duty was to look after Mrs Kwok's mother-in-law who, Mrs Kwok said, was older than the plaintiff. The plaintiff in her evidence said that the mother-in-law was almost 80. It appeared that this elderly lady was still living at the date of the trial as Mrs Kwok said that the replacement amah was 65 or 66. Mrs Kwok said that the plaintiff was paid $800 per month and received a double pay bonus at Chinese New Year. She said that she was both a companion and a servant to her mother-in-law, and that her duties included the serving of meals, cleaning the mother-in-law's room and doing her personal laundry. Mrs Kwok described the duties as light. She said that she would have kept the plaintiff on but for the accident because she was very reliable and was even more healthy than the other servants. 5. The report of Dr Bong of the University Orthopaedic Unit dated the 21st June 1978, which was tendered by consent, stated that:
6. The receipts from Sandy Bay Convalescent Home indicated that the plaintiff had been discharged therefrom on the 7th of May, 1978. 7. The plaintiff was also seen by Dr Wedderburn on the 31st of July, 1978, and on the 1st October, 1979. On his first examination Dr Wedderburn found that:
Dr Wedderburn on his second examination found:
The plaintiff in her evidence said that she was now unable to squat down and that she did not think she could take up the same job again. 8. I am satisfied from the evidence of the plaintiff and from the evidence of Dr Wedderburn that the plaintiff, given her age and present disability, is no longer employable. Special Damages 9. The plaintiff claimed the following special damages:
10. As to Item (a) I am satisfied that but for the accident she would have been working for Mrs Kwok up until the date of this trial, and that she is entitled to special damages from the date of the accident to the date of the trial in the sum of the wages lost in that period i.e. 21 months at $800 per month, a total of $16,800. 11. As to Item (b) Mrs Kwork said that she paid the Chinese New Year bonus in 1978 to the plaintiff, but I am satisfied that she is entitled to recover an amount representing the 1979 bonus. 12. As to Item (c), which was not disputed, the plaintiff is entitled to recover hospital fees in the sum of $685. 13. As to Item (d) there was no evidence that the plaintiff had incurred any travelling expenses for herself. However, her niece, Mrs Ko Ho Sheng, in her evidence, said that she had spent $600-$700 on travel visiting her aunt in hospital. Under cross-examination the niece agreed with Mr Eddis who put it to ther that she had never been repaid for the amount expended on fares and that she would not expect her aunt to repay her. Mrs Ko said that when she visited her aunt in Sandy Bay Convalescent Home she had taken a bus to the Western District and had then changed to a pak-pai to travel to Sandy Bay. She said that she had visited her aunt who was in the convalescent home form the 26th of December 1977 to the 7th of May 1978, at least six times a week - a period of a little over 17 weeks. She told Mr Eddis that the cost of travel was 60 in the bus and $1 in the pak-pai which would make a total of $3.20 for the return trip. If this expense was incurred six times a week for a period of 17 weeks, and I accept that it was, the total expenditure would amount to approximately $330. Mr Eddis submitted that the plaintiff was not entitled to recover any of this amount because it was expended not by a family member with the money coming from a family fund but by a relative with whom the plaintiff had not, until after her discharge from the convalescent home, even resided. I am satisfied that expenses reasonably incurred by a relative who undertakes regular hospital visits in order to being comfort and succour to an injured plaintiff are recoverable within the principles laid down in Cunningham v. Harrison (1973) 3 All E.R. 463 and Donnelly v. Joyce (1973) 3 All E.R. 475. In the latter case the entitlement of the plaintiff to recover the "travelling expenses, presumably of the parents, to and from hospital" was not contested. What was being contested was the right of the plaintiff to recover the loss of wages incurred by his mother while caring for him. However, as Lord Justice Megaw pointed out, at p.479, the suggested principle, governing the right of a plaintiff to recover damages in respect of services provided by a third party which were reasonably required by the plaintiff because of his physical needs directly attributable to the accident, applies equally to both items. 14. The Learned Lord Justice, delivering the judgment of the Court of Appeal, went on, at p.479, to say:
I respectfully adopt the above approach and rely particularly upon the passages which I have underlined in the above citation. I am satisfied that it is not material that the money expended did not come from a family fund. The niece said that on some of the visits she brought nourishing food, with which I will deal later, to the plaintiff. I am satisfied that hospital visits are a service to a sick person, particularly an elderly sick person, within the meaning of that term as it is used in the above cited cases. I am satisfied that the need for such visits existed, that the value of them, for the purpose of damages, was the proper and reasonable cost of supplying them and that the plaintiff is entitled to recover that cost. Mr Eddis further argued that even if the plaintiff was entitled to recover the cost of hospital visits the amount of that cost, in so far as it was spent travelling on pak-pais i.e. unlicensed vehicles, was, because such a journey was the product of an illegal transaction, irrecoverable. I find myself quite unable to agree with this submission. It is the plaintiff's entitlement to recover the proper and reasonable cost of supplying the visits. What the Court is doing is reimbursing the plaintiff for her loss in this regard. The fact that the person who made the visits used pak-pais is, I am satisfied, irrelevant so far as the defendants and their liability are concerned. I am satisfied, as the evidence stands, that $330 was the proper and reasonable cost of supplying the visits and that the plaintiff is entitled to recover that amount. Indeed I am left with the uneasy feeling that the plaintiff and her niece, in their evidence, may well have failed to do justice to this part of the claim. 15. As to Item (e) the plaintiff said that her niece brought tonic food and soups good for health to her and that her niece paid for these foods but that she sometimes paid herself. She said she did not know how much she had paid herself and that sometimes even when she tried to pay her niece the offer was refused. Her niece, Mrs Ko, said that she spent about $3,000 on soup and other tonic food. Mr Eddis suggested to her in cross-examination that she had given the food out of kindness both when the plaintiff resided with her after leaving Sandy Bay and while the plaintiff was still in hospital and she agreed that this was so. Be that as it may I am satisfied, for the reasons indicated above, that the provision by a "provider" of nourishing food to a convalescent plaintiff is a service the cost of which is recoverable by that plaintiff. I am well aware of the doubt that exists as to the recoverability of amounts expended on expensive herbal remedies which have not been prescribed by any doctor or persons skilled in the use of such remedies. Mrs Ko said that she brought soup and other tonic food which she said involved chicken, Chinese herbs, essence of chicken and fruit. I am satisfied from the evidence that part, at least, of what Mrs Ko provided for the plaintiff during her convalescence in Sandy Bay was nourishing food of the type normally given to aid in the recovery of a convalescent person. I am satisfied that the cost of such food is recoverable by the plaintiff. Mr Eddis submitted that the evidence with regard to the cost was so vague and unsatisfactory that the Court could not properly arrive at any figure of compensation therefor. Let me say that I considered both the plaintiff and Mrs Ko to be honest witnesses. If there was any exaggeration as to the amount spent on nourishing food then it was, I am satisfied, not because such food was not provided and not because Mrs Ko was deliberately trying to mislead the Court as to the amounts expended. If there was exaggeration I am satisfied that it did not spring out of any deliberate dishonesty and was of the kind that can easily, and understandably, occur when a person is asked to recall the sum total of a large number of small amounts which have been expended over a fairly long period and of which no record has been kept. I bear in mind that some of the expenditure, according to Mrs Ko, was on Chinese herbs and that there has been no evidence that these were properly prescribed or that they were of any assistance in the recovery of the plaintiff. Doing the best I can with the evidence I have, and bearing in mind the matters set out above, I am satisfied that $1,200 is an appropriate amount to award in the present case under this head. 16. As to Item (f) there was, in my view, no evidence put forward which would justify the making of an award thereon. General Damages 17. The plaintiff claimed damages for pain, suffering and loss of amenities and damages for loss of future earning. I had no hesitation in accepting the evidence of the plaintiff as to pain and suffering. She said when referring to her initial stay in hospital that she "suffered pain. My leg and arm were in plaster casts and I could not move. I suffered very slight pain". Later in answer to a question from the Bench she said "When I was first admitted I was suffering from pain and later I was transferred to Sandy Bay Hospital. After I had spent three days I was transferred". The plaintiff in all spent about 18 weeks in hospital and a considerable part of that time she was immobilized in long leg and long arm plaster of Paris cast. It seemed to me clear that the plaintiff in no way exaggerated the pain she suffered and that, as well as that pain, she must have undergone a considerable amount of acute discomfort. After she was discharged from Sandy Bay Convalescent Home she had to walk with the help of a crutch which she said she used for many months and she was, in the period after her discharge, required to have physiotherapy. I am satisfied that her continuing disability is as was set out by Dr Wedderburn in his second report. I was referred by Mr Kwok, for the plaintiff, to the case of Lo Shau-Chun v. Yuen Chuk-Leung (1979) Hong Kong Law Journal 100. In that case the plaintiff, a 71 year old woman, suffered fractures of her tibia, fibula and wrist when injured in a traffic accident. She was in hospital for 101 days during which time her leg and wrist were in plaster. She had a good recovery but the movement of her leg was slightly limited and she walked with a limp. The Learned Judge awarded her general damages for pain, suffering and loss of amenities of $15,000. The circumstances in the present case are similar and I am satisfied that $15,000 is a proper award herein. 18. The plaintiff also sought an award for loss of future earning. Mr Eddis submitted that the plaintiff, who was 75 years of age at the date of trial, was adequately and properly compensated as regards future earning by an award of special damages giving her wages for the 21 months that had elapsed between the date of the accident and the date of the trial. He submitted that the plaintiff could only have hoped to continue to be employed while the mother-in-law of Mrs Kwok continued to live, and that, given that she was almost 80, nature might at any moment have extinguished this hope. He submitted further that, given the age of the plaintiff, 73 at the date of the accident, this eventuality would have brought to an end her effective working life. There is much force in these submissions and I agree that a Court must be cautious when awarding an amount for loss of future earning to an elderly person. However, I consider that it would be quite wrong, as the evidence stands, to hold that the plaintiff, who was in good health, did not, when forced to give up her employment by the accident, have any prospective loss of earning beyond the period of 21 months after the date of the accident. I am satisfied, upon the evidence, that, as at the date of trial, the plaintiff would, but for the accident, have still been employed by Mrs Kwok as the companion and servant of her mother-in-law, that she would have then been 75 years of age and would have been in good health. Mrs Kwok's mother-in-law was, according to the evidence, almost 80 but there was no suggestion that she was suffering from anything other than rheumatisum and arthritis. In the circumstances, I am satisfied that I should allow a loss of future earning and that I should take two years as the appropriate multiplier and $10,400 ($800 x 13) as the multiplicand. In so doing I take into account the matters I have set out above, the uncertainties of life and the fact of accelerated payment. The award under this head will therefore be $20,800. 19. I award general damages totalling $35,800 and special damages of $19,785. Interest upon the special damages at 4% from date of accident to date of trial. Interest on the damages for pain, suffering and loss of amenities at 8% from 1st November 1978 to date of trial. There will be no award of interest on the damages for loss of future earning.
Representation: Lester Kwok assigned by Director of Legal Aid for Plaintiff. F. Eddis instructed by Ngan & Wong Solicitors & Notaries for Defendants. |
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