Mak Yue v. Chan Siu Kay
Read the full judgment text of HCA 4009/1978 on BabelCite. This High Court CFI judgment was delivered on 2 October 1979.
1. This is an assessment of damages consequent upon an interlocutory judgment entered for the plaintiff.
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HCA004009/1978
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Wilson in Chambers. Date of Judgment: 2 October 1979 --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1. This is an assessment of damages consequent upon an interlocutory judgment entered for the plaintiff. 2. The plaintiff was injured on 3/3/78. He suffered a fracture of the right upper arm, a dislocated left finger joint, and various lacerations. The arm fracture was treated by the insertion of 4 bone screws. He spent 3 weeks in hospital and was discharged on regular physiotherapy. 3. He was readmitted to hospital on 25/7/78 as the stiffness of the right shoulder was not responding well to physiotherapy. Manipulation of the joint was performed under general anaesthesia and he was discharged on 2/8/78 with continued physiotherapy. 4. In August 1979 the plaintiff was readmitted to hospital for removal of the bone screws. This operation proceeded successfully. 5. Dr. Wedderburn examined the plaintiff in October 1978 and noted a further injury which was apparently not detected in hospital. He found a torn ligament and detached chip of bone in the thigh. This has resulted in a slight limp. 6. The plaintiff now has several scars of no cosmetic significance except for one large one on his right shoulder. His most serious disability is limitation of the right shoulder movement. Dr. Wedderburn observed the plaintiff over a long period, submitted 5 reports and gave evidence before me. He said that the arm fracture is now well united but the plaintiff still has marked limitation of shoulder movement. He should be fit for light work but not manual work. 7. Dr. Wedderburn expected the plaintiff to make a better recovery than he appears to have made in fact. He still has severe impairment of normal movement of the right arm. Dr. Wedderburn after careful observation considers there is no organic basis for most of this impairment and attributes it to ...(illegible) post-traumatic neurosis. In his view the patient is not malingering but genuinely believes his disability is worse than it really is. There is nothing further that can be done by way of surgical treatment or physiotherapy but treatment from a psychiatrist might be of some benefit. A satisfactory settlement of the present damages claim could well assist the plaintiff psychologically and thereby effect a big improvement. 8. Dr. W.L. Pang, a psychiatrist, also examined the plaintiff and gave evidence. His physical findings were similar to Dr. Wedderburn's. He conducted psychological tests which excluded malingering but found "prominent emotional response with tendency to exaggerate .... firmly believes he can never move his right arm freely again .... suffering from compensation neurosis .... maintained by himself subconsciously in his sick role". 9. Dr. Pang also expected a significant improvement when the legal case is over. He recommended long term psychiatric management for about 18 months. He said this would cost about $20,000 on a private basis. 10. Both Dr. Pang & Dr. Wedderburn agreed psychiatric treatment could be obtained at a government clinic for a nominal sum but doubted whether the same benefit could be obtained. 11. The position then is that the plaintiff has a minor to moderate impairment speaking purely physically and medically. In actual fact his present impairment is serious largely because of his neurosis. Both doctors consider this neurosis is not feigned and that at present it is very real to the patient. On what basis am I to assess - the present medical condition, or the actual condition at present aggravated as it is by the neurosis? 12. I think I can do little but take a middle course. In examining the plaintiff's condition up to now I shall have regard to his actual condition aggravated as it is by the neurosis. As to the future I intend to assume this neurosis should disappear. 13. Dr. Pang was of the opinion that it should diminish with competent psychiatric treatment. Both doctors were of the view that it might well disappear without any treatment and in particular on settlement of the present litigation. 14. On the question of traumatic neurosis I have considered Babchenko v. John Jardine Ltd. (1968) CA No. 207 cited in Kemp & Kemp (4th Ed.) at 11351 and the principles discussed therein. 15. Another case on traumatic neurosis is James v. Woodall Construction Co. Ltd. [1969] 2 AER 794. In that case Winn L.J. said,
16. As to the contemplated expenditure of some $20,000 on psychiatric fees I do not think I should make any allowance in respect of this. When the possibility of psychiatric treatment was put to the plaintiff by his own counsel he somewhat indignantly said he had no need of any such treatment; it was plain he had no intention of taking any such treatment even if an opportunity were afforded to him. 17. There is some doubt about the plaintiff's age. The doctors were told he is 58. In evidence he said he thought he is 63. He appears to me to be well into his middle sixties. 18. At the time of the accident he was employed in a vegetable shop or market. He has not returned to work since and sits at home nursing his limp arm. In October 1978 Dr. Wedderburn suggested he might try light work but according to the doctor the plaintiff became indignant at this suggestion. Dr. Wedderburn was of the view that light work would have therapeutic value. 19. The plaintiff's work previously included lifting weights and he is not suited to that now. He did not seem to want to consider alternative employment. He had been employed in the same market for some 5 years. He clearly enjoyed that work, was devoted to it, and know no other. He is an elderly man, set in his ways, and understandably enough had little motivation to consider anything else. His whole life had been centred on his workplace and companions there. 20. At the time of the accident the plaintiff was paid a salary with various allowances which came to $1,278 p.m. His employer thought highly of him and in the hope that he would eventually return continued to pay his wages, but not his allowances, to July 1978. 21. Although, but for his lack of motivation, he might have taken different and lighter work before now I will take into account his trauma and allow full loss of wages to date. 22. This is computed:-
23. In calculating this sum I have made full allowance in plaintiff's favour for his neurosis, bearing in mind the two doctors' opinions that it is genuine. However bearing in mind the other principles I have outlined I do not think I should make further such allowance for the future. 24. As to general damages the plaintiff had three separate periods in hospital totalling 33 days which included two operations. He is now left with a weakened shoulder joint with limited mobility, a slightly weakened leg and a large scar on one shoulder joint with limited mobility, a slightly weakened leg and a large scar on one shoulder. After considering the cases cited to me I award $20,000 for pain, suffering and loss of amenities. 25. As to future loss of earnings I think the plaintiff could take any unskilled job within a limited field not involving heavy manual work. He may be unwilling to do this in view of his lack of motivation but I shall assess on the basis that he is capable of doing so. Although his previous job was not skilled or paid as such I shall assume a loss of income of $500 per month on the basis that the range of employment suited to him in future will be considerably limited. It would not be unreasonable for him to seek part-time work if that were available. The plaintiff is in his sixties and would have a limited working life ahead of him. I adopt a multiplier of 4 and this leads to $500 x 12 x 4 = $24,000. 26. The plaintiff attended physiotherapy over a very long period and may continue to do so. I allow $2,100 as claimed for expenses incurred. 27. The bonesetter's fees of $150 and nourishing food of $500 were not strictly proved except by oral evidence. I allow $150 and $300 respectively. 28. In the result:- General damages
Special damages
29. Credit of course must be given for the interim payment made by the plaintiff in terms of the interlocutory order. 30. There will be interest on general damages at 7% from service of writ and interest at 4% on special damages from the date of accident. 31. Costs to plaintiff. 32. Fit for counsel. 33. Liberty to apply. 34. Dated this 2nd of October 1979.
Representation: Miss C. Remedios instructed by Rowdget W. Young & Co. for plaintiff. Miss Alice Mok instructed by Vincent Lo & Co. for defendant. |