Szeto Yuk v. Chu Ming Keung and Another

HCA004241/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Barnett in Chambers.

Date of Judgment: 4 April 1979

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ASSESSMENT OF DAMAGES

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1. The plaintiff was knocked down by a car driven by the first defendant late on the 2nd January 1977. She was admitted to hospital in the early hours of 3rd January and remained in hospital until discharge on 25th February.

2. She was treated for fractures of the right collar bone, lower end of the right humerus and of the right pelvis. The collar bone was placed in a brace. The fractured humerus was treated by way of traction which involved a pin being driven through the forearm. The pelvic injury was treated by bed rest. Happily, upon discharge from hospital, the plaintiff had made an excellent recovery and was able to walk without pain although she required some assistance.

3. The present position is that the collar bone and pelvis have healed completely. However, the injury to the humerus has severely affected the movement of the elbow joint so that the plaintiff cannot fully straighten her arm and can only bend her elbow to a right angle.

4. The plaintiff also fractured the second and third fingers of her right hand. These fractures were not diagnosed or treated in hospital. According to Dr. Wedderburn, this is not particularly surprising as the pain of these fractures would have been completely overshadowed by the more severe pain from the other injuries. As to when these injuries were diagnosed the evidence is not clear. However, after discharge from hospital the plaintiff returned for physiotherapy treatment on about 11 occasions during the following three weeks. At the same time she was also attending a bonesetter. It would appear that the bonesetter at least gave treatment to the fingers by way of massage.

5. As the fractures of the fingers were not immediately diagnosed and treated, the sad result is that these fingers now cannot be fully straightened or bent into a full grip. The plaintiff now only has a grip of 10 lbs. with her right hand whereas before the accident, as she is right-handed, she probably had a grip of at least 30 lbs.

6. The combined effect of the arm and hand injuries is that the plaintiff is left with a 40% permanent disability and a 25% impairment of the whole person. The plaintiff can no longer use chopsticks as she cannot move her hand closer than 18 inches to her mouth and eats by using a spoon with her left hand. She cannot use scissors or make other fine movements with her hand so that she is precluded from returning to her previous employment as a sewing and garment worker. She does her own house work but has some difficulty in washing dishes, clothes and the floor.

7. As far as damages for pain, suffering and loss of amenities are concerned, the plaintiff is now aged about 55 and suffers the injuries and consequent disability as I have already described. The only point that causes any real difficulty is the matter of the disability to the hand. According to Dr. Wedderburn, if proper and intensive physiotherapy treatment had been given to the plaintiff after discharge from hospital then her condition would now be better. Counsel for the defendants did not seek to make too much of this. Since the injuries to the fingers were not diagnosed during the 7 weeks she spent in hospital, the plaintiff can hardly be blamed if she did not realise that it was vitally necessary for her to continue physiotherapy treatment for a prolonged period. Accordingly, I do not consider that the plaintiff has in any way brought this particular disability upon herself.

8. Various cases were cited on behalf of the plaintiff as guidelines for the amount of damages to be awarded. Perhaps the most comparable case was that of LO Chun v. NG Kwok-ming & Anor. (High Court Action No. 2076/76) in which a man of 53 had a fractured left arm and ruptured tendons of the fingers and thumb. He was left with a permanent and deforming injury to his left arm and hand giving a 32% impairment. Damages of $23,500 were awarded. Counsel for the defendants considers that case to be more serious and suggests that $20,000 would be appropriate in the present case. In YEUNG Yuk-kee v. KONG Tsing-bor (High Court Action No. 2957/75) I awarded $15,000 to a lady who suffered fractures of all 4 fingers of her right hand. She was left with a permanent loss of grip and a medical board assessed a 10% disability. The present case is clearly far more serious.

9. In all the circumstances I shall award damages of $23,000 under this head.

10. There will clearly be loss of future earnings. The plaintiff had been employed in a garment factory for a number of years. The evidence is that she earned at least $900 per month. The plaintiff herself said that she intended to go on working as long as possible. Dr. Wedderburn said that he considered that the plaintiff would be able to work until she was 65. It is true that the proprietor of the factory said that he had no worker aged over 60. Nonetheless, the plaintiff was clearly a diligent and valued employee. I am satisfied that she would have continued working until 65 apart from the accident.

11. Dr. Wedderburn's evidence, which must be accepted, is that the plaintiff could have resumed some sort of work, such as a storekeeper or cashier, 6 months after the accident. Apart from two attempts to return to her former employment, the plaintiff has made no effort to find work. Counsel for the defendants suggests that the plaintiff could have earned at least $400. That suggestion is probably a generous one as far as the defendants are concerned but I shall adopt it. Accordingly, there will be a continuing loss of earnings of $500 per month. The plaintiff still has perhaps 10 years of her working life remaining. In those circumstances, I consider that a multiplier of 5 would be appropriate and I therefore award $30,000 for future loss of earnings.

12. As to special damages, I allow Items (ii) and (vi) as claimed. There is no dispute about these.

13. I also allow Item (v) for loss of clothing and property in full, apart from the watch. Upon the evidence, I am satisfied both as to the cost and the loss of the various individual items. It is perfectly clear to me that the expensive overcoat was totally ruined partly as a result of the accident and partly because it was cut from the plaintiff when she was admitted to the hospital. As to the watch, this was already some years old and I think it would be only proper to allow $250. Accordingly I allow Item (v) at $2,850.

14. Under Item (i) there is a claim for total loss of earnings at $900 per month from the date of the accident. I shall allow total loss for a period of 6 months and then at a rate of $500 per month up to the date of this assessment, that is, for 21 months. This will amount to $15,900.

15. Item (iii) is a claim for travelling expenses. I allow the $84 claimed by the plaintiff for attending follow-up treatment. There is then a claim for $424 for the plaintiff's husband and family to visit the plaintiff in hospital. There evidence is that only the husband visited the plaintiff which he did on an irregular basis, sometimes daily, sometimes every two or three days, depending upon how busy he was at work. He was and is employed by his brother. He says that it was only because he was employed by one of the family that he was able to visit the plaintiff as frequently as he did and that in any event it was necessary to travel by taxi so that he could return to work swiftly. I think that it would be reasonable in the circu stances to allow taxi fares which amounted to $8 for the round trip. The plaintiff was in hospital 7 weeks. I think it probable that the plaintiff's husband would have visited the plaintiff about 35 times which involved taxi fares amounting to $280. Accordingly I allow a total of $364.

16. Finally there is a claim for bonesetter's fees amounting to $4,600. It is true to say that the plaintiff apparently derived some benefit from her visits to the bonesetter. Certainly, she said that the condition of her right hand had improved by the end of her visits. However, she did initially attend for physiotherapy treatment and she said that she discontinued this because someone told her after the first week each visit would cost $20. Considering that she spent, according to her own evidence, an average of $100 on each visit to the bonesetter, the plaintiff's explanation is difficult to accept. There are no receipts for the bonesetter's fees. In the circumstances, I disallow this item entirely.

17. Total special damages are therefore $20,473.00.

18. I award interest on the general damages at 8% 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.

19. The damages and interest are to be paid to the Director of Legal Aid within 14 days.

20. The defendants will pay the plaintiff's party and party costs, the costs to be taxed.

21. Fit for counsel.

22. Liberty to apply.

23. Dated this 4th day of April, 1979.

Representation:

Mr. M.K. Turnbull of Director of Legal Aid for Plaintiff.

Miss Alice Mok instructed by Vincent Lo & Co. for 1st and 2nd Defendants