Wong Hei (or Hay) Wan v. Li Chor and Another
Read the full judgment text of HCA 4718/1978 on BabelCite. This High Court CFI judgment was delivered on 14 August 1979.
1. This is an assessment of damages consequent upon injuries suffered by the plaintiff when he was involved in a traffic accident on the 28th May, 1976.
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HCA004718/1978
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Barrington-Jones in Chambers. Date of Judgment: 14 August 1979 --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1. This is an assessment of damages consequent upon injuries suffered by the plaintiff when he was involved in a traffic accident on the 28th May, 1976. 2. On the 25th May, 1979 interlocutory judgment was entered for the plaintiff against the defendants with damages to be assessed. 3. The plaintiff was admitted to the Orthopaedic Unit at Queen Elizabeth Hospital on the day of the accident where he was found to be in fair general condition and conscious. The following injuries were noted at that time:-
4. The plaintiff was given surgical toilet and the laceration was sutured. A neck collar was given for the sprained neck and the fractured left tibia was treated by closed reduction and long leg plaster. The plaintiff being finally discharged on the 31st July, 1976. 5. In September, 1978 a Medical Board was convened at Queen Elizabeth Hospital to examine and report on the state of health of the plaintiff. It was noted that the plaintiff had attended the orthopaedic follow-up clinic several times and that on the 5th February, 1977 the plaintiff had been referred to the Neurosurgical Clinic because he complained of poor memory; but the Neurosurgeon found no neurological involvement on clinical examination. The Board found that the plaintiff to have mild deformity of the upper 1/3 of the left leg, mild stiffness of left knee joing (5o less flexion compared to right knee) and scarring of the forehead. 6. However in a report dated the 19th March, 1979 Dr. Wedderburn contradicts the finding of the Medical Board that there was no neurological involvement, and he considered that the plaintiff did have a very mild brain injury or post consussional syndrome. Dr. Wedderburn is of the opinion that there has been a genuine immediate memory loss here, although the plaintiff's remote memory is normal. Dr. Wedderburn does not consider the post concussional syndrome can be classified as an impairment or disability but has no doubt that it has almost certainly affected the plaintiff's earning capacity. Finally Dr. Wedderburn does not consider that the condition of the plaintiff's left leg will interfere with his earning capacity as a film producer before the age of 65. 7. I have also had the advantage of seeing reports on the plaintiff prepared by Dr. John Hunter and Dr. W. Green, and Dr. Hunter also gave evidence at the hearing. 8. Dr. Wedderburn in evidence amplified his report and made it clear that the plaintiff has completely recovered from his whip lash neck injury, but he anticipated osteo arthritis developing as a result of the knee injury, and thinks that this impairment will become progressively worse. On the question of loss of recent memory Dr. Wedderburn considers that there has been some loss here, but he does not consider it to be a severe loss of memory; and he confirmed that the plaintiff's remote memory is unaffected. Dr. Hunter's evidence supported Dr. Wedderburn's conclusions. 9. Before the accident the plaintiff was a film producer employed by the Lo Mar Film Co., earning $2,000.00 per month and he was also a film actor, and was paid $3,000.00 for each film in which he appeared. 10. As has been seen the plaintiff suffered severe injuries in the accident including a ½" shortening of the left lower leg, and there is no doubt but that his career as a film actor is over; not only because of impairment of his memory but also because of facial disfurgement caused by the accident. Happily however the plaintiff has since his recovery been able to return to film producing, but now on a free lance basis. 11. On the subject of general damages I have been referred to Lau Kam-tui H.K.L.J. (1977) 395, Ko Sun-wah 1978 H.K.L.J. 256, Pang Yau v. Cheung Kwok Hing and Anor. 1977 H.K.L.R. 396 Chan Wah-ho v. Chow Win-lai 1977 H.K.L.J. 394, F.P.A. Goodwin 1977 H.K.L.J. 395, and Ng Cheung-wai 1977 H.K.L.J. 149, and after very careful reflection I have come to the conclusion that damages for pain, suffering and loss of amenities should be awarded at $40,000.00. Special Damages 12. It is quite evident that there was a complete loss of earnings as a film producer from the date of the accident (28th May, 1976) to the 29th January, 1977, and thus $16,000.00 is allowed here. 13. It was a clause in the plaintiff's employment contract that he was required to act in four films per year, but there was evidence to show that six films were produced by others whilst the plaintiff was away; and although it is possible that he might have been asked to appear in all six, I think the right approach here must be to take account of what was required of him in terms of his agreement with the Company. I therefore make an award in respect of four of the films which were made in the plaintiff's absence and for which because of the accident he was unable to take part. There will thus be an award of $12,000.00 in respect of Item 2. 14. On the question of the Bone Setter's charges and the medicines that he prescribed, there is, I find, some overlapping here with the treatment which he received at Queen Elizabeth Hospital. In this respect I was referred to Kwan Mei-king 1972 H.K.L.R. 353, where the general principles were laid down by Leonard J. Dr. Wedderburn said that there would have been the present degree of recovery without the attendance of the Bone Setter but took the view that the plaintiff's attendance on the Bone Setter probably encouraged the plaintiff in his eventual recovery. 15. It is in these circumstances I have decided to allow the Bone Setter's fees at $1,160.00. 16. Insofar as the Bone Setter's prescribed medicines are concerned there is clear evidence of overlapping here as contrasted with the treatment the plaintiff received in hospital and I have decided, after much reflection, not to make any award in respect of such medicines. 17. On the question of nourishment for the plaintiff whilst he was under treatment there is very little evidence before me as to how the sum claimed was computed, and Mr. Suffiad has asked me to make a token award of $300.00. After carefully considering this item I have come to the conclusion an aware of $500.00 should be made under this head. 18. There is no dispute concerning the hospital charges, and these are allowed at $300.00. 19. There follows a claim for servant's wages for eight months. I am satisfied on the evidence that there was a need for domestic help in the household whilst the plaintiff was in hospital so that his wife could visit him daily in hospital, and the children could be fed and cared for. But in this connection I note that the plaintiff was in hospital from the 28th May, 1976 until he was discharged on the 31st July, 1976 and in my view the claim for domestic help for eight months cannot be sustained. The claim ought only be allowed during the period the plaintiff was in hospital so that $800.00 will be allowed for three months i.e. $2,400.00. 20. In regard to their claim for travelling expenses in the sum of $2,400.00. I find a proper claim has been made out for $1,500.00 and I will allow this lesser figure. 21. There is no dispute concerning the claim for damage to clothing, and $200.00 is awarded in respect of this item. 22. So that in summary, the assessment is:-
23. There will be interest on the general damages at 7% from the 28th December, 1978 until today, and interest on the special damages at 4% from the 28th May, 1976 until today. 24. The total damages are to be paid into Court within 14 days. The plaintiff is to have his costs. 25. Liberty to apply. 26. Dated this 14th day of August, 1979.
Representation: Mr. John Ip of John Ip & Co. for Plaintiff. Mr. A.R. Suffiad instructed by Peter Mark & Co. for Defendants. |