John Francis Goudey and Another v. Kwok Man Wah and Another
Read the full judgment text of HCA 3172/1977 on BabelCite. This High Court CFI judgment.
1. The plaintiffs are husband and wife. On the 18th day of February, 1977 they were travelling in a private car along Taipo Road near the Chinese University. The first plaintiff was driving while his wife, the second plaintiff, was a passenger. Their car was involved in a collision with another car owned by the 1st defendant and driven by the 2nd defendant. Both the plaintiffs were injured in the accident. The defendants admit liability; interlocutory judgment having been entered against them on
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HCA003172/1977
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Cruden in Chambers. Date of Judgment: 15th November, 1978. Mr. Edward Chan instructed by Johnson, Stokes & Master for the Plaintiffs. Mr. C.Y. Lee instructed by Kenneth K.C. Wong & Co. for the Defendants. ----------------- DECISION ----------------- 1. The plaintiffs are husband and wife. On the 18th day of February, 1977 they were travelling in a private car along Taipo Road near the Chinese University. The first plaintiff was driving while his wife, the second plaintiff, was a passenger. Their car was involved in a collision with another car owned by the 1st defendant and driven by the 2nd defendant. Both the plaintiffs were injured in the accident. The defendants admit liability; interlocutory judgment having been entered against them on the 3rd day of January, 1978. The parties have now appeared before me for damages to be assessed. The first plaintiff 2. The 1st plaintiff suffered more serious injuries than his wife. He was in hospital from the 18th day of February, 1977 until the 26th day of February, 1977. It was undisputed that during the collision he suffered abrasions, bruising and tenderness of the left ankle, abrasions, bruising and tenderness of both knees, fracture of the left humerus, tenderness of the left side of the chest about ribs 6 and 7, bruises on the left forearm, pain in the neck, deformed and stiff ring finger distal 1-P, and a ruptured left arm bicepts tendon. In addition to these injuries he also claimed that the accident caused cervical spondylosis at C5-6-7 in the neck, an impacted fracture of the left femur together with the onset of osteo-arthritis, insomnia, fatigue, interference with his working efficiency, sporting activities, ability to drive a car, earning capacity and matrimonial relations. 3. I am satisfied that he does suffer from cervical spondylosis. However, his own medical witness, Dr. Wedderburn, was doubtful if this were caused by the accident although it may have accelerated the degenerative process. He considered that it was unlikely to cause a serious problem in the future. The defendants called Dr. Hodgson who had also been the 1st plaintiff's doctor for 5 years prior to the accident. From his knowledge of the 1st plaintiff he was able to state that the 1st plaintiff had, prior to the accident, been under treatment for cervical spondylosis but this was aggravated by the accident. It is, therefore, clear that cervical spondylosis was not caused by the accident but I am prepared to find that it was aggravated by the accident. On the medical reports produced, there was a dispute as to whether the 1st plaintiff suffered an impacted fracture of the left femur. Dr. Hodgson was in no doubt that the left femur was not fractured. In his view the pain felt in the left hip was solely due to osteo-arthritis of the left hip joint which may have been precipitated by the accident. As to interpreting a series of X-rays. Dr. Wedderburn, in his written report, explained that the 1st plaintiff has told him that when he first got up from bed after the accident, he noticed discomfort in the left hip region. Dr. Wedderburn went on to say that the X-rays tended to confirm that the left femur had been fractured. Dr. Hodgson stated that it was not until 12 months after the accident that the 1st plaintiff complained about his hip. The 1st plaintiff himself agreed that he did not, during the period immediately after the accident, specifically mention the pain in his left hip to Dr. Hodgson. The 1st plaintiff's explanation for not doing so was that there were other areas of more severe pain and because of an earlier back injury he was more concerned with the condition of his neck and spine. Dr. Wedderburn stated that among the matters on which his opinion was based was the 1st plaintiff's allegation that when first getting out of bed after the accident the 1st plaintiff had felt pain in his left hip. If a patient had not at that stage complained of pain in his left hip then that would alter his opinion whether the femur was fractured. Dr. Wedderburn did not examine the 1st plaintiff until more than twelve months after the accident. So in the result there was little real dispute between the doctors on this issue. Dr. Wedderburn also concurred that the onset of osteo-arthritis was attributable to the accident. On the evidence I am not satisfied that the left femur was fractured in the accident but I am satisfied that the accident did cause the osteo-arthritis in the left hip. I am also satisfied that he does suffer pain in his left hip but it is caused by the osteo-arthritis. He also clearly has sensitivity and poor co-ordination of the index and middle fingers of the left hand. While he is right handed he finds increased difficulty in doing things with his left hand. I am also satisfied that as a result of the accident he suffers from a degree of insomnia and tires more easily than before. The rather nebulous pleading in respect of matrimonial relations was matched by a minimum of evidence on this point. 4. Turning to the assessment of damages on these findings I have reached these conclusions: 1. Pain, suffering and loss of amenities: 5. The 1st plaintiff was involved in a serious accident suffering major injuries some of which were severe. At the time of the accident he was 55 years old. In addition to the period in hospital he has since continued to receive regular medical treatment. He still suffers pain and insomnia. The pain from the osteo-arthritis will increase rather than diminish. Before the accident he was a keen golfer, tennis player and swimmer. In earlier years he had a record of a very active and successful participation in athletics. In more recent years and up to the accident he regularly used at his home his own gymnastic equipment. Now, because of the arm injury, he no longer plays tennis. Before the accident he also regularly played two rounds of golf each week. Now he manages, at most, one game each week and feels quite severe pain by the 13th or 14th hole. His golf handicap has gone out from 16 to 22. He has continued to swim as much as possible. I am satisfied that he has genuinely tried to maintain his pre-accident extensive participation in sport. For example, Dr. Hodgson refers to the fact that after the accident the 1st plaintiff had taken good exercise including swimming 20 to 40 lengths day. I accept too that, solely because of the trauma of the accident, he no longer drives a car. This then is the case of a man whose sporting involvement, for his years, was well above the average. His considerable participation in sport has now been substantially reduced. This, with resultant loss of enjoyment, is a factor which may properly be taken into account in this assessment. 6. For pain, suffering and loss of amenities I award $30,000. 2. Pecuniary loss: 7. The 1st plaintiff is a director of a multi-national Company and is in receipt of a fixed salary of US$35,000 per annum plus various overseas allowances. His salary had not been affected by the accident so he was unable to establish any actual loss of income. He agreed that the standard of his work is as high now as it was before the accident. However, he makes two allegations in support of damages for prospective loss as distinct from actual loss. First, he states that it now takes him much longer to do the same amount of work. Before the accident he generally completed his work assignments during normal working hours. Now he takes more difficult work home to do in the evenings and weekends; tires more easily; finds it much more difficult and time consuming to collect information before making decisions. Secondly, the longer hours he now works coupled with reduced resilience, has had an upsetting effect on his family life. For all these reasons, including the desire to endeavour to preserve the same quality of family life he enjoyed before the accident he is convinced that he will be compelled to take early retirement at 60 years of age instead of continuing to work to the normal retiring age in his company of 65 years. If he has to take early retirement he claims he will suffer a major reduction in pension. Counsel submitted that early retirement at 60 years of age, on his present salary, would represent a reduction in pension of US$92,120. Those calculations were based on the 1st plaintiff's own general evidence. No evidence was called from his employer nor was any other relevant adduced. I think he is being unduly pessimistic although his fears are not groundless. The medical evidence recognises that he now tires more quickly and will tend to be less efficient. However, the injuries suffered and their permanent consequences are not, according to the medical evidence, likely materially to shorten his working life. 8. In the absence of any proven actual loss of income to date, this is not a case where any future loss can be actuarially computed. The medical evidence is that the 1st plaintiff should be able to continue to work to his normal retiring age. On the other hand it recognises, and I accept, that his efficiency has been affected and that it now takes him very much longer to achieve the same output. The possibility does exist that the plaintiff may have to take early retirement. In dealing with a claim involving all these factors I accept the following statement, made by way of qualification, in 1 Kemp & Kemp (4th Edn.) 128:-
9. As to the calculation of the proper amount I was referred to Fung Lai-yin v. Lai Kam-chiu O.J.A. No. 2916 of 1977, (1978) 8 H.K.L.J. 254. The considerations in that case were not the same as in this case but it is an example of facts leading to a global sum being selected. In all the circumstances I am satisfied, on the balance of probabilities, that the accident will cause some minor future economic loss even though the extent of that loss cannot be calculated with certainty. A global award is justified under this head. I award the sum of $20,000. 3. Further medical treatment: 10. Both medical witnesses agreed that the left hip could be treated by physiotheraphy or cortisone injections. Dr. Hodgson suggested physiotheraphy, which would be more expensive. He confirmed his written opinion that it is dangerous to inject weight-bearing joints, such as the hip, with cortisone as this sometimes produces a Charcots joint which is a very disabling condition. Dr. Wedderburn agreed that cortisone treatment must be considered with extreme caution. He envisaged one injection each year for a maximum of 3 years. Dr. Hodgson agreed that injections so limited would not be excessive. The cost of this treatment was estimated at $500. The alternative of physiotheraphy would be more expensive. I am prepared to allow $500 towards treatment of the hip and leave it to the 1st plaintiff to select the type of treatment. 11. The other future possible treatment concerns the ruptured left arm bicepts tendon. There is, apparently, a divergence of medical opinion whether, except for young people, the tendon should be repaired. Both of the medical witnesses called were not prepared to recommend an operation for this injury. The damage done is permanent; there would be no functional improvement. There would, according to Dr. Wedderburn however, probably be some cosmetic improvement. The cost of the operation is $5,000. The 1st plaintiff remained emphatic that he wished to have the operation. He was obviously very conscious of the bulge on the front of the upper arm when he bends that arm and of its general appearance. Counsel for the plaintiff submits that the tendon was severed in the accident, is unsightly and that the 1st plaintiff is entitled to have it repaired. I am also prepared to take into account that the 1st plaintiff is still a relatively active man, who swims regularly and that the arm is therefore often exposed to the public. 12. However, in view of the rather neutral or negative opinions, should the defendants bear the cost of the operation? In considering a similar question in S.S. Baron Vernon (1928) S.C. (H.L.) 21, 28, Lord Dunedin had this to say:-
13. In the instant case, while it is true that the operation will not result in any functional improvement, for the other reasons mentioned, I do not think the plaintiff is being unreasonable in wishing to undergo the operation. I am well satisfied that he is not only willing, but very anxious, to undergo the operation. 14. I award $5,000 being the cost of the operation. This increases the total damages for further medical treatment to $5,500. The second plaintiff 15. The 2nd plaintiff suffered more minor injuries than her husband. The medical findings for her were not disputed. She suffered shock, bruising of both feet and contusion of the chest, sternum and lower abdomen. She was treated in the Casualty Department of the Hospital after the accident and discharged the same day. For about 6 months she suffered pain in the feet and ribs. Fortunately she has now made a full recovery. The medical evidence negatived the allegation in the statement of claim that her 9th and 11th ribs were fractured. I am satisfied they were not. For pain, suffering and loss of amenities I award the second plaintiff $4,000. Special Damages 16. I am pleased to record that in respect of a very detailed list, the parties followed the course - which is always desirable in any personal injuries action - of agreeing upon the total amount payable by way of special damages. The sum agreed is $11,625 which is the sum awarded. 17. In the event the total damages payable by the defendants are therefore:- GENERAL DAMAGES:
18. The plaintiffs are allowed the costs of the action and of and occasioned by this assessment. There will be a certificate for counsel. 19. There will also be liberty to apply. 20. Dated the 15th day of November, 1978.
Representation: Mr. Edward Chan instructed by Johnson, Stokes & Master for the Plaintiffs. Mr. C.Y. Lee instructed by Kenneth K.C. Wong & Co. for the Defendants. |