Kwok Mei Tai v. Tang Yu Hand and Another
Read the full judgment text of HCA 3707/1977 on BabelCite. This High Court CFI judgment.
1. On the 6th day of February 1976 the plaintiff was walking across a zebra pedestrian crossing on Castle Peak Road at the 19 ½ milestone. She was knocked down by a goods vehicle. The goods vehicle was driven by the 1st defendant. It was owned by the 2nd defendant. The plaintiff has claimed damages for the personal injuries she sustained. Interlocutory judgment was entered on the 5th day of May, 1978. I am now asked to assess damages.
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HCA003707/1977
IN THE SUPREME COURT OF HONG KONG HIGH COURT
----------------- Coram: Mr. Registrar Cruden in Chambers. Date of Judgment: 28th July, 1978. ----------------- JUDGMENT ----------------- 1. On the 6th day of February 1976 the plaintiff was walking across a zebra pedestrian crossing on Castle Peak Road at the 19 ½ milestone. She was knocked down by a goods vehicle. The goods vehicle was driven by the 1st defendant. It was owned by the 2nd defendant. The plaintiff has claimed damages for the personal injuries she sustained. Interlocutory judgment was entered on the 5th day of May, 1978. I am now asked to assess damages. 2. In the accident the plaintiff suffered a fracture of the right tibia; being the bone of the lower right leg. This fracture involved the knee joint. She also suffered abrasions to the left hand and right forehead. The abrasions have healed and left no scars. The plaintiff was immediately admitted into Queen Elizabeth Hospital. A long leg plaster cast was applied to the thigh to include the whole of the right leg. 3. Instead of remaining in Hospital she discharged herself on the 12th day of February, 1976, after only 6 days treatment. She returned home. On that same day she cut and removed the plaster cast. Thereafter every day for the next two to three months she visited a bonesetter. 4. I have had the benefit of two medical reports from Dr. Wedderburn who also appeared and gave oral evidence at the hearing. While he was of the view that her recovery may have been speedier had she remained in Queen Elizabeth Hospital, he considered her recovery would not have been any fuller than it has been to date. Dr. Wedderburn examined her on 25th day of October 1977 and again on the 25th day of May, 1978. On the first examination there was considerable muscular wasting, laxity of the lateral ligaments, marked abnormality of the joint bearing surfaces of the knee and instability of the knee joint. She was also considered bound to develop osteo - arthritis. By the time of the second examination she showed considerable improvement. Her active physical life, living and working on a boat in the New Territories, was a major reason for the marked recovery of her leg. The measurements of the calf and thing of the right leg are now the same as the left leg. So the earlier wasting has disappeared. The recovery of the muscles of the right leg has assisted in strengthening the ligaments around her knee. There is normal movement of the knee and a much reduced laxity of the lateral ligaments of the knee, now measured at one-half of an inch. On the first examination she was found to be walking with a marked lurching limp. She is still walking with a limp but this is less noticeable. There also remains a bony abnormality of the knee joint which means she will probably still develop osteo - arthritis. Her present impairment is now assessed at the reduced figures of 2% increasing by the age of 50 to 60 to a 5% to 6% impairment. She is now aged 39 years. 5. Is the fact that she discharged herself from Hospital, only 6 days after the accident and thereafter sought no treatment from a medical practitioner, relevant to this assessment? It is true that the conduct of the plaintiff may well have been unreasonable, in terms of the test propounded in Tutton v. Owners of Steamship Majestic (1909) 2 K.B. 54. However, the remarkable and distinguishing feature of the present case is that notwithstanding her actions she has recovered as fully as she would have done had she completed the normal course of medical treatment. The only qualification in Dr. Wedderburn's opinion was the speed and not the extent of her recovery. He expressed the opinion that had she stayed in hospital and completed her treatment recovery may have been quicker. As against that possibility, I take into account that her final recovery has substantially exceeded the inital medical expectations. On the one hand I do appreciate that it is still arguable that her recovery may have been even better had she not discharged herself from Queen Elizabeth Hospital. On the other hand, there must also be taken into account the psychological advantages which flowed from her leaving Hospital and thereafter regularly visiting a bonesetter, in whom she had confidence. Reviewing the whole of the evidence, I cannot say that any part of the plaintiff's suffering or injuries were, to use the words of Lush, J. in Jones v. Watney, Combe, Reid & Co. Ltd. (1911) 28 T.L.R. 399, "really due to wanton, needless or careless conduct on her part." I therefore hold that her actions in discharging herself from Hospital and not thereafter seeking Western type medical advice, do not affect this assessment. 6. The plaintiff has for some years lived with her husband on a fishing junk which has been permanently moored at Castle Peak. She had 3 young children before the accident. The youngest was killed in the accident. A further child has been born since the accident. Before the accident the plaintiff in addition to her domestic duties supplemented the family income by taking shells off shellfish for which she earned $5 to $6 a day. Before the accident she suffered from no disability. 7. In considering her claim for pain and suffering and loss of amenities, I recognise that her marked physical recovery is in part due to what Dr. Wedderburn summed up when he said "She has the resilience normally exhibited by the physically and mentally tough peasant women of the New Territories." I accept she is a hardy person who tended to understate the pain she suffered. 8. However, she gave clear evidence of the actual pain she felt when she recovered consciousness after the accident. This would necessarily have followed from the facial and hand abrasions and from the severe injuries to her right leg. 9. Among the several matters to be considered under this head, as Charlesworth on Negligence (6th Edn.) points out at paragraph 1,422 is inconvenience. There is no doubt that most mothers of young children left with a permanent limp of the kind now suffered by the plaintiff, would at least be inconvenienced in the discharge of their normal domestic duties. Where, as here, the mother lives with her family on a junk and has to reach the shore by sampan or by plank, this inconvenience is obviously aggravated, if not substantially increased. I take into account that the junk is now permanently moored and in recent months it has no longer been necessary for the plaintiff to use a sampan, as a plank now links it to the shore. Real inconvenience still remains. I am further satisfied that she suffers from greater inconvenience than most other persons similarly afflicted. This real inconvenience is among the factors the plaintiff is entitled to have taken into account in her favour on an assessment of damages. 10. For pain, suffering and loss of amenities I award $15,000. 11. As to future economic loss her previous earnings from her part-time work were small. I am satisfied that she is now able to resume that kind of work but on a slightly reduced scale. The fact that she is not working at present is not due to disability but because of the extra attention she has to give the youngest child of the marriage. This child, conceived and born after the accident, apparently suffers from certain disabilities. 12. Because of this new circumstance she was not able to establish the precise extent of any reduced earning capacity. I am prepared to accept that, but for her present increased family obligations, she would now be able to continue her former part-time work with, at most, a slight reduction in hours. However, I do accept the medical evidence that, particularly as her age increases, her present impairment will increase. She is entitled to damages for loss of future earning capacity. I also accept the uncontested medical evidence that living on a junk increases this plaintiff's risk of further damage which, in turn, would increase the degree of impairment. I find that her future earning has, as a result of the accident, been reduced by about $15 per month. 13. She is now 39 years old. The appropriate multiplier is 12. Taking all these factors into account I fix her annual loss of future earnings at $200. This produces a total sum for loss of future earnings of $2,400. 14. As to special damages, I find that she was unable, because of the injuries, to resume work for 6 months after the accident. I will allow special damages at the rate claimed, namely $120 per month, which amounts to a total sum of $720. She is also entitled to the $15 per month on the basis I have already estimated from 6.8.76 until today, which amounts to $355. 15. There is also a claim of $3,000 for extra nourishment. The plaintiff gave evidence that, in addition to her normal diet, she consumed tonic, fish and essence of chicken. These additional foods were prescribed not by a medical practitioner nor by the bonesetter but by a village elder. There has been considerable discussion in Hong Kong cases of the principles applicable on such claims and reference has been made to the principles underlying the English decisions. 16. It may be that the plaintiff has not satisfied the standard of proof often required in England where extra nourishment is claimed but as Briggs, C.J., stated in Mui Ling-kwan v. Wong Yin-wah & Ors. (1973) H.K.L.R. 465, 472, "..... the courts have almost invariably allowed a reasonable sum." Here the sum claimed is challenged and, as the Chief Justice goes on to state, it must then be proved that the nourishment was suitable to assist the recovery of the injured person. In Hong Kong that burden need not be as onerous as it is in England. Here is a plaintiff who had no confidence in Western medicine administered by Government doctors in Government hospitals. There were pyschological advantages to the plaintiff in leaving Hospital in the manner and even at the time she did. Equally I am prepared to infer that there were similar pyschological advantages which assisted her recovery in following this particular supplementary diet. She described the diet on which the claim for extra nourishment is based as including tonic, fish and chicken essence. 17. In a number of Hong Kong decisions fish and chicken essence have been among the foods recognised under the heading of extra nourishment. In England the view has been expressed that claims for "recognised invalid foods" are sustainable. This is referred to by McMullin, J., in Mui Ling-kwan & Anor. v. Wong Yin-wah (supra) 478, although he does go on to observe that such a diet should be something more than a self-prescription of favourite delicacies:-
18. Parenthetically, it might be observed, that the authority of Shearman v. Folland, for the proposition Munkman cites, is at best doubtful. In a 6 page judgment dealing with other matters, the reference to extra nourishment takes up 5 lines. It amounts to no more than a judicial aside; it is certainly obiter and with respect, was relevant, if at all, only by analogy, to the issue being considered at the time by the English Court of Appeal. The point is, however, academic. For while the proposition was clearly not laid down in Shearman v. Folland it nevertheless undoubtedly remains a correct general statement of the law. 19. I recognise that the elder who gave the advice in the instant case was not possessed of medical qualifications. I think the better view is that McMullin, J., was using the term "some qualified person" in contrast to a situation where a patient self-prescribes additional food. I am fortified in coming to this conclusion, by reason of the earlier use of the words "evidence to show that a special diet was adopted not wholly as a self-prescription of favourite delicacies". Here the diet comprised items which are recognised invalid foods. They were selected not by the patient, but recommended by a village elder. On no reasonable construction could they be categorised as being wholly a self-prescription of favourite delicacies. 20. In these circumstances to apply any more rigorous standard, based on English authorities, would ignore those local realities and considerations which are expressly contemplated by S. 3 of the Application of English Law Ordinance, Cap. 88. The relevant portions of that Section provide:-
Section 3 certainly does not empower a Court to substitute any individualistic or haphazard system of palm tree justice for the common law. However, it does require a Hong Kong Court, when faced with a peculiarly Hong Kong situation, to make such modifications to the common law of England as the circumstances in Hong Kong require. If the standards in England as to extra nourishment are more onerous than the burden discharged by the plaintiff in this case, then they must give way to the considerations expressed in Section 3. Clearly English cases on extra nourishment do not take into account the cultural and dietary differences between Chinese and Europeans. Nor are they concerned with differences in medical treatment between an English patient domiciled in England and this particular plaintiff living on a junk in the New Territories in a community where two different types of medical treatment exist. I have already accepted that this plaintiff was strongly opposed both to Western medicine and being an inmate of a hospital where those principles were practised. Here she took the extra nourishment on the advice of a village elder. In addition Dr. Wedderburn's opinion as to the pyschological benefit of the bonesetter's treatment may, in my view, properly be extended to apply to the claim for extra nourishment. I therefore allow this claim but for the reduced sum of $1,000. 21. Bonesetter's fees of $8,000 are claimed. In evidence the plaintiff said that she has paid $4,000 and owes a balance of $4,000. Dr. Wedderburn offered the opinion that weekly visits to a bonesetter for 2 months at $50 a visit would have been reasonable. Bonesetter's fees were awarded in Kwan Mei-king v. Au Hong-keung (1972) H.K.L.R. 352 in accordance with the new settled principle that bonesetter's fees are allowable where the treatment is beneficial to the plaintiff and does not overlap previous Western treatment. In this case there is no overlapping. Dr. Wedderburn considered such visits of no physiological advantage to the plaintiff but he volunteered the opinion that from a psychological view point they would have assisted in her recovery. I hold that they were beneficial. I am satisfied that the attendances exceeded 2 months. While I reject her claim based on daily visits totalling $8,000 I am prepared to allow bonesetter's fees based on weekly visits at $50 each for 3 months. Fees so calculated total $650. 22. In the result I therefore assess damages as follows:- General Damages:-
Special Damages:-
23. Interest will be allowed on special damages at the rate of 4% from the 22nd day of December, 1977 to today. 24. The total damages are to be paid into Court within 14 days. On payment in there will be payment out to the Director of Legal Aid on behalf of the plaintiff. The plaintiff is entitled to the costs of this action and of this assessment. There will be a certificate for Counsel. Costs will be taxed in accordance with the Legal Aid Regulations. There will be liberty to apply. 25. Dated this 28th day of July, 1978.
Representation: Mr. H.C. Miu instructed by Helen A. Lo & Co. for the plaintiff. Mr. H. Poon instructed by Vincent Lo & Co. for the defendtants. |