Hung Sau Chun v. Poon Shek Tung and Another

HCA000545/1974

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 545 OF 1974

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Coram: Mr. Commissioner Yang in Court

Date of Judgment: 8th February, 1975.

Running down action - leg injury -

general damages $ 15,000 (see page 3)

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JUDGMENT

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1. The parties have reached an agreement on the issue of liability and on a certain percentage of the liability to be borne by each party. I am therefore asked to assess the damages only.

2. The Plaintiff is a woman of 47 years of age. Until 11.7.72 when she was injured in a traffic accident, she had been working as a weaving worker in a knitting factory. It is not disputed that such work requires long hours of standing up and the handling of bales of cloth weighing 30 to 40 pounds.

3. The injuries suffered by the Plaintiff are detailed in Dr. Wedderburn's report dated 16.1.75 (Ex. P1). The Plaintiff had a sub-trochanteric fracture of the left femur and a sublaxation of the right acromio-clavicular joint. The fracture of the femur was treated by the insertion of a Smith-Petersen Nail and a Blade Plate. The sublaxation of the joint caused a very slight disability but no loss of strength or movements of the right arm, though it does give rise to occasional discomfort in the shoulder region. She now complains of occasional dizziness, but, again, this is not severe and does not affect her.

4. She was detained in hospital from 11.7.72 until 15.9.72. In October 1972 she experienced severe pain in her left leg because the Blade Plate had fractured. She was therefore re-admitted into hospital and a new plate was applied. She remained in hospital until 13.12.72 and used orutches for half a year and then a walking stick for one month in June 1973, after which she was able to walk without support. In Dr. Wedderburn's opinion (which I accept), she was fit to go back to her former work by mid-August or early September 1973. That the treatments given to her right leg were painful is not in dispute.

5. The lengths of her legs are equal, and her thigh muscles are well developed. She has normal flexion in that she can bend her hip. The rotation of her hip is such that she is not able to turn quickly and she finds it a little difficult in crossing her legs, though this slight handicap does not affect her work. She is able to squat, but gets up more slowly than normal. She can walk for half an hour but then becomes tired. There is pain and aching in the hip region when the weather changes and this discomfort, which decreased a year ago, has worsened somewhat within the last six months.

6. There is no sign of osteo-arthritis on X-Ray at present but this must in her case inevitably occur later on. The fact that she has had a slight increase in discomfort in the last six months indicates that osteo-arthritis is developing. The osteo-arthritis will be directly attributable to the traffic accident. The development of osteo-arthritis will not be severe and would be unlikely to affect her ability to work in her former employment until about the age of 60. Whist at the present time her disability is not more than 5% the development of osteo-arthritis will gradually increase her disability to 12% on reaching the age of 60, when she will find it difficult to work. If she had been normal she could be expected to work till the age of 65.

7. In her former employment she was earning a daily wage of $21 plus a $3 allowance, making a total of $24 per day. The daily wage for the same type of work is now $24. On average, she worked 26 days a month, therefore her average monthly earnings would be $624.

8. From 11.7.72, when the traffic accident occurred, to November 1973, a period of some 16 months, she did not work. In November 1973 she found a job as a cleaning woman in a factory earning $14 per day, for six days a week. Her average monthly wages, for 26 days a month, would therefore be $364. She was employed in this work for six months, then she stopped work because the factory's business was bad. Since then she has been doing some work at home earning an average of $160 per month.

9. Though Dr. Wedderburn's opinion is that she was fit to return to her former work in August or September 1973, her evidence is that she is unable to do such work because she cannot stand up for long nor can she carry heavy things. She also says in evidence that her failure to find employment is due to her disability and also to the present state of the economy. On Dr. Wedderburn's opinion, I find that her disability does not affect her working ability and it is the present state of the economy which prevents her from securing suitable employment. On medical evidence, her working ability will not be affected until she reaches the age of 60.

10. I now come to the question of general damages. There must have been a considerable degree of pain and suffering during the two occasions when she was hospitalioed. The loss of amenities from now until she is 60 is slight, because her movements, apart from being slow and causing some discomfort and inconvenience, will not be severely limited. There will be loss of earnings when she reaches the age of 60, or perhaps even slightly before, as her osteo-arthritis gradually gets worse. Taking all these into account I assess general damages at $15,000.

11. On special damages my findings are as follows:

(1) The claim of $50 for the medical report is agreed.

(2) For travelling expenses the Plaintiff claims $504. On the evidence I find that the Plaintiff visited the hospital by taxi on 14 occasione, at $22 each time. I therefore allow $308 for travelling expenses.

(3) The Plaintiff also claims $224 for the cost of food in hospital, at $2 per day for 112 days. Since she had to eat whether in hospital or not, I do not allow this item.

(4) For extra food and mutrition she claims $1000 being $50-odd for ginseng and $400 for pork soup. The ginseng was not taken on medical advice, but according to her evidence, which has not been challenged, her doctor did advise her to take soup, without specifying whether it should be a pork soup or othereise. I allow $250 for this item.

(5) The Plaintiff then claims $7812 "for loss of wages from 11.7.72 until 18.11.73 being 62 weeks (sic) at $126 per week". Instead of basing her claim on $24 per day (i.e. $21 wages plus $3 by way of allowance) the plaintiff makes her claim on the basis of $21 per day, making $126 per week for a six-day week. As she was fit to return to work by early September 1973 - say 7.9.73 the duration of unemployment which may be attributed to the traffic accident is 60 ½ weeks. I accordingly allow $7623 ($126 X 60 ½ weeks) under this head.

(6) Next the plaintiff claims $630 being loss of wages from 18.11.73 until "the present time", being 14 weeks and continuing at the rate of $45 per week. As I have found that her failure to find employment was due to the economy, I must reject this item.

(7) Then the plaintiff makes a claim for the loss of her husband's wages on the ground that he was dismissed from his employment becuase he visited her too frequently while she was in hospital. On the evidence I find that the true reason for his dismissal was his old age. I therefore disallow this item also.

12. The special damges which I have assessed total $8231 ($50+$308+$250+$7623).

13. General and special damages come to $23231 ($15000+$8231).

Representation:

Mr. William S. Waung (Johnson, Stokes & Naster) for Plaintiff.

Mr. Denis K.L. Chang (H.A. Hoosenally & Co.) for both Defendants.