Kong Kwok Choi and Others v. Chau Hon Leung and Another

HCA000645/1974

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

-----------------

-----------------

Coram: Mr. Registrar Doyle in Chambers.

Date of Judgment: 14th April, 1975.

-----------------

DECISION

-----------------

1. This is an assessment of the claim of the five Plaintiffs named above for damages against the Defendants arising as a result of personal injuries received in a traffic accident which occurred on 8/9/73 at about 10.40 p.m. at Lion Rock Tunnel Road. The 1st Plaintiff was the driver and the 2nd, 3rd, 4th and 5th Plaintiffs were passengers in a vehicle registration No. AR2747 when that vehicle collided with another vehicle registration No. 7822 which was then owned by the 1st Defendant and driven by 2nd Defendant.

2. On 15/10/74 interlocutory judgment for the Plaintiffs against the two Defendants for damages to be assessed was entered by consent.

3. The 3rd, 4th and 5th Plaintiffs had only slight injuries. I will deal with their claim first.

4. The 3rd Plaintiff had minor laceration of the scalp and left middle finger and an abrasion over the left tibia shaft. She was not detained in hospital. She was discharged after treatment. I think $600 would be a proper award for general damages in her case. There was no proof of special damage. I award $600 to the 3rd Plaintiff.

5. The 4th Plaintiff had bruising of both lips and the right cheek and a small laceration of the right upper eyelid. The scar is not noticeable unless one looks very closely at it. She was not detained in hospital. In her case also I think $600 would be a proper award. There is no proof of special damage. I award $600 to 4th Plaintiff.

6. The 5th Plaintiff had a laceration 4" long with a mild depressed fracture of the skull underneath. She had an abrasion on the left thigh. She was detained in hospital for 3 days.

7. The scar on her forehead is still visible. According to Dr. Wedderburn's report on this Plaintiff it will always be apparent. From a cosmetic point of view he says it is a ½% disability. She suffered somewhat from headaches after the accident and again in December 1973. It appears from the report that the headaches which she had in December 1973 were due to a defect in her eyesight and were not connected with the accident.

8. I think $2,000 would be a proper award for general damages for 5th Plaintiff. There is no proof of special damage. I award $2,000 to 5th Plaintiff.

9. As to the claim of the 1st Plaintiff. His claim for special damages is set out under 7 heads at page 4 of the re-amended Statement of Claim. The Court will deal with these in the same order.

(1) Damage to his car. In the Statement of Claim the figure set down is $5,000. In the course of his evidence however he said that he claimed $4,000 under this head. This sum he said is about what he would have to pay for a similar car. Counsel for the Defendants in his closing address accepted this figure. I award $4,000 to 1st Plaintiff under this head.

(2) Damage to clothing. A sum of $410 is claimed under this head. When crossed examined about this he said that the clothings in question consisted of a jacket and shirt and maintained that they were worth $410 roughly. I think the claim under this head is exaggerated and I award $250.

(3) Medical expenses. A sum of $75 is claimed here. The 1st Plaintiff produced receipts for medical fees and hospital fees paid by him which were admitted without objection and which add up to more than this figure. The sum of $75 is awarded under this head.

(4) Chinese bone setter's charges and prescription expenses. A sum of $1,248.00 is claimed here. One bonesetter was called to give evidence (P.W.2). He said he treated 1st Plaintiff for a total of 10 days and charged $400 in all which included the cost of herbs. There is no evidence as to payments made to any other bonesetter. Therefore I think I can award only $400 under this head.

(5) Amah's wages. These are said to amount to $3,250 up to the date of the re-amended Statement of Claim and to be continuing.

10. The 2nd Plaintiff says that she needs an amah full time now as a result of the accident whereas before the accident she did not need an amah. Now she says she cannot cope with much of the housework. Dr. C.Y. Watt(P.W.1) said that leaving aside pregnancy and delivery she would need the help of an amah for about 3 months. Dr. T.K.C. Liu (P.W.7) said he thought that 2nd Plaintiff would need an amah because of her disability.

11. Dr. Wedderburn stated that from a medical point of view it was reasonable to have an amah for about 4 months after the accident. Counsel for the defence said in his closing address that he would not consider that 5 months was unreasonable. Counsel for the Plaintiffs argued that after the first 5 months there should be an allowance for an amah at a rate of $250 per month using a multiplier of 10. I think an allowance of $650 per month for an amah for the first five months after the accident is as much as can be justified. I award $3,250 on this head.

(6) Loss of income as a driving instructor. Originally this was a claim for loss of 3 months' income at the rate of $1,760 per month. At the commencement of the hearing Mr. Tang was allowed to amend the re-amended Statement of Claim by adding the words "morbid fear of driving and/or travelling in a car" under the heading "Particulars of injuries of the 1st Plaintiff". I will deal with loss of earnings up to the date of judgment as special damage and I will deal with loss of earnings after that date when considering General Damages.

12. The figure of $1,760 per month here is too high. The 1st Plaintiff said in evidence that he earned on average about $1,000 per month nett after payment of expenses. I accept this figure on his average nett monthly earnings from his business as a driving instructor.

13. In the course of his evidence the 1st Plaintiff strongly maintained that he is affected by fear of driving or travelling in a motor car. Dr. Wedderburn said that the fear is real but that it is unreasonable. It appears that the 1st Plaintiff has never consulted a psychiatrist. In my opinion he should have done so. He had a duty to mitigate his damage as far as possible. As a result of his failure to consult a psychiatrist we do not know now whether or not psychiatric treatment would have been of any help to the 1st Plaintiff.

14. However, if it be accepted that the fear is a real fear and that it exists as a result of the accident I think the 1st Plaintiff must have some compensation.

15. The 1st Plaintiff said that he made many trips by car from the New Territories to Hong Kong in September and October 1973 for treatment. I think it reasonable to infer that he must have become aware of this new fear shortly after the accident. He had a duty then to take medical treatment within a reasonable time after he had become aware of it. I think a period of two months is reasonable. I award Defendant special damages for loss of earnings at the rate of $1,000 per month for the first two months after the accident.

16. About 11 months later on 15/10/74 judgment was entered. The next question is how much per month for loss of earnings during this period should be allowed to the 1st Plaintiff. Discussing this point Mr. Tang conceded that the 1st Plaintiff could not be compensated on the basis of $1,000 per month because of failure to mitigate. He suggested that compensation be based on a figure of $200 per month. I think that is a reasonable figure and I award the 1st Plaintiff $2,200 for the period of 11 months prior to the date of judgment. His total special damage under this head therefore amounts to $4,200.

(7) Travelling expenses from Sheung Shui to Hong Kong for treatment. A total of $1,371 is claimed under this head. There is not much on record to explain this item. However at one point 1st Plaintiff said that he went to Hong Kong for treatment more than 20 and less than 25 times. Dr. Wedderburn said that 20 attendances were not excessive. I award travelling expenses at the rate of $15 for each attendance. The total award on this head will be $300.

17. Total special damages awarded to the 1st Plaintiff amount to $12,475.

18. As to general damages in the case of the 1st Plaintiff, this Plaintiff had a laceration on the front of the right knee and abrasion of the chest and left leg. The injuries were not serious and he has made a complete recovery physically at any rate. I think a sum of $1,500 adequate compensation for his physical injuries.

19. The 1st Plaintiff's fear of driving or travelling in a car now falls to be considered as a matter of general damage. Here also his failure to mitigate must be taken into account. He cannot expect to be compensated at anything like the full rate of his former monthly earnings as a driving instructor. Counsel for the Plaintiffs suggested an award based on a figure of $200 per month and a multiplier of 10. Bearing in mind that the 1st Plaintiff is 46 years old and that the task of a driving instructor in Hong Kong today must be very exacting I think the multiplier is too high. I think a multiplier of 7 would be nearer the mark. I assess damages for loss of earnings here at $16,800. The total award in the case of the 1st Plaintiff therefore is $30,775.

20. As to the claim of the 2nd Plaintiff. Special damages are claimed under three heads as follows:-

(1) Damage to clothing and shoes $181.00.

21. There is no evidence to support this part of the claim and it must be disallowed.

(2) Medical expenses $266. The 2nd Plaintiff gave no evidence herself on this point but her husband, the 1st Plaintiff, said that the 2nd Plaintiff consulted Dr. Pang and Associates and he produced a receipt (Exh. P.12) which acknowledges the payment by the 2nd Plaintiff of the sum of $135 to Dr. J.Y.C. Pang and Associates. The receipt was put in without objection. I allow the sum of $135 under this head.

(3) Special nutrition $1,371.00. There is no evidence to support this part of the claim and it must be disallowed.

22. The question of general damages in the case of the 2nd Plaintiff must now be considered.

23. After the accident she suffered shock. She had lacerations on the lateral corner of the right eye and the bridge of the nose. She had tenderness at the right side of the back and right upper quadrant of the abdomen. There was fracture of the right 6th and 7th ribs and rupture of the spleen and injuries to the right side of the face. She had an operation to remove the spleen. She was 28 weeks pregnant at the time and there is evidence that she could have had a miscarriage. Dr. Wedderburn in his report on the 2nd Plaintiff says she was fortunate that the accident did not cause her to miscarry.

24. The loss of the spleen causes no disability in an adult and she will not be affected by its removal. However it must be borne in mind that she had to undergo the risks of an abdominal operation in a state of advanced pregnancy and had to bear the additional pain and discomfort consequent upon such an operation.

25. She has a certain amount of permanent injury to the right eye. When she moves her eyes to the left the right eye is restrained from making the full movement, with the result that she gets double vision. According to Dr. Wedderburn this will be a constant annoyance. One of the muscles which move the eyeball has been affected and an operation to correct the defect would not be successful.

26. Having considered the 2nd Plaintiff's injuries as a whole I ...(illegible) come to the conclusion that $21,000 would be a proper award for gener ...(illegible) driven damages in her case. This added to the special damages of $135 makes ...(illegible) award of $21,135.

27. Interest is allowed on the special damages of $12,475 in ...(illegible) of 1st Plaintiff and $135 in the case of the 2nd Plaintiff at the ...(illegible) 4% from the date of the accident until today and at 8% on each awar ...(illegible) General Damages from 18th March 1974, the date of service of the writ until today.

28. I do not think it is necessary to direct payment into Court of the sums awarded to the 3rd, 4th and 5th Plaintiffs.

29. The Plaintiffs shall have the costs of this assessment with certificate for counsel.

30. Dated this the 14th day of April, 1975.

Representation: