Cheung Wai Luen v. Wong Tsui Kwan and Another
Read the full judgment text of HCA 734/1974 on BabelCite. This High Court CFI judgment.
1. On 21st June 1971, the plaintiff, a boy then aged four, was hit by a vehicle owned by the 2nd Defendant and driven by the 1st Defendant when the vehicle, loaded with a heavy traxcavator, overturned and fell into the Aldrich Street Children's Playground, where the plaintiff was playing. The plaintiff sustained severe multiple injuries. There is no dispute as to liability and judgment by consent was entered on 16th July, 1975 for the plaintiff with damages to be assessed.
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HCA000734/1974 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 734 OF 1974 -----------------
----------------- Coram: Mr. Registrar Wong in Chambers. Date of Judgment: 12th February 1976. Mr. Charles Ching, Q.C. and Mr. A.H. Sakhrani for Plaintiff. Mr. Denis Chang (instructed by Hoosenally & Co.) for Defendants. ----------------- DECISION ----------------- 1. On 21st June 1971, the plaintiff, a boy then aged four, was hit by a vehicle owned by the 2nd Defendant and driven by the 1st Defendant when the vehicle, loaded with a heavy traxcavator, overturned and fell into the Aldrich Street Children's Playground, where the plaintiff was playing. The plaintiff sustained severe multiple injuries. There is no dispute as to liability and judgment by consent was entered on 16th July, 1975 for the plaintiff with damages to be assessed. 2. The plaintiff lost consciousness immediately after the accident and was taken to Tang Shiu Kin Hospital. He was shortly afterwards sent to Queen Mary Hospital where he remained for over a month before he was transferred to the Sandy Bay Children Orthopaedic Hospital. He had a large number of injuries including a fracture of the left humerus (bone of the upper arm); a fracture of the ulna (one of the bones of the left forearm); a badly crushed wrist and left hand; lacerations of scalp, forearm and thigh; a fracture of the right tibia and fibula (bones of the lower leg); amputation of the right big toe and 2nd toe; a severe laceration of his left foot. He was given general treatment for his wounds and plaster casts for the fractures of his left arm and both legs. He had skin grafting for the left hand three times. He also had a graft for his right leg and a pedicle graft. All the toes and part of the metatarsals of the left foot were amputated. 3. He was discharged from Sandy Bay on 22nd November, 1971 and was able to walk without the aid of crutches. He attended follow-up treatment regularly as an out-patient. He was re-admitted to this hospital on 28th November 1973 because he developed an infection and an ulceration on the previous amputation stump of the right foot. He underwent another operation and was finally discharged on 21st December 1973. He continued to receive follow-up treatment for quite some time. 4. After the institution of proceedings, he was examined by Dr. Nicolson and Dr. Wedderburn acting for the plaintiff and defendants respectively. He was found to have scars on the scalp, forehead, neck, left hand, abdomen, left thigh, left calf, left foot and right leg which Dr. Nicolson estimated to cover about 12% of his whole body. In the written reports, there appeared to be a disagreement between Dr. Nicolson and Dr. Wedderburn over the percentage of disability of the left wrist and hand. Dr. Wedderburn put the disability at 21% whereas Dr. Nicolson put it at 30%. Dr. Nicolson gave evidence that he examined the plaintiff again on 29th October, 1975 and found that the condition of the hand had deteriorated since Dr. Wedderburn saw the plaintiff on 24th October, 1974. Dr. Wedderburn eventually modified his opinion and agreed that the percentage of disability of the hand would be between 28% to 29%. The methods of assessment used by Dr. Wedderburn and Dr. Nicolson are different in that Dr. Wedderburn based his findings on the American System of the Impairment of the Whole Man whereas Dr. Nicolson based disability on the Workmen's Compensation Ordinance. Despite the different methods used by the two doctors, I find no major area of disagreement between them. Dr. Nicolson found that the plaintiff has lost a considerable amount of functions of his left hand although he still has some residuary functions. The disability will persist and the hand would be distinctly weaker than the other hand with most movements. For instance, he cannot bend his joints at his knuckles and because of this he cannot make a good fist and makes him difficult to grab some objects. He may probably raise a rice bowl but cannot have control of it. He cannot spread or extend his fingers fully or bend them. Due to the loss of part of both feet, the plaintiff will have difficulty walking on uneven ground or slippery surfaces. 5. The plaintiff complained of itchiness in the scars which, according to Dr. Nicolson, was likely to persist for a long while. 6. The boy is now aged eight and was called to give an unsworn statement. He appears to be a very intelligent, good looking and pleasant boy. At present he goes to the Tung Wah Hospital No. 3 School and studies in primary 2. He is middle in the class. He likes football but his teacher would not allow him to play because of his deformity. He gets tired easily from walking. He can run but he is slower than other boys. He had fallen down before on many occasions when he was walking or running. Sometimes he feels dizzy. He has itchiness in the scars of his leg and not in other areas. He does not seem to appreciate the effect of his injuries. His injuries were shown to me and I can only describe what I saw as dreadful. He was also asked to use his left hand and the result was that he could not bend, stretch and spread it fully. 7. His father also gave evidence. He said that the plaintiff cannot dress himself and cannot hold a rice bowl without assistance and therefore has to eat with the rice bowl on the table. He cannot walk steadily in rainy weather. He has to take a rest after walking a short distance. He is helped to school by the mother or other brothers and sisters. The injuries also affect his mental attitude. He sometimes feels dizzy and thinks slower than the other children of the family. 8. It is clear that he is not likely to play football again, a game which the boy likes so much. He is not likely to go swimming as the exposure of his physical condition would greatly embarrass him. There is no evidence that the injuries will impair his sexual functions but I think it is fair to say that his prospect of marriage would be affected as girls are likely to be scared away when they see the injuries. He will not be able to enter into employment involving heavy manual labour or work which necessitates a lot of walking or standing. When he becomes teenage he will suffer psychological effects. 9. A number of local and English cases were cited by Mr. Ching who appeared with Mr. Sakhrani for the plaintiff and Mr. Chang for the defendants. I would start with China Motor Bus v. Oram (1975)
10. Mr. Ching endeavoured to show that Parker's case is more or less of parallel seriousness to the present one while admitting, on the other hand, that Connor v. Silverman is more similar. Mr. Chang, however, took strong objectin that Parker's case came anywhere close to the present case. Dr. Wedderburn's opinion was that the injuries suffered by the boy in Parker's case was more severe as the burns necessitated the amputation of an arm. Mr. Chang agreed that Connor v. Silverman was more appropriate. Mr. Chang went on to suggest an overall award of $85,000 for pain and suffering, loss of amenities and handicap in the labour market. Mr. Ching contended that the figure of $85,000 should only cover damages for pain and suffering and loss of amenities and in addition there should be a separate award for loss of future earnings. Both learned Counsel reminded me of the dictum of Huggins J. in Lung Chun Ming v. Yeung On (1963) H.K.L.R. 572 at page 583 that: "no doubt awards in England offer a guide which may usefully be followed in Hong Kong but it is not desirable to decide what an English Court would award in the different circumstances which exist in England and then make a direct conversion into Hong Kong dollars." This dictum has been widely quoted and followed and no doubt has been generally accepted as a correct statement of law. Before arriving at my conclusion, I think that I ought to refer briefly to the evidence of Dr. Nicolson on the aspect of plastic surgery. Dr. Nicolson said a small part of the injuries on the scalp, forehead, neck and left wrist and hand can be improved by plastic surgery to some extent but would not make much difference to the overall effect. The cost is $8,000. Mr. Ching argued that this should be a separate award while Mr. Chang contended that if such an award is made then the amount of general damages on pain and suffering and loss of amenities should be reduced proportionately. The point is well covered by a decision of Briggs J. (as he then was) in Chow Siu-yin v. Sin Kuen [1966] H.K.L.R. 432 at p. 437 where he said:-
11. On the evidence before me, I do not think that plastic surgery would do much to improve the plaintiff's injuries but still I would take this into account in deciding the amount of damages leaving it to the plaintiff or his parents to decide whether to undertake such operation or not. 12. Having seen the boy myself and having regard to all the evidence andauthorities, I am of the opinion that the proper award for pain and suffering and loss of amenities alone should be $75,000. There should be a separate award for loss of future earnings. When the plaintiff becomes of age, he would face a handicap in the labour market and the loss will be very real and substantial. Although Mr. Ching was over-pessimistic when he suggested that the only work that the plaintiff could do would be selling newspapers, it is true that he would not be able to do quite a number of jobs. He cannot do any heavy manual work or work requiring standing or walking for long hours. He can do lighter work in factories but he will not be able to be a skill mechanic. He can take up a white collar job if he can complete his education up to secondary level. In any event, his employability will be restricted. In Lee Koon-keung v. Ng Chi-yat and another, Cons J. awarded the plaintiff, an eighteen year-old apprentice metal worker, a sum of $38,000 for future pecuniary loss in addition to an award of $55,000 for pain and suffering and loss of amenities. In Parker v. British Railway Board, a separate award of £7,240 for loss of future earnings was made. In Tao Mei Ho v. Hui Kwong Yat, Mr. Registrar Barnett made it clear that the award of $50,000 did not include any loss of future earnings as the injury had had no effect on future employment. Allowing for the vicissitudes of life and taking into account that payment is made in a lump sum, I am of the view that the proper amount should be $35,000. 13. Accordingly, there is judgment for the plaintiff for $113,000 made up of $75,000 for pain and suffering and loss of amenities, $35,000 for future pecuniary loss and $3,000 being special damages as agreed. The sum of $75,000 will carry interest at 8% from 25th March 1974 to to-day while the sum of $3,000 will carry interest at 4% from 21st June, 1971 also to to-day. The total damages are to be paid into Court. The special damages of $3,000 may be paid out to the plaintiff's next friend, his father. The general damages of $110,000.00 will be invested by the Registrar at his discretion, with liberty to apply. The plaintiff is to have his costs to be taxed in accordance with the Legal Aid Regulations. I would grant a certificate for Counsel. 14. Dated the 12th day of February, 1976.
Representation: Mr. Charles Ching, Q.C. and Mr. A.H. Sakhrani for Plaintiff. Mr. Denis Chang (instructed by Hoosenally & Co.) for Defendants. |
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