Fung Yui Fun and Others v. Liu Wing Hon and Others
Read the full judgment text of HCA 960/1974 on BabelCite. This High Court CFI judgment.
1. The plaintiff, a girl who was aged nine at the time, was a passenger in a bus driven by the first defendant on 7th May 1972. Following a collision with another bus, driven by the second defendant, the plaintiff was injured. She was admitted to Queen Elizabeth Hospital in an unconscious state and found to have a linear fracture of the right frontal bone of her skull. Two days later she regained consciousness and then recovered well so that she was sent home on 15th May. She needed only two att
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HCA000960/1974
IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
----------------- Coram: Mr. Registrar Barnett in Chambers. Date of Judgment: 19th February, 1976. Mr. M. Asome (T. S. Tong & Co.) for 4th Plaintiff Mr. P. Fung (Johnson, Stokes & Master) for all Defendants --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1. The plaintiff, a girl who was aged nine at the time, was a passenger in a bus driven by the first defendant on 7th May 1972. Following a collision with another bus, driven by the second defendant, the plaintiff was injured. She was admitted to Queen Elizabeth Hospital in an unconscious state and found to have a linear fracture of the right frontal bone of her skull. Two days later she regained consciousness and then recovered well so that she was sent home on 15th May. She needed only two attendances as an out-patient. According to the plaintiff's own evidence, she was only away from school for 10 days. 2. In June, 1973, the plaintiff was examined by Dr. Fang who found complete healing of the fracture and that she was in all respects as good as new. 3. In April 1974, the writ of summons herein was issued claiming, inter alia, damages for the plaintiff in respect of the injury I have already outlined. No doubt all parties anticipated a modest settlement to be approved by the court. Indeed, a summons for this purpose was taken out and on 14th March, 1975 came before Mr. Registrar Silke who adjourned so that an up-to-date medical report could be obtained. 4. The plaintiff was again examined by Dr. Fang on 17th March 1975. She complained of an occasional headache and discomfort in the right hip. These were new complaints. An X-ray of the pelvis and right hip was taken and a slight disruption of the symphysis pubis was found, the left pelvic bone being displaced upwards and slightly apart from the right pelvic bone. 5. I will shortly dispose of causation. Firstly, the headaches. Both Dr. Fang, for the plaintiff, and Dr. Wedderburn for the defendants, gave evidence to supplement and amplify their reports. In my view, there was really no dispute between them. The headaches are not sequelae of the injury to the plaintiff's skull. 6. Secondly, the pelvic injury. Mr. Fung made no serious dispute that this was as a result of the accident. Dr. Fang was certain. Dr. Wedderburn was not asked. I find that this injury was caused by the accident. 7. The disruption of the pelvis will give the plaintiff difficulty in childbirth. Dr. Fang considered the need for a Caesarian section would be pretty high. Dr. Wedderburn put the likelihood at 10%. But both seemed agreed that much would depend on the obstetrician whose services and attendance would be required in any event. There would be no question of a delivery with a midwife only in attendance. Although not an obstetrician himself, Dr. Wedderburn said the professional view was that, unless pelvimetry showed that the baby's head was too big to pass through the pelvis, normal delivery should be allowed to commence since a Caesarian section could always be carried out if the delivery did not progress satisfactorily. Indeed, 50% of sections are carried out in such circumstances, perhaps six hours after labour starts. He agreed with Mr. Asome that in such circumstances the labour pains before section would have been to no purpose. 8. Dr. Fang stand that, if delivery was normal, the plaintiff would take some time to recover and would experience a lot of pain for a month or two, or even more. There would also be more discomfort than usual during the last three or four months of pregnancy. 9. As to cost, Dr. Fang gave evidence that, outside a government hospital, the cost of a Caesarian section would be four or five times higher than the cost of a normal delivery, although he put no actual sum to it. 10. Apart from these difficulties, there is no restriction on the plaintiff's activities. 11. For the defendants, Mr. Fung said that all in all there were only minor injuries with practically no disability. He suggested damages in the sum of $5,000 would be appropriate. He cited a number of authorities in support. Mr. Asome attacked all these authorities as being unhelpful. I have to agree with Mr. Asome. 12. Mr. Asome had been able to find only one case in point and referred me to Wong Yin-kam (an infant) v. Cheung Wing-chuen and Anr. (OJA No. 2366 of 1971) reported in (1974) 4 H.K.L.J. p.205; the plaintiff, a girl of 18, suffered a fractured pelvis and other minor abrasions. She was left with a permanent slight shortening of ¼" of the right leg and a grossly distorted pelvis. The injuries to the pelvis would give rise to difficulty in childbirth with the need for a Caesarian section for other than a very small baby. She would be likely to suffer considerable discomfort in the future, and probably have difficulty in sexual relations. She walked with a slight limp. Disability was assessed at 25%. General damages of $50,000 were awarded. 13. In view of the paucity of authorities, Mr. Asome felt it was not correct for him to suggest a figure for damages, but said it was clear that $5,000 would be inadequate. 14. The real consequences of the accident, therefore, are still to come. In the event of the plaintiff becoming pregnant (and there has been no suggestion that she will not), she will experience a more uncomfortable pregnancy than normal. If her child is delivered normally, then delivery will be more painful and recovery, according to Dr. Fang's uncontested evidence, will be prolonged. It will be natural for the plaintiff to marry and have children but not plagued by the worry and pain attendant upon the injury which has been sustained. That seems to me to merit substantial damages. 15. As far as the question of delivery is concerned, I accept Dr. Wedderburn's evidence and opinion that the need for a Caesarian section is likely to be only 10%. Apart from anything else, the medical evidence is that once a section has been performed then all subsequent deliveries must be in the same manner. There is a limit to the number of children a woman can have delivered by section, being three, or at most four. Clearly, it is desirable that the plaintiff's family should not be thus arbitrarily limited unless it is completely unavoidable. It is more probable therefore, as Dr. Wedderburn said, that an obstetrician will allow normal delivery to begin, bearing in mind that, if it does not progress, a section can be performed later. 16. However, should a section be necessary from the outset, two matters arise. First, the question of increased medical expenses if the plaintiff is in a hospital other than a government hospital. Throughout her pregnancy the plaintiff will have more worry and apprehension than normal. It seems to me reasonable that she should have the solace of a doctor of her choice and the additional comforts that a private hospital can provide and is willing to provide. 17. Secondly, and this point was not mentioned in argument, I have referred myself to a statement by Wrangham, J. in Bostock v. Brown (Kemp & Kemp, 4th Edn. Vol. 2, Part 8 - 316). In that case, the plaintiff suffered, inter alia, a fracture of the pelvis. It was probable that, if she had children, the birth would have to be by Caesarian section. The judge stated that to be deprived of the opportunity of natural childbirth was a real deprivation which ought to be the subject, though not to a very substantial amount, of compensation. 18. I am of the opinion therefore that the manner of delivery in the event of the plaintiff's pregnancy matters not. The extra pain and suffering of, and longer recovery after, normal childbirth are counterbalanced by the increased expense and deprivation of natural childbirth occasioned by a Caesarian section. 19. The only case of any real assistance is Wong Yin-kam v. Cheung Wing-chuen. There, of course, the pelvic injury and permanent disability were considerably more serious. On the other hand, the plaintiff in the instant case suffered a fracture of the skull which rendered her unconscious for two days. Happily, that injury has recovered with apparently little pain or suffering. 20. I am of the opinion that the proper amount for pain, suffering and loss of amenities in this case is $25,000.00. 21. Special damages have been agreed at $278.00. 22. Total damages therefore are $25,278.00. They are to be paid into court by the defendants within 14 days. 23. Liberty to apply on costs. 24. Certificate for counsel. 25. Dated the 19th day of February, 1976.
Representation: Mr. M. Asome (T.S. Tong & Co.) for 4th Plaintiff Mr. P. Fung (Johnson, Stokes & Master) for all Defendants |