Law Ngan v. Ng Kai Hau and Another

Case No.HCMP 2789/1975

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMP002789/1975

1975, No. 2789

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN
	LAW NGAN	Plaintiff
	and
	NG KAI HAU	1st Defendant
	HA CHUNG FONG	2nd Defendant

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Coram: Mr. Registrar Cameron in Chambers.

Date of Judgment: 4th March 1976.

Mr. John Ip of Messrs. John Ip & Co., Solicitors for the Plaintiff.

Mr. D. Chang, Counsel instructed by Messrs. Samuel Soo & Co., Solicitors for the 1st Defendant.

Mr. W.K. Poon of Messrs. W.K. Poon & Co., Solicitors for the 2nd Defendant.

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DECISION

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1. This is an assessment of damages. The Plaintiff, who was a passenger in a private car bearing registration mark AT 6992 driven by the 1st Defendant as servant or agent of the 2nd Defendant, was injured in an accident which took place on the 18th day of June, 1974, at Lai Chi Kok Road, where the car ran into the back of a Public Light Bus which was stationary in front of it.

2. The Plaintiff sustained injury to her left eyeball and lacerations of the eyelids of both eyes. The major injury is to the left eyeball. Examination on the day of the accident revealed that there was a laceration in the left cornea across the pupillary area. A traumatic cataract was also present. The Plaintiff was immediately admitted into Queen Elizabeth Hospital and repair of the ruptured eyeball was done on the same day. On the 27th of June, 1974 extra capsular extraction of the traumatic cataract was performed and on the 4th of July, 1974 a final operation was performed to remove the residual lens matter. The Plaintiff was discharged from hospital on the 6th of July, 1974, but has been and still is attending an eye-clinic for follow-up treatment.

3. As a result of the injury to the left eyeball, the vision of the left eye is hand movement only. The Plaintiff is for all practical purposes a one-eyed woman. I was informed that the injury to the cornea of the left eye would have been painful and that a certain amount of pain would be experienced during the post operative period. There is no possibility of improvement and indeed there is every likelihood that the condition of the eye will deteriorate. The Plaintiff continues to suffer discomfort and irritation. If she has to concentrate on an object, this leads to watering of the eyes and double vision. The Plaintiff did wish to have the left eyeball removed, but she was advised not to have this done unless the discomfort and pain were becoming too severe to bear as it was considered better to retain the eye so long as there was some vision however minimal that might be.

4. At the time of the accident the Plaintiff, who was aged 44, was employed as a Cook at the Ko Tai Dyeing Factory. She was paid $850 per month and in addition received a food allowance of $150 per month. She is married with 5 children ranging from 12 years of age to 24 years of age. Her husband who is 71 years of age does not work. Two of the children work earning a total monthly income of $700 per month. One child is married and lives away from home. No contribution to the family funl is received from that child. The two youngest children are at school. The Plaintiff was the chief bread-winner.

5. Since the accident the Plaintiff has on several occasions attempted to work at her former occupation as a cook but on each occasion she has been unable to complete a day's work due to lacrimination and diplopia. Prior to the accident she had always worked as a cook. She has no other skills or abilities. It would appear from the medical evidence that even if the Plaintiff sought employment as a kitchen assistant preparing food or washing and drying dishes, watering of the eyes and double vision would prevent her continuing to work in such employment. On the evidence I have before me the Plaintiff is still incapable of working and there is nothing to indicate that she will be able to do some light work at some date not too remote.

A. As regards General Damages I will deal with these under two heads:-

(1)	Pain and Suffering, Loss of Amenities and Loss of Earning Capacity
	The pain and suffering has been substantial and the Plaintiff still experiences discomfort and irritation. There is the obvious loss of amenities involved in partial blindness. The Plaintiff is restricted in her movements and always has a daughter accompany her when she goes out. As a one-eyed woman the Plaintiff is under a handicap in the labour market. Taking all these matters into consideration I assess damages under this head at $60,000.
(2)	Prospective Loss of Earnings
	The Plaintiff is at present unemployed. She has attempted to work at her former occupation but has not been able to continue for reasons stated above. She is likely to experience the same difficulties with any other kind of work.
	I consider it unlikely that there would have been any marked increase in the earnings of the Plaintiff had she been able to continue in her employment as a cook. I therefore propose to take the Plaintiff's monthly earnings at the date of the accident as the basis for calculation of her future loss.
	Both Mr. Chang for the 1st Defendant and Mr. Poon for the 2nd Defendant suggested that I should make no award under this head. Clearly there are cases where no award for loss of future earnings is made because in fact no loss has been established but clearly there are cases such as this case where a person, who has lost the use of one eye, is unable to work at all or can only find some other employment with reduced earnings and consequently loss of future earnings is established.
	In deciding on an appropriate multiplier I have taken into account the age of the Plaintiff, the expectation of working life of the Plaintiff and the uncertainties of life. I consider an appropriate multiplier would be 8.
	For loss of future earnings I award $950 x 12 x 8 = $91,200 which I will discount to $75,000.
	The total General Damages are therefore $135,000.

B. As regards Special Damages I will deal with these in the order shown in the Statement of Claim:-

(a)	Special Food and Medical Nourishment
	The sum of $2,500 was claimed in respect of this item. Although no evidence was adduced that this expenditure was necessary, it is a usual practice in Hong Kong, and not uncommon elsewhere, for persons recovering from an illness or injuries to take special food. Certain foods are regarded as being beneficial in speeding the recovery of a patient. I will allow $1,250 as being fair and reasonable under this head.
(b)	Damaged Clothing
	The sum of $100 was claimed and as there was no argument on this item I will allow this item in full.
(c)	Loss of Earnings
	Under this head the Plaintiff is entitled to receive her loss of earnings from the date of the accident, namely, 18th June, 1974 up to the date of the hearing of this assessment, namely, 29th January, 1976, approximately 19 months. I will therefore award $950 x 19 = $18,050.
(d)	Travelling Expenses
	The Plaintiff claimed a total of $1,000 in respect of this item.
	She stated that whilst she was in Queen Elizaboth Hospital from 18th June, 1974, to 6th July, 1974, her husband travelled daily from Kwai Chung to visit her. He travelled by taxi since he was old. The return trip cost $16. The total cost therefore was 29 x 16 = $464.
	After her discharge from hospital she had to attend for follow-up treatment firstly at Yaumati Eye Clinic and latterly at a clinic at Tai Kok Tsui - the fare to both clinics being the same. On these visits to the clinic she was and is accompanied by a daughter. They travel by Public Light Bus. The return fare for two persons amounts to $4. The visits to the clinic were at first fairly frequent but now the Plaintiff accompanied by a daughter attends once a month. The Plaintiff estimated that she had spent about $700 in respect of travelling expenses for herself and a daughter to the clinic. This figure I do not accept.
	I will allow a total of $650 under this head to cover the husband's visits to the hospital and the Plaintiff's and a daughter's visits to the clinic.
(e)	Medical Expenses
	Under this item the Plaintiff claims $2,000 in respect of 3 trips to Mainland China to consult a doctor about her eye. On these trips she was accompanied by a daughter and the sum claimed includes the return fare for two, hotel and food expenses for two and medical expenses incurred by the Plaintiff. No receipts were produced in support of this claim. No material benefit appears to have been gained as a result of these visits. The Plaintiff was informed that the eye could not be repaired and she was advised to have it removed. She did receive prescriptions for eyedrops and internal medicine which she purchased on her return to Hong Kong. I am prepared, however, to award $500 under this head.

6. The total Special Damages are $20,550. There will be interest at the rate of 8% on the General Damages of $60,000 from the date of the service of the writ - the 19th November 1975 - on the 1st and 2nd Defendants. Whilst it is usual to award interest on Special Damages at half the rate allowed on the other relevant damages from the date of the accident to the date of hearing, I do not propose to award any interest on the Special Damages in this case as most of the expenses or losses comprising the Special Damages were incurred at varying intervals after the accident.

7. As the Plaintiff has already received $14,432 under the Workmen's Compensation Ordinance, this sum must be deducted from the total award in this case.

8. The Plaintiff will have her costs of this action and of the assessment.

9. Dated the 4th day of March, 1976.

	(P.A.G. Cameron)
	Assistant Registrar

Representation:

Mr. John Ip of Messrs. John Ip & Co., Solicitors for the Plaintiff.

Mr. D. Chang, Counsel instructed by Messrs. Samuel Soo & Co., Solicitors for the 1st Defendant.

Mr. W.K. Poon of Messrs. W.K. Poon & Co., Solicitors for the 2nd Defendant.