Tseng Tien Pei v. Chan Shun Kwong and Another
Read the full judgment text of HCPI 1711/1973 on BabelCite. This High Court CFI judgment.
1. The plaintiff was in jured in a traffic accident while driving his car on the 13th August 1972. He suffered what are commonly known as "whip lash" in juries to his neck. He was taken to Queen Elizabeth Hospital where he was given bed rest and traction for his injuries. He was discharged 7 days later on the 20th August, 1972. The plaintiff now claims damages.
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr Registrar Barnett in Chambers Date of Judgment: 6th September 1976. K.H. Woo (N.K. Tsang & Co.) for Plaintiff P. Fung (Chan & Ho) for 1st Defendant R. Tong (Deacons) for 2nd Defendant --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1. The plaintiff was in jured in a traffic accident while driving his car on the 13th August 1972. He suffered what are commonly known as "whip lash" in juries to his neck. He was taken to Queen Elizabeth Hospital where he was given bed rest and traction for his injuries. He was discharged 7 days later on the 20th August, 1972. The plaintiff now claims damages. 2. Judgment has already been obtained against the first defendant As far as the second defendant is concerned, the question of liability still remains to be decided. However, the second defendant having agreed to be bound by this assessment, it was given leave to take part in these proceedings. 3. The plaintiff's statement of claim having been amended after argument at the hearing, the plaintiff now claims damages in respect of the following in juries.
4. The plaintiff's case is that the in juries to the neck have caused damage to or pressure upon various nerves. As a result, if the plaintiff now over-exerts himself or has to sit or stand for long periods, then he has pain in his shoulders with a feeling of great weight upon them. This can be relieved to some extent if he puts on collar which seems literally to take the weight from his shoulders. He also gets low back pain and pain in the right leg. These pains can be relieved by lying down. He has also lost sensation in both hands and his right foot, and has weakness of both arms. 5. As a result of these injuries, the plaintiff has been unable to resume his former employment in the electronic industry in a skilled supervisory or assistant managerial capacity. He has thus a substantial permanent loss of employment. 6. The plaintiff also requires the services of servant to do general housework. 7. The burden of the defendants' argument is twofold. First, it is said that for the most part the plaintiff's injuries are subjective in that to a large extent the doctors have to rely upon the plaintiff's description of his pains rather than any specific tests. It is therefore necessary that the plaintiff should have given an honest and accurate description of his symptoms. However, the defendants contend that the plaintiff has shown himself while in the witness box to be an evasive, exaggerating and untruthful witness. Therefore his evidence should be looked at with considerable doubt. 8. Secondly, even if it is accepted that the plaintiff has proved his injuries, he has still not proved his loss of earnings since he has not shown satisfactorily that it is impossible for him to resume employment and, in any event, has not performed his duty of mitigating his damage. 9. As far as the last point is concerned, as Mr. Noo on behalf of the plaintiff said in reply, the burden of proof of failure to mitigate is on the person who asserts that failure. Since the defendants have not pleaded to this effect or adduced evidence in support, then that contention must fail. 10. In support of his claim the plaintiff, apart from giving evidence himself, called Dr. Ho from the Orthopaedic B Unit of Queen Elizabeth Hospital, Dr. John Hunter and Miss Ho Man Ling his servant. 11. Dr. Ho's evidence was not very helpful. Dr. Ho had never seen the plaintiff and the report which he produced was based on case notes made by other doctors. 12. Dr. Hunter produced 2 reports which he had written in October 1974 and May 1976. He also gave full evidence and was cross-examined by counsel for each defendant. I think that it is quite clear from this evidence that the plaintiff had made consistent complaints to him and, what is more important, that it had been possible to carry out some objective tests particularly as regards the loss of sensation in the plaintiff's hands. In view of Dr. Hunter's evidence and also the evidence given by the plaintiff, and I have made allowance for the manner in which the plaintiff gave evidence which was far from satisfactory, I am quite satisfied that the plaintiff is suffering from the symptoms of which he complains. 13. There is, however, a further difficulty. It appears from the evidence of Dr. Hunter that the plaintiff's symptoms are as a result of degenerative changes to his spine and that these degenerative changes were, at least to some extent, present before the accident. Thus the question arises as to whether the accident itself is responsible for the symptoms or whether they would have manifested themselves in any event. Dr. Hunter was of course unable to give a positive answer to this question. It appears that the plaintiff who is aged 54, is suffering from advanced degenerative changes for his age. Dr. Hunter said that an injury is more likely to produce symptoms if changes are marked and less likely if there are no changes. Later, he said that there would not necessarily be any symptoms if there had been no accident but that they could have come on later in life even without injury. When re-examined, he said that some abnormal movement on the same day as the accident could have brought on these symptoms or that the plaintiff could have gone for some 10 or 15 years without suffering. However, "whip lash" injury is more likely to produce symptoms. It seems to me that, on the balance of probabilities, the symptoms would not have manifested themselves but for the accident for at least some 10 years. 14. I now turn to what I understand to be the various claims by way of general damages. 1. Pain, suffering and loss of amenities. 15. Apart from the pain already mentioned, it is clear that the loss of sensation in the plaintiff's hands gives some difficulty in controlling fine movements. Further, in the mornings it sometimes takes the plaintiff several minutes to uncurl his hands. He cannot stoop to pick things up, he can only squat. He is now denied the swimming, ball games and hiking he used to enjoy. While it is true that these activities were not indulged in frequently, nevertheless the inability now to take part in them is a denial of some of the little things that go to make life more pleasant. I am unable to attach any importance to the plaintiff's incredible explanation of why he can no longer gamble or play mah jong. 16. As to quantum, I was afforded little assistance. However, in A 3094/75 I recently awarded $55,000 to a 38 year old lady who suffered "whiplash" injuries to the spine. The injuries and suffering were much more severe than in this case, as were the loss of amenities. 17. In all the circumstances, an award of $30,000 would be about right. However, the proper award is complicated by Dr. Hunter's recommendations. First, Dr. Hunter says the plaintiff should undergo an intensive course of physiotherapy for about 7 months including one month in hospital. While this would have a 40% chance of giving overall improvement to the plaintiff's condition, it is in any event necessary to prevent farther degeneration. Then, if physiotherapy alone is not successful, surgical decompression of the spine followed by further physiotherapy would be required. The chance of complete alleviation is only 10% it being very hard to cure a sensory defect completely, but surgery stands a good chance of improving the situation. 18. According to my calculations the cost of physiotherapy would be approximately $5,500, while the cost of the operation and physiotherapy would be about $13,000. 19. There is no question but that the plaintiff will have to undergo one and, on the balance of probabilities, both courses of treatment in order to preserve at least the status quo. Unpleasant though it may be, any award for treatment should be in respect of the second course since it will in all probability be necessary and will do only what the first would have failed to do. The defendants cannot be saddled with both. 20. The defendants say that, whatever the treatment, it can and should be done in a government hospital at nominal cost. I can only remark that it is not surprising that the plaintiff has lost confidence in government hospitals. He continued to attend as an out-patient for 4 years every 4 to 6 weeks. He has never been given the intensive treatment he so clearly needs or indeed any real treatment at all. I see no reason why he should not now have the doctor and hospital of his choice. 21. As I have already stated, Dr. Hunter said in evidence that surgery stands a good chance of improving the plaintiff's condition. Accordingly, the award under this head must make allowance for this improvement. In all the circumstances, I award $23,000. 2. Cost of physiotherapy treatment and operation. 22. For the reasons already given, the cost of the operation and follow-up physiotherapy must be allowed. Upon the evidence, I award $13,000. If the plaintiff should decide not to have treatment, then this sum will not be unreasonable compensation for the symptoms that will not only continue but also become more severe according to Dr. Hunter. 3. Loss of future earnings. 23. The plaintiff was described by counsel for the defendants as evasive and given to exaggeration. Counsel dwelt at length upon the unsatisfactory nature of the plaintiff's evidence. I do not think I need to examine the criticisms in detail. All I need to say is that, having watched and listened to the plaintiff beating around several bushes in an effort to explain away many uncomfortable questions, I agree with counsel. I am not satisfied that the plaintiff is unable to resume suitable and adequately remunerated employment. 24. The plaintiff could and should have called previous employers and also those colleagues who, he was careful to mention, now hold high positions in big electronics companies but are unwilling to employ him. 25. I therefore make no award under this head except in so far as the plaintiff will, in any event, have to spend a period in hospital and undergo treatment thereafter. Upon the evidence, this would involve a period of 4 months. On behalf of the plaintiff, Mr. Woo pitched his claim for loss of future earnings generally at the rate of $2,000 per month. I think there is sufficient evidence to justify this. I accordingly allow $8,000 under this head. 4. Cost of servant. 26. I will go into this in more detail when dealing with special damages. I do not think it unreasonable that the plaintiff should have someone to look after his home while he is in hospital and convalescing thereafter. I have already put this period at 4 months. The plaintiff's servant is paid $400 per month. Accordingly, I award $1,600. 27. Total general damages are $45,600. 1. Loss of earnings at $2,000 per month from 13th August 1972 to the date of writ, and continuing. 28. In view of my findings under general damages, the plaintiff is not entitled to this claim in full. The defendants agree he is entitled to something. In considering what period is appropriate, I found a curious anomaly in the evidence that no one had remarked upon. 29. According to the hospital records in Dr. Ho's possession, the plaintiff was granted continuous sick leave from 12th August 1972 to a date 3 weeks after 3rd November 1974. In fact, this was not strictly accurate for in cross-examination Dr. Ho conceded that there were many periods during which there was no record of sick leave although he said that the doctor concerned may have given sick leave without recording it. Whatever the true position, it is nevertheless clear that, during the period 1st April 1974 to 15th September 1974 while the plaintiff was working for Semiconductor Devices, the plaintiff had been granted sick leave for a substantial, if not the whole, amount of that time. Again, this demonstrates the entirely unsatisfactory nature of the plaintiff's evidence as a whole concerning loss of earnings and his ability to work. 30. It was unfortunate that the plaintiff did not receive the sort of treatment immediately following the accident as suggested by Dr. Hunter. If he had, then in all probability he would now be in a much better condition and would have been able to resume work at an early date, say after 6 months. It was not the plaintiff's fault he did not receive such treatment. 31. In all the circumstances, I will allow loss of earnings for a period of 12 months at $2,000 per month, which is $24,000.
32. The plaintiff said that he was struck from behind and then, he thought, struck the car in front. The various items in the receipt are certainly consistent with a "chain" collision. Further, the item of $900 is not just for respraying but includes the necessary preparatory work. 33. I allow this claim in full at $2734.
34. The defendants contend that this should be disallowed apart from a few months. They point to the suspicious circumstances, as they call them, of the appointment of the servant in that there was a formal written agreement. Then there are the formal receipts for each month's wages. Using this, the defendants attacked the plaintiff on the basis that almost before he had reached hospital, he had decided to sue for every cent of compensation he could get. Accordingly, his evidence should be treated with suspicion. 35. Further, it is contended that the servant was little more than a nurse, a service which had no justification. However, I think there is ample evidence that she did general household work. 36. It is not without significance that this claim has been limited to the date of this assessment. There is no general claim for the future apart from the periods when it is contemplated that the plaintiff will be undergoing treatment. There is nothing in the evidence to show that the plaintiff has suddenly ceased to require the services of a servant. 37. In all the circumstances I think it proper to allow this claim for a period of 12 months, at which time I have found that the plaintiff could have returned to work. I award $4,800. 38. Total special damages are $31,859. 39. I award interest on the damages at 8% in accordance with Jefford v. Gee. 40. The damages are to be paid by the first defendant to the plaintiff's solicitors within 14 days. 41. The plaintiff's costs in the action are to be paid by the first defendant with the question of the second defendant's liability for costs on the assessment or in the action generally reserved to the trial judge. 42. Fit for counsel. 43. Liberty to apply. Dated the 6th day of September, 1976.
Representation: K.H. Woo (N.K. Tsang & Co.) for Plaintiff P. Fung (Chan & Ho) for 1st Defendant R. Tong (Deacons) for 2nd Defendant |