Yeung Yuk Kee v. Kong Tsing Bor

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Barnett in Chambers

Date of Judgment: 20th July, 1976

Mr. J. Ip of Messrs. John Ip & Co. for Plaintiff

Defendant absent.

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ASSESSMENT OF DAMAGES

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1. The plaintiff was involved in a traffic accident on 4th April, 1975. Her right hand was injured and she was taken to Queen Elizabeth Hospital for treatment.

2. The proximal phalanx (i.e. the bone of the finger nearest the hand) of each finger of the plaintiff's right hand was fractured. An operation was carried out and the fractures fixed by K-wire. A 1" wound on the index finger was also repaired.

3. The plaintiff was discharged from hospital on 7th April. She returned to hospital for the wires to be removed on 26th April. Her hand was bandaged until this time.

4. The plaintiff attended hospital for follow-up treatment on 3 occasions, the last occasion, being 28th April, 1975.

5. The present position is that the plaintiff has stiffness of all 3 joints of all 4 fingers. Her fingers cannot be straightened or clenched into a full grip. A medical board assessed a 10% disability in accordance with the Workmen's Compensation Ordinance.

6. Dr. Fu was called on behalf of the plaintiff. He said that by regular and persistent physiotherapy over a period of 6 months, full function can be obtained after injuries like these. In the plaintiff's case, she would now have almost complete, if not full, flexion of her fingers.

7. The plaintiff said that when she went for follow-up treatment her hand was examined and she was told that, as she still had pain, exercise was not desirable. To ease the pain she was still suffering after the K-wires were removed, she began consulting a bone-setter on 2nd May. She attended him on an almost daily basis until 2nd December, 1975.

8. It is well-settled that a plaintiff cannot recover damages for an aggravation or prolongation of his injuries which is due to his own wilful act or neglect. As Lush, J. said in Jones v. Watney, Combe, Reid & Co., Ltd. (1912), 28 T.L.R. 399:-

"The jury must look at all the circumstances of the case, the medical advice received, the need for action, the usual character of what is actually done, and the precautions taken during the doing of it. The injured person need not act with perfect knowledge and wisdom, but, upon the other hand, cannot claim damages for such injuries as are really due to wanton, heedless, or careless conduct on his own part."

9. The question, then, that exercises my mind is, is the plaintiff's apparently permanent disability due to her own wilful act or neglect? The plaintiff attended follow-up treatment on 3 occasions upon which she said she received no treatment. Dr. Fu's evidence indicated that gentle exercise should be started as soon as possible after the operation as, if it is delayed too long, it will not be effective. That being so, it is surprising that, the plaintiff having been discharged on 7th April, she was not given an appointment for treatment until 18th April. Further, the plaintiff demonstrated her persistence by almost daily attendance at a bonesetter's for several months.

10. In all the circumstances, I do not think that the plaintiff's disability can be attributed to her own wanton conduct.

General Damages

1. Pain, suffering and loss of amenities.

11. Various authorities were cited to me, none of which were particularly helpful or relevant. Kemp and Kemp, Volume 2, 4th Edition seems to show that the average English award for injuries involving substantial loss of the use of a hand is in the region of £2,000. Such cases generally involved some amputation.

12. The plaintiff had fractures of all 4 fingers which had to be operated on. Even after the K-wires were removed, her hand remained painful and swollen for a month or two. She is right-handed and will clearly suffer inconvenience in the future. Fortunately, her hand is not really unsightly.

13. I award $15,000 under this head.

2. Loss of future earnings.

14. Before the accident, the plaintiff was employed as a night-club hostess earning $1,500 per month, plus tips. Previously she had been a sewing worker earning about $800 per month.

15. The plaintiff said she returned to the night club but the manager would not employ her because the difficulty in moving her hand meant she could not serve customers and customers did not like her. Also she could not dance with customers because she felt pain in her hand.

16. The manager of the night club gave evidence. Somewhat ambiguously, he said the plaintiff did not come back to the night club after the accident.

17. The plaintiff originally took such employment when her husband became unemployed, in order to make ends meet. Her husband is, happily, now in employment. The plaintiff said that she would have gone on working in the night club in any event but for the accident.

18. I am extremely doubtful about the plaintiff's evidence on this. I did not find her explanation as to why she could not continue as a hostess satisfactory. There is also the manager's evidence which does not assist her. On the balance of probabilities, I consider that the plaintiff could have returned to this work if she had really wished to do so.

19. There is no question that the plaintiff will be unable to do sewing work in future. However, as I have found that she could have resumed her other and better-paid occupation, there is no loss.

20. Accordingly, I award nothing under this head.

Special damages

1. Nourishment.

21. The plaintiff spent some $3,500 on the bonesetter. However, there is no evidence relating to nourishment. I award nothing.

2. Travelling expenses. I allow $70.

3. Damage to clothing. I allow $150 as claimed.

4. Medical report fees. I allow $200 as claimed.

5. Medical expenses for future treatments. This was totally unexplained. I allow nothing.

6. Loss of earnings at $1,500 per month from 4.4.75 to 31.10.75.

In view of Dr. Fu's evidence, I allow 6 months' loss. Thereafter, I find that the plaintiff could have returned to work if she had wished. I award $9,000.

22. Total special damages are $9,420.

23. I allow interest on the general damages of $15,000 at 8% from the date of service of the writ.

24. The damages are to be paid to the plaintiff's solicitors within 14 days.

25. The plaintiff to have her costs, such costs to be taxed.

26. Liberty to apply.

Dated the 20th day of July, 1976.