Ma Tai Bon v. Lam Siu Wah

HCA000921/1969

ACTION NO. 921 of 1969

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Coram: B.L. Jones, Assistant Registrar in Chambers.

Date of Judgment: 11th day of March, 1970.

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DECISION

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1. This is an assessment of damages for personal injuries as a result of a road accident that occurred on the 4th March, 1968 when the Plaintiff was knocked down in Kwun Tong Road, Kwun Tong by a dual purpose van driven by the defendant.

2. Judgment in default of appearance was obtained against the defendant on the 10th December, 1969. However, since that date solicitors were instructed to act on behalf of the defendant and he was represented by Counsel upon the hearing of the assessment.

3. Neither the medical evidence nor the special damages were agreed with the result that it was necessary for the Plaintiff to call evidence.

4. The Plaintiff was admitted to Queen Elizabeth Hospital on the 4th March, 1968 after the accident suffering from abrasions to his hands, face and left elbow. He was found to have a ruptured spleen which was removed and an X-ray revealed a fractured pelvis. The Plaintiff was discharged from hospital on the 29th March, 1968 when he went to Lai Chi Kok Hospital for convalescence where he remained until the 26th April, 1968.

5. The plaintiff was 63 years of age at the time of the accident and is now 65.

6. Dr. Yung Shau-hung who examined the Plaintiff at the time of the accident produced a medical report dated the 12th March, 1969 which stated that the Plaintiff should have no permanent disability. However, I prefer the evidence of Dr. Fang the Orthopaedic surgeon who examined the Plaintiff specificall for the purpose of this action on the 6th January, 1970. Dr. Fang in his report which was produced said that the Plaintiff has made a good recovery from a severe crush injury of the abdomen which led to a rupture of the spleen with internal haemorrhage and a crushed pelvis with disruption of the symphysis pubis. The removal of the spleen has contributed to the feeling of general weakness by the Plaintiff. The fracture and disruption of the symphysis pubis has healed with displacement but there is now no bone union across the disrupted symphysis pubis with the result that the Plaintiff suffers tenderness in the pubis region and discomfort in the back. The Plaintiff is unable to walk with confidence for any distance and walks with the aid of a stick.

7. Dr. Fang has assessed the Plaintiff's permanent disability so far as the orthopaedic condition is concerned at 15% to 20%.

8. Of the superficial wounds, these have all healed except the wound over the left elbow which has left an irregular scar of about an inch in size.

9. Mr. Liu for the defendant agreed a figure of $400 in respect of special damages which covers the medical expenses, damaged clothing, taxi fares of the Plaintiff's wife when she visited the Plaintiff in hospital and a figure of $5 per day for 25 days for extra nourishing food provided by the Plaintiff's wife for her husband. Although $20 per day for this food was claimed, I think the figure of $5 is reasonable.

10. At the date of the accident the Plaintiff was employed as a cashier at a monthly salary of $640 but has been unable to work since that time. Mr. Liu disputes the Plaintiff's claim for loss of earnings and prospective earnings on the grounds that the Plaintiff should have mitigated his loss by finding other employment. However, I do not consider, having regard to the injuries suffered and the Plaintiff's age, that this suggestion is reasonable. In fact the Plaintiff is now at an age when many people have retired. The Plaintiff said that he had no intention of retiring and if it had not been for the accident he might have continued in employment for another 5 to 10 years.

11. I am satisfied that the Plaintiff has established his claim in respect of loss of earnings for the period 1st July, 1968 to 28th February, 1970 which will amount to $12,800 at $640 per month for twenty months plus the sum of $1,280 in respect of double pay that he would have received for Chinese New Year 1969 and 1970. For the period from the 1st March, 1970 to today I assess the Plaintiff's loss of earnings at $200. Accordingly, special damages amount to $14,680.

12. General damages will be assessed under three heads:-

13. Under loss of future earnings I am satisfied that the Plaintiff is unable to work as a result of the accident. I do not consider it incumbent upon the Plaintiff to look for another job at his age and time in life. Accordingly, I must decide upon the evidence whether it is likely that the Plaintiff would have continued in employment having regard to his advanced age, and the possibility that death or illness might intervene. In this case I think the correct multiplier is one.

14. Under loss of amenities I have heard that the Plaintiff is now badtempered, has a bad memory and walks with difficulty.

15. It is clear that the Plaintiff still suffers some pain and discomfort and it appears likely that this will continue.

16. Vorious authorities were cited to me on the question of quantum of damages but each case is different and must be decided upon its individual merits. In the case of Lung Chung Ming v. Yeung On. 1963 H.K.L.R. page 583 a suggestion was put forward that damages should not be as high as those anarded in a case in England but this view was not followed in Pillai v. Yeung 1966 H.K.L.R. page 370. In so far as general damages are concerned I would incline to the view expressed in Pillai's case that pain and suffering is the same whether it is suffered here or in England and this likewise applies to loss of amenities.

17. In addition to the special damages already assessed at $14,680 I assess general damages at $13,500.

18. Accordingly, I certify that the amount of damages assessed is $28,180. Certificate for Counsel.

19. Dated the 11th day of March, 1970.

Representation: