Fung Shuet Fun v. Chiu Kam Hung and Another

HCA001075/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1075 OF 1970

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Coram: Leonard J.

Date of Judgment: ...(illegible)

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JUDGMENT

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1. In this action the plaintiff claimed damages for injuries received through the negligent driving by the 1st defendant as the servant or servants of the 2nd defendant of a taxi AG 1452 on the 10th August 1969.

2. Liability was not disputed and the sole issue before me was therefore as to quantum of damages.

3. The plaintiff was immediately prior to the accident aged 18 having been born on the 21st May 1951. I have no doubt that prior to the 10th August 1971 she was a normal healthy happy girl. Her father is and has been away at sea and I did not have the advantage of his evidence. Her mother, however, I found to be a woman of dignity and of some distinction. She described the plaintiff in evidence as having been "very vivid" and after allowing for parental pride I was satisfied that she was a person of natural vivacity and ambition. At the time of the accident she had left school having advanced only to Form 4 but was studying studying Japanese with a view to going to Japan to take up a post in a travel agency there.

4. On admission to hospital she was found to be suffering from the following orthopaedic conditions:

She was in concussion and not unnaturally on admission her general condition was poor. She herself told me that after admission she remained unconscious for about a fortnight and her mother gave evidence to the same effect. Although no medical evidence was called to support this statement there was none to contradict it save that no reports from a neuro-surgeon as to her condition were forthcoming. As this is of some importance in view of the plaintiff's claim that she suffers from lapses in memory I will consider it in detail later.

5. On admission to hospital the plaintiff was given a shoulder shield for her fractured right humerus, both legs were plased in complete long leg plaster of Paris for the fractures of the tibiae and fibulae, and caliper traction was applied to correct the fractures of the spine.

6. After four weeks the shoulder shield was taken off and the humerus found to be united.

7. After a further ten days the caliper traction was removed and replaced by a plastic collar to support her spine.

8. The paster of Paris remained on her lower limbs until the 27th October, 1969 when it was removed and the fractures found to have united.

9. In all she was detained in hospital for three months and ten days and on leaving hospital she went for a further month to Kwun Tong Convalescent Home.

10. She complained that while in hospital she suffered great pain. When she recovered consciousness she found the caliper traction attached to her head and was unable to move. She suffered from a continuous violent pain in the head and pain all over her body. It was only a release to the convalescent home that the pain became intermittent.

11. On this subject the plaintiff's mother also gave evidence stating that her condition was so bad that the general hospital regulations as to visiting were relaxed completely in her case and that she (the mother) as permitted to be in constant attendance on her, to feed her, to change her position in bed and generally to act as assitant nurse to her. She stated that she travelled constantly between her home and the hospital and engaged an amah to look after the other children so as to enable her to devote her time to the plaintiff who frequently shouted uncontrollably in pain. This evidence I accepted completely. I was left in no doubt having regard to the nature of the injuries and the evidence of the plaintiff and her mother that the pain and suffering inflicted on the plaintiff were unusually severe in their nature, their extent and the period over which they were endured.

12. After the period of four and a half months the plaintiff returned home. She continued to attend Queen Elizabeth Hospital as an outpatient at first once fortnightly and later once monthly but has now ceased to do so.

13. On the 18th March 1970 she was examined by a medical board consisting of the Medical and Health Officer, Queen Elizabeth Hospital, a senior Industrial Health Officer and the Medical Superintendent of Queen Elizabeth Hospital. That Board found the following permanent disability.

The plaintiff was examined on behalf of the defendant by Mr. R.G.M. Wedderburn M.B. F.R.C.S. on the 29th October 1970. He found that an X-ray of her neck showed a normal picutre and assessed the limitation of neck movement as a 2% disability. He found a lack of internal rotation of the right arm at the shoulder and "a very slight loss of movement of full elevation of the arm above her head". He found her elbow movements normal and considered the injury to the right arm as a 2% disability. He found the right leg normal. He found the left leg "slightly bowed outwards below the middle of the shaft of the tibia ....... the distal fragments ....... bowed inwards at an angle of 6^o so that there is a slight varus deformity of the lower left leg ........ no limitation of the knee or ankle joints. However, due to the fracture of the pelvis, there is some limitation of flexion of the left hip joints so that she cannot flex the hip more than 100^o against the normal 145^o. This prevents her from squatting and contributes towards her limping gait. She has a detectable swing of the pelvis to the left ....... She will probably develop an ostero-arthritis of the left hip joint in later years, so I consider that the deformity due to her left leg and left hip joint is 15% and her total disability is therefore 19%". She was then referred back to a further Medical Board consisting of the three doctors who had assessed her earlier strengthened by the addition of Dr. S.F. Lam - an orthopaedic specialist. This Board reaffirmed the assessment of the previous Board assessing total disability at 27%. It will be noted that both Boards and Mr. Wedderburn approached the problem of assessing the degree of disablement suffered by the plaintiff as if they were dealing with a case of workman's compensation and were and were assessing incapacity under sec.9 of the Workman's Compensation Ordinance. This is perhaps not entirely appropriate when one seeks to assess damages in a negligence action.

14. Fortunately I had the assistance of both Dr. K.C. Ho who examined the plaintiff as a member of both Medical Boards and Mr. Wedderburn. There is a difference of opinion, in particular as to the condition of the right leg between the members of the two Boards on the one hand and Mr. Wedderburn on the other. Mr. Wedderburn says the right leg is now normal, the Board says that there is a partial limitation of movement in the right knee. They agree that the degree of incapacity caused by the injuries to both legs is 15% but Mr. Wedderburn agrees, not because of any deformity in the right leg but, because of the probability of ostero-arthritis developing. I do not propose to discuss degrees of incapacity in the light of sec.9 of the Worman's Compensation Ordinance. Suffice it to say that I am satisfied on the evidence that the plaintiff suffers and will continue for the rest of her life to suffer from physical disabilities as a result of this accident and that those disabilities are threefold:

As to scars these are perhaps less serious than she feels at present. The plaintiff is still a fine looking firl and in no way repulsive - the scars on her head are completely covered by her hair, those on her knuckles, hands and wrist are noticeable but not unduly so and indeed the only scar which Mr. Wedderburn thought worthy of comment was that on her left arm and shoulder which he described as "ugly". I appreciate that sensibility to scars is a subjective thing and that at present they cause her worry by reminding her of her accident but objectively they are not seriously disfiguring and I do not regard them as a serious factor in considering the damages to be awarded.

15. The plaintiff claims that she has suffered a serious loss of amenities including loss of prospect of making a successful and happy marriage. This she attributes in part to the physical disabilities which I have set out. These will undoubtedly result in her being unable to take part in the ordinary activities open to a girl of her age and station in life. She will be unable to play games or to dance and because of her limp will be understandably reluctant to walk or picnic with her friends in our rapidly disappearing and increasingly polluted countryside. These are serious losses for which she will have to find substitutes. Whether she will eventually make a happy and successful marriage will depend on the way she overcomes the disabilities. On the one hand if she allows them to oppress her they will undoubtedly diminish her prospects but if she meets them with courage they may in fact improve them. This is certainly not something on which one can make an assessment one way or another. There is undoubtedly a serious loss of amenities but loss of the prospect of making a happy marriage, an imponderable to the most healthy, does not figure heavily in my assessment under this head. This is not only because of the difficulty of foreseeing the likelihood of a happy marriage but also because to give undue weight to it would cause 'overlapping' when I come to consider loss of earning capacity. The greater the likelihood of marriage the lesser would be the award for the loss in earning capacity.

16. What has caused me much more trouble is how far the accident may have injured her mentally. She complains of loss of memory and in the witness box she did seem to be seriously afflicted by this. Thus at the commencement of her evidence she forgot facts that she remembered, in part, later. Again, her mother in giving evidence on this point said "Everyday before she went to work I had to tell her how to get to her place of work as if she were much younger than she is. I treat her as if she were only a young girl but even so she forgets things." The mother who seemed to me to be a sensible woman did not appear unaware of the need to encourage her daughter so that she might regain that independance of character which she enjoyed before the accident and which had enabled her to accept a job in Japan and to learn Japanese for that purpose. Nevertheless she told me that whenever the plaintiff had had a job since her release from hospital she felt obliged to telephone the office a suitable time after she had left home to make sure she had got safely to the other end and said "If her memory improves I think I won't have to look after her. Her memory is the principal trouble." I formed the view that mother and daughter honestly believe that the plaintiff's memory had been disturbed because of the accident and I accepted as a fact that it had been so disturbed. Both told me that the girl had been unconscious in hospital for about a fortnight.

17. One of the doctors who attended her in hospital was called to give evidence. His interest was purely orthopoedic. He stated that she was unconscious on admission and remained unconscious for about a day. He was far from certain as to how long she had been unconscious. There was no evidence on which I could rely that she was ever seen by a neuro-surgeon and no medical evidence to show any loss of memory. Any medical evidence there was went the other way. Mr. Wedderburn said she made no complaint as to loss of memory to him and that if she had been unconscious for a fortnight he would have expected to see reports from a neuro-surgeon. He was of the opinion that without serious brain damage affecting only the memory cells of the brain she would not have suffered such a loss of memory as the mother described and he had no evidence of such serious brain damage: he regarded such serious brain damage as unlikely because of his assumption that had there been need she would have had the services of a competent neuro surgeon and the fact of the brain damages would have become clear. On the other hand he agreed that there was no evidence that the brain was not damaged. I accepted both the mother and the plaintiff as honest witnesses who were trying to tell the truth. The passage of time and the pain from which the plaintiff suffered may have caused them to regard inability on the part of the plaintiff to communicate due to pain and ...(illegible) as inconsciousness but I am satisfied that there was a period of inconsciousness due to the concussion which was undoubtedly present on her admission into hospital. This, coupled with plaintiff's somewhat erratic and confused evidence impels me to the conclusion that, whether it be caused by brain damage or by her traumatic experience, the plaintiff has suffered from loss of memory and her earning capacity has been impaired by this. The fact that she has been unsuccessful in keeping any of the jobs she got since release from hospital alone is evidence of this. How long this state of affairs is likely to continue is quite impossible for me to predict on the evidence before me. This is yet another imponderable in a case in which there are many. As long as the loss of memory continues there will be a substantial loss in earning capacity. The injuries to the neck, to the legs and to the right arm will contribute to this loss in earning capacity as will the disfigurement to the left leg and the limp.

18. The plaintiff informed me that prior to the accident she had been offered a post in Japan for a period of 1 year at a salary of $1,000.00 per month with $200.00 per month allowance for living in Japan. I have no doubt but that had it not been for the accident she should have had little difficulty in securing employment regularly over the years at a salary of at least $1,000.00 per month. She has tried three jobs (one at $400 one at $500 and one at $450) since she was released from the convalescent home but she has not succeeded in keeping any of them because of her memory. In the hope that this will improve as time passes I would assess her monthly loss in earning capacity at at least $450 per month or $5,400 per annum. Having regard to her age, and balancing the likelihood of her memory improving against the likelihood of arthritis affecting her seriously later I consider the multiplier should be 13 and would award the sum of $70,000 for loss of earning capacity, her handicap in the labour market and, bearing in mind what I said earlier concerning it, her loss of prospects of a happy marriage. For myself, however, I see little benefit in indulging in mathematical acrobatics when endeavouring to assess general damages. As I see it one must take the victim as one considers her to have been before the accident taking into account her position in life, conditions in Hong Kong and all the circumstances of her life in so far as one can discover them and then consider the effect her accident and injuries may have had on her having regard to pain and suffering, her loss of the amenities of life, her deformities and scars, her future pain and suffering and make what has been termed a 'global award'. This I assess at $85,000 for general damages.

19. With regard to special damages I would allow all the mother's travelling expenses claimed. The mother has told me that the hospital au...(illegible)rities welc...(illegible)ed her attendance at the hospital. I consider that it was of real value or they would not have done so. I have no doubt that the mothers presence lessened to a not inconsiderable degree the pain and suffering of the plaintiff while in hospital and I therefore think they are properly payable I do not allow the travelling expenses for visits by brothers and sisters. As to employment of a domestic servant this I regard as recoverable. It would have been impossible for the mother to have attended at hospital had the domestic servant not been employed. Any objection that this was an expense incurred for the mother's benefit rather than for that of the plaintiff's would I consider be unrealistic in Hong Kong having regard to the closeness of the family tie here. Any such loss as that occasioned to the plaintiff in this case affected her family: equally her family loss would be hers. With regard to the claim for extra-nourishment I do not consider I can allow this. The hospital was paid an admittedly nominal fee to maintain the plaintiff when she was under their care. The diet supplied there must be presumed to be adequate. I do not regard the fact that the mother was permitted the hospital to bring extra nourishment as of importance. It would be a comfort to the mother to do so and unnecessarily officious of the authorities to deny her that comfort so long as the extra nourishment did not conflict with their dietary rules. I am pleased to note the absence of officiousness but do not consider that the cost of the additional unnecessary diet should be visited on the defendants because of it.

20. As to the claim for loss of earnings - the plaintiff was at the time of the accident not employed. She expected to be employed. I do not consider that any sum for loss of earnings can be allowed as special damages and have allowed for this in my award of general damages. Special damages I therefore assess at $3,228 and give judgment for $88,228.00 with costs to be taxed. I order the said sum of $88,228.00 to be paid into court within 2 weeks from today's date. The plaintiff is to be at liberty apply for payment out.

Representation:

B. Liu instructed by H.M. So & Co. for plaintiff.

M. Asome instructed by Johnson Stokes & Master for defendants.