Chow Chun v. Yau Wan Sin and Another

HCA002027/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 2027 OF 1970

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Coram: Mr. Commissioner Morley-John.

Date of Judgment: 9 SEPTEMBER 1971

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JUDGMENT

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1. This action is brought by the plaintiff for damages resulting from personal injuries which he received in a collision between his private motor car which he was driving and a public light bus owned by the 2nd defendant and driven by the 1st defendant as his servant, agent or permitted driver. The accident occurred on the 31st of May 1970 and it is alleged that the said accident was caused by the negligence of the 1st defendant. Liability has been admitted by the defendants and the only question to be decided by the Court is the quantum of damages.

2. The plaintiff gave evidence as to how his car was struck by the defendants' vehicle and that the vehicle struck his car on its off side just near to the driver's seat. As a result of the collision the plaintiff said that he lost consciousness and he was later taken to the Queen Elizabeth Hospital. He said that he was treated at the hospital and later that day he was discharged from hospital. He said that he had to return to hospital on four occasions for out-patient treatment of his injuries. The plaintiff said that after his ...(illegible) had been sutured at the Queen Elizabeth Hospital he found that his wrist watch was missing, however, he did agree that he made no inquiries and took no steps to attempt to recover his missing watch, but he did say that he was wearing his watch at the time of the accident and if there had been no accident he would not have lost his watch. The plaintiff also said that as a result of the accident his clothing was damaged in the sum of $130. He said that after the accident he also vomitted blood for a few days, that he informed the casulty department at the Queen Elizabeth Hospital with regard to this and was given some tablets which he said did him no good, and he continued to get pains in his stomach and therefore he went to a bone-setter in Tsuen Wan from whom he received treatment from 4th of June 1970 to the 12th of July 1970. He produced an account from the bone-setter for the sum of $4,130 together with a receipt. This account covered treatment for pain in the nerves and tendens and vomitting and passing blood together with treatment and medicine and charges for going out to examine the patient. The plaintiff also claimed the sum of $924 for travelling expenses for herbalist treatment and other medical consultation at $3 per day for one month and eight days from the 4th of June 1970 to the 12th of July 1970. He also claimed the sum of $2,340 for extra nourishment for some two and a half months after the accident. He also claimed the sum of $1,050 being the wages of a personal domestic servant whom he employed for three months after the accident.

3. The plaintiff stated that before the accident he was employed in a rice shop at a salary of $700 per month. He stated that his duties included sifting and grading rice and at times he also made deliveries of rice driving a lorry. He stated that he had commenced working in the rice trade when he was 15 years old in 1962 and that he knew no other trade. His work in the rice shop involved carrying sacks of rice which weighed 160 catties which is some 200 odd pounds but that that after the accident because of his injuries he was unable to carry these sacks and he was therefore dismissed from his job with one month's salary in lieu of notice. He said that for the first three months after the accident he was not fit enough to go out and look for work he said that he still suffered from fits of vomitting and in fact while giving his evidence the plaintiff started to vomit and had to retire from the Court for a short time. He said that between October and November 1970 he commenced looking for work and he managed to find a job for a month during the winter solstice when he earned about $300 working at a cooked food stall washing up but that his job came to an end as the stall was demolished by Government. He said that it was not until June 1971 that he got a job at a grocery shop in a resettlement estate. He said that he was a general worker there, and he received a salary of $360 per month. He said that he was still working at that grocery shop. He said that between the end of 1970 and June 1971 he did search for work but as his only training was in the rice trade, which because of his injuries he could not pursue, he was unable to find employment. He said that he tried to get a job at various factories in Tsuen Wan that because of his lack of training he was unable to obtain such work. He said that at present he had no intention of looking for another job with higher wages because his present employer was very kind to him and was sympathetic regarding his present condition. He said that he would not dare to try to get a better job as he would be afraid of loosing his present job. In his statement of claim the plaintiff claimed loss of earnings for 4 months at $700 per month from the 1st of June 1970 to the end of September 1970 and continuing. The plaintiff also claimed $5,750 which included the loss of his car which was considered a total write off and also for towing fees and storage charges for the damaged car. He stated that he was not covered by comprehensive insurance with regard to the car but that the car was insured for third party risk only. The plaintiff also claimed various amounts for medical reports and travelling expenses to the Queen Elizabeth Hospital and also X-ray fees.

4. Evidence was given by three doctors who at various times examined the plaintiff. The first doctor Dr. Pang Hok Tuen gave evidence that he was on duty at the casualty ward of the Queen Elizabeth Hospital when the plaintiff was brought into the casualty department. He described the multiple lacerations over his body and the treatment that the plaintiff received. He agreed that these injuries were of a relatively minor nature. When Dr. Pang was informed that the lacerations on the plaintiff's shoulder had resulted in keloid scarring, the plaintiff was examined in Court by the doctor and after he had removed his shirt keloid scarring was shown to be fairly extensive. The doctor said that keloid scars were permanent and that they were sensitive but did not usually hurt but they could hurt under certain circumstances. He also said that it would not be unlikely for the plaintiff in the future to suffer from arthritis as a result of his injuries which he agreed were consistent with injuries resulting from a motor accident.

5. The second doctor to give evidence was Dr. Anthony Charles da Roza M.B., B.S. (H.K.), M. Ch. Orth. (Liverpool), F.R.C.S. (England), F.R.C.S. (Edinburgh). Dr. da Roza stated that he had examined the plaintiff first on the 17th of August 1970 and his findings on that date were a half inch scar over the left cheek, a half inch scar over the end of the left eyebrow, a hook-shaped scar over the right cheek half an inch long, that there was scarring over the right shoulder, and that this shoulder was crepitous on movement, by which he meant that there was a grating sensation as one bone grated upon the other in the socket. He said that over the back of the right shoulder there were three keloid scars, that there was a painful and tender lump over the outer aspect of the right lower arm just above the elbow joint. He said that this lump was under the skin and was very likely an undisolved area between the muscle and the skin which could be caused by a direct blow. There was tenderness over the right side of the chest in front at the level of the 6th rib that there was a fading bruise on the outer side of the right thigh and that there was an abrasion scar over the right knee.

6. The third doctor to give evidence was Dr. Andrew Chan M.B., B.S. (Sydney) F.R.C.S. (Edinburgh). Dr. Chan was called by the defence and he gave evidence that he examined the plaintiff on the 22nd of June 1971. Dr. Chan produced a written medical report of his findings and conclusions and this was admitted by consent an an exhibit (Exh.D1). Dr. Chan's findings were as follows: Mild limitation of internal rotation flection and abduction of the right shoulder-joint with crepitous on certain movements there were tender keloids over the back of the same shoulder with no serious contracture, all the forearm muscles were of the same size as the opposite arm. With regard to this finding Dr. Chan explained that the plaintiff could not raise his arm above his head without crepitiation which caused discomfort. Secondly he found a tender lump over the right triceps, he said that this was midway between the elbow and shoulder and was between 3 and 4 millimetres in diameter. Thirdly, he found tenderness over the 6th right costo-chondral joint. He said that this was quite localised about the size of a ten-cent coin but it was tender to the touch. Forthly, he found very old scratches about a year old over the right knee with a normal range of movement and lastly 5 millimetre scars over the right face and left eye-brow.

7. I shall refer in more detail to the conclusions of Dr. da Roza and Dr. Chan, when I come to consider the plaintiff's claim for loss of earnings.

8. Evidence was also given by Mr. Hui Yan Fung who was the proprietor of the grocery shop where the plaintiff is at present employed. Mr. Hui said that the plaintiff started work on the 16th of June 1971 and his wages were $360 a month. He said the plaintiff's duties were just do general work in the shop but that he could not do any heavy manual work because of the pain in his shoulder. He said that the plaintiff never handled rice sacks, and as he did not own a lorry the plaintiff had never been asked to drive for him. He said he had no complaint about the plaintiff's work, he said that he was a good person and that he was happy to employ him. He said that the plaintiff still was not in good health, that he had attacks when, as the witness put it, he made noises as if he was going to vomit. Mr. Hui also said that at times the plaintiff complained of head aches but that he never did take time off because of these head aches.

9. The proprietor of the garage to which the plaintiff's car was towed, Mr. Yu Chau, gave evidence that the value of a car of similar age and type to the plaintiff's in June 1970 would be between $7,000 and $8,000, if it was in good condition, however, he said that he only saw the car after the accident when it was a total wreck, and he was unable to estimate accurately its value before the accident. When asked if the car could have been repaired he said it was possible but that it would cost more than the car was worth originally and there was no guarantee that the car would be safe to drive after the repairs had been effected as the car had met with a very serious accident. He said that he informed the plaintiff of this, and on the plaintiff's instructions he sold the car as scrap for which he received $400.

10. With regard to the particulars of special damage set forth in the statement of claim both counsel have agreed that items 3, 5 and 8 should be included in the costs of this action. These items are charges for medical reports and X-ray fees. As to the other items the plaintiff's claim of $130 for damage to his clothing was not seriously challenged, and I allow this claim. With regard to the claim of $115 for the loss of the plaintiff's wristwatch, counsel for the defendant has urged that this is not a reasonable claim as it is not proved that this watch was lost as a result of the accident and that the plaintiff made no effort to locate this watch. However the plaintiff has said that he did not like to make enquiries at the hospital when his wounds were being sutured as he said that he did not imagine that the nurses or doctors would have taken his watch and he has said that the watch disappeared as a result of the accident, and under the circumstances I allow this claim.

11. With regard to the claim for the bone-herbalist's fee of $4,130, counsel for the defence has said this is not reasonable and that the plaintiff had no business to go and see a Chinese herbalist. However the plaintiff has said that the treatment he received at the Queen Elizabeth Hospital did not seem to be effective and so he went to see a bone-setter. I do not consider that this Court should insist that a person such as the plaintiff in this case should be bound to seek a cure by Western medicine only. In the case of Lo Tung v. Chay Wing Shan[(1964) Hong Kong Law Report p.444] the Court held that the plaintiff in that case was entitled to be compensated to a certain extent for the expenses he incurred in his attendance on a Chinese herbalist even though in that case the treatment by the Chinese herbalist considerably worsened the plaintiff's condition, whereas in this case we do not know whether the herbalist in any way improved the plaintiff's condition but we certainly know that he has not impaired the plaintiff's condition. I therefore allow the claim under this head. The claim of $80 for taxi fares incurred by the plaintiff in attending the out-patient's department of the Queen Elizabeth Hospital I also allow. As to the claim for travelling expenses for herbalist treatment and other medical consultation at $3 per day for one month and 8 days, I do agree with counsel for the defence that this is totally unreasonable. Counsel has said that on the pleadings alone it should only amount to $114; the plaintiff has said that this sum includes medicine obtained from the herbalist, however he can produce no receipt to support this, and his only receipt, the receipt covering the claim of $4,130 includes charges for treatment and for medicine and for going out to examine the patient. Under the circumstances I disallow the claim under this head. As regards the claim for extra nourishment amounting to $2,340 counsel for the defence again has said that this is totally unreasonable as this nourishment was never prescribed. The plaintiff in evidence did agree that extra nourishment was not prescribed by the Queen Elizabeth Hospital and he made no mention of the fact that extra nourishment was ever prescribed by the herbalist who treated him. When the plaintiff was asked whether he prescribed this extra nourishment himself he said that he had been advised to take extra nourishment by some of his friends and that some of them were qualified doctors. He also said that the doctor at the Queen Elizabeth Hospital told him to take some form of nourishment which might give him extra vitamins, but he was not told how long he should take that nourishment. Taking everything into consideration I allow the plaintiff's claim for extra nourishment for two weeks only, at $45 per day and under this head I allow him the sum of $630. As to the plaintiff's claim for the wages of a domestic servant to look after him for three months I do agree with counsel for the defence when he submits that this is an unwarranted extravagance for a person in the position of that of the plaintiff who was living at that time with his relatives, and I disallow this claim. As to the claim involving loss of the plaintiff's car, towing and storage charges, having heard the evidence from the garage proprietor I consider this is a reasonable claim and I allow this claim for $5,750.

12. The most difficult item that I have to consider is the plaintiff's claim for damages occasioned by loss of earnings. With the exception of the sum of $700 given to the plaintiff by his ex-employer as 1 month's wages in lieu of notice and the $320 the plaintiff earned during the last winter solstice, he earned nothing from the time of the accident until he found his present employment on the 16th of June this year, and this present employment yields only $360 per month, that is $340 per month less than he was earning at the time of the accident.

13. The plaintiff admitted that he did not feel strong enough to try to find a job until between October and November 1970 he said that he felt mentally handicapped and was worried about the scars on his face. However he said that he tried very hard to find a job after that date, but with the exception of his month's job during the winter solstice he was unable to find employment until the 16th of June 1971 due to his lack of skill in any trade other than rice grading and sifting and the fact that he was unable to do unskilled heavy labour owing to the keloid scarring and crepitous of his shoulder. I carefully observed the plaintiff when he was giving evidence, he appeared to be an honest witness but he certainly gave the impression that he considered that he was still in delicate health. He frequently retched and at one time had to leave the Court, and I am of the opinion that this was not a display put on for my benefit, as his present employer, by whom I am very much impressed, also stated that the plaintiff suffered from this affliction at work.

14. Unfortunately I have heard no evidence as to the plaintiff's mental state except that in his written report Dr. Chan did state as follows:- "His (the plaintiff's) concussion may result in reduced concentrating power, pain in various parts of the body does not help in this respect. Pain and suffering with the associated search for a cure in the last year have a very bad effect on moral." However when giving evidence Dr. Chan said that he was not qualified to comment on the plaintiff's mental state.

15. As to the plaintiff's failure to find work, counsel for the defence did say that he considered that the plaintiff's present injuries seemed to be mental, but he submitted that a large proportion of the claim should be disregarded as the plaintiff had not done enough to mitigate damages and that he had given himself an extended holiday and he was in fact a malingerer. On the other hand, counsel for the plaintiff has submitted that the plaintiff is qualified at no trade other than the rice trade in which he had been employed since the age of 15. That it is easy to say that he took an extended holiday but that no sensible person would do that hoping to get damages from the Court not knowing that liability had been admitted. That a person such as the plaintiff who was in poor circumstances would possibly work if he could. That the plaintiff was injured in an accident caused by the defendant and that the defence should not grumble over the efforts that the injured person made to get a job.

16. Taking all these points into consideration I am of the opinion that the plaintiff should have attempted to find employment before he did. As to his failure to find employment once he started to search for employment, it is not in dispute that prior to the accident the only employment for which the plaintiff was trained was the rice trade and his job in this trade necessitated the lifting and carrying of heavy sacks of rice. Dr. da Roza who examined the plaintiff in August 1970 stated that as a result of the injuries sustained by the plaintiff he was unable to undertake employment which involved heavy lifting work and that this view had not changed as a result of his recent examination of the plaintiff about 3 weeks ago. This evidence of Dr. da Roza was challenged by Dr. Chan, but he only examined the plaintiff on the 22nd June 1971 and I am therefore satisfied that being unable to continue in the rice trade and being unable to do work involving the lifting of heavy loads, the plaintiff, as an unskilled worker, would have had considerable difficulty in finding suitable employment. This being so from the date of the accident until the end of October 1970, I award the plaintiff the sum of $1,400 that is the equivalent of two months wages, in making this award I also take into account that he has received $700 as wages in lieu of notice. From the 1st of November, that is the date that he started looking for a job until the 16th of June 1971 I award him $4,930 that is the equivalent of 7 1/2 months wages minus the $320 he earned during the winter solstice.

17. As to the plaintiff's loss of future earnings, he is at present in what appears to be permanent employment, but his wages from this employment are only $360 per month, that is a wage of $340 per month less than he was earning before the accident. The plaintiff said in evidence that he had no intention of looking for a job with higher pay. He said that he liked his present job as he had a sympathetic employer. He said that he dare not try to better himself because he was afraid of losing his present job. He said that it was difficult to find a job in his position as even school graduates cannot find work easily and that his education was only up to primary VI standard.

18. The questions I have to decide are whether the plaintiff is physically fit to return to his previous occupation in the rice trade, and if he is not, whether he should try to train for some other occupation which would carry with it a salary higher than his present one.

19. As to his fitness to return to the rice trade, this is dependent upon whether he can lift and carry sacks of rice weighing some 200 pound, as according to the plaintiff's evidence, which was not challenged, a person who sifts and grades rice has himself to lift the heavy sacks down from their high storage shelves carry them to where sifting and grading is taking place and then return these sack to their storage shelves. Also according to the plaintiff's evidence, which again was not challenged, part of his job was delivering rice by lorry which necessitated carrying these heavy sacks of rice from the lorry to their final destination, and the only way these heavy sacks can be carried is on a person's back.

20. Dr. Pang stated in his evidence that keloid scars were permanent and that they were sensitive, he said that they did not normally hurt but could in certain circumstances, he also said that these scars would enlarge if subject to irritation. He was not questioned as to what effect the carrying of heavy loads would have on these scars.

21. Dr. da Roza, who favourably impressed me by the way he gave his evidence, said that this sensitive area of keloid scarring would limit the plaintiff's capacity to carry, and in answer to a question in cross-examination as to whether the plaintiff could have been working when he examined him in August 1970, Dr. da Roza replied that he supposed that he could have obtained employment which did not involve heavy lifting. He was quite adamant that a pad on the right shoulder would not enable the plaintiff to carry loads. He also said that the plaintiff could grade rice if he used a machine but even so somebody would have to load the machine for him. The plaintiff's evidence was that sifting was done by hand. Dr. da Roza based his opinion on the fact that the keloid scars would be permanent, that they were sensitive to touch and irritation would be caused from contact with clothes etc. He also said that the plaintiff would have persistent trouble with his shoulder-joint due to crepitous which would also be permanent. He also said that the on-set of osteo arthritis was probable. Dr. da Roza also stated that the plaintiff's driving ability would be affected both by the keloid scarring and by the crepitous in the right shoulder as they could cause sudden pain which would affect the steering of a vehicle.

22. Dr. Chan in his evidence said that he did not think that there was any occupation which the plaintiff could not undertake, unless, in Dr. Chan's words "The plaintiff's employer was biased by his complaints of pain etc". He said that he thought the plaintiff could carry a load on the keloid scars. He said this dispite the fact that in his report (Exh.D1) he had said that there were tender keloids on the plaintiff's right shoulder and crepitous on certain movements of this shoulder. Also, early on, in his evidence he stated that the plaintiff could not raise his arm above his head without crepitous which caused him discomfort. I was not particularly impressed by the way Dr. Chan gave his evidence. He went on to say, when pressed in cross-examination, that the plaintiff could carry heavy loads on his shoulder by using a pad of cotton wool about 10 inches square. When asked how this would help, Dr. Chan said that this would distribute the weight, he was unable to say how this would distribute the weight, and when it was suggested to him that with or without a pad a sack weighing 167 catties would exert a pressure of some 200 pounds on the scar he merely ...(illegible) that a pad would distribute the weight. In fairness to Dr. Chan he did say later in answer to questions put by myself that he had examined the plaintiff only with a view to giving an opinion as to the plaintiff's ability to work as a driver which is borne out by the last sentence of his report in which he stated "However, I could find no physical abnormality to substantiate his (the plaintiff's) belief that his inability to sustain an eight hour working day of a driver is a direct result of the said accident", also from the fact that early in his evidence when dealing with keloids and crepitous he stated that these physical handicaps should not be too much of a handicap to a driver. When I explained to Dr. Chan the precise nature of the plaintiff's work before the accident, he did go so far as to say that because of the keloids the plaintiff could not carry sacks of rice for protracted hours. When I asked him if he did not know that the plaintiff worked in a rice shop when he examined him Dr. Chan said that he did but that he only had the impression that this did not involve "very much hard physical work".

23. A copy of the proceedings of a medical board dated 26th of June 1971 was also produced by the plaintiff (Exh.P7) in which the board concluded that the plaintiff's condition would not result in any loss of his earning capacity and they assessed his present disability as 6%. However, although the plaintiff said that he told the board what he told the Court, there is no evidence as to exactly what he told them or that the board were aware of the exact nature of his work before the accident or that they considered this point that I now have to consider, that is whether the plaintiff can resume his previous occupation with the heavy lifting and carrying that it involves. Both Dr. da Roza and Dr. Chan thought that the board's assessment was rather low, and under the circumstances I do not consider it safe to place reliance on this report in coming to my conclusion in this case.

24. Under the circumstances I am of the opinion that the plaintiff is not physically fit to resume his previous occupation, however the plaintiff is a young man of 24 years of age and I consider that he must make some effort to learn another trade or train for some other occupation which would carry with it a salary higher than his present one, and the final question is how should I assess his future loss of wages until the time he can adapt himself for some other more lucrative occupation. I am of the opinion that he should be able to so adapt himself within one year which taking into the account the difference between his present wages and his wages before the accident, that is $340, would make a loss of wages for the year $4,080.

25. I therefore assess the amount of damages to be awarded to the plaintiff as follows:-

26. I also award the costs of this action to the plaintiff.

Representation:

Charles Ching (H.M. So & Co.) for Plaintiff.

Michael Asome (H.A. Hoosenally & Co.) for Defendants.