Chen Hsueh Chen v. Tam Wai Chun and Another

HCA003256/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 3256 OF 1978

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Coram: Mr. Registrar Cruden in Chambers

Date of Judgment: 3rd October 1980

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JUDGMENT

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1. The plaintiff was injured alighting from a bus on the 3rd day of November, 1975 in Cheung Sha Wan Road. The bus was driven by the 1st Defendant as the servant of the 2nd defendant who owned the bus. The plaintiff alleged that the defendants caused the door of the bus to close before she had alighted. As a consequence of such negligence she sustained serious injuries and has suffered loss.

2. Interlocutory judgment was entered on the 22nd day of June 1979 and I am now asked to assess damages. The plaintiff clearly suffered serious injuries to her left foot; the ankle being degloved. There was also a fracture of the right fibula, fracture of the medial malleolus of the right ankle and fracture of the second and third metatarsal. The treatment of the left ankle required substantial skin grafting. The donor skin was taken from both her thighs which are now as a consequence disfigured. She has fully recovered from the injuries to her right leg.

3. The plaintiff is entitled to damages for pain and suffering and loss of amenities.

4. She suffered a serious and painful injury. She was in hospital for 3 months. During her recovery she had to use crutches and sticks. Now she needs to use an orthopaedic shoe. Substantial quantities of skin had to taken from her thighs and grafted to the heel of her left foot. Skin grafting in itself is a painful procedure. There have been repeated breakdowns of the grafted skin. Cornification has also developed which will continue to cause pain in the future. Even wearing an orthopaedic shoe she will still suffer pain and discomfort in the future whenever she is obliged to walk continuously for more than 20 to 30 minutes at a time. She is now less able to play with her young children than before the accident. She no longer swims with them as she is too embarrassed to display her injuries in public. The plaintiff submitted that the appropriate sum for pain, suffering and loss of amenities was $40,000 to $45,000. The defence submitted that the appropriate range under this head was $15,000 to $25,000. From the authorities cited to me it is clear that recently there have been marked increases in awards for pain, suffering and loss of amenities. The facts in the various cases cited to me differ so much that they cannot be accepted as more than indications of a particular approach. For example in Tam Pang v. Wong Pit-chung (1980) 10 H.K.L.J. 234 $40,000 was awarded; in Chow Yu v. Yuen Lam-hin & Anor (1980) 10 H.K.L.J. 107 $45,000 was awarded but $15,000 of this seems to relate to partial loss of earnings; in Wong Hei-wan v. Li Chor & Anor (1980) 10 H.K.L.J. 109 $40,000 was awarded. Contrasted with these larger awards there are a number of older awards which support the lower figure urged by the defendant. There is also the recent decision in Lee Loy v. Wong Lee-kwong & Anor (1980) 10 H.K.L.J. 233 in which only $25,000 was awarded. In that case the injury was less serious and bone grafting was necessary but the plaintiff was in hospital for the relatively long period of 1 year. When I consider all the authorities cited in the light of the instant facts I consider that $40,000 is the proper sum to be awarded.

5. Before going on to consider future economic loss this is an appropriate stage at which to consider whether damages for cosmetic loss should be awarded. The unsightly appearance of the left foot and the thighs is highlighted by the 15 photographs produced with Dr. Nicholson's report. I accept that the plaintiff because of these scars now always wears slacks. For the same reason she now no longer goes swimming as she is too embarrassed to expose her scars. She states that her husband and children say her scars are ugly and this causes her concern. I am satisfied that plastic surgery would not significantly improve the cosmetic disability and would in any event result in further scars elsewhere. Fortunately the cosmetic disabilities are not usually visible and this means that a relatively modest sum would be adequate. I award $2,000 under this head.

6. The real dispute as to damages is whether the plaintiff, after the medical treatment was completed, was able to return to her former occupation as a machine operator in a zip factory.

7. Before the accident the plaintiff worked at a zip factory operating a zip cutting machine. She was required to stand in front of the machine which was manually operated by pressing a pedal with the right foot. At the same time the length of zip which required cutting was held in her right and left hands. The plaintiff maintains that since the accident she has twice attempted to use the machine but was unable to stand for more than 20 or 30 minutes without severe pain. Before the accident she earned $900 per month. Now by doing piece work at home, for the same factory, she earns from $100 to $200 per month.

8. I am satisfied on the medical evidence that as a result of the degloving the tissue between the heel bone (the calcaneus) and the outer skin of the sole of the heel was permanently removed. I recognise that the area of the heel where the bone was exposed has been the subject of several skin grafting operations and that the bone is now fully covered by the resulting skin grafts. However, as Dr. Nicholson pointed out, "over the prominence of the heel the grafts are also adherent to the bone." Both Drs. Fang and Wedderburn agreed that as a result the left heel no longer has the pre-accident tissue to serve as a cushion between the heel bone and the skin. Both agreed that it was for this reason that there have been several skin breakdowns caused by the pressure of the heel bone directly on to the skin graft. Both further agreed that as a result the ability of the plaintiff to walk or stand was substantially reduced.

9. In either event it was desirable that she be fitted with specially designed orthopaedic shoe. If she were fitted with such a shoe Dr. Fang estimated the longest period the plaintiff could then walk in comfort would be 30 minutes. Dr. Wedderburn's estimate was 15 to 20 minutes. Both agreed that the plaintiff could not operate the zip cutting machine if she were required to stand up. However, Dr. Wedderburn was of the opinion that, with a properly designed orthopaedic shoe, she would be able to work factory machines, such as a sewing machine, if she were able to sit down. Dr. Fang considered that she would only be able to do so if she could also from time to time elevate her left leg and rest it on a stool or other object. He assessed her injury as equivalent to the total loss of the left foot. I find that the loss is rather less and represents no more than 70% of the loss of the left foot.

10. Exhibit P.1 was produced as a shoe which had been designed for the plaintiff by the Orthopaedic Appliance Unit of the Kowloon Hospital. This shoe was merely a standard shoe into which a piece of rubber padding had been inserted. The rubber padding had been designed for the inner part of the left shoe to compensate for the missing left heel tissue. The rubber padding was not permanently affixed to the shoe. The plaintiff complained that it gave her little help. Dr. Fang observed that even using that shoe, the rubber padding would tend to move within the shoe causing friction. This would result in the plaintiff suffering pain and could lead to a further breakdown of the skin graft. Dr. Wedderburn considered that this shoe was not an adequately designed shoe and he stated that in his opinion it was not an orthopaedic shoe. I accept Dr. Wedderburn's criticism of this shoe. I find that a properly designed lace-up shoe with rubber padding permanently affixed to the left heel would provide considerably more assistance for the plaintiff than Exhibit P.1. I also accept Dr. Wedderburn's observations that when the plaintiff was unaware that she was being watched she walked far better than when she was aware that she was being observed. From my own assessment of her in Court, confirmed by Dr. Wedderburn's opinion, I am satisfied that she tended to exaggerate her present difficulties. On the other hand I accept that they remain substantial.

11. The defence maintained that the zip cutting machine could be operated in a sitting position; that it was fitted with a right foot pedal, and not a left foot pedal; that since the accident some of the machines were now electrically and not manually operated. After reviewing all the evidence on this issue I find that the machines can only be operated in a standing position; that even though they have a right foot pedal the operator needs the full use of her left foot to help bear her weight and maintain balance; that even in the case of the electrically operated models, the operator still has to operate the right foot pedal although with less force.

12. I am satisfied on the balance of probabilities that the plaintiff, because of the injuries suffered in the accident, can no longer operate this machine. I am equally satisfied that she could not operate any other machine which required her to stand. As to operating a sewing machine or similar machines in a sitting position there is a conflict between the evidence of Dr. Fang and Dr. Wedderburn. I find that the plaintiff could only operate a sewing machine or other machine in a sitting position if she were able frequently to rest her left leg in the manner Dr. Fang described. I note that Dr. Wedderburn agreed that to rest the leg in this manner would give relief from pain.

13. When I further take into account the realities of the employment market I am satisfied that even if the plaintiff devised and developed her own means to cope or minimise her disability while working such a machine, her opportunities to obtain employment in a competitive employment situation would be considerably diminished. I accept the positive evidence of her former Factory Supervisor on this point.

14. On the other hand, there is the plaintiff's own evidence that she can do piece work at home and can earn up to $200 per month from that source. The plaintiff's Counsel submitted that the future loss of earnings was therefore $700 per month being her former income of $900 less her present income of $200. Although at one stage he submitted, but I think unintentionally, that the actual loss was $500 per month. I am of the view that the plaintiff now has the capacity to earn more than $200 per month. The employees of her former factory, who carry out the same work as the plaintiff now does at home, earn $900 per month working a full 8 hour day.

15. I appreciate that with her injuries and working at home she would earn less than $900. I am satisfied, however, that the plaintiff is able to earn at least twice as much as she is earning at present. In the result I find that she has suffered a monthly loss of $500. The plaintiff is now aged 38 years of age and otherwise in good health. After considering the authorities cited in argument I select 13 as the appropriate multiplier. On this basis I fix damages for loss of future earnings at $78,000 ($500 X 12 X 13).

16. As to special damages the following sums, using the same paragraph numbers as were used in the statement of claim, were agreed:

As to the disputed items:-

17. Paragraphs (14) and (15) related to loss of earnings claimed at the rate of $900 per month. I am satisfied that the plaintiff was entitled to this rate for the period from the date of the accident until she was able to resume work. There was some argument as to when she could have recommenced work. The medical estimates ranged from 12 to 18 months after her release from hospital where she stayed for 3 months. I am prepared to award damages for loss of earnings at $900 per month for the 3 months spent in hospital and for 18 months from the date of her release from hospital. The plaintiff is also entitled to loss of earnings at $500 from the expiration of that total period of 21 months down to the date of this assessment which comprises a further period of 3 years 2 months. I calculate such past loss of earnings at $37,900 made up as follows:-

18. In the result the total damages assessed are:-

19. General Damages:

20. Special Damages:

21. There will be interest at 10% on the general damages from the 11th day of October, 1978 until today and interest at 5% on the special damages from the 3rd day of November 1975 until today. The total damages shall be paid into Court within 14 days. On payment in there will be payment out to the plaintiff. The plaintiff is entitled to her costs of this action including this assessment to be taxed if not agreed. There shall be a certificate for counsel.

Dated this 3rd day of October 1980.

Representation: