Yu Kwong Hay v. Shum Chung Pang and Another
Read the full judgment text of HCA 10576/1982 on BabelCite. This High Court CFI judgment was delivered on 19 July 1983.
1. Judgment in respect of an assessment of damages heard on the 19.7.83.
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HCA010576/1982
IN THE SUPREME COURT OF HONG KONG HIGH COURT ___________ BETWEEN
_________ Coram: Master P. Emerson in Chambers Date: 19 July 1983 Appearances: Mr Davies for Director of Legal Aid. Both Defendants present. ------------------------ JUDGMENT ------------------------ 1. Judgment in respect of an assessment of damages heard on the 19.7.83. 2. The Plaintiff is a salesman of 44 and on the 25.7.81 his left leg was broken in an accident involving a public light bus on which he travelled as a passenger. The defendants are the driver and owner of the PLB respectively. (In fact husband and wife). They were insured for passenger liability but their insurers "Scotland Insurance" are understood to be in process of going into liquidation - there is no dispute on liability which is admitted by both defendants. 3. The report of Dr David Lee is before the Court. This reveals that the Plaintiff suffered a fracture of the left tibia and fibula. A long plaster cast was applied to the leg, it was taken off 12 weeks later. Subsequent physiotherapy lasted 3 months. The Plaintiff gave evidence that he was an in-patient for 7 days at the outset following the accident and received treatment until May 1982. Sickness Certificates produced only go to the 8th April 1982, when the Plaintiff was declared fit for work. 4. The Plaintiff is left with shortening by 1 cm in the length of the left leg. The fracture was well united - Dr Lee reports that a l cm discrepancy in leg length is quite common for normal individuals. Dr Lee thought there would be no loss of earning capacity ever for a door to door salesman and an ability to continue to handle his work without difficulty. 5. In these circumstances therefore I cannot allow a claim for future loss of earnings. This is despite the Plaintiff's claim in evidence that he is suffering a loss of earnings of $300 per month, backed by a letter in Chinese produced here today to this effect from the Plaintiff's present employers. There may be a reduction in earnings but this is due to the recession. The Plaintiff admitted as much in evidence. 6. I have been referred to one case on general damage by the Director of Legal Aid i.e. Yu Ki v Chan Kit Lam 1981 HKLR 419 which awards a figure of $10,000 for a child of 8 with a similar injury for general damages. I have referred to Kemp & Kemp at pages 10716 and 10752 - Blackman v Hefferman - 10716, Gilmore v Zoological Exhibitions 10752 - where awards of £3,500 and £3,000 are given for leg injuries of this type. I have also referred to Martin & Rhodes at pages 290/298 and 304, 310. Lee Sze Kwan v Ip Bik Yuen page 290, Lau Kam Tui v Nancy Fok Po Har 298, Pang Yau v Cheung Kwok Hing 304, Kwok Mei Tai v Tang P. 310 where awards of $15,000 - $10,000 - $20,000 and $15,000 are given for injuries similar to those in this case. 7. I award $17,500 for general damages. Going to special damages 8. The period in respect of which the Plaintiff was not paid covers 25.7.81 to 8.4.82 some 8½ months. His wages would average out over this period at HK$2,800 per month. I award a total of $23,700. 9. There is no dispute over various minor items, medical expenses $28, $30 and $105 and taxis for $40 and $560. I disallow the claim for 'Bonesetters' - there is authority to allow this item - but this was a potts fracture united under a plaster cast - involving lengthy psysiotherapy - it is totally unclear what the bonesetter did for $2,000 and there is no narrative in his account, which is expressed to be "approximate". 10. Again as to nourishing food, the Plaintiff says he spent $2,000 but referred to chicken, ginseng and Pak Tea - I am aware of the authorities permitting an award under this item and I award $1,000 on the basis the items are somewhat exaggerated. Turning to the question of interest on the general dames 11. Lord Denning laid down guidelines in Jefford and Gee 1970 2 QB.
12. Subsequently in Birkett v Hayes 1982 1 WLR @ 816 Lord Denning held applying Gefford v Gee
13. This month in the House of Lords in Wright v British Railways Board 29.6.83 Birkett v Hayes was approved - interest on general damages is to be 2% p.a. from date of service of the writ to judgment. What is the position in Hong Kong?
14. It is clear that the High Court in Hong Kong must on the decision in Wright v British Railways Board reconsider its position and follow Birkett. 15. Consequently I order 2% interest on general damages herein from the date of issue of the writ to assessment and 5.5% interest on special damages. 16. Plaintiffs costs to be taxed on party and party basis if not agreed. 17. Legal Aid taxation - of Plaintiffs costs.
Representation: Mr Davies for Director of Legal Aid. Both Defendants present. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||