Yim Kam Chung v. Chan Shu Man and Another

HCA003222/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 3222 OF 1972

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Coram: The Honourable Mr. Justice Cons.

Date of Judgment: 13th December, 1973.

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JUDGMENT

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1. This action arises from an accident that occurred in Argyle Street, Kowloon at about 9.30 on a December evening nearly three years ago. At that point Argyle Street has two carriage-ways divided by a railing. The carriage-way along which the plaintiff was riding his motor scooter was further divided by white lines into three lanes. The plaintiff was in the middle lane. He passed over a crossroads made where Portland Street crosses Argyle Street and was immediately struck on the right-hand side by a taxi driven by the 1st Defendant. The taxi had come from the opposite direction along Argyle Street and had made a U-turn through the break in the central railing at the crossroads. It was urged on behalf of the defence that there was no direct evidence that it was the taxi that struck the plaintiff and caused the damage. That is so. The plaintiff was the only witness called as to the facts and he could not say what actually struck him. All that he knew was that he had just passed the front of the vehicle that had turned as I have described. But there is an admission on the pleadings that the taxi collided with the plaintiff and with no evidence to the contrary I am quite satisfied that it was only the taxi that struck the scooter. The photographs showed that the particular crossroads are a wide open area with no restriction to visibility. I cannot conceive how the taxi driver could have struck the scooter if he had maintained a proper lookout and acted accordingly. I am satisfied he was negligent. The taxi was owned by the 2nd Defendant. There is no express admission that the driver was acting at the time as his servant or agent but in the absence of further information I am entitled to draw that inference and I do. The 2nd Defendant is equally liable with the first.

2. A plea of contributory negligence was made in the defence citing various matters as particulars of that negligence. I find none of them made out. Two were particularly stressed by counsel for the defence. First he drew a picture of an unskilled learned driver wobbling ancertainly down the middle of the road. It is true that the plaintiff possessed only a provisional licence but he had owned and driven the scooter for well over one year. There is no evidence that he was unskilled in its control or that if he were his incompetence was in any way a cause of the accident. Secondly counsel relied upon his being in the middle lane instead of keeping to the left as enjoined by the Highway Code. The plaintiff had that carriageway to himself and the law provides generally that where there is no other traffic the driver is entitled to use any part of the road that he wishes. Furthermore although his choice of lane placed him in the position in which he came to be struck it was not in itself a cause of the striking. I am satisfied that the accident was brought about in no way by negligence on the part of the plaintiff.

3. He suffered a very severe injury, namely a fracture of the neck of the right femur. His Statement of Claim gives it as the left femur but I think this must be an uncorrected drafting error. There is also a suggestion now of injury to the right arm but this injury did not make its appearance until some 20 months after the accident and then, I understand, not as a real complaint. It has not been pleaded in any way. I am not satisfied that it was caused by the accident.

4. The ambulance called to the scene took the plaintiff immediately to the Kwong Wah Hospital. He was transferred to the Queen Elizabeth Hospital for surgery and then apparently back to the Kwong Wah Hospital. This is where the real difficulty in this case beings. The surgery as such was successful. It consisted of fitting a pin into the broken joint. Dr. Wedderburn, an experienced consultant surgeon, who examined the plaintiff in August last year, demonstrated from X-rays that he then took that the operation had been technically perfect. In these circumstances, and given the correct post-operative treatment, he said, most patients would make an almost complete recovery within a few months. This would include even elderly persons who are the most common sufferers from this type of fracture. The plaintiff was then aged only 33 years. The proper treatment is by way of physiotherapy and exercises under the guidance of a qualified physiotherapist. The question in the present instance is whether the plaintiff was given that treatment. He said that he was not, but that on the contrary he was advised to avoid exercise, which accordingly he did, remaining for some ten months mostly in bed and going out of his house again only after twelve. It that be true it is not surprising that he made only little and slow progress. When Dr. Wedderburn saw him for the first time in August of last year his hip was severely restricted in all movements and he walked with a very pronounced limp.

5. The truth of his evidence is open to doubt. A report by a Dr. Chien, presumably of the Queen Elizabeth hospital and who apparently examined the plaintiff in May of 1971, shows that he found the plaintiff to have at that time a full range of movement in the hip and only a slight limp. That is precisely the condition in which Dr. Wedderburn would have expected the plaintiff following proper treatment. There is also the question of the arm injury to which I have already referred.

6. One thing is clear. The evidence of the plaintiff as to what occurred immediately after his admission to hospital is not to be relied upon. He told me that he remained in the Kwong Wah Hospital for three days before transfer to the Queen Elizabeth for surgery. Exhibit 5, a report from a Dr. Au Yeung shows that he was transferred not later than the day following the accident, perhaps even the very same evening. However, inaccuracy as to matters that occurred while one was probably in a state of shock is not the same as dishonesty over matters which occurred, if they did at all, regularly over a period of months. No one was called from either of the hospitals that dealt with the plaintiff. If he had received physiotherapy from either surely records of that fact would exist somewhere. Nor was Dr. Chien called. I have only seen the written report that he made some 10 days after his examination. The defence suggests that some time following what was then an almost complete recovery the plaintiff received another injury which put his hip into the condition in which it is now, in which case of course the defendants would not be liable. This is a possibility admitted by Dr. Wedderburn. As he said "everything is possible", but the matter was not pursued further. There is no evidence to support the suggestion other than the report that Dr. Chien gave some 10 days after his examination. This question I have not found easy of decision. In particular I have not had the advantage of hearing Dr. Chien as I have the plaintiff. But after lengthy consideration and bearing in mind all the matters I have just mentioned I have come to the conclusion on the balance of probability that the plaintiff did not receive the benefit of physiotherapy following the operation nor was he advised to seek such treatment until the time that he first saw Dr. Wedderburn in August 1972.

7. There was some discrepancy as to the force of the advice given at that interview. But having heard the evidence of the doctor and seen the report that he then wrote, I am satisfied that he urged treatment very strongly upon the plaintiff. The plaintiff should have followed that advice. That he did not do so is attributable, I think, to indolence. His nature is such that he was willing to put up with the passive inconvenience of his damaged hip rather than make the active and sustained efforts that would have been necessary for its remedy, in the same way that he prefers the irresponsibility and easy hours of an odd job electrician rather than to settle down in a steady job. His counsel worked hard to adduce evidence of matters that might properly have affected his decision at that time, for example financial difficulties, but the simple answer is that they did not. If he had made the effort and attended regularly at the Rehabilitation Centre in Kwun Tong, he may have lost a few dollars profit in the first three weeks that he went there - I would put it no higher than that, for he could have done in the afternoons or evenings such repair work as his customers did bring him - but this would have been more than counter-balanced by his increased mobility in the last few weeks. He would eventually, in all probability, have regained a large part of the movement of his hip and thereafter suffered no permanent diminution of his earning capacity. It is upon this basis therefore that I assess the damages to be awarded.

8. The plaintiff's claim for loss of wages is based on earnings before the accident at the rate of $700 per month and after such recovery as there was, at the rate of $170. It is of course difficult for the defendant to disprove this evidence in any way, but in the circumstances the figures appear reasonable and I am willing to accept them. He did not resume work at all for one year, which gives a loss of $8,400. He would have been restricted in his earnings until about the end of October, that is a further 10 months with a loss of $530 each month, which gives another $5,300. I accept his evidence that he was required to pay $12 fees to the Queen Elizabeth Hospital. A claim is also made for $150 being the costs of 10 meals brought into the hospital by his mother and consisting of Pak Kai, which I understand is a Chinese herb, pork and Chinese carp. The law is now that claims of this nature must at least be supported by evidence that the food is of a nature suitable to assist recovery: Wong Yin Wah v. Hung Ping Kwan, Civ. App. 16 of 1973. I have no knowledge whether the items that I have just mentioned fall within this category. There is no evidence to assist me. That claim must accordingly be dismissed.

9. When the hospital had failed to restore his hip to dermal the plaintiff on the advice of his mother sought the assistance of a bone setter. He apparently affected some reduction in the amount of pain the plaintiff was then suffering. For consultation and medicine he says that he paid $300. He has nothing to show for this now and the bone setter has apparently left the district. But in the circumstances both the plaintiff's action and the fees charged are reasonable and should be allowed. I do not think the damage to his clothes was sufficiently proved to merit any award.

10. That makes a total of special damages of $14,012. For pain and suffering and loss of amenities I would award the sum of $8,000 making a grand total of $22,012. The plaintiff is to have his costs against both defendants to be taxed according to the legal aid scheme.

Representation: