Lee Sze-kwan v. Ip Bik-yuen and Another

HCA003334/1973

IN THE SUPREME COURT OF HONG KONG

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ORICINAL JURISDICTION

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Coram: Mr. Registrar Barnes, in Chambers.

Date of Judgment: 14.August.1974.

Mr. T.L. von Pokorny, Deputy Director of Legal Aid for the Plaintiff.

No appearance by or on behalf of the 1st and 2nd Defendants.

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Assessment of damages

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DECISION:

1. On 9th February, 1972 the Plaintiff, a married man aged 40, was struck and knocked down by a motor vehicle owned by the first Defendant and being driven by the second Defendant as servant or agent of the first Defendant. The accident was caused by the negligence and breach of statutory duty of the second Defendant.

2. The Plaintiff was admitted to Queen Elizabeth Hospital after the accident. He was found to be unconscious. He had a one inch long laceration over the right forehead and small abrasions over the right elbow and left chin. His right big toe was crushed. His right leg was swollen and painful. X-ray revealed fracture of the right tibia and fibula. He was treated with dressings to the wounds and his right leg was placed in a plaster cast extending from mid-thigh downwards. On 11th February, 1972 he was transferred to Lai Chi Kok Hospital for convalescence. He was discharged from there on 2nd March, 1972. He wore the plaster cast for a further 3 ½ months. After it was removed he could move about only with the aid of crutches for a further two months and after that with the aid of a walking stick until the beginning of October, 1972.

3. He was examined by Dr. Wedderburn on 1st August, 1973. Dr. Wedderburn found a ¾" shortening of the right lower leg with a visible and palpable swelling of the calf at mid-level which made that leg at that level one inch greater in circumference than the left. The left ankle joint showed some loss of flexion and extension. He complained of occasional aching and numbness when the weather changed but Dr. Wedderburn's opinion was that this arthritic type pain would ease with the passage of time and might eventually disappear.

4. He saw the Plaintiff again whilst waiting to give evidence. As a result he was able to say that the Plaintiff was then fit and well and that he would have been so from about 1st July, 1974. His only permanent in jury was the shortness of his leg which gave rise to a slight limp. The Plaintiff had recovered from his other injuries and, apart from the slight slimp, moved about freely and well. From his experience as a surgeon dealing with the types of injury sustained by the Plaintiff he was able to say that the Plaintiff would have suffered quite a lot of pain for about 10 days and "some pain and discomfort" until the plaster cast was taken off.

5. Before his accident the Plaintiff was a truck driver earning $900 to $1,000 per month. In December, 1972 he took casual work as a taxi driver earning $500 to $600 per month until June, 1973 when he took a permanent job as a taxi driver for his present employer earning about $800 per month. The Plaintiff said that he had not gone back to truck driving because his disability made him fearful of climbing into high truck cabins. The employer for whom he worked at the time of the accident is no longer in business but it is a fair inference that the Plaintiff could readily have found work as a truck driver with another employer had he not had the accident. Dr. Wedderburn thought that the Plaintiff's fear was a reasonable one but that he should have conquered it by 1st July, 1974. The Plaintiff admitted in evidence that he had in fact made no attempt at driving a truck. On the evidence therefore I do not think that the Plaintiff is entitled to damages for loss of earnings beyond 1st July, 1974. I assess his loss of earnings up to that date at $14,150.

6. The Plaintiff has abandoned his claim for special damages in respect of "nourishing food" but he has claimed $400 in taxi fares. Part of this is money spent by him in going to and from hospital as an out-patient after his discharge. As he was during that time able to get about only with the aid of crutches he could not reasonably be expected to use public transport. The cost of his fares for this purpose was $80. But he is also claiming taxi fares paid by his wife when she visited him in hospital but he gave no explanation as to why it was necessary for her to use taxis rather than public transport. Since the latter form of transport was convenient, comfortable and cheap I cannot find, without explanation from the Plaintiff for its need, that it was necessary for his wife to use a taxi on every occasion that she visited him in hospital. I can appreciate that she may well have needed to use a taxi on the occasion of her first visit for that would have been an emergency situation; and that she may have needed one again on her last visit prior to his discharge in order to bring him his "going home" clothes. Apart from that the Plaintiff's claim under this head, in respect of the cost of his wife's visits to hospital, must be limited to public transport fares. I assess the expense to which he was put by virtue of his wife's visits at $60, making the total payable, under the heading of "Fares", $140.

7. The Plaintiff established his claim to the other items of special damage amounting to $112 so that the total award for special damages will be $14,402.

8. For pain and suffering and loss of amenities I award the Plaintiff $15,000 general damages.

9. I award the Plaintiff $1,112 interest on special damages and $82 interest on general damages.

10. Summarized, my assessment of the Plaintiff's entitlement is as follows:-

11. There will be judgment against both defendants for that sum with costs to the Plaintiff.

Representation:

Mr. T.L. von Pokorny, Deputy Director of Legal Aid for the Plaintiff.

No appearance by or on behalf of the 1st and 2nd Defendants.