Lau Leung v. Chan Chiu Tong and Another

HCA003733/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Barnes in Chambers.

Date of Judgment: 22nd November, 1974.

Mr. Wesley Wong of Counsel (Yu, Tsang and Loong) for Plaintiff.

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Assessment of Damages

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DECISION:

1. The Plaintiff, a married man aged 34, was injured when he was struck by a plank which fell from a load on a goods vehicle in which he was travelling as a passenger on 26th May, 1972. He was admitted to Queen Elizabeth Hospital where he was found to have suffered a ruptured right kidney a lacerated liver, and fractures of the 7th, 8th and 9th ribs of his right chest wall. A laparatomy was done that same day, the lacerations of his liver were repaired and his right kidney was removed. His "post-operative course was smooth" and he was discharged from hospital on 5th June, 1972. After discharge he continued to attend the hospital as an out-patient once a week for about six months.

2. After the Plaintiff's discharge from hospital he was examined twice by Dr. Tsui. On the first occasion on 8th September, 1972 the Plaintiff, although having recovered, was still complaining of pain over the site of his fractured ribs. On the second occasion on 5th July, 1973 he found that the Plaintiff was in good general condition, with no complaints about his ribs and well enough to resume full time work. An intravenous pyelogram showed that his left kidney was functioning normally.

3. In his evidence Dr. Tsui said that the Plaintiff ---

"in his present condition is perfectly alright with one kidney and can lead a normal life but if that kidney is injured or diseased later on his chance of survival would be much less than a patient with two kidneys. Having only one kidney will not affect his ability to lift heavy objects. He has no permanent effect from the lacerations to his liver because it usually regenerates very well. Fractured ribs, if healed well, would not prevent a person from lifting heavy objects."

4. The Plaintiff in evidence said that he was unable to do any work at all for about six months after the accident, but that from the beginning of 1973 he was able to do light work making plastic flowers. At the time of the accident he was employed as a construction worker and plumber earning $60 per day. He was working every day of the month except for two rest days. When he was making plastic flowers he earned $4 per day for 20 days of the month. He claimed that he was unable to perform plumbing work now as the injuries received in the accident left him without his former strength. I, however, accept Dr. Tsui's evidence that the Plaintiff has been fit enough to engage in his former employment from 5th July, 1973 at the latest. There is, therefore, no loss of earning capacity and I assess the Plaintiff's loss of earnings up to 5th July, 1973 as the full extent of his damages under this head. I assess his damages for loss of earnings at $22,300.00.

5. The Plaintiff has claimed special damages for damage to clothing and the cost of nutritious food and travelling expenses. In evidence he said that his loss in respect of clothing was about $90. As it seems to me to be a reasonable claim I allow that item. His claim for nutritious food is, however, unsustainable as it was not taken as the result of any form of medical advice. He did not give specific details of his travelling expenses but as he was travelling to and from Queen Elizabeth Hospital as an out-patient once a week for at least six months and his bus fare was 20 cents each way I think it is reasonable to allow him $10.00 under this item of special damage.

6. Assessing the Plaintiff's general damages is not so easy. Although he was in hospital for only 10 days he must have suffered considerable pain and he had to undergo a fairly serious operation. After his discharge he suffered further pain for a period of at least three months. In addition some account must be taken of the fact that he now has only one kidney even though Dr. Tsui said that "in his present condition he is perfectly alright with one kidney and can lead a normal life". For pain, suffering and loss of amenities I award him compensation in the sum of $9,000.00.

7. I award the Plaintiff interest on the Special Damages amounting to $22,400 at the rate of 4% per annum from 26th May, 1972 to today and on the General Damages that is, on the sum of $9,000 at the rate of 8% per annum from 16th March, 1974 to today.

8. I order the Defendants to pay the Plaintiff's costs, to be tamed under the Legal aid (Scale of Fees) Regulations

9. DATED this 22nd day of November, 1974.

10. Certificate for Counsel.

Representation:

Mr. Wesley Wong of Counsel (Yu, Tsang and Loong) for Plaintiff.