The Blue Taxicars Ltd and Another v. Wong Sung Yam and Another
Read the full judgment text of HCA 3599/1979 on BabelCite. This High Court CFI judgment.
1. On the 20th May 1978 the 2nd Plaintiff who was then and still is a taxi driver was injured in a traffic accident when another vehicle drove into the back of the taxi which the 2nd Plaintiff was driving at the material time.
|
HCA003599/1979
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Blackwell in Chambers. Date of Judgment: 12th March, 1981. ----------------- DECISION ----------------- 1. On the 20th May 1978 the 2nd Plaintiff who was then and still is a taxi driver was injured in a traffic accident when another vehicle drove into the back of the taxi which the 2nd Plaintiff was driving at the material time. 2. The 2nd Plaintiff says and I accept that he was taken to Queen Elizabeth Hospital's Casualty Department where he was treated and discharged but on the 29th May 1978 he was admitted to that hospital and was detained until the 31st May, 1978. 3. I find that he sustained what is known as a whiplash injury. From the end of May 1978 he attended hospital complaining of headaches and dizziness. Shortly after the accident he had transient impairment of motor and sensory functions from which he subsequently recovered in August 1978. 4. He continues to complain of headaches and dizziness up to the present time and he alleges that these afflictions affect his work as a taxi driver. 5. The Court had the benefit of hearing the evidence of Dr. Chow, of Q.E. Hospital and of Dr. Edmund Cheung for the 2nd Plaintiff. 6. Dr. Chow told the Court that the 2nd Plaintiff has improved since the accident and that he still requires medication for relief of his headaches and dizziness. He related how on examination he could find no positive neurological sings to account for the symptoms of which the 2nd Plaintiff complained but that headaches and dizziness were suggestive of an injury to the head. Dr. Chow was of the opinion that the 2nd Plaintiff was fit to return to work shortly after leaving hospital at the end of May 1978 - a view subscribed to also by Dr. Shroff who gave evidence in behalf of the Defendants. 7. Dr. Edmund Cheung explained to the Court that a whiplash injury was a type of injury caused when the neck is pushed backwards and then forwards or vice versa resulting in some excessive stretching of the nerves of the neck and the spinal cord so that the patient has symptoms of giddiness and pain in the neck. He was of the opinion that, as a result of the accident, the 2nd Plaintiff had suffered and was still suffering from headaches and dizziness and that the 2nd Plaintiff's capacity to work was reduced by 20%. Notwithstanding this assessment he agreed that the injury to the 2nd Plaintiff's head was a mild one and that there was nothing external and no test which could be carried out could establish whether the 2nd Plaintiff did in fact still suffer from the headaches and dizziness of which complaint was made. In cross-examination he said that his assessment of 20% disability was an arbitary assessment and added that he did not think the 2nd Plaintiff would be able to work as efficiently as before as a taxi-driver. He was also of the opinion that these might be an element of compensation neurosis which would improve after the conclusion of the proceedings. 8. Evidence was also given as to the 2nd Plaintiff's earnings prior to and after the accident. 9. Dr. Fali Shroff told the Court how he had examined the 2nd Plaintiff on the 10th December 1979 and that he was of the opinion that the Plaintiff was not suffering from any post concussional syndrome as such a syndrome can only result from concussion and he based his belief that the 2nd Plaintiff had not been concussed on the fact that had he been suffering from concussion immediately after the accident he would not have been treated and discharged the same day at Q.E. Hospital because from his knowledge and experience the practice at that hospital is not to discharge any person suffering from loss of consciousness resulting from an impact to the head. 10. Dr. Shroff was of the opinion that the 2nd Plaintiff suffered no significant head injury but that he might have sustained a whiplash injury and that the 2nd Plaintiff could have taken up employment long before the 10th December 1979 - in fact he could have returned to work about 2 months after the accident. He confirmed that there was compensation neurosis present which would abate after an award of compensation was made. 11. Dr. Shroff stressed the significance of the absence of any external signs on the head to support the allegation of concussion and assumed the injury sustained was of a very minor nature. He added that he was sure there was no post concussional syndrome and he thought the symptoms complained of were "put on" by the 2nd Plaintiff and that even if the 2nd Plaintiff really did suffer from headaches and dizziness they may not necessarily be resulting from a head injury. The Plaintiff gave evidence that he had driven taxis since 1971 and that he lost consciousness immediately following the accident and after his discharge from hospital on the 31st May 1978 he had gone back there at weekly and subsequently monthly intervals and been supplied with sick leave certificates but eventually sought no more such certificates because he felt better and because of the need to support his family he returned to work but, because of bouts of dizziness and headaches he did not work as hard or as long as he had before the accident and that he had suffered a loss of earnings as a result. He said that his right arm and leg often tremble and he feels dizzy and that when this occurs he parks his taxi and takes medication in the form of pills. He stressed that prior to the accident he was in good health. The Plaintiff said that in February 1979 he had worked for one day in a store but that he left that job as the pay was only $800 a month and the working hours were long but that he returned to work as a taxi driver at the time of Lunar New Year 1979. 12. He admitted that he had signed a declaration for a renewal of his Driving Licence to the effect that he suffered from no disability which might cause his driving to be a source of danger to the public, although one would have thought dizziness in a taxi driver could well be such a source of danger. Pain and suffering and loss of amenities 13. The injuries sustained by the 2nd Plaintiff were of a very mild nature and I am by no means satisfied that the headaches and dizziness he complains of now result from any concussion or any head injury resulting from this accident. I accept that he was unable to follow his employment for a period of two months and I also accept that he experienced some headaches and dizziness but I find that there is a strong element of compensation neurosis which will probably disappear on the conclusion of these proceedings. 14. Under this head I award the sum of $7,500. 15. In view of the findings I have made I make no award for lose of future earnings. Special Damages
16. I make no award for nourishing food as no evidence was advanced to support this claim but I am satisfied that from the general toner of the 2nd Plaintiff's case that he did incur the medical expenses set out in the Statement of Claim. 17. There will be interest at 12½% per annum on the sum of $7,500 up to the 9th October 1980 on which I am now informed a payment of $21,000 was made into Court, and interest at 5% per annum on the said sum of $5,529 from the date of the accident until the said payment made into Court. 18. I will now hear Counsel on the question of costs. 19. Dated this 12th day of March, 1981.
Representation: Miss Yuen instructed by Johnny T.K. Cheng & Tong for Plaintiff. Mr. Faulkner instructed by Deacons for Defendants. |