Chan Wing Kin and Another v. Fonnie Co Ltd and Another

HCA007075/1982

Traffic Accident - Claim for Damages for personal injuries - whether contributorily negligent if seat belt not worn during pregnancy

IN THE HIGH COURT

BETWEEN

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Coram: Hon. Garcia, J.

Date: 22nd February, 1983

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JUDGMENT

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1. On the 26th May 1981 a collision occurred between two private cars in Castle Peak Road near Hoi Mei Wan, New Territories: one car No.BW7424, driven by the 1st plaintiff?, was travelling in the direction of Kowloon whilst the other, No.BN6597, driven by the 2nd defendant and owned by the 1st defendant, was travelling in the opposite direction. As a result of the collision both the let and the 2nd plaintiffs sustained personal injuries for which they now claim damages in this action.

2. Both the lst and the 2nd defendants admit liability for the accident but claim that because the 2nd plaintiff was not wearing a seat belt during the journey and at the time of the accident, she sustained more serious injuries to her face than would otherwise have been the case and that therefore she is guilty of contributory negligence in relation to such of her injuries which could have been prevented or minimised by the wearing of a seat belt following Froom and Others v. Butcher ⁽¹⁾ and Ho Wing Cheung v. Liu Siu Fun & Another .⁽²⁾

3. The let and the 2nd plaintiffs are husband and wife and on the day of the accident she was employed as a physiotherapist in a hospital. She was five months' pregnant at the time of the accident and the physical injuries she sustained as a result of the accident are summarised in the following extract from a report of her examination by Dr. York Y.N. Chow, a Senior Medical Officer of the Orthopaedic 'B' Unit, Princess Margaret Hospital :

"Examination then showed that she was conscious and five months pregnant. There were two deep and ragged-edged lacerations on her face: a 6 cm one running down across the right side of her face, involving the facial muscles that control her lower eyelid (right) and lip movement; an 8 cm. laceration that runs around her chin/lower lip area with a "trap-door" skin flap, whose would communicate with a 3 cm. laceration of the mucosa of the mouth at the gum/lower lip junction. Her right upper incisor was also broken. Both lacerations were contaminated with multiple glass fragments probably from a shattered windscreen. Her left arm was grossly deformed and X-ray showed a comminuted three fragment fracture of the lower third of humerus."

4. Dr. Chow gave evidence regarding the above-mentioned medical report but he is unable to determine from his examination of the 2nd plaintiff whether the wounds to her face were caused by her face coming into contact with the car's windscreen, which was completely shattered by the impact of the collision, or whether the glass fragments from the shattered windscreen came into contact. with her face. He says it could happen either way. However, he says significantly if the patient's head had come into contact with the windscreen the lacerations would be on top of the head and that glass fragments in the wound contra-indicates the face hitting against a blunt object, such as a dashboard. He agrees that the 2nd plaintiff had hit her chin against the dashboard because one of her teeth was broken. The 2nd plaintiff submits that she was not negligent at all in not wearing a seat belt at the time of the accident because she was then five months' pregnant and that the wearing of a seat belt would have exerted pressure on her abdomen if she did so. She says that she had been is Canada before and that she was required to wear a seat belt when travelling in a car but in Canada pregnant women were exempted from this requirement. The 1st plaintiff states that it was the 2nd plaintiff's practice to put her hand against the dashboard when sitting in the car and the fact that she had done so on this occasion is borne out by her having suffered severe injuries to her left arm as a result of the collision.

5. It has been submitted on her behalf that her not wearing a seat belt was not unreasonable and Counsel referred to the following passage of 'the judgment of Lord Denning M.R. in Froom's case ⁽¹⁾ in support of this view:

"Thus far I have spoken only of the ordinary run of cases. There are, of course, exceptions. A man who is unduly fat or a woman who is pregnant may rightly be excused because, if there is an 'accident, the strap across the abdomen may do more harm than good.

Whilst there is no medical evidence to indicate what injuries, if any, could or could not have been attributable to the non-wearing of a seat belt by a woman five months' pregnant at the time of the accident, nevertheless, the non-wearing of a seat belt by the 2nd plaintiff is not unreasonable in the circumstances nor is it imprudent since the possibility of injury to her unborn child would have been greater if she had worn a seat belt. The question was canvassed in the cross-examination of the 2nd plaintiff as to whether it would have been more prudent that a woman in her condition should have sat in the rear seat of the car in order to prevent injuries to her face. Her answer was that she always sat in the front seat with her husband when she travelled in his car. If it is neither unreasonable nor imprudent for her to have sat in the front seat without wearing a seat belt, could she be guilty of contributory negligence if she did not sit in the rear seat? I think it would be unreasonable to require a wife to take the rear seat of a ear under these circumstances when she is travelling in the same car as her husband, and pregnant, unless there is a specific requirement either in the relevant insurance policy or in law to the effect that if a passenger was either fat or pregnant, she should be relegated to the rear seat. Neither do I think it imprudent where a passenger is excused from wearing a seat belt that it is incumbent upon that passenger to take other steps to reduce or extinguish contributory liability in the event of an accident. What should a passenger do, for instance, where the vehicle is a two-seater car? Whilst it is obvious that a normal person would have both head and face injuries minimised or avoided altogether by wearing a seat belt the condition of the 2nd plaintiff is not a normal one and is one which is envisaged in the passage cited from Froom's case⁽¹⁾, with which contents I fully and respectfully agree. In the result the non-wearing of a seat belt by the 2nd plaintiff does not render her guilty of any contributory negligence. Dealing then with the claim for general damages by the 2nd plaintiff she states that she was mainly concerned with the condition of her unborn child as the doctor was unable to say what the outcome would be, that is, whether the child would be born normal after the accident. Her anxiety over this matter can well be imagined, and it is not unreasonable to expect that some stress would be present until she was delivered of her child. In the event she gave birth to a normal child on the 29th September 1981. However, she continued to harbour some anxiety and embarrassment over, firstly, two prominent scars on her face, one measuring 5 cm. down her right cheek and the other measuring 7 cm. elevated across her chin, and secondly, a surgical scar measuring about 13 cm. on the back of her left arm. With regard to her arm the doctor states that she has 1% disability of the arm itself. She became unconscious shortly after the accident and does not know what happened at the time of the impact but at Princess Margaret Hospital where she was brought to after the accident an emergency operation was performed on her. Her facial wounds were debrided and sutured whilst the fractured humerus was reduced surgically and internally fixed with lag screws and an AO plate. She remained in the hospital for a period of  26 days but was re-admitted for one day on the 12th November 1981 when Z-plasty revision of her facial scars was done, that is, an operation for mobilizing the skin round the scar and re-suturing in a less conspicuous manner so that the scar could blend with the surrounding skin and allow movement of the facial muscles.

6. The 2nd plaintiff was re-examined on the 27th April 1982 by Dr. Chow and his report is as follows:

"There are now 2 significant scars on her face - a 5 cm. one down her right cheek and a 7 cm. one across her chin. The latter is slightly elevated because of the "trap door" nature of the wound. Although she can talk and eat normally, her lip movement is much more clumpsy and stiff than normal due to the tension of the scars. Her left humerus enjoyed a full range of movement and only showed mild loss of strengths of the elbow. There is an obvious linear surgical scar on the back of her arm, measuring about 13 cm. X-ray showed that her fracture has united.

She has resumed her work as a physiotherapist since 1.1.82 and did not find any difficulty at all. The implant of her humerus might need remvoal in subsequent years and that means another anaesthesia and surgery. At present she has 1% permanent disability regarding her arm alone and this would not change much with time. Her facial scars are very obvious now and they should improve slightly with age. Cosmetic surgery such as dermabrasion might help to make the scars less obvious but cannot eradicate their presence. These scars definitely have psychological effects on her and affect her social and occupational life."

As to how far these scars have affected her both psychologically and physically, she says that when she sees her patients she tries to cover up the scars on the face with adhesive tape and she finds it difficult to give instructions to her patients especially in relation to breathing exercises when her own facial muscles make involuntary movements which affect her mouth. Her social life has been much curtailed by her injuries and because of the unsightly scar on the back of her arm she has to wear long sleeved dresses even in the heat of summer.

7. During the whole of her attendance in Court on the day of the trial she continuously placed her hand over the right side of her face in an attempt to conceal her facial scars and she appeared very embarrassed and nervous when giving evidence. She gave her evidence honestly and without embellishment and I have no doubt that she was telling the truth about her distress and anxiety over the scars which the accident caused her. She says that she has consulted a Dr. Leung Kwok On about a further operation to eradicate the facial scars and was informed that the cost would be in the region of $20,000. Dr. Chow was asked about the sum quoted and the type of operation which would be required but he was unable to say whether the sum mentioned was reasonable or not as the operation would be performed by a private practitioner.  He was also asked whether the operation could be done in a Government hospital and his reply was it was not the practice for Government-surgeons to engage in cosmetic operations since these would constitute an unfair burden on taxpayers.

8. Several cases have been cited by Counsel as being relevant to the award of general damages in circumstances similar to those in this case. But of those cases two merit further consideration, the first Heidi Lee Yin Fong and Polly Fung Kwan Sik v. Tsang Kwong Hoi (No.2).⁽³⁾ In this case the 2nd plaintiff, a single woman aged 23 was injured in a traffic accident. She sustained twelve cut wounds to her face, forehead and left eyelid, bruises and abrasions to the right elbow, both knees and right shin, swelling and tenderness in the upper part of the left leg and fracture of the fibula in the left leg. The wounds to her face were stitched but laceration to the left eye caused an inner half of the lower lip to turn inwards and the other half was inverted. In September 1974 an operation was performed to re-position the inner half of the eyelid and a further operation was carried out in March 1977 to improve the plaintiff's cosmetic appearance. The asymmetry between the right and left eyelids remained. Conspicuous facial and other scarring would be permanent. No permanent disability resulted from the fracture to the leg and there was no impairment of vision. An award of $40,000 was made.

9. The second case is that of Chu Yuen Ling v. Kwok Chuen.⁽⁴⁾ In November 1974 the plaintiff, a woman, aged 18 was injured in a traffic accident and suffered multiple lacerations to her face. These wounds were sutured in hospital and she was discharged four days later. Three months later she had surgery to her left upper eyelid. In 1976 she underwent plastic surgery to her left facial scars. The plaintiff was left with multiple, conspicuous and unsightly scars mainly on the left side of her face with asymmetry of the eyelids. She could not close her left eyelid properly and it was, therefore more susceptible to infection. Medical opinion was that future plastic surgery would improve her condition. In the event, the sum of $15,000 was awarded under the item of pain and suffering and loss of amenities. In the latter case cited the plaintiff was a married woman whereas in first the woman was single. Neverthless, it is significant that in both the cases cited it has been said that the plaintiffs suffered. considerable embarrassment and distress because of the, facial scars and these matters were considered when awarding those damages. It is obvious in the present case that the injuries which the 2nd plaintiff sustained as a result of the accident had left her not only physical, but psychological scars as well and that she has consequently undergone much anxiety, distress and embarrassment. She is not an unattractive woman and I think she is extremely conscious of the disfigurement brought about by the scars to her face and she tries consciously or unconsciously to hide them. In the course of her employment she has to face members of the public with this disfigurement, and moreover she has still to undergo further operations to correct her facial scars, and to remove the pin and the plate from her arm. These operations will no doubt cause her further pain and suffering and taking these factors into consideration and the assistance which I have derived from the cases which I have quoted I would make a global award of $40,000 in respect of general damages for pain and suffering and loss of amenities. In doing so I have also taken into account a reduction in the purchasing power of the Hong Kong Dollar since the above-mentioned cases had been decided.

10. So far as the claim for special damages are concerned it is not unreasonable for the parents to visit her every day while she was in hospital and the fares incurred are not, in my view, excessive. However, I have calculated from Dr. Chow's report that the 2nd plaintiff remained in hospital for a period of only 26 days and accordingly I award the sum of $780 in respect of her claim for taxi fares in item 2 in lieu of $810. The item for hospital charges has been agreed by the defendants and in any event this amount is, I consider, extremely reasonable.

11. Counsel for the defendants have not disputed the figure of $20,000 for future cosmetic surgery as being unreasonable or unduly high and accepting her evidence that she had consulted Dr. Leung about this and the cost estimated by him to be in the region of $20,000, I award this sum in respect of item 4 of special damages. No damages are awarded for loss of earnings because no claim has been made under this head. The personal damages will carry interest from the date of the writ until judgment at 10% per annum. The special damages except for the sum of $20,000, will carry interest of the rate of 5% per annum from the date of the accident until judgment.

12. The lst plaintiff also sustained injury as a result of the accident. He suffered a short comminuted fracture of the middle third of shaft of his right femur and laceration of his right leg. The fracture was reduced and internal fixation by AO intramedullary nail was done on 28th May 1981. The lst plaintiff was discharged from hospital on 20th June 1981.

13. Dr. Chow, who also examined the 1st plaintiff, reported that the latter attended physiotherapy consistently for four months after discharge and part of his report on an examination of the 1st plaintiff on the 27th April 1982 reads as follows:

"He now walks normally with full range of movement of his knee and hip. There is 2 cm. shortening of his right femur and muscle power of his right thigh is just below normal. He can manage well with his office work but he had given up sports which was his hobby before the accident. X-ray shows that his fracture has united.

14. The 1st plaintiff is 32 years of age and is a manufacturing manager of Outboard Marine (Asia) Ltd., and during his stay in hospital he says that he has had to use a four-legged support in order to walk about. Following his discharge from hospital he had first to use two sticks for about two months as a support and on the third month he had to use one stick. He resumed work three months after his discharge from hospital and among his duties is one which includes the daily inspection of the factory premises where he worked. He says that the injuries which he sustained affected his mobility and that he has to curtail much of the inspection because he could not stand for more than twenty minutes at a time having to sit down after that period. He also says that the injury to his leg has limited his social life and also stopped him from playing tennis, and swimming, which are his two principal hobbies. He tires easily and has some pain after short walks. In his case he has also given his evidence honestly, and I accept what he says regarding the disability which he suffers and has suffered as a result of the accident.

15. I have also considered the cases which had been cited by Counsel but of these cases the case of Jenny Riddell v. Lui Kwong Hong & Another ⁽⁵⁾ is of much assistance because the injuries suffered by the plaintiff in that case are almost similar. In that case the plaintiff, a married woman aged about 40 was knocked down in a 'motor accident in July 1972. She suffered a comminuted sub-trochanteric fracture of her right femur, swelling of her right upper thigh and severe bruises. An operation to insert a pin and plate was carried out and physiotheraphy treatment was required. About a year later a further operation was required to conduct the bone graft and insert another pin and plate and further physiotherapy treatment followed. The plaintiff had to use crutches and later sticks after each operation. Her right leg was 3/4 inch shorter than her left and flexion of both her right hip and her right knee was limited. Her residual disability was fixed at 35% and an award for pain and suffering was fixed at $10,000 and for loss of amenities she received $15,000. I think the reason why she received the sum of $15,000 for loss of amenities was because she needed domestic help at home and also because residual disability was fixed at 35%.

16. The other case which is of  assistance is Lam Shu Chee v. Ip Koon Hung.⁽⁶⁾ In that case no award or damages was made because it was held that the plaintiff was completely to blame for his own injuries. But the question of damages was discussed and the plaintiff who was aged 42, sustained some fractures involving his right shoulder and his right leg together with abrasions on his face. He wore a cast for about six weeks. His shoulder healed with a slight restriction on the internal turning of the arm but his leg healed only with shortening and displacement. The plaintiff had a limp when striding out or on prolonged walking and was unable to squat. He was awarded the sum of $10,000 for pain and suffering and loss of amenities. This case was decided in 1974.

17. Another case which is of considerable assistance is Lui Chi Kit v. Yeung Kui and Another ⁽⁷⁾ which was decided in 1975. The plaintiff was injured in a traffic accident in May 1973. He suffered fracture of the shaft of the right femur., swelling, pain and deformity over the right thigh and 2" laceration of the forehead and the loss of a front tooth. He made a good recovery although manual labour would be difficult. His right leg was shorter by a three-quarters of an inch but there was no muscle wastage. He regained normal movement to the hip, knee and ankle joint and by wearing a raised heel had no apparent limp. The likelihood of osteo-arthritis was slight and the scar of the healed laceration was not noticeable. The plaintiff was in skeletal traction for the unusually long period of 17 weeks, was hospitalised for about 8 months and was an out-patient after discharge. There was considerable pain and suffering. Special damages included an award of  $27,366 for loss of earnings. General damages awarded in respect of pain and suffering in that case was assessed at $30,000,

18. In the present case the prognosis as regards a further improvement in the condition of the 1st plaintiff is very good as indicated in the medical report. Dr. Chow states in his evidence there would be no difficulty in the 1st plaintiff resuming playing tennis and swimming if he wished to. But taking all these matters into account and the awards which I have referred to and these were decided a few years ago, I would assess the damages for pain and suffering and loss of amenities in respect of the 1st plaintiff in the sum of $25,000. This sum takes into account the reduction in the purchasing power of the Hong Kong Dollar since those cases had been decided. It has been admitted by the defendants that the first and second items of the special damages are reasonable and I therefore award the sums of $135 for hospital charges and $90 for out-patient treatment. So far as the taxi charge for the out-patient treatment in item 3 is concerned the charge for the round trip as given in evidence by the let plaintiff was $30 and there would be only 30 trips so that the sum to be awarded under item 3 is $900, and not $1,500 as claimed. The taxi charge for going to and returning from work between 25th August 1981 and 30th September 1981 is, I consider reasonable, having regard to the circumstances and I would therefore award a sum of $1,250 in respect of that item. Again it is not unreasonable for the 1st plaintiff's parents to visit him in hospital every day during which he was confined there and the amount which I would award is $30 x 26, that is $780 and not $810 as claimed in the writ. The sum awarded in respect of special damages totals $3,155. Interest will be paid at the rate of 10% per annum on the award of $25,000 from the date of the writ until judgment. In respect of the special damages awarded the sum of $3,155 will carry interest at the rate of 5% per annum from the date of the accident until judgment and there will be costs to be paid by the defendants to the two plaintiffs to be taxed. In respect of the amount claimed under item 3, that is, the sum of $900 for taxi fares for out-patient treatment, I understand that the sum was incurred as a result of the lst plaintiff and the 2nd plaintiff having to move from their own premises to the lst plaintiff's parents' premises. It is common knowledge that very few families in Hong Kong employ servants today and that it would be quite difficult, in fact, for the two plaintiffs who had both been injured in the accident to have been able to look after themselves during the period when they had still to attend out-patient treatment. I think therefore that it was not unreasonable that they had moved in with the lst plaintiff's parents in order to obtain some assistance from his parents in the manifold duties connected with a household. No claim has been made for services of this kind given by the lst plaintiff's parents and I am of the view that the taxi charge for out-patient treatment is very reasonable in the circumstances.

(1) (1976) Q.B.D. 286

(2) (1980) H.K.L.R. 300.

(1) (1976) Q.B.D. 286

(1) (1976) Q.B.D. 286

(3) High Court Action No.1621 of 1975

(4) High Court Action No.1594 of 1977

(5) Original Jurisdiction Action No.2406 of 1972

(6) Original Jurisdiction Action No.2588 of 1973

(7) Original Jurisdiction Action No.357 of 1975

Representation:

Mr. V. Ko (Yeung & Ko) for Plaintiffs

Mr. Chan (Yung Yu, Yuen & Co.) for Defendants.