Madam Ra Soon Kyoo v. Yeung Wai Kin

HCA003299/1977

Fatal Accidents Ordinance - claim by and on behalf of dependents - fact of dependency proved but extent of dependency uncertain - award of substantial damages set aside and replaced by judgment based on nominal figure of $50 a month.

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Coram: Mr. Commissioner de Basto, Q.C.

Date of Judgment: 11 December 1979

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JUDGMENT

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1. The plaintiff is a 47 year old Korean widow living in Los Angeles.

2. On the 24th March 1976 while on a visit to Hong Kong, she was involved in a traffic accident with a taxi driven by the defendant.

3. The plaintiff suffered a fractured pelvis and fractured transverse processes of the vertebrae - lumbar 2, 3 and 4. She was admitted to Queen Elizabeth Hospital where she remained six weeks. After her discharge from hospital on the 6th May she stayed for about one week with her sister-in-law in Hong Kong before flying back to America.

4. Although the pelvic fracture had mended well with calcification, when the plaintiff was examined by Dr. Joon Y. Koh in Los Angeles on the 27th May 1976 there was no evidence of healing of the transverse processes. She was advised to remain in bed.

5. Prior to the accident she worked as an accountant clerk with the Biltmore Hotel in Los Angeles earning US$700 - US$750 per month including free lunches. In October 1976 the plaintiff secured another job, also as an accountant clerk and also with a hotel at the same salary as before her accident but without free lunches.

6. Since she re-started work in October 1976 she has had lunch in coffee shops and this cost her, she said, between US$3 - US$3.50 per day. In her new job she asked to work for only four days a week instead of the five day week before the accident. She testified she needed a job in order to live.

7. For eighteen months after the accident she was unable to drive a car. Her doctor recommended a special bed for her which I understood to refer to an orthopaedic bed.

8. The plaintiff testified that whereas before the accident she never took sleeping pills she now has to take sedatives each night as well as analgesics once or twice a day. She said she felt pain every day. She feels pain when she bends too far forward or tries to lift anything heavy. She has her own apartment in Los Angeles and she has had to continue to do the household chores but she "cannot do like before".

9. She said that before the accident she was a member of the Korean Ladies Club and she played tennis and golf every week or fortnight although there were periods when she did not play for a month or two. She also ice-skated and swam but she has had to give up all these sporting activities since the accident. She now spends most of her leisure time watching television, reading and seeing friends. I think that, as a direct result of the accident, she has had to alter her social life style.

10. At the outset of these proceedings counsel informed the Court that the apportionment of liability had been agreed at 87½% and 12½%. Also that special damages relating to medical expenses had been agreed at $5,587.

11. I have read, amongst others, the report by Mr. Wedderburn, F.R.C.S. Mr. Wedderburn states, inter alia:

"The injury which fractures the transverse processes tears muscles and ligaments and causes considerable pain and discomfort which may last for many weeks so that the injury is more serious than might appear from an X-ray".

Mr. Wedderburn assessed her impairment at 4% of the whole man (woman). The plaintiff appears to have made a good recovery. Mr. Wedderburn considers that her bouts of pain or discomfort will tend to decrease and will tend to trouble her only occasionally. Mr. Wedderburn's report is dated the 21st March 1977. The plaintiff gave evidence in the witness box one year and eight months later and I accept that she feels pain somewhat more frequently than could be fairly described as "occasionally".

12. In Eachus v. Leonard⁽¹⁾ Omrod L.J. said that the effect of agreeing medical evidence was to avoid the necessity of calling doctors at the trial and of discussing medical matters which might be controversial. The reports were evidence of the plaintiff's symptoms and conditions at the time they were made, but prognosis in a report either had to be specially agreed as an agreed fact or else it was no more than an intelligent estimate by experienced doctors of a plaintiff's future condition. The prognosis in that case fell into the latter category, and in such circumstances, a judge had to form a conclusion on the basis of all available evidence, including that of the injured plaintiff.

13. I only refer to that case because Mr. Bharwaney had submitted that the prognosis by Mr. Wedderburn (whose report was agreed) was binding on the court in the absence of other medical evidence to the contrary. That is not so.

14. In all the circumstances of this case I award the plaintiff $26,250 (being $30,000 less 12½% contributory negligence) for pain, suffering and loss of amenities.

15. With regard to her loss of future earnings I found the plaintiff's evidence on this aspect too vague to make an award under this heading. Mr. Wedderburn stated that her condition, when examined in March 1977, did not prevent her from working nor did it reduce her earning capacity. Mr. Pirie submitted I should compensate her for her loss of free lunches in the sum of US$56 per month (US$600 per year) with a multiplier of 8 or 9. However, I formed the distinct impression that the plaintiff made little more than a cursory attempt to find a position which, including benefit, paid her at least as much as before the accident. Here is her evidence on this aspect:

On the basis that her present job paid her the same as before the accident but without free lunches I am asked, in effect, to make provision for her lunches for the next decade. I think it would be quite wrong to accede to that proposition.

16. As regards special damages I have already mentioned the agreed medical expenses at $5,587. I assess her loss of earnings from the date of the accident to October 1976 at HK$21,150 (being US$700 p.m. salary plus US$50 p.m. for free lunches for six months with a conversion factor of 4, 7).

17. I do not allow the return air fare to come to Hong Kong in 1977 to give evidence in the criminal proceedings against the defendant or any expenses connected with that visit.

18. However, I allow her travelling expenses to Hong Kong to give evidence in this case ($6,500). I have considered whether the incurring of that expense should be regarded as a disbursement (which would be a matter for the taxing master) or whether it should be regarded as a legitimate expense directly attributable to the accident. I have been unable to find any authority on the point. It could be argued that the plaintiff could have remained in Hong Kong till this case came on for hearing but this argument appears to me to be wholly unrealistic in the circumstances of this case.

19. I also allow $250 as expenses by way of gratuity to the amah and contribution to her sister-in-law for one week after her discharge from hospital. I also allow one week of unpaid leave at US$200 (HK$1,000) to have come to Hong Kong to give evidence in these proceedings.

20. The special damages therefore total $34,487. Allowing for her 12½% contributory negligence this becomes $30,175. There will be judgment for the plaintiff with costs in those sums. I order that interest at 10% be paid on the award for pain and suffering from the date of service of the writ to the date of trial and on the special damages at 5% from the date of the accident.

(1) [1962] 106 S.S. 918 C.C.A.