Ng Kam Chiu v. Lai Yat Hung and Another

HCA007735/1985

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Woolley in Chambers

Date of hearing: 17 March 1986

Date of Judgment: 25 March 1986

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ASSESSMENT OF DAMAGES

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1. This action arises are of a road traffic accident which occurred on 19th October 1983 when the plaintiff Mr. Ng Kam Chiu was riding his motor cycle along Fu Mei Street, Kowloon and was in collision with a private van driven by the 1st defendant and owned by the 2nd defendant.

2. As a result of the collision the plaintiff sustained injuries, and commenced these proceedings on the 18th December 1985. Although both defendants filed an acknowledgement of service stating that they intended to contest the proceedings, no defence was filed and as a result interlocutory judgment was entered against both defendants on 5th March 1986.

3. The plaintiff sought to produce documentary evidence under the provisions of Section 47 of the Evidence Ordinance and Order 38 of the Rules of the Supreme Court, and in this regard had served on the defendants the requisite notice. However, this notice was only filed and served on the 5th March 1986 which meant that the defendants did not have the 21 days within which they were entitled to serve a counter notice. Upon application by the plaintiff, leave was granted to abridge time for service of the Section 47 notice, and to adduce the documents in evidence.

4. The medical evidence in this case was contained entirely in the medical reports submitted under the hearsay notice, and from these it is clear that the principal injury sustained by the plaintiff was a severe comminuted fracture of the head of the left femur. Although an injury to the head was also mentioned in the reports from the hospital doctors this appears to have consisted solely of a laceration which was subsequently not mentioned by the plaintiff when he gave evidence and the resulting one inch scar was described by Dr. Wedderburn in his report as "not conspicuous". I accordingly propose to regard that injury as comparatively minor.

5. As a result of the injury to the head of the femur it was considered necessary to replace the head and neck of the femur in the procedure described as an Austin Moore Arthroplasty and this was done on 25th October 1983.

6. The plaintiff was subsequently transferred from Queen Elizabeth Hospital to Kowloon Hospital for convalescence on 2nd November 1983, being finally discharged on 14th December 1983. He has since been attending an out-patient clinic for follow-up treatment.

7. The reports of the various Government hospital doctors gave as their opinion that the plaintiff would suffer mild impairment of strength of his left leg in the future, and that a further operation might be required. This is confirmed by the report of Dr. R.G.M. Wedderburn dated 8th November 1985, the latest report available, in which he stated that this must have been a very severe fracture, because it was decided to perform the hip replacement operation. It is also apparent from this report that the hospital doctors' opinion that there might be a mild impairment to the left leg was optimistic, and the present situation is that the plaintiff's condition has in fact deteriorated.

8. A year ago the plaintiff could walk for half an hour before feeling any discomfort in the region of his hip, and he could climb stairs and walk up slopes without difficulty unless he had to do this repeatedly. Since October of last year the plaintiff has suffered from increasing pain and particularly after walking for 15 minutes or less. Dr. Wedderburn is of the view that this almost certainly means that there has been destruction of joint cartilage so that the prosthesis is now impinging directly on the bone of the hip joint socket without the normal cushion of the joint cartilage.

9. The effect of this is that the plaintiff will almost certainly require a further operation to insert a prosthesis into the hip joint socket in addition to the one that presently replaces the head of femur, and he has been back to his out-patient clinic since seeing Dr. Wedderburn, and said that the doctor there confirmed this diagnosis, although he was told that the operation had been expected in about ten years but would now be necessary five years earlier.

10. Whatever the time scale it is obvious another operation will be necessary and I take this into account in making this assessment.

11. The plaintiff gave further evidence that prior to the accident he regularly played basketball and represented his school in basketball matches, and liked other athletic pursuits. Indeed, he said he liked all sports except football.

12. As a result of his injuries he is now not able to play any sports at all, and he cannot now run without difficulty and pain.

13. At the date of the accident the plaintiff was still attending school and was in Form 5 at the Christian Faith College, Kowloon City. As a result of the accident he missed about 2 months schooling and although it was originally pleaded in the statement of claim that his school results were adversely affected by his absence from school, Mr. Stables on behalf of the plaintiff concedes that the pre-accident and post-accident results shown in the letter from his school dated 23rd July 1985 do not support such an assertion, and this was not pursued.

14. Since leaving school the plaintiff has had two jobs. The first was as an examiner in a watch factory, a job he obtained a few months after leaving school. However, as it entailed a large amount of walking which after a period caused the plaintiff considerable discomfort, he left voluntarily after three months. While he was there he had been receiving $57.00 per day for a 26 day month, earning on average $1,482.00 per month.

15. The plaintiff's second job lasted just one week. This was as driver of a dual-purpose van, but as the plaintiff was also required to carry heavy goods, he found he could not cope with the job and left. This was last month, and he has not worked since,  although he has made efforts to find employment and said that he would like a job of a sedentary nature.

16. His only previous employment experience was of part-time jobs prior to the accident, while he was still at school, and had been in the area of fast food and other restaurants, and construction sites, and clearly this sort of employment is totally unsuitable for him now.

17. With retard to the question of general damages for pair suffering and loss of amenities, Mr. Stables has submitted that this case falls within the lower end of the serious injuries scale described in Lee Ting Lam v. Leung Kam Ming 1980 HKLR 657. Allowing for inflation in accordance with the principles liad down in Lee Ping Sum's case, Mr. Stables now submits that this scale which was in May 1980 between $60,000.00 and $80,000.00 should now be in the region of $100,000.00.

18. In addition, Mr. Stables referred me to a number of cases involving similar injuries, the most recent being the decision in March 1985 in Yang Yi Chai v. Chang Kan Shing and Tsui Tsz Choi, High Court Action No. 1788 of 1984 where in a judgment dated 12th March 1985 a 70-year-old plaintiff who had an identical operation as in this case was awarded $80,000.00.

19. I accent that in view of the comparative youth of this plaintiff and the serious effect the injuries have had on his enjoyment of life, the award under this head should be greater. Mr. Stables has suggested that the sum of $100,00.00 is a proper figure it this case, and I accept that, and award that sum under this head.

20. With regard to loss of future earnings, Mr. Stables considered that as the plaintiff was a school boy at the time of the accident, he cannot show any loss of earnings or future loss, and has asked me under this head to make an award to reflect the plaintiff's disadvantage in the labour market, and the difficulty that he will have in finding employment as a result of his injuries.

21. Mr. Stables has referred me to the case of Li Chim Ying v. Lam Siu Nam and Ho Chi Cheong, High Court Action No. 3527 of 1984 in which an award was made in a similar situation. In that case an award of $50,000.00 was made to a woman of 22 years who could show no loss of earnings and whose injuries would not affect her earning capacity. In this case there is clear evidence that the Plaintiff's earning capacity has been diminished, he is at a severe disadvantage when seeking employment and I am of the view that a proper award under this head would be $80,000.00.

22. The total awarded therefore in respect of general damages is $180,000.00.

23. I now come to the question of special damages. There is sufficient documentary evidence to support the sum as pleaded in the statement of claim in respect of hospital and medical charges in the sums of $140.00 and $420.00, provision of a walking stick in the sum of $31.20, cost of out-patient treatment in the sum of $68.00, and the cost of repair to the plaintiff's motor cycle in the sum of $2,000.00. These sums are accordingly awarded in full.

24. The plaintiff further gave evidence that during his 56 days in hospital a member of his family visited him every day and incurred travelling expenses of $1.60 each day. In addition he said that he paid travelling expenses for himself to visit the out-patient department for his follow up treatment by taxi on 3 occasions at $26.00 per round trip, and on 5 occasions by bus at $3.50 per trip. I accordingly accept the sums claimed of $89.60, $78.00 and $17.50 respectively for these items. The plaintiff went on to say that he had visited the out-patient clinic once more on the 3 January 1986 incurring a further $12.00 out-patient fees and $3.50 bus fare. I also accept he is entitled to add these to his claim.

25. I further award the sum of $200.00 being the estimate by the plaintiff of the value of the spectacles and clothing which were damaged in the accident.

26. With regard to the claim for nourishing food and bonesetter's fees, while the plaintiff was able to give evidence that the cost of his treatment by the bonesetter was about $100.00, he was unable to say how much has been spent by his family in respect of Chinese herbs and nourishing food. Mr. Stables has urged me to say that a figure can be estimated on the basis of $10.00 - $15.00 per day while the plaintiff was in hospital. I regret I cannot accept this, and in the absence of any evidence as to how much was spent, I propose only to award the sum spent by the plaintiff on bonesetter's fees namely $100.00.

27. The total sum awarded therefore by way of special damages is $3,159.80.

28. Summary

29. There will be interest on the general damages at the rate of 2% per annum from the date of writ to the date of judgment and on the special damages at 3.875% from the date of the accident to the date hereof.

30. The defendants will pay the plaintiff's costs to be taxed on a party and party basis if not agreed, and the plaintiff's own costs are to be taxed under the Legal Aid Regulations.

Representation:

Mr. A. Stables for the Director of Legal Aid on behalf of the Plaintiff

Both Defendants were present and unrepresente