Cheng Mok Kai and Another v. Lee Hing Chuen and Another

Case No.HCA 4989/1979

Court

High Court CFI

Date29 Apr 1982

Judge—

Case Document

100%Judiciary

HCA004989/1979

1979 No. 4989

IN THE SUPREME COURT OF HONG KONG

HONG KONG

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BETWEEN

	CHENG MOK KAI	1st Plaintiff
	CHENG KAM YUEN by his next friend CHENG KAM HO	2nd Plaintiff
	AND
	LEE HING CHUEN	1st Defendant
	NAZIR AHMED	2nd Defendant

_________

Coram: Power, J.

Date of Judgment: 29 April 1982

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JUDGMENT

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1. The 1st plaintiff, Cheng Mok Kai, and the 2nd plaintiff, Cheng Kam Yuen, sue the 1st defendant, Lee Hing Chuen and the 2nd defendant, Nazir Ahmed, for damages for personal injuries. The 1st plaintiff, who is now 25 years of age, is the elder brother of the 2nd plaintiff, who is now 16 years of age. He was driving a motor cycle on which the 2nd plaintiff was a passenger along Wai Yip Street in a westerly direction and about 6.50 p.m. on the 11th June 1978. As the motor cycle was crossing the junction of Wai Yip Street and Lai Yip Street it came into collision with a private car, registration mark AR4597 which was being driven by the 2nd defendant and which was, at that time, registered in the name of the 1st defendant. The plaintiff alleged that the accident was caused by the negligence of the 2nd defendant and the defendants alleged that the accident was caused or contributed to by the negligence of the 1st plaintiff.

The Collision:

2. The evidence of the 1st plaintiff was that as he was either on or almost on the intersection, he saw the vehicle being driven by the 2nd defendant, making a right-hand turn across his path. He said that he then tried to brake and made an evasive manoeuvre but that he did not have time to do anything effective and that the private car collided with the side of the motor cycle. The evidence of the 2nd defendant was that that he had been travelling in an easterly direction along Wai Yip Street and that he came to a stop in obedience to a red light and then proceeded to go forward after the light had turned green again. He said that he wished to make a right-hand turn into Lai Yip Street and that he commenced to make this turn when he saw that oncoming west bound traffic in Wai Yip Street was stationary at the stop line before the traffic light governing the movement of vehicles in that direction. He said that, when he had almost completed the manoeuvre of turning but was still on the intersection, the motor cycle driven by the 1st plaintiff, travelling at a high speed, suddenly appeared in front of his vehicle.

3. The case of the plaintiffs then was that the 2nd defendant had driven his vehicle into their line of travel at the time when they were much too close to allow such a manoeuvre to be carried out safely and that this manoeuvre was the sole cause of the accident.

4. The case for the defence was that the 2nd defendant had been keeping a proper lookout and that, immediately prior to the accident, the vehicle being driven by the 1st plaintiff must have been either concealed behind stationary vehicles or must have been so far away that it was not in sight at all. It was suggested that it was travelling at a fast rate of speed and that it suddenly obtruded itself onto the scene and came into collision with the vehicle being driven by the defendant. The defence was that the accident was caused solely by the negligence of the 1st plaintiff in that he drove at an excess of speed and came suddenly onto the intersection in a manner which deprived the 2nd defendant of any opportunity to observe his presence on the roadway at all.

5. Police Constable 11436 was called and he tendered a plan which he drew after the accident, showing the positions at which the vehicles came to rest. He also said that there were traffic lights at the scene and that these were so regulated that they would show green for vehicles proceeding both east and west along Wai Yip Street and would then, in reverse order, show green for vehicles proceeding along Lai Yip Street. It appears that they were a relatively unsophisticated set of traffic lights as they made no provision for pedestrians and made no provision for vehicles that wished to make a right-hand turn out of the Lai Yip Street or Wai Yip Street.

6. Fortunately there was an independent witness to the accident, Mr. Wong Wai Ling, who said that he was stationary waiting to make a right-hand turn out of Lai Yip Street into Wai Yip Street, so that he could proceed in the direction of Mong Kok. He said that when the motor cycle driven by the 1st plaintiff was very close to the intersection the private car commenced a right-hand turn and that the two then came into collision. He said that he saw the motor cycle take some avoiding action immediately before the collision. It was manifestly clear from his evidence, which I have no hesitation in accepting, that the collision was caused solely by the negligence of the 2nd defendant in turning into the path of an oncoming vehicle at the time when that vehicle was so close that it had no opportunity to take any effective evasive action. When making this finding I accept the evidence both of the independent witness and of the 1st plaintiff. It is true that in cross-examination the 1st plaintiff was to some extent unsure as to just where his motor cycle had been when he first saw the defendant's vehicle. However, when one bears in mind that he was trying to recall an incident that happened several years ago which must have occupied a very short space of time, I don't consider that any inference adverse to the 1st plaintiff should be drawn from this uncertainty. I am satisfied that his evidence was, in essence, truthful and that he was in no way to blame for the collision.

The Ownership of the Vehicle:

7. The 1st defendant was called to give evidence and he said that he had sold the vehicle to the 2nd defendant for $2,500 on either the 30th May or the 1st or 2nd of June. He said that at that time he handed him the car keys, the insurance policy and the registration book. He said that he also signed a Notice of Transfer of Ownership of Vehicle Form at that time and that he placed the date of the day on the form. His evidence, then, was that he had handed over the vehicle and had transferred the ownership thereof on a date not later than the 2nd of June. The witness was shown a Notice of Transfer of Ownership of Vehicle Form dated the 13th June 1978 (p.10 of the Agreed Bundle) which set out, in Part D thereof, the signature "Lee Hing Chuen" which appeared under the words, "I have today relinquished ownership of this vehicle and I have delivered to the new owner this notice of transfer and the vehicle registration document". The signature on the form was printed in English. The 1st defendant said that, in fact, he did print his signature in English but that the signature did not "appear" to be his. The signature did bear a marked resemblance to his signature, which he wrote while in the witness box, however there was no possibility of ever making a decisive comparison as the original of the Transfer Form had been destroyed. At this stage, Mr. Barretto who appeared for the plaintiffs, objected to the evidence of the 1st defendant that the signature was not his. I refused to uphold his objection and allowed the evidence.

8. The 2nd defendant when called to give evidence said in this regard that the 1st defendant had signed the Form on the 6th or 7th June, the day when he handed .... vehicle, and that he had filled in the day "13/6/82" when he went to register the vehicle.

9. A police sergeant was called who said that the 2nd defendant gave a statement to him in which he said that at the time of the accident he was "driving my friend's private car".

10. Mr. Barretto urged me to bear in mind the conflict between the evidence of the 1st defendant and the 2nd defendant and to pay heed to the documentary evidence, and to that of the sergeant and, having done so, to reject the evidence of the 1st and 2nd defendants that the transfer had taken place some days before the 11th June.

11. I find, having given the matter earnest consideration that I am quite satisfied that the vehicle was handed over to the 2nd defendant before the 11th June. How the discrepancies between the evidence of the 1st and 2nd defendants arose I do not know but I am satisfied that the 2nd defendant in this regard was a witness of truth and I accept his evidence. I am satisfied that at the time of the collision the 1st defendant was no longer the owner of the vehicle. The action against him must, therefore, fail.

Damages:

12. As regards the injuries to the 1st plaintiff I turn to the report of Dr. Wedderburn which sets out the extent of the injuries, the treatment given them and the prognosis. Dr. Wedderburn in his first report which is dated the 31st May 1979 said -

	"On 11.6.78, he was admitted to the United Christian Hospital after a traffic accident. He had a number of lacerations and abrasions. There are two small, ½in. scars on the back of the right elbow and two scars on the front of the left knee, a 2½ins. abrasion scar on the left loin and a l in. abrasion scar on the front of the lower left abdomen. Some of the scars are a grey colour but they will eventually become white and are of no consequence.
	He suffered a fracture of the right Ulna (bone of the forearm) on the 5th finger side. This was treated by operation and the application of a bone plate and bone screws. He was discharged a few days later and wore the plaster cast for five weeks. The plate and screws were removed in December 1978, when he was in Hospital for four days and he has had monthly follow-ups until three weeks ago.
	On examination there is a 5 ins. red scar on the forearm, the scar of the two operations. This scar will eventually become white and neat and of no consequence. He has full movement of the arm at the elbow and wrist except for one movement i.e. tilting the hand from the neutral position to the 5th finger side - this is known as Ulnar Deviation; it is 45° on the right and 55° on the left. He also has slight weakness of fine finger movements although there is no loss of dexterity.
	He was working as a tailor, being an apprentice; he returned to work in September and found it difficult to hold and cut cloth so he gave up the work and became a driver. It is likely in fact that in September the healing process was far from complete and that he would experience difficulty doing tailor's work.
	X-Ray shows that the Ulna is in excellent position and well united. The end of the Ulna lies against the end of the Radius at the wrist and there may be a very mild degree of separation of this normal contact. He exercises an 80 lb. grip with the left hand and only a 55 lb. grip with the right. As he is right handed his right hand grip should be equal or greater than the left. There was probably some reason to remove the plate and bone screws in December, the most likely reason being some degree of foreign body reaction, but this would settle down after removal of the metal and he has just finished his follow-up supervision. In the course of working and using the hand I think the loss of Ulnar Deviation will recover and he will recover adequate strength to at least a 75 lb. grip with the right hand, if not a greater grip, and his permanent impairment - if any - will not be greater than 1/10th of 1%. He will reach the end stage in another six to seven months.
	I suggested to him, and he agrees with me, if he were to complete his apprenticeship as a tailor, that his earning capacity would be considerably greater than if he remained as a driver. As he has completed 3 years of apprenticeship it seems a pity to give it up and I have no doubt that if he returned to this work that he might have some interference with his efficiency for the first one or two months but after that he will be able to work with the same degree of efficiency as before his accident.
	He will suffer no permanent disability from the accident."

13. Dr. Wedderburn saw the 1st plaintiff again on the 29th October 1981 and he then found that he had shown considerable improvement. He said -

" He now has full movement of the hand at the wrist: the bone plate was removed from the ulna almost two years ago. X-ray of the wrist now shows that there is no separation of the ulna and radius. He still has some weakness of his right hand grip - in fact, he exercises a lesser grip strength than when I saw him in 1979. However, as a driver he does not use grip strength in the same manner as he did when a tailor, and does not require the manual dexterity of a tailor.

He is still a driver and says he prefers this to returning to work as a tailor. He drives a small van, and also a private car. My assessment of his impairment as being less than one-tenth of 1% is unaltered, and he will suffer no income loss as a result of his injury."

I am quite satisfied from this evidence that the 1st plaintiff has made a full recovery.

14. There is a suggestion that he should recover some damages because, as a consequence to the accident, he changed his occupation from that of tailoring apprentice to driver. It has been suggested that because of this he is now, as a driver, in a position where he earns less than he would have had he continued on and completed his apprenticeship as a tailor. In this regard the 1st plaintiff himself said that he returned to his work as an apprentice tailor after three months. It will be noted from the report of Dr. Wedderburn that at that time the bone plate and bone screws were still in position in his right-arm. These would not removed until December 1978. Dr. Wedderburn said that, in September when he returned to work, the healing process would have been far from complete. He said that it was likely that he would, therefore, experience difficulty doing tailor's work. The 1st plaintiff said that he was not able to keep up with the work and that his family had incurred debts as a result of having to pay for special food and hospital expenses. He said that he stopped working as an apprentice tailor both because he wasn't able to keep up and because he wished to take on a more remunerative occupation so that he would be able to repay the debts. There was no suggestion from the 1st plaintiff that he had been asked to leave nor was there any indication from him that he had sought medical advice as to the likelihood of a full recovery which would enable him to continue with his tailoring apprenticeship. Had he sought advice it seems that he would have been told that the weakness in his right arm would gradually disappear. Indeed that is what Dr. Wedderburn told him on 31st May 1979, some seven months after he gave up working as a tailoring apprentice. Dr. Wedderburn suggested to him, and he agreed with the doctor, that if he were to complete his apprenticeship as a tailor, his earning capacity would be considerably greater than if he remained as a driver. It was the doctor's opinion at this stage that if he returned to work as a tailoring apprentice he would be able to work after one or two months with the same degree of efficiency as before his accident. That this opinion was correct is borne out by the results of the later examination in October 1981. It is significant that at that time the 1st plaintiff told Dr. Wedderburn that he preferred working as a driver to returning to work as a tailor. I am satisfied that he now works as a driver because he prefers to do so, and I do not consider that he is entitled to any damages for loss of earning capacity in this regard.

15. In his Statement of Claim he sought loss of wages for a period of 5 months. However it appears that, in fact, he was off work for 3 months. His claim in this regard is for $600 per month and he is therefore entitled to $1,800.

16. The 1st plaintiff also asked for an amount of $600 which he said was expended to cover the purchase of nourishing food while he was in hospital. He was in hospital for 9 days on the first occasion and for 4 days on the second occasion. He also suggested that a further $3,000 had been spended on nourishing food and herbs during the period of his convalescent. As to the herbs, he said that they were recommended by one of his father's friends who found that they had done him good. It did not appear that they were recommended by a doctor or herbalist and no receipts evidencing the purchase of such herbs were produced. I am satisfied that some moneys were expended upon nourishing foods and upon herbal remedies. I am not satisfied however that the expenditure on herbal remedies was either necessary or undertaken on any proper advice. I consider that the proper allowance to be made in this regard, doing the best I can with the evidence I have, is $1,200.

17. There was no issue made of the claim for hospital fees of $65 nor was there any issue made as to the claim for travelling expenses for relatives of $230.

18. The 1st plaintiff also claimed damages for the damage to crash helmet and the damaged clothing of $175 and $250 respectively. No issue was made in this regard and I would allow those damages also.

19. The 1st defendant said the motor cycle was worth about $2,500 at the time of the accident and that he eventually had to sell it for $400 as a scrap. He therefore claimed $2,100 for the damage to the motor cycle and I am prepared to allow this amount.

20. Special damages allowed to the 1st plaintiff will therefore be -

(i)	Hospital fee	$65
(ii)	Nourishing food	1,200
(iii)	Travelling expenses	230
(iv)	Crash helmet	$175
(v)	Damaged clothing	250
(vi)	Motor cycle damage	2,100
(vii)	Loss of earnings	1,800
		$5,820
		=====

The 1st plaintiff also claims damages for pain and suffering and loss of earning capacity. As I have indicated I do not consider that he is entitled to any award under the heading of loss of earning capacity. As to pain and suffering, he clearly suffered substantial pain during the initial period after the accident and I have no doubt that some degree of pain and discomfort persisted thereafter. He must also have suffered pain to some extent at the time of the operation to remove the plate and screws. He said in his evidence that he was in pain for few months and still occasionally suffers pain at the present time and I accept this. There was no specific evidence as to loss of amenities but the injury must clearly have inhibited him to some extent in his enjoyment of life. Its effect, however, in the future, will be very limited indeed. I am satisfied that the proper amount to award for pain and suffering and loss of amenities is $6,000. The 1st plaintiff is therefore awarded in all the sum of $11,820.

21. I turn now to consider the injuries to the 2nd plaintiff, Cheng Kam Yuen. Dr. Wedderburn in his report of the 1st June 1979 described the injuries, their treatment and the prognosis as follows:-

	"After a traffic accident on 11th June 1978 he was admitted to the United Christian Hospital. The Hospital report is dated August, 10th and the history of his treatment continues until last month so most of the statements recorded are those made by the boy and his father although there is no reason for me to doubt the accuracy of their statements. He suffered injuries but did not have concussion, he was dazed and suffered from surgical shock. He had a fracture of the] right femur (bone of the thigh), a fracture dislocation of the right ankle and a fracture of the 4th left rib. The boy himself did not know that he had a fractured rib and this has healed perfectly and chest examination was normal.
	The fracture dislocation of the ankle was treated by operation on the day of admission and the fracture of the femur treated by traction with the weight being attached to a pin driven through the tibia (bone of the lower leg) 2 ins. below the knee. Later in treatment he had traction again with a further insertion of another pin and there are two small scars on both sides of the leg where the pin penetrated. Traction was maintained for six weeks and then an operation was performed securing the fracture with a bone plate, screws, and a plaster spica applied i.e. a plaster cast stretching from the waist down to include the whole of the right leg and he was discharged in September.
	He then returned to school wearing the plaster spica and this must have been very difficult, but after a few days the thigh wound broke down and he was re-admitted for 10 days and a further spica applied. This became loose so after three weeks he was re-admitted again and a third spica was applied; however, he only wore this for a week and it was decided to remove it and he was given treatment by traction for six weeks with the weight attached to a pin. After removal of the pin it was decided to give him skin traction i.e. the weight is applied to sticking plaster adherent to the leg but he got a skin reaction so that the skin traction was stopped and he had a month of bed rest in hospital. From the beginning of 1979 he started walking with two crutches but in mid-March it was decided to remove the bone plate and nails and he finally left hospital in April 1979.
	When he went home he was using two walking sticks and recently has discarded them. He has reported back twice and his next follow-up visit will be in three months.
	He has returned to school in late April, he is in Form 1 but will obviously have to repeat Form 1. He walks with a marked limp. He does not complain of pain in the leg but he cannot run.
	On examination there is an 8 ins. scar on the outer aspect of the thigh and a 3 ins. transverse scar which is partly the scar of an abrasion and partly the operation scar on the front and outer side of the ankle. He has 1 in. of shortening of the right leg. X-Rays were taken of both femurs, the only accurate way to measure shortening, and the right femur is 24 mms. shorter than the left; 25 mms. is 1 in. He has full movement of the leg at the hip joint and has a deficit of 15° of bending the leg at the knee compared to the left but he has had months of immobilisation and the knee joint will ultimately recover.
	He can flex or bend the left foot at the ankle to form an angle of 70° with the lower leg and extend it to 150°. On the right flexion is only to 90° and extension to 140°.
	X-Ray shows that the fracture of the femur at mid-shaft is excellently united in good alignment. X-Ray of the ankle shows that the medial malleolus i.e. the end of the tibia which forms the side of the ankle joint is united with some displacement and irregularity of the joint surface.
	In an X-Ray of a youth, ½ in. above the ankle, a line can be seen running across the bone. This is known as the epiphyseal line and the bone growth takes place by new bone cells being laid down on either side of the epiphysis. In the tibia and fibula (bones of the lower leg) the epiphysis fuses at age 17 to 18 and bone growth then ceases. In his X-Ray the epiphyseal line is already fused in its medial aspect so that bone growth of the tibia on the medial side cannot now take place but the bone on the lateral side, together with the fibula on the lateral side, together with the fibula on the lateral side, will continue to grow so that the ankle joint will become slightly angulated upwards on its medial side. I enclose an illustration of the X-Ray appearance of the ankle in an adult, also one of a normal appearance of the ankle with the epiphyseal lines in a youth of 14 and, thirdly, the X-Ray appearance of his ankle and there are some explanatory remarks with this illustration.
	This boy does not have any pain in the ankle now and the function of the ankle will improve but the abnormality is in a weight bearing joint and apart from the angulation or tilting of the joint, which will occur with further growth, the abnormality of the joint surface is such that he will inevitably develop an osteo-arthritis of the ankle joint. This is unlikely to affect him before the age of 25; by that time it will probably be about a 2% impairment which will increase over the years to a 7 or 8% impairment by the age of 65. These figures are, of course, conjecture because there is no way of accurately assessing the future in any single individual; but this boy should not engage in any form of hard manual work which requires constant standing or walking especially on uneven ground or any form of work which requires repeated lifting and carrying of heavy loads. It will not affect his ability to perform work which is partly sedentary or which only requires intermittent standing and walking without having to repeatedly carry heavy loads. He would not, of course, be passed fit for any work which requires physical normality and would be turned down for the Police, Fire Brigade, Armed Services or similar types of employment. He also, of course has 1 ins. of shortening of the right leg. Growth of the femur continues to aged 19/20 and in the process of growth the natural mechanics attempt to overcome shortening of a bone, but the degree of shortening is too great for natural processes to overcome it and in fact I think it is likely that when bone growth ceases the relative difference between the right and left will not increase but he will probably have about 1 in. of shortening of the right leg which is a 10% impairment of the leg and a 4% impairment of the whole man.
	As he has only recently been discharged from hospital the end stage has not been reached and a final assessment should be delayed until December, 1979, when an accurate assessment of his final impairment and disability can be made. In theory, of course, a completely accurate assessment could not be made till he is 19 years old when bone growth ceases, but it would obviously be impracticable to wait five years and a very accurate assessment will be possible in December, 1979.
	To X-Ray the femur is necessary to take two pictures of each side with a marker at mid-femur because an X-Ray plate is not large enough to photograph the complete femur, so the cost of X-Rays is considerable."

Dr. Wedderburn examined the 2nd plaintiff again on the 16th April 1980 and he found that he had a permanent disability of 60%. His final examination of the 2nd plaintiff was on the 29th October 1981, on that occasion he found,

	"This boy has done remarkably well, so that I must revise my opinion. I do not think that I took into account the healing power of a growing adolescent in my predictions for the future - he now does PE classes, he can walk unlimited distances, and only complains of some difficulty when squatting and bending in the ankle when the weather changes.
	He still has a 1 1/8" shortening of the right leg, and gross muscle wasting of the muscles of the right leg. The left thigh is 18" in diameter, and the right 16½. The left calf is 12¾ and the right 11¼ and the wasting is very obvious on inspection. He can now bend the foot up at the ankle to form an angle of 80° with the lower leg, and extend it to 140° so at present his impairment of the leg is a 10% impairment from shortening and 6% from loss of ankle joint movement, making a 16% impairment of the leg which is a 6% impairment of the whole man.
	I think the improvement is due to the growth of adequate articular cartilage in the bones on the surface of the ankle joint, and the joint cartilages are now very adequate. Nevertheless, there is a gross mechanical abnormality of the ankle joint, and as he grows older osteoarthritis would be bound to develop. I now think that he will probably not start to develop osteoarthritis of the ankle joint until about age 30, and that it will start to be a factor causing him discomfort, etc., by age 35: the question of fusion or operation of the ankle joint will probably not arise until he is in his late forties, so his impairment will become an 8% impairment by age 35 and a 10-12% impairment by age 45.
	He is now in Form III. It would be preferable for him to continue through to Form V and a white-collar job would be ideal for him. His impairment would then probably not interfere with his earning capacity. If he were to enter the labour market in any job except one that only required partial standing he would find it difficult to work and earn with a similar capacity to other workers; and he would find it very difficult, or almost impossible, to engage in medium or arduous manual labour. He probably could do medium or arduous manual labour from about age 20 to about age 35, but then he would have to give it up."

In the outcome then this plaintiff was lost one year's of schooling and he is left with a right leg which is 1 1/8 of an inch shorter than his left leg. He also has gross muscle wasting in his right leg and a marked surgical scarring. Dr. Wedderburn is of the opinion that his leg injury amounts to a 6% impairment of the whole man. It appears that this plaintiff has been fortunate in that adequate articular cartilage has grown in the bones on the surface of the ankle joint and because of this the joint cartilages are now very adequate. Nonetheless Dr. Wedderburn considers that he will start to develop osteoarthritis at about the age of 30, and that by 35 this will be causing him discomfort. He considers that the question of a fusion or other operation on the ankle joint will probably not arise until he is in his late forties. He considers that the overall impairment will increase over the years and by the time he is 35 he will have a 8% impairment and that by the time he is 45 he will have a 10% to 12% impairment. Dr. Wedderburn says that if he takes a white collar job his impairment would probably not interfere with his earning capacity. He said he could, in his opinion, only do medium or arduous manual labour from the age of about 20 to the age of 35, and that he would then have to give it up.

22. I turn now to the special damages claimed by this plaintiff.

23. He claimed hospital fees in the sum of $1,350 which amount I allow.

24. He claimed an amount of more than $5,000 for nourishing food. There were no real evidences to substantiate this claim, however, I am satisfied that during the period of his prolonged convalescent he would have been fed special foods and that the provision of this was both justified and beneficial. I am prepared in this regard to allow a sum of $2,500.

25. He also claimed $2,094 for travelling expenses for relatives visiting while he was in hospital. This amount was not questioned by the defence and I will therefore allow it. The special damages to be awarded to the 2nd plaintiff are therefore:-

(i)	Hospital fee	$1,350
(ii)	Nourishing food	2,500
(iii)	Travelling expenses	2,094

I turn now to consider the damage for loss of prospective earnings and loss earning ability. The 2nd plaintiff lost a year's school. This means that he will be one year late entering the labour market and will therefore lose a year's wages. It is not yet known what he is going to be. He has resigned himself to the fact that he must try to obtain a job that will not involve heavy manual labour. It appears that he may find some difficulty in this because he is not a particularly good student. There is no evidence as to what he would be likely to earn in his first year's work but it does seem to me that an award of $800 per month would be adequate in this regard. This must be discounted to some extent because of the acceleration of payment and under this head I will therefore award the amount of $9,000. He is clearly going to be at a disadvantage on the labour market throughout his life. It is difficult to know just how much this will affect him. If he is able to obtain a white collar job it could, of course, mean that he would eventually end up earning more than he could ever have earned as a labourer. However the likelihood, given his academic record, seems to be that he will not obtain such employment. There is, of course, a wide range of labouring jobs, such as the driving job his brother has, which do not involve any great degree of physical effect. However that may he has been gravely and permanently disadvantaged on the labour market by his injury. I am satisfied that the proper award here is an amount of $50,000. Under this head he will, in all, be awarded $59,000.

26. I turn now to consider pain and suffering and loss of amenities. The 2nd plaintiff had a fracture of the right femur, a fracture dislocation of the right ankle and a fracture of the 4th left rib. The fractured rib is of no significance in my determination as he was unaware that he had such a fracture and it has healed perfectly. The fracture of the ankle was treated by an operation on the date of admission and the fracture of the femur was treated by a traction with weights attached to a pin driven through the tibia, 2 inches below the knee. Later he had traction again with the further insertion of another pin and two small scars can still be seen on the sides of the leg where the pins penetrated. He was under traction initially for a period of six weeks and then an operation was performed, securing the fracture with a bone plate and screws. After this a plaster spica was applied, covering the whole right leg from the waist down. During this initial treatment he was in hospital from June until September 1978. After discharge in September he returned to school wearing the plaster spica, but after a few days the thigh wound broke down and he was re-admitted to hospital for further ten days and a further spica was applied. However, this became loose after three weeks and he was admitted again when a third spica was applied. After one week only he was admitted again to hospital and given treatment by traction for a period of six weeks with the weight attached to the pin. After the removal of the pin he had skin fraction, however, we got reaction and it was stopped. He then had a further month of bed rest in hospital.

27. At the beginning of 1979 he was able to walk with 2 crutches, but in mid March it was decided to remove the bone plate and nails and he finally left hospital in April 1979. He spent almost 10 months in hospital. During this time I have no doubt that he has suffered very considerable pain and discomfort. After returning home in April 1979, the 1st plaintiff used to walk with sticks but by June of that year he had been able to discard them. He still suffers discomfort and said in his evidence that he found difficulty going to the toilet and that when he returned home after so doing, his leg was uncomfortable. Prior to the accident he says he played basketball, football, table tennis, badminton and swimming but now he says that he plays only table tennis. This evidence must be viewed against the evidence of Dr. Wedderburn who said that it would be in his interest to play all sport, as well as he could, except football. He is clearly going to have pain later in life with the onset of osteoarthritis and it seems that he will have to undergo a further operation. There was no evidence as to the possible cost of this operation and it may well be that it can be done for nothing in a Government hospital. For pain and suffering and loss of amenities I am satisfied that the proper amount to award is $50,000. The 2nd plaintiff will, therefore, be awarded:-

	Special damages	$5,944
	Damage for loss of prospective earning and loss of earning ability	59,000
	Damages for pain, suffering & loss of amenities	50,000

	(N.P. Power)
	Judge of the High Court

Representation:

Mr. Ruy Barretto (D.L.A.) for both plaintiffs.

Mr. D. Yam (Philip K.H. Wong & Co.) for 1st defendant.

Mr. Nazir Ahmed, 2nd defendant, in person.