Tse Ching Ming v. Au Yeung Sang
Read the full judgment text of HCA 5018/1981 on BabelCite. This High Court CFI judgment was delivered on 7 May 1982.
1. In June 1979 the Plaintiff, then aged 9 1/2 years was attacked and injured by the Defendant's dog in the 11th floor corridor of a residential housing block in the Lower Ngau Tau Kok Estate. As a result of the attack she fell and suffered a supra-condylar fracture of the right humerus. She was admitted to hospital, the fracture exposed at operation and secured by a Kirschener wire. She remained in hospital for nearly four months.
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HCA005018/1981 1981 No. 5018 IN THE SUPREME COURT OF HONG KONG HIGH COURT ___________ BETWEEN
Coram: Mr Registrar Julian Betts in Chambers Date of Judgment: 7 May 1982 _______________________ Assessment of Damages _______________________ 1. In June 1979 the Plaintiff, then aged 9 1/2 years was attacked and injured by the Defendant's dog in the 11th floor corridor of a residential housing block in the Lower Ngau Tau Kok Estate. As a result of the attack she fell and suffered a supra-condylar fracture of the right humerus. She was admitted to hospital, the fracture exposed at operation and secured by a Kirschener wire. She remained in hospital for nearly four months. 2. The Plaintiff was examined by Dr Wedderburn in March 1980 and I have the advantage of his full report and have heard his evidence. 3. The Plaintiff is left with the cosmetic injury to her right arm consisting of a 6½ inch scar which is 3/8 th inch wide for most of its length. On each side of the scar are 22 stitch marks. The scar is red and very obvious. She now has an abnormal elbow with a bend limited to 120° against the norm of 150°. The arm has no carrying angle and is angled towards the body at 34°. She has some loss of grip of the right hand and that arm will probably be slightly shorter than the other. The doctor assessed the impairment at 7%. He could not, of course, give any real indication of the effect of the permanent disability on the Plaintiff's future earning ability. If she eventually becomes what is generally called a white collar worker the effect will be nil. If she becomes a factory worker it may remain in the region of at 7% impairment in earning capacity. 4. The cosmetic injury is capable of improvement by surgery. Dr Wedderburn considered the optimum time for that would be when the Plaintiff is aged 15 or 16. The cost, today, would be in the region of $6,000, which is 100% increase since his report in 1980. That increase is largely brought about by the increase in hospital charges. Whether such costs will continue to increase at that rate must be speculative. They are, in my view, likely to continue to go up but not at the same rate. 5. The Plaintiff's father is a widower. He works as a hawker and, quite reasonably, lost working time visiting the Plaintiff in hospital every day. He took her nourishing food such as ginseng and chicken soup. Having heard his evidence, unchallenged by the Defendant in person, I am satisfied that although these claims for special damage are good, the figures put forward are exaggerated. 6. Mr Remedios submitted a number of authorities to support the claim for general damages under the heading of pain, suffering and loss of amenities. They ranged from some $8,000 to $20,000. 7. It is quite impossible, with a child of the Plaintiff's age, to make an assessment on other than a global figure. 8. Here the Plaintiff underwent a traumatic experience, spent some four months in hospital losing schooling, has undergone one operation and will require a further cosmetic one, She has a deformed elbow, may have one arm shorter than the other and has a limitation of movement of that arm. I considered LEE Ting-lam v Leung Kam-ming [1980] HKLR 658. The remaining disability to the Plaintiff is, to my mind, slightly below the category of serious injury as defined therein by Cons JA. However, in reaching a global figure I add an element for the cost and trauma of future surgery, the effect for a young woman of a visually obvious elbow deformity and for inflation. Taking all these elements into account I assess general damages at $60,000.00. 9. I will allow medical expenses for which receipts have been produced at $300. I will allow travelling expenses for the Plaintiff's father at half the rate claimed and award $800. I will also allow his loss of earnings at $40 a day during the Plaintiff's hospitalisation, making a total of $3,200. I will allow a figure of 10 a day for 6 months for nourishing food; a total of $1,825. Summary 10. There will be an award as follows:-
11. There will be interest on the general damages at the rate of 17.5% per annum from the d to of service of the writ to date and at the rate of 8.75% per annum of $6,125.00 special damages. 12. Costs to Plaintiff to be taxed under the Legal Aid Regulations with Certificate for Counsel. 13. All the monies above referred to shall be paid to the Director of Legal Aid to enable the charge in his favour (if any) to be discharged. 14. The balance thereafter shall be paid to the Registrar who shall pay the sum representing the special damages (with interest) awarded herein to Tse Tin-sang the Plaintiff s father and next friend. 15. The balance thereafter shall be invested by the Registrar at his absolute discretion and held by him for the Plaintiff and paid to her on attainment of her majority. 16. The Registrar shall in his absolute discretion have authority to make such payments out of capital or interest or income arising from the money so invested for the education, maintenance, advancement or medical or surgical treatment of the Plaintiff as he shall see fit. Dated this 7th day of May 1982.
Representation: Mr Leo Remedios instructed by Messrs Chan & Lau for Plaintiff Defendant in person |