Li Chim Ying v. Lam Siu Nam and Another

Case No.HCA 3527/1984

Court

High Court CFI

Date10 May 1985

Judge—

Case Document

100%Judiciary

HCA003527/1984

1984 No. 3527

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

	LI CHIM YING	Plaintiff
	AND
	LAM SIU NAM	1st Defendant
	HO CHI CHEONG	2nd Defendant

Coram: Master Betts in Chambers

Date of assessment: 10 May 1985

Date of delivery: 16 May 1985

_________________________

ASSESSMENT OF DAMAGES

_________________________

1. The plaintiff is an attractive, unmarried young lady who will become 24 years old on the 24th of this month.

2. In February 1983 she was crossing Ting Kok Road by means of a zebra crossing near the Yau Kok Temporary Housing Area when she was knocked down by a taxi (for reasons never explained, described in the Statement of Claim as a public light bus) driven by the first defendant as agent of the second defendant.

3. The plaintiff was taken to hospital where she was found to have suffered a fracture of the left humerous bone of the upper arm and a fracture of the pelvis. The arm was treated with a plate and bone screws and because of the appearance o?blood in the urine her bladder was drained by catheter for seven days. After one month she was moved to the Rehabilitation Centre at Kwun Tong where she remained for a further two and a half months.

4. In June 1984 she returned to hospital and underwent further surgery to remove the plate from her humerous. At the same time the operation scar, which had become keloidal and for which she was obliged to wear a compression garment, was excised.

5. Thereafter the scar again become keloidal. On few subsequent occasions the scar was injected with cortisone and she still wears a compression garment. The writ herein was issued in May 1984 and, in the absence of any defence, interlocutory judgment was entered in September the same year.

6. Two medical reports, properly adduced in evidence and unchallenged, show the present condition of the plaintiff and her prognosis. The first was prepared by Mr Wedderburn in March 1984 and the second by Dr Ian Nicolson bringing matters up to date in March 1985.

7. The continuing effects of the plaintiff's injuries are summarised by the following complaints with which I shall deal in turn.

Slight restriction on hip movement causing discomfort if she walks for more than about two hours.

Mr Wedderburn reported that this discomfort will gradually resolve and, because the fractures did not involve the hip joint itself, she is very unlikely to develop osteo-arthritis. Nevertheless there will remain a 10% impairment of the leg which is a 4% impairment of the whole man. He did not consider it would affect her earning capacity but only socially. I accept that evidence.

2.	Discomfort at times at the left shoulder and a weakness of the left arm preventing her from working a full day in an electronics factory; in fact resulting in continued unemployment since the accident. When Mr Wedderburn examined her a year ago the plate was still in place. He considered the greater part of her then discomfort was due to its presence. He noted she exercised a 55 lb grip with her right hand but 25 lb. only with the right. His prognosis was:
	"Because of the adduction, displacement of the shaft and the main part of the humerus, she will always have some limitation of abduction of the arm at the shoulder and some loss of external rotation at the extreme of the movement. She will find that six weeks after removal of the metal, the pain and discomfort will entirely be resolved and that she will be able to undertake her previous work without difficulty. The movements affected in their extremes are not commonly used in everyday life. The restriction will improve slightly but there will always be some restriction. She will have a 3% impairment of the arm which is a 2% impairment of the whole man."
	Three months after that report the place was removed and nine months after that she was examined by Dr Nicolson. ;-To him she complained of "discomfort in the shoulder region at times." He reported: -
	"Shoulder movements are partially reduced - but there is an adequate functional range."
	In this later report there is no mention of disabling weakness of the left arm or of weakness of the left hand grip. Having heard the evidence of the plaintiff in this respect I am unable to accept the remaining impairment to her arm is such as to render her as totally unemployable as she says. I find she should have been able to resume full time employment by the end of August 1984 at the latest.

3.	She bears an unsightly scar. Dr Nicolson's report included clear, helpful photographs which support what he says:-
	"This girl has a conspicuous ugly scar on the front of the left shoulder. The scar is 85 mm in length and has stretched to 23 mm in width in parts. The scar is dark red with numerous bright red vascular marks across and contains patches of yellow pigment at the site of previous cortisone in injections. The whole area appears sunken below the level of surrounding tissues and the scar is "paper thin" presumably as a result of excessive subcutaneous atrophy from the cortisone injection. She also has several strial marks adjacent to the scar again presumably from atrophy following cortisone injections."
	And later: -
	"This girl has permanent "cosmetic............ disability as a result of her accident. Her scar is ugly and will remain so. Plastic surgery could possibly improve the appearance of the scar by 50%-70% but noticeable residual scar would always remain. As she has twice developed keloidal scar in this site there is also a strong possibility of a similar scar forming. Cost of plastic surgery would be $10,000 : inclusive of after care."
	The plaintiff gave evidence that the scar does cause her embarrassment but that nevertheless she goes swimming regularly both at pools and beaches. She does have a boyfriend but not yet definite plans of marriage. She was not asked about, and did not volunteer, any plans for future cosmetic surgery. In view of the high risk of such surgery simply reproducing keloidal scarring I very much doubt whether she will submit herself to further surgery. I therefore approach the question of damages on the basis o?the scarring as it is and is likely to remain.

4.	The plaintiff's final complaint is contained in this extract from Mr Wedderburn's report:

"The fracture of the pelvis occurred in the inferior ramus of the pubis at the front........ The superior ramus must also have been fractured although the fracture line cannot be distinguished on XOray, but the acetabulum, that is the hip joint socket, has been displaced inwards by ¾" and this distorts the pelvic inlet. She will not be able to deliver a child by normal means. There will be no interference with sexual intercourse or pregnancy but she will have to have delivery by Caseserian section."

I accept that evidence.

8. Receipts were produced and evidence given to support the claim for medical expenses, travelling and so on to a total of $2,214 which I award in full.

9. Unusually for a case of this nature there was no claim for tonic or nourishing foods.

10. Prior to the accident the plaintiff was employed in an electronics factory earning $1,350 per month. In view of my finding above I hold her to be entitled to full loss of earnings from the date of the accident to the end of August 1984. That is (rounding to the nearest month) eighteen months, at $1,350.00 = $24,300.00.

11. The claim for loss of future earnings in this case cannot be found with any degree of mathematical certainty. By Mr Wedderburn's assessment the combined effect of the continuing disability to the shoulder and to the hip constitute a 6% impairment of the whole man - but will not affect her earning capacity. It is well settled, however, that such disabilities may affect chances of future employment and that a global figure should be awarded.

12. Mrs Lauder referred me to a number of awards made in the last five years in somewhat similar cases. They range from $10,000.00 to $50,000.00. She urged me that in this particular case, giving due account to inflation, a proper figure would be $50,000.00. I agree and that is the sum I award.

13. In considering general damages for pain, suffering and loss of the amenities of life I was invited to consider separately damages for the hip movement restriction and child bearing difficulties on the one hand and the cosmetic injury to the shoulder on the other.

14. For the former I was referred to a number of awards which, allowing adjustment for inflation, would to-day range from $45,000.00 to $120,000.00.

15. Unfortunately I was not afforded the benefit of any evidence at all on the undoubted disadvantage of being able to deliver only by way of Caeserion section. I have no personal experience on which to draw. The plaintiff told me it worries her, but no more than that. What is clear, however, is that the plaintiff is going to be denied the opportunity of delivery in the normal way, she will undergo further surgery and acquire further scars, it is a serious matter and calls for substantial compensation. The slight limitation on the hip movement; limiting her sporting or hiking potential, I do not consider calling for much more than nominal compensation particularly as I heard no suggestion she engaged in any such pastimes prior to the accident.

16. Taking all these matters into account I award the sum of $150,000.00 in respect of these injuries.

17. This leaves the cosmetic injury to the left shoulder.

18. Fortunately the scar is not visible when the plaintiff is normally dressed; but she is young, attractive and goes swimming regularly as advised by the doctor. The scar is, and will always remain, a source of of embarrassment.

19. Again Miss Lauder usefully referred me to a number of awards which, allowing for inflation, suggest a range for $40,000.00 to $77,500 00. She suggested that $50,000.00 would be suitable in this case, and asked also for the cost of future cosmetic surgery of $10,000.00. As I have said above I propose to ignore that cost. On the basis this scar will remain very much as it is I award $80,000.00.

Summary

1.	Medical and travelling expenses	$2,214.00
2.	Loss of earnings	$24,300.00
3.	Loss of future earnings	$50,000.00
4.	General damages for pain, suffering and loss of the amenities of life: $150,000.00 + $80,000.00	$230,000.00
		$306,514.00 =========

20. There will be interest on the general damages at the rate of 2% per annum from the date of the writ to the date of judgment and on the special damages at 5.6% per annum from the date of the accident to the date of judgment. There will be no interest on the award for loss of future earnings.

21. There will be an order for costs to the plaintiff with the plaintiff's own costs to be taxed under the Legal Aid Regulations.

(J. Betts)
Master

Representation:

Mrs L.S. Lauder for D.L.A. for-the Plaintiff

Defendants both present and unrepresented

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