CHAN YUEN KUEN an infant by CHAN CHONG MO, her father and next friend v CHAN KWOK CHU

HCA005226/1981

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Mr Registrar Julian Betts in Chambers

Date: 14 June 1982

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ASSESSMENT OF DAMAGES

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1. On 16th January 1980 the Plaintiff, then aged 9, was knocked down by a vehicle driven by the 1st Defendant and owned by the 2nd Defendant. She was taken to hospital where, apart from some minor lacerations, it was found that she had a fracture of the left humerus. The displacement failed to be corrected by traction and, after 15 days, she was transferred to Sandy Bay Hospital and operated on. Her arm remained in plaster for two months and she then had physiotherapy for two weeks. Why physiotherapy then stopped, and what treatment followed are matters with which I will deal more fully below.

2. The Plaintiff attended a Medical Board on 26th Setpember 1980. The Board found residual pain at her left elbow with wasting of muscles. Supination was full but pronation limited to 40°. The range of flexion at her left elbow was limited from 80° to 120°. Weakness of her left wrist was also detected in both flexion and extension movements. They assessed about one third functional loss of her left arm at the elbow. This they determined as a 25% permanent disability. The evidence of Dr Wedderburn is that there is a 26% impairment of the arm from loss of elbow joint movement and a 12% impairment of the arm from loss of pronation and supination; making a 38% impairment of the arm. The result is a 20% impairment of the whole man. Dr Wedderburn also found that whereas her right hand exercised a 301b grip her left could only manage 3 lb.

3. In practical terms this means that the Plaintiff's left arm is permanently bent at the elbow and her left hand is extremely weak. The condition will not improve.

4. What happened to the unfortunate Plaintiff is that when she had been attending physiotherapy for two weeks her father became dissatisfied with her rate of progress. His evidence was that he saw other children getting better, but not his daughter. Without consulting any proper medical advice, he withdrew her from the hospital and consulted a bone setter. On the evidence of Dr Wedderburn the treatment meted out by the bone setter had a diliterious effect although he did not specify precisely to what extent. His evidence was also that although the course of physiotherapy would not have achieved any real improvement to the flexibility of the elbow it would have been vital in teaching the Plaintiff to adapt to and compensate for her permanent handicap. To that extent he considered the first six or seven months after the injury to be vital. No evidence was given to the contrary and I accept that as a result of her father's misguided, but no doubt well intentioned interference, not only was some further damage caused to the Plaintiff's elbow but the best opportunity for adaptation to her handicap was thrown away.

5. Mr Ismail urged me that the harm done following the Plaintiff's withdrawal from treatment at Sandy Bay Hospital was a novus actus interveniens and any damages awarded against the present Defendants should be reduced to reflect the likely outcome had the Plaintiff continued her conventual treatment. The question might well be posed in the terms "was the action of her father in withdrawing the Plaintiff from treatment at the Sandy Bay Hospital and entrusting her to a bone setter reasonable judged by the standards of the average Chinese of his class and education?" Dr Wedderburn answers that in the positive and goes so far as to say that by the same standard failure to seek such treatment would be regarded as tantamount to neglect.

6. However, in this case the father distained to take any advice from the hospital; never sought any such advice; and I find that to be unreasonable by any standard.

7. Damages for pain, suffering and (in particular) loss of amenities must be reduced accordingly. The amount of that reduction must be based on mere speculation in the light of the medical evidence available. It is clear from the evidence that the Plaintiff has very little use from her left hand and is paying a heavy penalty for withdrawal from physiotherapy. In my judgment her sward, based on her present condition, must be reduced by 20%.

8. What now is her handicap?

9. Her left arm is permanently bent, her grip is weak, she is afraid of corssing road, she cannot do up her own buttons, she cannot engage in the normal schoolgirl sports and pastimes. Stress was put on her supposed enthusisam for playing the piano before the accident. In this respect I found the evidence quite unconvincing. She has, nevertheless, suffered and continues to suffer, not only the physical handicap of her elbow but the sense of isolation from her friends in their play and sporting activities.

10. I was invited by Mr Chan to make an assessment for loss of earning capacity, He produced useful authorities. I consider this to be a case where, rather than indulge in speculation as to her possible future career the Plaintiff should be awarded a global sum of general damages.

11. Having considered the awards to which my attention was drawn by both Mr Chan and Mr Isnael, and considering the effect of this disability, for life, on the Plaintiff not only in relation to her earning capacity but in her personal life. I assess her damages for pain, suffering and loss of amenities at $80,000.00. This is reduced by 20% leaving a figure of $64,000.00.

12. All items of Special damage were either agreed or abandoned save for special foods and nourishment at $3,500.00 and Chinese medicine at $38,686.25.

13. The Plaintiff's father gave evidence that he, himself, is skilled in the use of hems and Chinese medicine and believes in its efficacy. He produced receipts for very considerable quantities which he claimed were all used to benefit the Plaintiff. I was not satisfied they were all so used and follow Yu Ki v Chin Kit-lan & another (No. 2224 of 1980) in assessing a nominal sum. I award $1,000.00 for these two heads of damage together.

14. In summary I assess damages as:-

15. There will be interest on the special damages at the rate of 8.75% per annum from the date of the accident to judgment and on the general damages at the rate of 17.50% per annum from the date of service of the writ to judgment.

16. There will be an Order for costs to the Plaintiff with certificate for counsel. All damages shall be paid into Court and shall be invested by the Registrar at his absolute discretion on the usual terms and held by him for the Plaintiff and paid to her on attainment of her majority.

17. The Registrar shall in his absolute discretion make such payments out of capital or interest or income arising from the money so invested for the education, maintenance, advancement, medical or surgical treatment of the Plaintiff as he shall see fit.

18. Dated this 14th day of June 1982.

Representation:

Mr W Chan instructed by Messrs John IP & Co for the Plaintiff.

Mr Anthony Ismail instructed by Messrs F. Zimmern & Co for both Defendants.