Lui Kee Hop v. Cheung Kwok Wah

HCA000360/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Mayo in Chambers.

Date of Judgment: 23rd November, 1973.

Mr. Michael Asome, Counsel instructed by Messrs. David Burgin & Co., Solicitors for the Plaintiff.

Mr. Robert Tang, Counsel instructed by Messrs. H.H. Lau & W.S. Lo, Solicitors for the Defendant.

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DECISION

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1. This is an assessment of damages. The Plaintiff was a passenger in a motor car which was involved in an accident on the 25th January, 1970. He was admitted to hospital where he received treatment in respect of serious head injuries which he sustained. At the hearing the Plaintiff himself gave evidence as also did Dr. John Hunter who has specialist qualifications in neurology. I found Dr. Hunter's evidence to be extremely helpful. Dr. Hunter gave evidence that the nature of the injuries suffered by the Plaintiff was such that it was highly probable that his skull had been fractured in the accident as his middle meningeal artery had been severed which resulted in extensive haematoma. Dr. Hunter expressed the opinion that when a person suffered an injury as severe as that suffered by the Plaintiff, it was not unusual for him to die. An operation was performed upon the Plaintiff at the Queen Mary Hospital, which had the effect of relieving the compression caused to the Plaintiff's brain. The Plaintiff remained in hospital until the 9th March, 1970. Dr. Hunter then provided the Court with a detailed opinion of the effect of the injuries upon the Plaintiff. He explained that the Plaintiff would have remained in a drowsy and comatous condition for most of the period when he was in hospital and that it would have taken some time for this condition to improve. More important than this Dr. Hunter formed the opinion that the Plaintiff's mental faculties were seriously impaired as a result of the accident. He said that the Plaintiff's intellectual functions had been disturbed and in particular his memory or ability to recall matters had been detrimentally affected. This would necessitate the Plaintiff re-learning everything which was lost as a result of the accident.

2. Prior to the accident the Plaintiff had been employed as an electrician and plumber. While such occupations are not generally regarded as being intellectually demanding, it is nonetheless true to say that the Plaintiff had acquired various technical skills which were essential if he was to pursue his trade successfully. Clearly, the Plaintiff has attempted to re-acquire his former skills. During the first months after the accident, the Plaintiff was only able to undertake sporadic work at infrequent intervals. The position, however, appears to have gradually improved and it would appear that the Plaintiff has now largely regained his capacity to work as an electrician and plumber. Dr. Hunter expressed the opinion that the Plaintiff would never fully regain his former mental capacity and that the main deficit he would suffer from would be that when he was confronted with any situation in his work which was not simple and straightforward, it would take him longer to solve the problem intellectually than had been the case prior to the accident. Dr. Hunter expressed the view that the Plaintiff would be physically able to perform his work and that the main incapacity he would suffer from was that he would not be able to do his job as expeditiously now.

3. I was impressed by the Plaintiff as a witness. Although it is true that some of his answers to questions appeared to be somewhat confused, I was satisfied that he was an entirely truthful witness who made no attempt to exaggerate the injuries he had suffered from. I am satisfied that the Plaintiff has not at any time attempted to fake his injuries and Dr. Hunter confirmed this view by stating in his evidence that all of the symptoms of the Plaintiff were entirely consistent with his experience of injuries of this nature.

4. From the evidence available I am satisfied that the main head of general damages would be damages for pain and suffering and loss of the amenities of life. As a result of the Plaintiff re-learning his trade, it appeared that there was no substantial diminution of his earning capacity. Indeed, the Plaintiff himself referred to the fact that he had recently received employment, albeit of a temporary nature, from the Hong Kong & Shanghai Banking Corporation in connection with the installation of lights for a monthly salary of $1,500.00 which sum is considerably in excess of his earnings prior to the accident which were then only $650.00.

5. Mr. Tang referred me to the case of Fung Shuet Fun an infant suing by her next friend Fung Chu Lin Chun v. Chiu Kam Hung & Ng Chi Wah⁽¹⁾ which both counsel agreed was the only case remotely comparable to the present case. This case which was heard by Leonard, J. was an action brought on behalf of an eighteen year old girl who suffered serious injuries including an injury to her cervical spine and right clavicle which resulted in an impairment of her memory roughly comparable with that suffered by the Plaintiff in the present proceedings. By reconstructing Leonard, J. 's calculations, it appears that he awarded $15,000.00 to the Plaintiff in O.J. 1075 of 1970 in respect of her pain and suffering, her loss of the amenities of life, her deformities and scars and her future pain and suffering. He did, however, also award substantial damages in respect of her loss of earning capacity and I feel confident that the damages which were awarded for the loss of the Plaintiff's amenities of life must have been reflected in the damages which were awarded for the reduction in her earning capacity. I am satisfied that general damages of $15,000.00 would be insufficient to compensate the Plaintiff in the present proceedings. I propose awarding the Plaintiff general damages of $25,000.00.

6. Counsel for both parties adopted what I regarded as being a very sensible approach to the question of special damages which were claimed in the Statement of Claim. In his evidence the Plaintiff testified that he had not kept any receipts in respect of the expenditure he had incurred relating to medical expenses. He also made reference to the fact that these expenses included the purchase of "tonic foods" which had not been prescribed by any medically qualified person. Both counsel agreed that these expenses should be settled at 50% of the amount claimed, namely, $1,850.00. Mr. Tang conceded that the claim in respect of loss of wages referred to in paragraphs 2(a) and (b) of the Particulars of Special Damages had been proved and he conceded these amounts. The amounts claimed in respect of paragraphs 2(a) and (b) aforesaid were respectively $952.40 and $6,500.00. Mr. Tang also accepted that the Plaintiff had suffered a loss of earnings of $400.00 per month from January 1971 until October 1972. I therefore assess damages of $400.00 per month over this 22 month period which amount to $8,800.00. In addition to this counsel agreed that there had been a loss of earnings for another year from October 1972 of $50.00 per month which sum amounts to $600.00. If the figures for special damages are added together, they amount to $18,702.40. I therefore assess general damages at $25,000.00 and special damages at $18,702.40. Costs shall be to the Plaintiff and there shall be a Certificate for counsel. Costs shall also be awarded in accordance with the Legal Aid Regulations.

7. Dated the 23rd day of November, 1973.

Representation:

Mr. Michael Asome, Counsel instructed by Messrs. David Burgin & Co., Solicitors for the Plaintiff.

Mr. Robert Tang, Counsel instructed by Messrs. H.H. Lau & W.S. Lo, Solicitors for the Defendant.

(1) This case is unreported and was O.J. Action No. 1075 of 1970.