Choi Yin Mei v. Kwong Kwok Kam and Another

HCA001195/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Jones in Chambers.

Date of Judgment: 9th May 1973.

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DECISION

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1. This is an assessment of the plaintiff's damages for personal injuries and loss that she suffered in a road traffic accident that occurred on the 31st December 1971. On the date of the accident the plaintiff was travelling as a passenger in a car owned by the 2nd defendant and driven by the 1st defendant when it mounted the pavement and struck the shop window of a house. Liability for the accident has not been denied by the defendants.

2. The plaintiff suffered scars to her face and neck and abrasions to both knees. The plaintiff was admitted to hospital where she remained for a period of five days. Subsequently she was re-admitted to hospital for a further period of five days for the removal of a piece of glass from her jaw. Four scars are still clearly visible, one under the left jaw 1 ½" long two scars each 1 ½" long under the chin and one on the bridge of the nose 1" x ½". The other scars are very faint and do not cause any cosmetic disfigurement. In addition to the above injuries the plaintiff lost her upper denture for the central four incisor teeth which has been replaced but the left upper canine tooth is missing and has not been replaced because the plaintiff suffers discomfort. The plaintiff produced an estimate for the cost of a denture in the sum of $990. The plaintiff said that she had some difficulty in closing her mouth after the accident but Dr. Wedderburn said that she would have had this trouble for only a few days and for not longer than a week. It has been confirmed by an x-ray that a small piece of glass is still present under the scar on the left jaw which is about ¼ of an inch long. Although the plaintiff has been advised that the piece of glass referred to should be removed she has not up to the present time done so with the result that whilst it remains she may in future suffer an abscess. Dr. Wedderburn agreed that the plaintiff's appearance could be improved by plastic surgery and said that the estimate of $2,200 produced by the plaintiff for such treatment was reasonable. Dr. Wedderburn assessed the permanent disability of the plaintiff which is purely cosmetic at 3%.

3. The plaintiff claims the sum of $7,863 for special damages which I find to be a grossly inflated sum.

4. At the time of the accident the plaintiff who is now aged 47 was employed as a supervisor of a cleaning service company but she was only away from work for approximately one month, during which time she received her salary. In addition the plaintiff has a part time job selling jade and other jewellery and she said that due to the accident her eye sight was impaired with the result that for a period of four months she was unable to do this work. She estimated that her earnings from the part time employment amounted to an average of $500 per month, which evidence I accept. However Dr. Wedderburn said that if the plaintiff needed glasses it was not due to the accident. He said that a period of one month would be reasonable to be away from work after the accident so that I shall award the plaintiff $500 for her loss of earnings. Following the accident the plaintiff employed a servant at a wage of $400 per month for a period of four months on the grounds that she did not have the energy to do all the housework which she was able to do before. I agree that this is a reasonable claim but having regard to the evidence of Dr. Wedderburn only for a period of one month so that I shall award $400 for this loss. Medical expenses of $1,300.00 were claimed but receipts for only $314 were produced. In the absence of further evidence to substantiate this item I shall limit the amount recoverable to this figure. A claim of $787.00 was made for medicated tonic special food and extra nourishment but no medical evidence was given to show that it was necessary for the plaintiff's recovery with the result that this item will be disallowed. Travelling expenses of $241.00 was claimed which sum is excessive and I shall allow $100 which I consider reasonable. The plaintiff suffered damage to clothing in the sum of $695.00 which is the replacement value for the items destroyed. The defendant's solicitor did not seriously challenge this item and it will therefore be allowed. Two pieces of jade were broken as a result of the accident which the plaintiff has valued at $1,240.00. Again the defendant's solicitor did not seriously challenge this loss which I shall accordingly allow. Special damages will therefore be allowed at $3,249.

5. General damages must be restricted to pain and suffering and permanent disability which is as stated before purely of a cosmetic nature. The scars unless one looks closely or when the plaintiff turns her head in a particular way are not obvious and it is evident that plastic surgery will assist. The plaintiff made some complaints of irritation where the scars are situated but this should cease if plastic surgery is carried out.

6. In assessing general damages I have taken into account the estimated cost for a denture and for plastic surgery. Having regard to all the circumstances I shall award the sum of $10,000 as general damages in addition to the special damages of $3,249 making a total assessment of $13,249. On the principles enunciated in Jefford v. Gee (C.A.) 1970 2 Q.B.D. at page 146 I shall award the plaintiff interest on the special damages of $3,249 at the rate 4% from the date of the accident until today and at 8% upon the general damages of $10,000 from the date of service of the writ, the 18th May 1972.

7. The plaintiff is entitled to the costs of this assessment with a certificate for counsel.

8. Dated this the 9th day of May, 1973.

Representation: