Cheng Wai Fan and Another v. Yau Wan Sin and Another
Read the full judgment text of HCA 1583/1971 on BabelCite. This High Court CFI judgment.
1. Both the plaintiffs were passengers in a motor car on the 31st May, 1970 which was involved in a collision with a light bus driven by the 1st defendant and owned by the second. They allege that the accident was due to the negligent way the 1st defendant drove the bus. The plaintiffs were quite severely injured and they claim general and special damages.
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HCA001583/1971 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 1583 OF 1971 -----------------
----------------- Coram: Trainor, J. Date of Judgment: 26th October, 1973. --------------------------------------------------- Oral Judgment reduced into writing --------------------------------------------------- 1. Both the plaintiffs were passengers in a motor car on the 31st May, 1970 which was involved in a collision with a light bus driven by the 1st defendant and owned by the second. They allege that the accident was due to the negligent way the 1st defendant drove the bus. The plaintiffs were quite severely injured and they claim general and special damages. 2. Negligence and the injuries to each plaintiff was conceded by the defendants and some of the special damages also and it only remains for me to decide on general damages, loss of earnings and those items of special damage still in dispute. 3. The first plaintiff's injuries as described by doctor A.C. da Roza who saw her on the 18th June 1970 were:
The doctor expressed the opinion that the scars would be permanent. He anticipated that the diplopia would disappear and suggested the patient should see an eye specialist. When the doctor saw the 1st plaintiff she complained also of dizziness and a disturbance of the usual pattern of menstruation; this he anticipated would return to normal in time as would a disability in the right elbow but he was unable to predict when. 4. The plaintiff, who was a transistor radio assembler, maintained that she was unable to return to work until the 1st February 1971, largely because her eye watered if she had visually to concentrate on anything for a protracted period. She said she had no special skills, and employment other than that to which she was accustomed did not become available until then. She also said she needed to rest. In the early months after the accident she said she was also receiving treatment from a bone setter to remove the scar and swelling which was under her right eye and a scar on her thigh. 5. The plaintiff saw an eye specialist. He found she had a slight limitation of one eye but in his evidence said this could not be attributed to the injuries she received. He further expressed the opinion that her sight today is the same as it was before the accident. He told me that although the plaintiff would have suffered acute pain for three to four days he would not have expected any watering of the eyes to have persisted after the pain ceased. He discharged the patient on the 2nd July when her eye injuries were completely healed. He saw her again on the 16th November and in a report on that examination concluded that glasses would give her full normal vision in the limited eye. 6. The plaintiff said in her evidence that her basic salary was $240 but with overtime she usually received $300; in her statement of claim she claimed $270 per month as the basis for calculating her loss of earnings. When she took up her present employment she received a salary of $220 per month which was increased to $250 a month on the 1st January 1972 and that is her present salary. 7. No application was made to amend the statement of claim and any loss of salary must be assessed on a basis of $270 a month. 8. The first plaintiff said she visited the bone setter twenty-five times to have the scar and swelling on her eye removed as well as the scar on her thigh. If the result is due to him then he deserves considerable credit, for the scar under her eye which Dr. da Roza considered would be permanent is scarcely discernible, as is the swelling. Unfortunately I was not told over what period the treatment extended and I am left to my own devices in assessing it. 9. Having regard to the evidence I had from the eye specialist and what little the plaintiff was led to tell me herself with regard to the treatment of the bone setter I consider that the period of total incapacity of the plaintiff was probably not more than four months. She did tell me that she considered it necessary to rest until the end of January but not a scintilla of evidence was produced to substantiate it. However, to avoid any possibility of an injustice to the plaintiff I shall allow her a period of total incapacity of five months. She has not told me that work in her old employment or at her old salary was not available but only that she did not try to get such work earlier because of her sight. According to the eye specialist her sight, apart from the few days of pain and lacrimation, was always the same so in the circumstances I find she is only entitled to loss of salary for five months and I assess that at $1,350. 10. One of the items of special damage disputed was what was claimed as paid to the bone setter and for Chinese medicine: $2,700. Apart from the statement of the plaintiff that she received "treatment for twenty-five days" there was no other evidence to support this claim. She did not say at how much per visit but on the basis of 25 visits this works out at about $100 a visit. I am disposed to allow this amount. As the amount was in dispute it would have been more helpful if some evidence from the bone setter had been produced, e.g. a receipt. As a corollary I allow the taxi fares claimed in going to visit him: $175. A further item in dispute was a claim for $1,400 for special nourishment. This was something that was never prescribed by any doctor or the bone setter. I have no evidence whatever as to what it was or that it was necessary and I must disallow this sum. 11. The other items of special damages are not disputed. Accordingly I allow $5,490.00 for special damages. 12. The remaining matter to be settled is the general damages. I am satisfied this girl suffered very considerable pain and discomfort for some days. She had some nasty scars which must have left her with considerable anxiety as to their permanent affect. That anxiety must be largely dispelled now as the residual scarring on her face is slight, as is the swelling under her eye. In fact neither is obvious and might pass unnoticed if attention were not drawn to them. I consider $6,000 to be reasonable compensation. 13. The plaintiff therefore is entitled to total damages of $11,490. 14. The second plaintiff is a man now aged 28. 15. As a result of the accident he was rendered unconscious and only regained consciousness on arrival in hospital where he was detained for three days. He too was seen by Dr. da Roza but much later than the 1st plaintiff. He was seen on the 17th August and a report of the doctor reads as follows:
16. The prognosis given in the report is as follows:
17. It is unfortunate that there is no medical evidence before the court as to this plaintiff's present condition and I am left largely to guess what is the present effect of the injury to the right forearm and to the right mid-thigh. 18. Once again the defendant conceded many of the items claimed in the special damages. The first one in dispute was loss of earnings. 19. This plaintiff was a butcher's porter at the time of the accident earning $600 a month. In his evidence he said he was unable to work for eight or nine months and when he did get employment on the 1st March 1973 it was in the nature of light work and his salary was only $400 per month. He said he continued in that position until the 1st January, 1972 when he got new employment at $500. 20. The plaintiff said that he is still employed doing light work because he has not the strength in his injured arm or leg to carry heavy weights. He said the only work he knows is that of a butcher's porter which entails carrying carcasses and he is no longer able to do this. In cross examination he did say, however, that he is now almost completely recovered. 21. As I said I am left very much in the air as to medical prognosis of this plaintiff. I have a medical report which is over three years old and a receipt from a bone setter, with which I shall deal later, which deals with treatment between the 2nd June and the 4th July. 22. The plaintiff told me that after his discharge from hospital he went to the bone setter on the advice he received from an unknown doctor in the hospital. He said he went to the bone setter because he still had a pain in his head and because he could not place any weight on his leg (although he now can) and could not move it freely. From the receipt produced I must, I think, assume that the plaintiff first went to the bone setter on the 2nd June and was discharged by him on the 4th July. That being so I must assume that the bone setter considered he did not require further treatment after that date. As to returning to work of any sort the plaintiff said that he was told by the bone setter not to return to work until he was fully recovered, leaving it to the plaintiff to decide. When was that? I can only make an arbitrary assessment and I think if I allow the plaintiff about two months total disability from the time he ceased attending the bone setter it cannot be suggested I lacked in generosity to him. This will allow the plaintiff a total of three months total disability and that represents $1,800. 23. There may well be a residual limited capacity to work in the plaintiff as a result of his injuries. Dr. da Roza says that the plaintiff's memory is likely to be somewhat affected more or less permanently. He also says the numbness in the scalp will be permanent as will the indentation on his leg. What affect this will have on the plaintiff's ability to earn in the future I cannot say except that if the plaintiff's evidence is correct it has resulted in his earnings being diminished up to the present by $100 a month. I propose to take it into consideration to some extent in assessing the general damages. 24. Four other items of special damages were contested: the fees to the bone setter, the travelling expenses to visit him, special food and domestic help. 25. The receipt of the bone setter purports to set out particulars of the injuries to the plaintiff and they are as follows:
and is in respect of $6,240.00. 26. It is difficult to express in moderate language one's opinion of this document. I checked with the court interpreter as to whether or not the translation that was given is correct and he assured me it is. It is impossible to conclude that it is other than false for the most part. For example there is the reference to a broken left hand. The plaintiff has never suggested that there was any injury at all to his left hand. Another reference is to broken ribs but Dr. da Roza says in his report that the plaintiff on the 17th August complained of pain on breathing on the right side of the chest but that X-rays revealed no fracture. As to the fractured skull the report of Dr. Au who examined the plaintiff on admission to hospital says that he had two superficial lacerations over the forehead. No mention whatever of a fractured skull. It is, to say the least of it, highly unlikely that the plaintiff would have been discharged from hospital after three days if he had a fractured skull. Perhaps the most significant thing is that in the plaintiff's writ of summons which was issued on the 21st July, 1971, more than a year later there is no reference to any injuries other than those found by Dr. Au and Dr. da Roza. 27. My initial reaction was to disallow in toto the amount claimed for the bone setter. The more so as the plaintiff told me that he paid this amount plus $2,200 for special food plus $350 a month for domestic help and of his own savings. I just did not believe him. However, I think perhaps he did go to a bone setter and did incur some liability for that but not to the extent that he claims. If in fact the sum claimed was paid to the bone setter then in my opinion he got a large part of the money under false pretences by treating non-existing complaints, and the defendants cannot be expected to pay for that. I will allow an arbitrary $2,000. 28. As in the case of the special nourishment claimed by the first plaintiff I have no evidence whatever that it was prescribed or as to what it was, let alone justify $50 a day for the first 20 days and $20 a day for the subsequent two months. If plaintiffs wish to establish claims for special nourishment they must establish that it was prescribed and what was prescribed. I disallow the claim for this. 29. Having, however reluctantly: allowed a fee for the bone setter I think it is only logical to allow something for taxi fares in attending him and so I allow $160. 30. As to domestic help: the plaintiff says he lives alone. If he was totally disabled for 3 months, as I have held he was, he would be entitled to get assistance in cooking and doing those general things around the house that he would have done for himself but was unable to do. I allow the $1,050 claimed for this. The other special damages have been agreed and I find the total to be $5,824.00. I regret that through a miscalculation I announced in court this figure to be $7,036. However, I did say the figures were subject to checking. 31. As to the general damages: I have set out the injuries that the plaintiff suffered and they were quite considerable, the effect of which will be, to some extent, permanent. I assess his general damages at $10,000 giving him total damages of $15,826.00. 32. The final matter to be decided is costs. 33. These proceedings were instituted at a time when the first plaintiff was a minor. They were instituted without anyone being named as next friend and that position prevailed until about lunch time on the first day of the hearing. An early adjournment was granted to enable the position to be dealt with. After lunch it was announced that the plaintiff's mother had consented to act and permission was sought to proceed on the plaintiff's solicitor undertaking to file her consent the next day. Next day it transpired that the plaintiff had now attained her majority and was prepared to adopt the existing proceedings but her written consent was not available and an undertaking to file it was given. All of this took up a very considerable amount of time and counsel for the plaintiff has asked that costs in respect of one day's hearing alone be allowed. It cannot be denied that the plaintiffs solicitors have through their undoubted negligence wasted a considerable amount of time for which the defendants should not be penalised. 34. I allow the plaintiff 75% of their taxed costs, the remainder to be borne by the solicitors; and to avoid any misapprehension I direct that the remaining portion is not recoverable from the plaintiffs on a solicitor and client basis.
Representation: Mr. Patrick Woo (H.M. So & Co.) for plaintiff. Mr. Bokhary (H.A. Hoosenally & Co.) for defendants. |