Yam Wing Kit v. Mak Kin Tong and Another

HCA002326/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Silke in Chambers.

Date of Judgment: 5th November, 1973.

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DECISION

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1. This is an assessment of damages pursuant to interlocutory judgment entered in respect of the 1st defendant on the 26th January 1973 in default of defence and entered in respect of the 2nd defendant on the 1st June 1973 in default of appearance.

2. The plaintiff, who was a passenger in a car AL502 driven by the 1st defendant as servant or agent of the 2nd defendant, was injured in an accident which took place on the 3rd January 1971 at Clearwater Bay Road near, Pik Uk Village, when the car mounted onto the pavement or hillside and collided with a tree.

3. He suffered lacerations on the face, a laceration of the cornea of the left eye, tenderness of the left knee and an intercondylar fracture of the left femur involving the left knee.

4. The major injury is to the left eye in which he is now totally blind.

5. He is now a young man of 21 and at the time of the accident was employed by Dairy Farm as a person who retrieved dirty plates from aircraft, washed them and returned them to the aeroplane. His salary was $350 per month.

6. As a result of the accident he entered hospital - I have no medical evidence as to his state on admission - and he tells me that he had about thirty stitches in his face without an anaesthetic other than for stitches at the side of his face next to the left ear. He did not loss consciousness but he felt pain. It would appear that he was referred to the Orthopaedic A Unit of Queen Elizabeth Hospital, from the Surgical A Unit, on the 5th January 1971 when he was given a cyliner plaster of paris for the fracture. He was discharged on the 7th January 1971. Mr. Yam has given it in evidence that he was discharged twice for one day and on each occasion had to return to hospital the total period spent in hospital being, to his recollection, ten days.

7. He was examined on the 19th April 1971 as to the fractured femur - the fracture was at the two heavy bones at the kneecap and involved the kneecap itself - and was found to have full range of movement without deformity or disability. The plaster was removed in February 1971.

8. There has been no further examination on this aspect.

9. The scars on his face are still evident especially a downward curved scar at the left cheek bone, a minor scar on the right eye brow, a minor scar on the point of the chin, a longish scar from the hair line down the forehead and a mottled, largish scar near the top of the left ear on the side of his face. I took the liberty of looking at those scars myself as, I repeat, I had no medical evidence relating to them, the likelihood of their dimunition or their actual size.

10. As to the major injury. Repair surgery has been done on the left eye which had the cornea cut at the center with a traumatic cateract and vitreous loss. In January 1971 the vision of the left eye was light perception only. The eye wound healed.

11. When seen on the 21st June 1972 the left eye was slightly shrunken and with no light sense - that is Mr. Yam was totally blind in that eye. There is no possibility of improvement. His disability was assessed by Dr. C.C. Foo as being 30%. She tells me that a total loss of sight in one eye is assessed not at 50% but at 30% out of 100%.

12. This was confirmed by a Medical Board held on the 2nd August 1973 (Exhibit B).

13. The plaintiff is understandably conscious of his cosmetic defects and wears tinted glasses to hide the left eye, which has a drooping lid and with the eyeball getting smaller and the eye squinting. He grows his hair long so as to cover the marks near his left ear and the one on his forehead. I think that I can take notice of the existing fashion for longer hair but fashions do change. He has the limitations of movement one associates with a person in this state and will, according to Dr. Foo, never be able to drive a motor vehicle. He was not a licence holder prior to the accident though he had hoped to learn to ride a motor cycle.

14. As a result of the fracture he tells me he is unable to enter into one of his pastimes - football - as he feels pain in the knee after running and also feels pain after walking for one hour.

15. Mr. Woo, who appeared for the plaintiff, the 1st defendant being in person and the 2nd defendant, though served, not appearing, referred me to Kemp and Kemp Vol. 1 3rd Edition at page 356 and the awards in respect of loss of sight therein mentioned. He also referred me to Current Law Year Book 1972 at para. 833 where in Scotland (Williams v. Scottish Gas Board (O.H.) 1972 S.L.T. (Notes) 66) the loss of right eye was assessed at not less than £3,250. Also to [1973] 7 C.L. (July) and those at para. 88 in respect of loss of sight.

16. I note that there is no diminution of earning capacity, the plaintiff is now engaged on clerical duties at a salary of $430 per month which, with allowances, comes to over $600 per month. He says his right eye, and there is as yet no sympathetic reaction in it, becomes tired on long use as does his left eye which moves as he moves his head and thus is exercised. Sympathetic reaction may of course set in over the years.

17. Taking all these matters into consideration I assess general damages in respect of pain and suffering, loss of amenities and the possibility of a sympathetic reaction to the right eye involved in the loss of the left eye at $52,000.00.

18. As to special damages: I would allow as being fair and reasonable items (c) Trousers at $20, (d) car coat at $45 and (e) cotton jacket and pullover at $30.

19. As to (a) Medicated tonic and special food for extra nourishment No medical nor "herbal" evidence has been adduced in support of this though the plaintiff tells me that the fish he ate - "San fish" - assisted in the healing of flesh. No bills have been produced but I would allow $100 as being fair and reasonable under this head.

20. As to (b). Travelling expenses. The plaintiff, unsupported, tells me that he paid 20 or 30 visits to the Yaumati Ophthalmic Center travelling on each occasion from his home at Choi Hung Village, near Kai Tak, by taxi. He felt this was necessary at first as his leg was in plaster and later as it was inconvenient to climb bus steps with his eye in bandages. The evidence is vague and no bills were produced. Even the taxi fare was stated to be $4 or $5 per single trip. Something is allowable under this head and I would assess it, doing the best I can, at $50.

21. As to (f) Loss of earnings. I would accept a two months' loss of earning at the rate of $350.00 per month. I am told the plaintiff, having resumed work in February 1971 was discharged from his employment with Dairy Farm sometime in May 1971 and remained, though vague efforts were made to find other employment, jobless until September 1971. He says he was discharged because he "occasionally" felt unwell. I have no evidence other than that of the plaintiff on this point. My impression is that he did not try very hard to find alternative employment when his job with Dairy Farm ceased. He has now done much better for himself. I note that for some reason the loss of earnings as claimed in the endorsed Statement of Claim are for the period only of 10th May 1971 to 7th September 1971. He is clearly entitled to the period of his hospitalisation and immediately afterwards but not in my view to the period claimed. I would take the bull by the horns and award $700 under this head.

22. The special damages therefore are assessed at $945.00.

23. There will, following Jefford v. Gee (C.A.) 1970 2 Q.B.D., be interest on the special damages of $945.00 at the rate of 4% from the 3rd January 1971 - the date of the accident - until today and at 8% on the general damages of $52,000 from the date of the service of the writ the 21st September 1972 on the 1st defendant. The plaintiff will have his costs of this action and of the assessment.

24. The plaintiff's costs of the action and of the assessment to be taxed under Legal Aid (Scale of Fees) Regulations Cap. 91.

25. Certify fit for Counsel.

26. Dated this the 5th day of November, 1973.

Representation: