Yuen Wai Kuen v. Chan Shan

HCPI000957/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 957 OF 1996

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Coram: Before Master Cannon of High Court in Court

Date of Hearing: 29 - 30 October 1998

Date of Delivery: 1 December 1998

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Assessment of Damages

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1. At about 8.50 pm. on 16th July, 1995, the defendant was driving a public light bus along Ko Fong Street from Kwai Chung to Tsuen Wan. On reaching the T-junction with Hing Shing Road, the bus did not turn right as scheduled, but ran straight across Hing Shing Road, hitting the hillside head on

2. The plaintiff - who was aged 59 at the time and who is described as a retired driver in the statement of claim - was a passenger on the bus and as a result of the accident he suffered a crack fracture at the distal end of the right radius, a spiral fracture of the right third metacarpal shaft, right wrist pain and swelling, and superficial abrasions over the right thigh, right middle and right fingers and the left shin. He was admitted to Princess Margaret Hospital and was placed in a long-arm plaster of paris cast to immobilise the right hand, wrist and elbow. On 25 August, 1995, x-ray of his wrist showed satisfactory healing and the cast was changed to a functional brace.

3. Interlocutory judgment was entered on 21st January, 1997, with damages to be assessed. By order dated 22nd May 1998, leave was given to set down the assessment of damages before a Master.

4. At the assessment, the medical reports of Dr. Ho hok ming, and Dr. David Lee, for the plaintiff, and of Dr. Lam kwong chin and Di. Chan chung ming for the defendant, were agreed. The plaintiff gave evidence and was cross examined.

5. In his report dated 15th August, 1996, Dr. David Lee states that the plaintiff "still suffers from pain over his right wrist from time to time and weakness of his right hand, both on grip and pinch. This is not uncommon that a patient suffered from an old fracture of distal radius who would suffer from residual wrist pain and weakness of grip and pinch, therefore, I believe that his complaints are genuine." He goes on to say that "the residual pain and weakness of his right hand caused by the fracture of distal end of right radius and spiral fracture of 3rd metacarpal bone is a permanent impairment of the whole person of 2.5%." He also states that the plaintiff is a retired person, and suffers from no loss of earning capacity.

6. In his report, dated 23rd January, 1997, Dr. Lam kwong-ching, listed the present complaints as numbness and stiffness of the right hand on morning, requiring exercise for a few minutes to improve the condition; right wrist ache, especially on exertion; and a claim of one episode of severe radiating pain up to the right shoulder, requiring admission and rest for about one week. The report details the physical examination and investigations.

7. In his comments, Dr. Lam states that "the American Medical Association's Guides to the Evaluation of Permanent Impairment is used as reference for assessing the impairment. His wrist condition is equivalent to an impairment of 2% of upper limb, or 1% of whole person. There is no impairment due to movement range or power."

8. Dr. Lam then goes on to state that "in assessing the permanent loss in earning capacity of the patient, considerations are given to the following criteria: the impairment as assessed using the AMA's Guides, which is 1%; the Employee's Compensation Schedule, which has no direct reference for such a fracture. As a comparison, ankylosis of the wrist joint in optimum position is assessed to be 30%; the actual work he was doing before the accident, and the work capacity at present. It is noted that he had retired for 14 years. It is therefore assessed that he has no permanent loss in earning capacity, ie., 0%".

9. On the grounds that there would have been improvements in the plaintiff's condition in the intervening period between the two medical reports, I am satisfied that I should accept Dr. Lam's more recent report as the basis for this assessment of damages.

10. As to the plaintiff's evidence, I am satisfied that there were inconsistencies to be found and that he was given to exaggeration from time to time in the course of his evidence. This was particularly noticeable in his evidence about running a garment factory in the future, taking into account his work history and his admitted 14 year period of retirement prior to the accident.

PSLA

11. As to the loss of amenities aspect under this head of damages, it was submitted that gambling was the plaintiff's chosen leisure activity, that the injury had stopped him from going to Macau to gamble, although he continued to gamble on the horse races in Hong Kong, and that it was a relevant consideration in assessing loss under this head. This is not a sustainable claim in my view, and I reject it.

12. As to pain and suffering, counsel for the plaintiff submitted that the lowest category of disablement is serious injury and, as was said in Lee ting lam v. Leung kam ming, (1980) HKLR 657, it covers cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain. In the November 1996 decision of Leung on & Anor. v. Chan pui ki, (1996) 2 HKC 565, the Court of Appeal revised the damages for serious injury upwards to between $400,000 to $540,000, and said that "in assessing the quantum of general damages for pain, suffering, and loss of amenities, it was the total effect of the injuries which must be assessed rather than the artificial category into which they fit most comfortably."

13. Counsel for the plaintiff submitted the case of Sin sau mui v. Yuen sai kwong, (1997) HKLJ 110. Sin sau mui was a 67 year old plaintiff who suffered a displaced Colles fracture of her right wrist treated by close reduction and immobilisation in a plaster cast for three months. She was left with weakness in the right hand grip and some deformity and tenderness of the right wrist joint. Dr. David Lee assessed her permanent disability at 10% and a loss of earning capacity of 99%. At the time of her accident, the plaintiff was employed as a cleaning worker. In November, 1996, Mr. Registrar Betts awarded $200,000 for PSLA.

14. Counsel for the defendant referred to the following authorities -

15. Tsang yuk ming v. Choi wing hing t/a Wing Hing Electrical Company, HCA 852 of 1989, where a fracture of left femur, assessed at 10% disability, was awarded $120,000 for PSLA in March 1991.

16. Ip lam yuk lin v. Yeung fat & Wei yuk kin, HCA 1266 of 1991, where a case of multiple fractures assessed at 3% disability was awarded $70,000 in October 1991.

17. Mak ping v. Choi po chun, HCA 7085 of 1998, where multiple fractures assessed at 5% of loss of function of left wrist amounted to 2% disability, was awarded $125,000 in June 1995.

18. Cheng lai kuen v. Nan Fung Textiles Ltd., (1998) 2 HKC 730, a case involving post concussional syndrome and decrease in power and range of movement of the left lower limb, assessed at 2% disability, in which an award of $150,000 was upheld by the Court of Appeal in April 1998. Chan pui ki was considered.

19. The October 1995 assessment in Lee wong sin v. The Estate of Wong Shek mei and ors., PI 1759 of 1995, came to my attention. In that case, the 60 year old plaintiff suffered bruising to the right side of the face, and a Colles fracture of the right wrist. The most up-to-date medical report prior to the assessment, assessed her overall impairment at 11%. She was awarded $60,000 for PSLA by Master Woolley.

20. Counsel for the defendant submitted that the injury in this case fell far below the serious injury category, that it was only a mild to moderate injury, if not merely a minor injury. The claim for $220,000 is excessive and unreasonable, and the sum to be awarded should be not more than $100,000, probably in the region of $70,000 to $100,000.

21. I am satisfied that the injuries sustained by the plaintiff in this case do indeed fall well below the range for serious injury. The case of Lee wong sin is the most closely comparable case in respect of the type of injury, although it has to be read subject to Chan pui ki. The plaintiff in Sin sau mui represents a more serious displaced Colles fracture resulting in some deformity. Taking into account the total effect of the injuries in this case, and using my best judgment, I make an award of $150,000 under this head.

Loss of earning capacity

22. The authorities referred to by Plaintiff's counsel - Moeliker v. A. Reyrolle & Co. Ltd. (1977) 1 WLR 132, and Chan Kui v. Lee Fai t/a Fai Kee Timber (1997) HKLJ 262 - concerned plaintiffs who were injured in the course of their employment and they fell within the principle enunciated in Moeliker, that is that there was a substantial or real risk that a plaintiff would lose his present employment during his working life and be at a disadvantage in obtaining comparable employment.

23. The plaintiff was a retired driver for 14 years prior to the accident, and in the opinion of the Dr. Lee and Dr. Lam there was no loss of earning capacity. I do not find the plaintiff's evidence of his intention to take up future work of some type, possibly in the garment industry, as persuasive. I am satisfied that there is no sustainable claim under this head of damages, and I make no award.

Special Damages

24. The original claim under this head was $10,446, which was amended to $10,454 at the hearing.

25. The sum of $1,406 is not in dispute, being hospital fees of $180, outpatient treatment of $396, damaged watch $430, and damaged clothing and shoes $400.

26. The balance of $9,048 is in dispute. It comprises the sum of $1,070 for bonesetter fees, $1,120 for private doctors and x-ray fees, $5,988 for tonic good, and $870 for travelling expenses.

27. As to the bonesetters fee, and the private doctors and x-ray fees, I am satisfied that there is sufficient evidence to support these claims, and I allow $1,070 as claimed for the bonesetters fee, and $1,120 as claimed for the private doctors and x-ray fees.

28. As to the claim for tonic food in the sum of $5,988, on the authority of Yu ki v. Chin kit-lam and another, (1981) HKLR 419, and King Light Industrial Ltd. v. Lo wai keung (1994) 3 HKC 54, I am satisfied that, even in the absence of the necessary evidence as to the advisability or suitability of the tonic food, I should allow a nominal sum for such food which the plaintiff reasonably believed would assist in his recovery, and I allow the sum of $4,000 under this head.

29. With legard to the claim for travelling expenses in the sum of $870, I find that there was some exaggeration in the evidence regarding this item. Having considered the evidence, and using my best judgment, I make an award of $600 under this head.

30. In summary, the total sum allowed for special damages is $8,196.

Interest

31. Interest on the general damages is allowed at 2% from the date of the writ to the date of assessment and thereafter at judgment rate until payment. Interest on the special damages is awarded at half the judgment rate from the date of the accident to the date of the assessment and thereafter at judgment rate until payment.

Costs

32. The costs of the assessment be to the plaintiff, to be taxed if not agreed, such order to be made absolute within 21 days from the date of the handing down of this assessment.

Representation:

Mr. E. Chow instructed by Messrs. Simmon Siu, Wong, Lam & Chan for the Plaintiff

Mr. A. To instructed by Messrs. Tang, Wong & Cheung for the Defendant