Chong Hay v. Au Hon Wah and Another
Read the full judgment text of DCCJ 9048/1978 on BabelCite. This District Court judgment was delivered on 30 June 1979.
1. On the 20th of December 1977 the plaintiff was a young girl aged 8. As she crossed Austin Road in Kowloon near its junction with Kwun Chung Street she was knocked down by a motor vehicle registered number BE8706. The motor vehicle was driven by the First Defendant on behalf of the Second Defendant.
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DCCJ009048/1978 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION ACTION NO. 9048 OF 1978 -----------------
----------------- Coram: Judge Cruden in Court. Date of Judgment: 30 June 1979 ----------------- JUDGMENT ----------------- 1. On the 20th of December 1977 the plaintiff was a young girl aged 8. As she crossed Austin Road in Kowloon near its junction with Kwun Chung Street she was knocked down by a motor vehicle registered number BE8706. The motor vehicle was driven by the First Defendant on behalf of the Second Defendant. 2. The plaintiff was injured in the accident and has claimed damages. Interlocutory judgment was entered against both defendants on the 13th day of February. The parties have now appeared before me for the assessment of damages. 3. Before proceeding with the assessment the claim was, by consent, amended in two respects. First, in respect of the special damages claimed in paragraph C (vi) as wages lost by the plaintiff's mother, the time specified therein, was extended to comprise the period from 1.3.78 to 8.2.79 at $734.75 per month, which incresed the claim to $8265.93. Secondly, under paragraph C an additional sum of $16 was claimed under a new paragraph (vii) in respect of walking sticks. 4. In the accident the plaintiff suffered transverse fractures of the left tibia and fibula. As a result she was in hospital for 36 days, attended an outpatients clinic for 3 months and was unable to walk without sticks for 3 months. She was off school for 2 months. 5. Fortunately, the fractures have healed without any complications. There is no shortening; alignment is perfect; in 2 years time it will not be possible to see any abnormality of the bones on X-ray. There is no permanment impairment. The sole remaining evidence of the accident is a flat round scar about 1 inch in diameter. The medical evidence satisfies me that while the scar is at present moderately obvious it will become white and will be obscured by normal flesh coloured stockings. I viewed the scar and its appearance corresponded with the description contained in the medical evidence. 6. So far as general damages are concerned there is therefore no future economic loss while the small continuing scar can only attract minimal damages. 7. As to pain and suffering there were no unusual complications and the plaintiff's recovery from an injury of this kind was normal. I was referred to a number of authorities on general damages including Luk Bik-yu & Anor. v. Fong Wing-fook & Anor H.C.A. No. 2819/76, (1979) 9 H.K.L.J. 98 where a child injured in 1975 having similar but slightly more serious injuries was awarded $8,000 for pain, suffering and loss of amenities. In Chan Wing-kuen v. Ho Shui-gun & Anor O.J.A. No. 1189/77, (1978) 8 H.K.L.J. 255 a similar injury resulted in an agreed sum under this head of $10,000. Again the accident occurred in 1975. In the present case I am prepared to award general damages of $10,000 for pain and suffering and the residual scar. 8. Of the special damages the defendants agreed to the following sums which were claimed under the undermentioned paragraphs:
I will now turn to the items of special damages which were disputed. 9. $190 was claimed for Chinese medicine. The plaintiff's mother stated that she in fact spent $195 for Chinese medicine of an unspecified kind to assist in the early recovery of the leg injuries. This medicine was apparently used or applied during the same period the plaintiff received treatment under Western medicine. Kwan Mei-king v. Au Hong-keung (1972) H.K.L.R. 352 is authority for the proposition that claims for Chinese medicine can only be considered where the treatment does not overlap with treatment under Western medicine. It may be that with an increasing trend for elements of both Western and Chinese medicine to be used together or at the same time that that decision will need to be reviewed. However, the facts before me do not warrant any departure from that principle in this case. The claim for $190 is therefore disallowed. 10. The next disputed item is under paragraph (iv) where $540 is claimed for nourishing food for a period of 36 days at the rate of $15 per day. I was referred to the principles collected in Kwok Mei-tai v. Tang Yu-hand & Anor. (1978) H.K.L.R. 395. Pigs liver, pigs hearts and luncheon sausage were purchased by the plaintiff's mother who followed the example of other parents who had children in Hospital. It also seemed that the plaintiff had no appetite for the normal hospital diet. The latter explanation by itself is no ground for allowing this claim. Nor does the mother's action in following the example of other parents fully comply with the principles relating to claims for nourishing food. Further where, as here, the nourishing food was in the nature of an alternative rather than a supplementary diet, the observation of Li. J. in Luk Bik-yu & Anor v. Fong Wing-fook & Anor (supra) that any such claim should be offset by an amount for the normal intake of food, is particularly relevant. Taking a broad view I am prepared to allow $250 as a reasonable sum under this head. 11. The remaining item of special damages in dispute was the claim for wages lost by the mother from 1.3.78 to 8.2.79, amounting to $8265.93. It was agreed that for the 6 months to 1.3.78 the plaintiff's salary, including bonus was $4432.50. In calculating a monthly figure of $734.75 the plaintiff appears to have spread the bonus for 12 months over only 6 months. 12. The plaintiff's monthly breakdown was not challenged by the defendant. However the actual monthly figure would be rather less than the $734.75 claimed. In the absence of detailed submissions on this point, I propose for the purpose of this assessment to treat the mother as having a monthly salary of $690. 13. Is the mother's loss of wages a proper sum to be included in the plaintiff's claim for damages? 14. Donnelly v. Joyce (1973) 3 All E.R. 475, C.A. is ample authority for the proposition that a plaintiff is entitled to claim damages in respect of services provided by a third party which were reasonably required by a plaintiff because of physical needs directly attributable to the accident. Donnelly v. Joyce was referred to in Barnett and Anor v. Chan Ting-chung (1975) H.K.L.R. 482. In appropriate cases the third party may be the mother of a plaintiff. That was the position in Donnelly v. Joyce. That is the position in this case. The English Court of Appeal also held that a plaintiff's loss in such a case was the need for such services, the value of which, for the purpose of assessing the amount of the loss, was the proper and reasonable cost of supplying the plaintiff's need. On the basis of that authority I am satisfied that the defendant is liable for the cost of the mother's services. The cost is the actual loss of wages by the mother necessitated by the defendant's negligence. That is the proper measure of the plaintiff's loss. 15. The period claimed from 1.3.78 to 8.2.79 represents the time from when the plaintiff returned home from Hospital until, in the opinion of the mother, she was able to go to school unescorted. Although the nursing services carried out by the mother for the period of approximately two months after the plaintiff arrived home and before she returned to school were of a lesser kind than those performed by the mother in Donnelly v. Joyce I consider that the absence from work for that period was reasonable. The real dispute concerns the period the plaintiff reasonably required escorting to school. The mother states that she required escorting until 8.2.79. Dr. Wedderburn in his Report considered that by 6.10.78 there was no reason why the plaintiff's mother should not have returned to work. 16. Counsel for the defendants submitted that the reason why the mother remained off work for such a long period to escort her daughter to school, was not because of any real need on the part of the plaintiff, but due to unreasonable concern on the part of the mother who had herself suffered a similar injury when young. I was referred to 1 Kemp & Kemp 'The Quantum of Damages' (4th Edn.) 185 where paragraph (4) deals with the perpetuation of symptons by an obsessive parent. I also had the benefit of evidence from Mrs. J.O.C. Lee, an expert educational psychologist who was called by the plaintiff. After examining the plaintiff on 15.11.78 Mrs. Lee made these observations:-
17. In considering this aspect I also take into account, in the plaintiff's favour, that the journey from home to school included crossing three busy road junctions and a traffic "Black Spot" where recently a fatal traffic accident had occurred. 18. Mrs. Lee considered that the plaintiff would have been in need of an escort for a further 4 to 6 weeks after the date of her examination on 15.11.78. There is no real conflict between the two experts for Dr. Wedderburn was commenting upon medical factors while Mrs. Lee was concerned with the psychological factors. Taking all these matters into account I consider that the plaintiff needed an escort until 30.12.78. I am satisfied that the plaintiff's mother made reasonable efforts to obtain the services of an escort during this period to enable her to return to work but that none could be found. I am further satisfied that because of the length of the journey to school and the hours during which the plaintiff needed an escort it was not practicable for the plain plaintiff's mother to obtain part-time work during this period. I am therefore prepared to award special damages under this head at the rate of $690 per month for the period from 1.3.78 to 30.12.78 which totals $6210. 19. In the result damages are awarded as follows:-
20. There will be interest on the special damages of $6,767 at the rate of 4% from 20.12.77 until today. There will be interest on the general damages of $10,000 at the rate of 8% from 22.12.78 until today. 21. The total damages are to be paid into Court within 14 days. On payment in there shall be payment out to the plaintiff of the special damages. As the plaintiff is a minor the general damages of $10,000 are to be invested by the Registrar in the usual manner with liberty to apply. The plaintiff is entitled to the costs of the action and of an occasioned by this assessment on the upper scale which shall be taxed in accordance with the Legal Aid Regulations. In respect of the other orders under this assessment there shall also be liberty to apply. 22. Dated this 30th day of June, 1979.
Representation: Mr. Chandler, Legal Aid Officer, for plaintiff. Miss Eng of Vincent Lo & Co. for both defendants |