Li Sai Hung v. Tsui Kwong Wai
Read the full judgment text of HCA 2059/1979 on BabelCite. This High Court CFI judgment was delivered on 9 November 1979.
1. The plaintiff, a young man of 26, was admitted to Queen Mary Hospital on 13th November, 1977.
|
HCA002059/1979
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Wilson in Chambers. Date of Judgment: 9 November 1979 --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1. The plaintiff, a young man of 26, was admitted to Queen Mary Hospital on 13th November, 1977. 2. He sustained:-
3. He remained in hospital just over two months, to the 18th January. The fractures of the forearm and pelvis were treated conservatively and the forehead stitched. The fracture of the hip was treated by operative reduction and fixed with nail, boneplate and serews. 4. The nock stiffness and pain persisted and in April 1978 he was readmitted to hospital for further X-Rays including a Myelogram, ie the insertion of a radio-opaque dye in the spinal column. These tests revealed nothing abnormal. He was given an orthopaedic collar which initially he were all day and which he still wears for a short time each day. 5. The plaintiff continued follow-up out-patient treatment and was absent from work for six months altogether. 6. His forearm, pelvis and forehead injuries have now healed. There is some residual weakness in the right wrist which should disappear and a sear, which is not very noticeable, on the forehead. He has however a permanent disability of the left leg. This is shorter than the right one, it has healed in a slightly twisted position resulting in the left foot being turned inwards. He walks with a distinct limp, he cannot run, and he ascends and descends stairs with difficulty. This is permanent and will not get better. There was a difference of medical opinion as to whether it could deteriorate. One Doctor said not, another was of the view that osteo-arthritis could set in in later life. 7. There was a further difference of opinion relating to the neck problem. Two Doctors were of the view that this cervical spine discomfit should disappear. A third Doctor considered there as a possibility on spinal problems in the future. 8. The plaintiff is employed in the Post Office and has now returned to the same work. He was given three months' sick leave on full pay and three months' leave on half pay. He will need a further operation for removal of the nail and boneplate in his hip in the near future. Pain, suffering and loss of amenities 9. The plaintiff was formerly an athletic young man keen on basketball, swimming and dancing. All vigorous athletic pursuits are now out of the question. Swimming is possible but will be limited to recreational bathing only; there is no question of swimming any distance. He holds a driver's licence and drove a car before the accident; even this is not at present advisable because of pain from the hip region and neck should he turn to see when reversing; however he should eventually be able to drive again. 10. The plaintiff used to attend Post Office Association camps. His participation in such outdoor activities is now severely limited. This formerly vigorous and healthy young man obviously suffers considerable deprivation. 11. The plaintiff's employment with the Post Office has not been immediately affected. Counsel did not pursue any claim for future loss of earnings because there was no risk of the loss of his present employment. However the plaintiff is now restricted to sedentary employment for life. This young man of 26 might well have desired to change his employment in the future but is now extremely limited in his choice. This is a factor I weigh under loss of "amenities". 12. It is not a case where it is possible to establish any mathematically assessable future loss of earnings. It is not even possible to establish future loss of earning capacity. The defence argument therefore is that I should ignore these heads - ie future earnings and future earning capacity. This is so but at the same time I do not think I can assume this young man would necessarily have been content to pursue his career in the Post Office for the rest of his life. He might well have wished to consider some alternative career in the many working years ahead of him and such choice may now not be open by reason of his permanent disability. To that extent I consider there is a "loss of amenity" in his handicap. 13. In all the circumstances I award $45,000 under this head. Cost of future operation 14. It is recommended that the removal of the plate be carried out in the near future. There was evidence that in a private hospital this would cost $10,000 - $15,000. However the plate was inserted at a Government Hospital in the first place and that same Hospital is now prepared to remove it. The removal is not a particularly complicated operation. It is done regularly in Government Hospitals. The plaintiff really had no better reason for it being done in a private hospital other than the fact that he would prefer private treatment. I disallow the claim under this head. Medical Bills 15. Items (a), (b) and (c) were agreed as claimed. I allow the small amounts claimed under (d), outpatient treatment and (e), crutches, notwithstanding the loss of the receipts. Travelling expenses 16. The plaintiff's own travelling expenses were proved to my satisfaction and it was certainly appropriate that he use taxis in his condition. 17. However the plaintiff's mother's evidence left me unconvinced as to her travelling expenses. I accept it as reasonable that she should visit her son daily whilst he was in hospital. I do not however accept her reasons for using taxis instead of buses. At $2 per day for bus fares the figure would be about $150 and I so allow. Special nutritious food 18. This was claimed at $30 per day whilst in hospital and $20 per day thereafter, totalling $4,740. The claim rested solely upon the oral evidence of the mother. I am far from persuaded that this sum was expended on the elaborate preparations described. If it was it was extravagant. There was no suggestion that the hospital provided other than an adequate diet. 19. I am prepared to accept that the plaintiff's mother purchased small items for her son from time to time to supplement his diet and that this was reasonable for his comfort and recovery. I would allow $5 per day for the period in hospital and nothing thereafter. This comes to about $350 which is the sum allowed under this head. Loss of earnings 20. This was supported by the Post Office memorandum as to almost all of the claim. The small extra amount is said by the plaintiff to be extra unpaid sick leave which he was obliged to take and I accept this. Clothing and personal effects 21. The list was plainly an estimate. I allow $400. 22. In the result the award is:-
Special Damages
23. There will be interest on general damages at 7% per annum from issue of the writ to today and interest at 4% on special damages from date of the accident to today. 24. Sums to be paid to Director of Legal Aid within 14 days. Costs to be taxed under the Legal Aid Regulations. 25. Fit for counsel. 26. Liberty to apply. 27. Dated the 9th day of November, 1979
Representation: Mr. M.F. Ozorio (DLA) for Plaintiff. Mr. Hoosenally of H.A. Hoosenally & Co. for Defendant. |