Yip Hoi Kwai v. Yau for Choi

HCPI002997/1977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Barnett in Chambers

Date of Judgment: 22 February 1979

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ASSESSMENT OF DAMAGES

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1. The plaintiff was injured in a traffic accident on 30th December 1975 while riding his motor cycle. He was admitted to hospital and found to have a fracture of the right femur. On 3rd January 1976 he underwent an operation when the fracture was fixed with a long K-nail. After convalescence he was discharged from hospital on 23rd January 1976. Thereafter he attended regularly at the out-patient clinic until June 1976. He used crutches which were finally abandoned in October or November 1976.

2. In December 1976 medical examination revealed that there was a sound union of the fracture and it was recommended that the K-nail should be removed. Subsequently the plaintiff was re-admitted to hospital in December 1977 and an operation was performed to remove the nail on the 6th December.

3. The plaintiff has now made an almost complete recovery apart from a slight limitation of the rotation of the right leg, and a slight limp which it is anticipated will disappear. In addition, there are two large operation scars on the outside of the plaintiff's right thigh.

4. That at least is the plaintiff's physical history. It also appears that as a result of the accident the plaintiff has developed a phobia towards motor cycles and to a certain extent towards other forms of transport. This had led to irritability, loss of concentration and affected the plaintiff's memory. Fortunately the agreed medical reports indicate that therapy will rapidly cure this phobic state.

5. Turning to the question of damages for pain, suffering and loss of amenities, Mr. Chan for the plaintiff referred me to a number of cases. These however were not a great deal of help since they either involved injuries to other parts of the leg or were complicated by additional injuries. Mr. Suffiad's authorities were of more assistance and indicated a scale ranging from $1,500 to $10,000 for physical injury of the nature suffered by the plaintiff.

6. The present case is of course complicated by the plaintiff's phobia. Mr. Chan referred me to two English authorities reported in Kemp & Kemp. These authorities establish that a plaintiff should be compensated for phobia of this nature but, having regard to the facts of those cases and the fact that they were several years old, I do not think that they assist materially on quantum. Mr. Suffiad found one Hong Kong case, Kwong v. Chan 1975 HKLJ p. 381 where $1,500 was awarded for pain, suffering and loss of amenities.

7. On the basis of the necessarily brief report in the Law Journal, Mr. Suffiad made two points. First, that the award of $1,500 presumably included an allowance for the phobia. Secondly, that the plaintiff was dilatory in bringing his phobic state to the attention of his doctors.

8. I have consulted the original assessment of Mr. Registrar Doyle. From this, it is clear that $1,500 was awarded solely for the physical injuries. Further, the plaintiff in Kwong failed to consult any psychiatrist so that it was not known whether treatment would have been of benefit. That factor was taken into account when assessing loss of earnings, both as special damages and as future loss, and it was held that the plaintiff had not done all he could to mitigate his loss so that the awards for loss of earnings were reduced accordingly. Thus, there was no award for the phobia as such under the heading of pain, suffering and loss of amenities.

9. Nonetheless, I am of the view that the English authorities establish that the plaintiff should be compensated for his phobia. As far as quantum is concerned, there appears to be no reliable guide.

10. There is of course the cosmetic injury. The plaintiff has made very little of this. It is true that the scars will show when the plaintiff is swimming or dressed in shorts to play sports but the plaintiff did not give the impression that he would be unduly embarrassed.

11. The plaintiff says that he cannot walk for a long period without feeling tired. I accept that. There was some suggestion that the plaintiff can no longer participate in sports as actively as before but there was no evidence led to show that the plaintiff had been a particularly active sportsman.

12. Taking all these matters into account, I award damages of $15,000 under this head.

Special Damages

(a) Amah's wages for two months. These are not challenged. I award $1,600 as claimed.

(b) Travelling expenses from home at Quarry Bay to work at Tsing Yee Island. It is conceded that this is a reasonable claim since the plaintiff was handicapped by two crutches. However the plaintiff's evidence is that he incurred these expenses in full for only 1 1/2 to 2 months. I therefore think it proper to award damages under this head on the basis of 50 days travel which at $35 per day is $1,750.

(c) Travelling expenses from home to hospital. Again it is conceded that this is reasonable except that on the plaintiff's own evidence these expenses were incurred for 40 days only. At $20 per day I shall allow $800.

(d) Special food. The plaintiff seeks $4,260 for nourishing food such as chicken essence. The plaintiff was apparently advised by his doctor that he should have such food because of loss of blood. I allow $800.

(e) Damage to motor cycle. The plaintiff claims $1,200 on the basis of an estimate for repairs. The defendant says that the plaintiff has no apparent intention of repairing the motor cycle so that this sum has not been incurred and there is therefore no item of loss or expense which can be claimed. The fact remains however that the plaintiff has lost his motor cycle, or the use thereof, and should be compensated. In my view $1,200 is appropriate and I allow the sum.

(f) Medical expenses. $7,806 are claimed. It is conceded that $1,750 must be deducted. As to the balance the defendant contends that Dr. Hodgson's fee of $300 for a report should properly be included in the bill of costs. In my experience, the matter can be dealt with in either way and I shall allow it as part of this item. There is no serious dispute and I shall allow $6,056.

(g) Loss of earnings. The first two amounts claimed of $7,200 and $7,700 are not challenged. I shall allow them.

13. There is another claim for $32,400 for the period 1st October 1976 to 30th June 1977. The plaintiff is an engineer by profession, specializing in welding and steel structure design. He made great efforts to minimize his loss and to make the best of his condition by seeking employment at the earliest possible moment. Through the good office of a friend, he obtained an office job for a construction company in Tsing Yee in April 1976. He worked there for 6 months and left partly because a project had been completed and partly because, being on crutches, he was unable to do outdoor work which is essential to his job. Thereafter I am satisfied that he made every effort to obtain suitable employment but that he was unable to do so until he obtained a job with the Mass Transit Railway in July 1977. The defendant contends first, that if the plaintiff had the K-nail removed as recommended at the end of 1976, then he would have been in a much better position when being interviewed for various jobs. Secondly, he contends that the plaintiff said in evidence that the jobs for which he was interviewed were not suitable. As to this I clearly understood the plaintiff to mean that, because he was still incapacitated and unable to climb, he was clearly unable to do the jobs and rejected by the prospective employers on this basis.

14. The plaintiff created the most favourable impression with me. He did not seek to exaggerate or make the most of his difficulties. He sought employment as soon as possible and for 6 months put up with what must have been a most gruelling journey to and from work. It is true that the plaintiff was slow in having the K-nail removed. However I consider that we have to be realistic. With hindsight it is easy to say that a plaintiff should have better done this or that. I take the view that unless a plaintiff has done something quite unreasonable, then a defendant must accept the situation. I do not think the plaintiff acted in any way unreasonably. Accordingly I allow $32,400.

(h) Loss of helmet. I allow $300 which was the amount mentioned by the plaintiff in evidence.

15. Special damages therefore amount to $59,806.00.

Interest

16. I was not addressed on this point. It appears that the position is now regulated by the decision of the House of Lord in Pickett v. British Rail Engineering Ltd. (1978 3 Weekly Law Report p. 955) and that we may now return to the former position founded on the decision of Jefford v. Gee. As Lord Wilberforce has put it "increase for inflation is designed to preserve the real value of money - interest to compensate for being kept out of that real value. The one has no relation to the other."

17. Accordingly I award interest at 8% on the general damages from the date of service of the writ.

18. I award interest at 4% on the special damages from the date of the accident except in respect of the loss of earnings where I think it would be appropriate for the interest to run from 1st July 1977.

19. The plaintiff will have the costs of the assessment with a certificate for counsel except in respect of the afternoon adjournment wherein I ordered that the defendant's costs are to be paid by the plaintiff's solicitors personally and, if not agreed, to be taxed on a solicitor and client basis. As I said at the hearing, this was the third time the assessment had come on for hearing and yet the documents were not ready at the beginning of the hearing. Even now the originals of the plaintiff's medical reports are missing. In my view had the documents been ready, then the afternoon adjournment would not have been necessary.

20. I am prepared to hear the counsel further on the question of interest if they think it necessary.

21. Liberty to apply.

22. Dated this 22nd day of February, 1979.

Representation:

Mr. P. Chan instructed by Liu, Chan & Lam for Plaintiff.

Mr. Suffiad instructed by H.A. Hoosenally & Co. for Defendant.