Wang Siu Wai v. Wong Ling Yau and Another

HCA008871/1981

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

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Coram: Master Clay in Chambers

Date of hearing: 30th November 1983

Appearances: Miss Maria Yuen of Counsel instructed by Spencer Hung & Cc for the Plaintiff

Defendants were absent

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ASSESSMENT Or DAMAGES

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1. On the 27th January 1980 Wong Siu Wai then aged 7 was crossing Man Tau Chung Road when he was knocked down by a motorcycle driven by the let Defendant and owned by the 2nd Defendant. He was knocked unconscious and taken to the Queen Elizabeth hospital. On admission he was found to have active bleeding from a deep laceration 2" long over the right ear and an x-ray showed a linear fracture extending from the parietal bone to the base of his skull. he was kept in hospital for a total of 15 days. The last medical examination revealed a satisfactory recovery and there should be no permanent disability as a result of the injury.

Damages for Pain and Suffering

2. Miss Yuen could refer me to one similar case where there was a complete recovery following a skull fracture, Tam Man-bok v Lam Kim Kwong a decision of Mr Registrar Doyle in December 1974. In that case the Plaintiff suffered a depressed fracture of the skull and lacerations but unlike the Plaintiff in the present case had to undergo an operation on his skull. He was also assessed to have a permanent disability of 1.2%. He was awarded General Damages of $12,000. Miss Yuen urged me that taking into account the fall in the value of money since 1974 and the guidance of the Court of Appeal in Li Ping Sum v Chan Wai Tong that award would now be in the region of $22,000.

3. I have noted that the plaintiff was in hospital for some 3 weeks and I consider that the proper award to the Plaintiff under this head is $21,000.

Special Damages

(a) Tonic Food

4. A sum of $1,300 was claimed under this heading. The Plaintiff's father who gave evidence could produce no documentary evidence to support this claim and was unsure how much money had been spent on this item although he estimated it as about $1,000. Following Toki v Chan Kit Lam HCA 2224/1980 I allow this claim on the basis of $10 a day for 28 days which includes the plaintiff's period in hospital and his convalescence afterwards.

(b) Travelling Expenses

5. The amount claimed was $500 for daily visits to the hospital to keep the Plaintiff company. I consider this reasonable and award it in full.

(c) Medical Charges

6. Under this heading it is convenient to group together a number of items claimed by the Plaintiff as follows:-

7. All these items were satisfactorily supported by documentary evidence.

8. The history of the Plaintiff's treatment is that following the accident he was taken to Queen Elizabeth hospital and from there he was discharged against Medical advice by his father and transferred to St. Theresa's hospital where he stayed until the Doctor considered he could return home. The Plaintiff's father told me that he discharged the Plaintiff from Queen Elizabeth hospital as the regulations of that hospital did not permit parents to stay with a sick child overnight which he wished to do as his son was so young.

9. As I understand Miss Yuen she concedes that had the Plaintiff remained at Q.E.H. not all these charges would have been incurred but argues nevertheless that they may be recovered by the Plaintiff. She has referred me to P.J. Brink (No. 1) vs New P.G. Farm 1965 H.K.L.R. a decision of Huggins J. (as he then was). The relevant part of that case concerned the question of whether damages should be assessed on the basis that operations which were needed should be performed in Sweden. In the course of his judgment Huggins J. at page 1025 said:-

"No-one can deny the right of a patient to be treated by the Surgeon of his choice but it does not follow that the whole of the cost must necessarily be reflected in damages payable to him. It is a question of what is reasonable in all the circumstances. One of the considerations is whether appropriate treatment can be obtained less expensively on the spot."

10. There has been no point taken in the present case that the quality of medical care would have been any different at the Q.E.H. from that at St. Theresa hospital the justification advanced for asking that the defendant pay these extra charges is the very natural desire of the Plaintiff's parent to be present with him throughout the time he was sick. The decision of Huggins J. makes it clear that the question of whether less expensive treatment can be obtained is only one of the considerations. I consider that is proper to take into account the reassuring effect on a child of such tender years that the presence of his parents would have. In the particular circumstances of this case I find that the expenditure claimed for hospital fees was reasonably incurred and they are therefore allowed in full.

Summary

11. There will be interest on the General Damages at the rate of 2% p.a. from the date of issue of the writ and on Special Damages at the rate of 5.50% from the date of the accident to today.

12. There will be the Usual orders for payment of the General Damages into Court until the Plaintiff attains majority and for investment.

13. There will be an order for payment of the Plaintiff's costs by the Defendants to be taxed if not agreed.

14. Dated this 5th day of January 1984.

Representation:

Miss Maria Yuen of Counsel instructed by Spencer Hung & Cc for the Plaintiff

Defendants were absent