Fuk Nui v. Lai Man-wai and Another
Read the full judgment text of HCA 2661/1977 on BabelCite. This High Court CFI judgment.
1. This is an assessment of damages made in case the plaintiff wishes to consider an appeal. Judgment on liability was given against her at the conclusion of the hearing.
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HCA002661/1977
----------------- Coram: Cons, J. Date of Judgment: 3rd March 1978. ----------------- JUDGMENT ----------------- 1. This is an assessment of damages made in case the plaintiff wishes to consider an appeal. Judgment on liability was given against her at the conclusion of the hearing. General Damages 2. The plaintiff was knocked down by a motor-cycle in July 1975. She was then fifty-seven years of age and worked as a waitress in a small restaurant. She received serious injuries in the accident:
3. She was detained in hospital for some nine months. Of these she spent three with one or both legs in traction and most of the remainder with the right leg in plaster. In the last three weeks she was treated and instructed in physiotherapy. 4. The last and indeed the only medical report that has been shown to me is dated July 1976. It shows that the first three items of injury mentioned above have left no permanent disability. However, it also shows that there was considerable restriction in the movements of the right arm and both legs; shortening of both legs, and to different degrees; wastage of various muscles; several small scars, one of which had been remedied to some extent by a skin graft; and a substantial loss of grip strength in the right arm. According to the doctor the plaintiff walked with a shuffling gait, could do so only slowly and for about one hour for a time and had difficulty in climbing steps. She was unfit for any form of work which involved standing or walking and was unable to lift heavy weights. For industrial purposes the doctor would have assessed her impairment as 15 per cent of the whole woman. He did not say whether an improvement was to be expected but taking the picture as a whole and together with my impression of the plaintiff now in court I would not think any substantial improvement has been made or is now likely. With regard to general damages I was referred to the following cases:
5. In the present circumstances I would have awarded for pain and suffering and loss of amenities the sum of $40,000. Loss of future earnings I would have estimated at $300 per month with a multiplier of 3, that is a total $10,800. Special Damages 6. Before the accident the plaintiff was earning $700 with a $50 food allowance. She started work again for her previous employer on the 1st January this year, doing much lighter work at the reduced salary of $400 per month. It is suggested that she should have resumed work much earlier. I agree. It would seem from the medical report I have already mentioned that at that time she was probably already fit for light work and I think she ought to have started looking for something at the most three months later. She would probably have found it. Her previous employer would then, as he is now, have been very sympathetic to her unfortunate plight. Loss of past earnings should therefore be calculated at the rate of $750 per month from the date of the accident to the 1st November 1976 and at the rate of $300 per month from then until now. That is a round figure of $16,050. 7. Travelling expenses of $600 are pleaded in the statement of claim, which was amended as recently as the 1st February this year. They relate to the visits paid to the plaintiff by her husband when she was in hospital. An estimate of $8 per round trip to Queen Mary Hospital or Sandy Bay Convalescent Home works out in the region of two visits a week for the whole time that the plaintiff was there. That seems to me a very reasonable figure. I should add that it bears little or no relation to the evidence that the husband gave on this aspect of the case. 8. Then there is a claim of $1,000 for "nutritious food and tonic for extra nourishment". Two criteria for this kind of item were laid down by the Full Court in Mui Ling-kwan and another v. Wong Yin-wah and others(4). As I understand it they are:
McMullin, J. (at pp.478/9) added a rider that an award should not generally be made in respect of any period when the injured person is in hospital as an in-patient. On the other hand the Chief Justice (at p.472) appears to accept that a hospital patient is still entitled to make a claim. I notice that McMullin, J. did not in that particular instance actually disallow it. I would with respect prefer the wider view. Hospital diets provide the basic necessities. It must help the patient, and indeed it is common practice, to provide privately a little extra. In the present case the evidence that what was supplied did contribute to the plaintiff's recovery was very thin, but I would have held that it was just sufficient. Nevertheless the claim of $1,000 is too high in my view. In all the circumstances I would have thought an average sum of $50 per month would have been reasonable, and I would have taken it up to the date of the discharge from hospital, that is a total of $450. I should add that again the husband's evidence bore little relation to the pleading. He said that he had spent $5,000. I am satisfied that that was a deliberate exaggeration. 9. Counsel for the defence has raised a difficult point in this respect. He pointed out that as payment for the extra nourishment had been made by the husband and not by the plaintiff and that the husband had not been joined as a second plaintiff, the expenditure would therefore be not recoverable at all, for it was not a loss that had been incurred by the plaintiff herself. This is not the first time that this argument has been raised and counsel suggested that three different approaches have been adopted by courts outside Hong Kong. The first is a strict approach. It is exemplified by Gage and another v. King(5) where Diplock, J., as he then was, held that such expenses were recoverable only by the person who had incurred legal liability for them. In that case he found it to be the husband, and the claim by the injured wife on her own account was refused. A completely opposite approach was adopted by the Court of Appeal in Donnelly v. Joyce(6). There an infant plaintiff recovered the wages which his mother had lost in giving up her job to provide him with full time care and attention. The court looked not so much to the actual loss of the plaintiff as to the needs that had been imposed upon him by his injury; the amount of wages lost was the proper and reasonable cost of satisfying those needs. In Australia Taylor, J. has attempted a compromise. In Wilson v. McLeay(7) he refused to allow as special damages the expenses incurred by parents visiting a daughter plaintiff who was seriously injured and in hospital. But he included a slightly reduced and rounded figure to represent them in the general damages. 10. I am told that there is no authority upon this question in this jurisdiction and both counsel say that it would be of assistance to the profession if I could make good that deficiency. Before obliging as best I can however, I should emphasize that I cannot really do so for my decision must of necessity be obiter. Subject to that I would say that I would have undoubtedly preferred the approach adopted in Donnelly v. Joyce. It is with respect a practical commonsense approach, consistent with inherent concepts of what is fair and just and, as is pointed out in the judgment of their Lordships, an approach already adopted by the same court as long ago as 1938. I do not think any distinction can be drawn from the fact that in the present instance the husband would have been entitled, had he wished, to bring an action for the same expenses in his own right. 11. Finally I should add for the sake of the record that counsel for the plaintiff did not accept that the case of Pang Yau v. Cheung Kwok-hing and another was correctly decided with regard to the award of interest. 12. For the reasons I have set out above I would have awarded the plaintiff $50,800 by way of general damages and $17,100 special damages, with interest on the latter at 4 per cent from the date of accident until judgment. Representation: Christopher Young (Gunston & Chow) for the plaintiff. Ronny Tong (H.A. Hoosenally & Co.) for the defendants. (1) Action 2215 of 1976 (unreported) (2) Action 2997 of 1973 (unreported) (3) 7 H.K.L.J. 149 (4) 1973 H.K.L.R. 465 (5) (1961) 1 Q.B. 188 (6) (1973) 3 W.L.R. 514 (7) (1961) 106 C.L.R. 523 |