Yan Yuk Ki v. Wong Moi Kam and Another

HCA002816/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar O'Dea in Chambers.

Date of Judgment: 7th July 1977.

Mr. C.A. White of D.L.A. for Plaintiff.

Mr. Ronny Tong instructed by H.A. Hoosenally & Co. for Defendant.

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DECISION

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1. On 23rd day of November 1974 the plaintiff was a passenger in a Public Light Bus registration No. AS4202 which was owned by the 1st defendant and driven by the 2nd defendant. As the vehicle was being driven along Castle Peak Road it came into collision with a goods vehicle and as a result the plaintiff sustained injuries.

2. Interlocutory judgment was entered for the plaintiff against the defendants on the 12th April 1977 for damages to be assessed.

3. The plaintiff was admitted to Queen Elizabeth Hospital and on examination was found to have injuries to his left foot and left wrist. X-rays showed a fracture of the cuboid bone of the left foot and an old fracture of the right ulna. No fractures were detected in the left wrist. His left leg was put in plaster and he was later transferred to Lai Chi Kok Hospital where he stayed until his discharge approximately two weeks later.

4. After a number of visits to the hospital as an out-patient the plaintiff still complained of his foot and wrist being painful and in August 1975 he travelled to China to undergo acupuncture treatment. Finally in June 1976 for the purpose of this assessment he was examined by Dr. R.G.M. Wedderburn. In evidence Dr. Wedderburn disclosed that an x-ray of the plaintiff's left wrist indicated that he had suffered a fracture of the Scaphoid. While such fractures are not uncommon they have an unusual feature in that they may not be visible on x-ray until 10 days after the injury. This feature, he said, could account for the fact that it was not detected when x-rays were taken at the time of the plaintiff's admission to hospital. If the correct treatment is not given for such fractures they may never unite or it can take many months for union to occur. Dr. Wedderburn agreed that at the time of his examination he could not say when this fracture had occurred but he considered such an injury was consistent with the description of the pain the plaintiff felt subsequent to the accident.

5. The first issue I must consider is whether the plaintiff has been able to satisfy me that he suffered this fracture as a result of the accident. This issue is complicated by the fact that some 6 weeks prior to the accident the plaintiff was involved in another incident in which he suffered a fracture of his right ulna. He described this particular incident as occurring while he was loading a heavy article into his vehicle. It apparently slipped and fell onto his right arm. In evidence the plaintiff adamantly refuted the suggestion that his left wrist may also have been injured at the time of this earlier accident. It does seem to be unlikely that he would have injured his left wrist having regard to the nature of that accident. It is clear, however, that the plaintiff did suffer injury to his left wrist as a result of the vehicle accident the subject of this assessment as is evidenced in the medical report produced from Queen Elizabeth Hospital. This together with Dr. Wedderburn's evidence leaves me in no doubt that the wrist injury can be attributed directly to the vehicle accident on 23rd November 1974.

6. In considering an award for general damages I note Dr. Wedderburn's conclusion that the plaintiff will suffer no permanent damage as a result of his injuries. There is, therefore, no future loss of amenities or earning capacity. The only remaining head of damage is that of pain and suffering. While I accept that the plaintiff did suffer pain and discomfort for some considerable time after the accident, I prefer Dr. Wedderburn's findings as to the length of time in which the pain would have continued rather than the plaintiff's account which I felt was somewhat overstated. Dr. Wedderburn's conclusions indicate that some slight aching could have been felt in the foot for about three years after the injury was received but this would disappear and recovery would be complete. He further reported that the weakness to the wrist would also disappear but at the time of his examination in June 1976 there was some loss of strength evident.

7. In all the circumstances I would assess general damages at $9,000.00.

8. Special damages are also claimed:

(a) Loss of wages

9. I am satisfied on the evidence before me that the plaintiff was earning $1,500 per month as a taxi driver immediately prior to the accident. He did not return to work for seven months and on the medical evidence before me I would allow his claim for loss of wages during this period.

10. In June 1975 he commenced part-time employment as a replacement driver but stated that he did not have sufficient confidence to resume full employment at this time. His wages from June 1975 were $350 per month. The plaintiff claims loss of wages from 1st June 1975 to 1st April 1976 at $1,150 per month. I am not satisfied that his reluctance to assume full-time employment before April 1976 was directly associated with his injuries and I am only prepared to award damages for his partial loss of earnings up until 1st November 1975. From that date I am of the opinion that he was capable of earning his pre-accident wages.

11. Damages under this head are assessed as follows:-

12. The plaintiff's claim for the following damages were not challenged and will be allowed:-

13. Special damages total $15,800.

14. Interest will be awarded on the general damages assessed at the rate of 8% from the 24th January 1977 and on the special damages at the rate of 4% from the 23rd November 1974.

15. The plaintiff to have his costs to be taxed in accordance with the Legal Aid (Scale of Fees) Regulations.

16. Dated this 7th day of July 1977.

Representation:

Mr. C.A. White of D.L.A. for Plaintiff.

Mr. Ronny Tong instructed by H.A. Hoosenally & Co. for Defendant.