Tse Lin v. Chan Kin Chung and Another
Read the full judgment text of HCA 1096/1975 on BabelCite. This High Court CFI judgment.
1. Interlocutory judgment was entered against the defendants on the 17th day of October, 1977. The plaintiff now applies for damages to be assessed. The damages are in respect of injuries she sustained, while a passenger in Public Light Bus Registered Number AT3628, when it was involved in a traffic accident on the 14th day of July, 1974. The first defendant was the bus driver who was employed by the second defendant.
|
HCA001096/1975
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Cruden in Chambers. Date of Judgment: 15th March, 1978. Mr. Wally Yeung instructed by Messrs. W.I. Cheung & Co. for Plaintiff. Mr. William Waung instructed by Messrs. Johnson, Stokes & Master for Defendants. ----------------- JUDGMENT ----------------- 1. Interlocutory judgment was entered against the defendants on the 17th day of October, 1977. The plaintiff now applies for damages to be assessed. The damages are in respect of injuries she sustained, while a passenger in Public Light Bus Registered Number AT3628, when it was involved in a traffic accident on the 14th day of July, 1974. The first defendant was the bus driver who was employed by the second defendant. 2. The plaintiff suffered a laceration of the right lobe of the liver 3 inches deep and 7 inches long. During an exploratory operation the laceration was repaired. The liver is now functioning normally, both qualitatively and quantitively. However, as a result of the very large vertical surgical incision, which was necessary to enable the operation to be performed, the plaintiff now suffers permanently from hyperasthesia. This is an irritation of the nerves supplying the skin and muscles which were divided by the long vertical incision. The hyperasthesia causes her an unusual form of discomfort. She has a 9 inch long vertical scar and a transverse scar of 4 ½ inches. It was undisputed that the defendants were liable in damages for this disability and that it was among the matters to be included in this assessment. 3. The plaintiff was aged 50 years at the date of the accident. She lost consciousness for 15 minutes and suffered loss of memory for 3 days. She was in hospital for 31 days. She now attends hospital once a month to obtain pills which are prescribed for her. 4. In addition to the Medical Board's Report and other Hospital Reports, there were two written reports by Dr. Wedderburn, who also gave oral evidence. His first written report was dated 9.4.76. His second written report was dated 20.12.76. There are a number of conflicts between the first and second reports. But most of these conflicts are more apparent than real for two reasons. First, when Dr. Wedderburn initially examined the plaintiff she was very unco-operative and he suspected that she was malingering. On the subsequent examination he rejected that possibility and because of her co-operation he was able, unlike the first occasion, to complete a full examination. Secondly, her condition, particularly her psychological reaction to the injuries, had improved by the time of the second examination. Where there are any conflicts between the two Reports I have accepted the contents of the second Report as supplemented by Dr. Wedderburn's oral testimony. GENERAL DAMAGES 1. Pain and suffering and loss of amenities: 5. The plaintiff suffered a serious injury which required immediate surgery to save her life. Fortunately she has recovered completely from the liver injury. For 20 years before the accident she had worked as a construction site worker which involved carrying heavy loads. It was a heavy labouring job calling for maximum strength and physical stamina. Because of the unusual form of discomfort caused by the hyperasthesia she is physically unable to resume her former work. 6. She is now only able to undertake a sedentary job or light work in a factory. The injuries have also affected her ability to carry out usual domestic household work. For example, she suffers pain when she sweeps the floor. When washing clothes she is no longer able to wring the clothes in her hands, as was her custom, as this causes abdominal discomfort. So instead she puts the clothes in a tub and uses her feet rather than her hands. When she straightens or leans backwards or if she coughs or sneezes she feels discomfort in the upper abdomen. She then holds her upper abdomen with both hands to overcome the sensation of discomfort and weakness. 7. Taking all these factors into account I award $18,000 under this head. 2. Loss of future earnings: 8. Before the accident the plaintiff earned $40 per day working 28 to 29 days each month which would have produced a monthly income of about $1,120. This is rather more than the $950 per month, particularised as part of the claim for special damages, in the Statement of Claim. It was pointed out at the hearing that out of that $1,120 the plaintiff had to pay for her own meals while working, which would perhaps have reduced that sum to a net $950 per month. Her former employer gave evidence that he is now paying his other women employees $60 per day for the same work in respect of which they and the plaintiff, in 1974, received $40 per day. 9. The plaintiff asserted that but for the accident she would have continued working on construction sites until she was 70. Her former employer gave evidence and stated that he continues to employ a number of women to carry out the same kind of work as the plaintiff previously carried out and that their ages ranged up to 65 years of age. Dr. Wedderburn considered that she would not have been able to have continued this type of work beyond the age of 60 years. His initial view was that she would, in any event, have had to have stopped this kind of work about two years after the accident. Apart from altering this period, in his second report he also orally commented that many people tend to work to an older age than may be medically desirable. 10. I find that probably she would have worked, at least up to the age of 60 years, doing this kind of work. She is now aged 54. Separate provision is being made, by way of special damages, for loss of income from the date of the accident down to today. These factors lead me to select a multiplier of 4. 11. I accept Dr. Wedderburn's opinion that she cannot return to her former job or any other heavy job involving lifting. I accept, however, that she is fit to carry out sedentary jobs or light factory employment. Since the accident she has only earned $50 over 20 days for doing seasonal plastic work at home. While she states that she has been unable to obtain any other work I consider a relevant factor, at least initially, was her psychological reaction to the accident and its post operative consequences. The defendants called a part-owner of a knitting factory who gave evidence that his type of factory did offer light work for persons who were not fit enough to carry out heavy duties. In 1974 he said that wages for this type of work were from $500 to $600 and now had increased to $800 to $1,000. The latter amount was subject to the worker being able to carry out additional work of a more onerous nature. I find that the plaintiff's disability would make it difficult for her to perform this kind of work. However, she could reasonably be expected to obtain work, within her physical resources, to produce a monthly income of up to $500. 12. In assessing her future loss I was also satisfied that, but for the accident, she would now be earning $20 per day more than she earned in 1974. Accepting her 1974 net monthly earnings as $950 this would have increased her present monthly earnings to $1,510. If from that sum is deducted the $500 she is at present capable of earning, there is left a monthly loss of income of $1,010. Using a multiplier of 4, I calculate her loss of future earnings as $1,010 x 12 = $12,120 x 4 = $48,480. 13. In making this assessment I have noted that Dr. Wedderburn calculated that the total impairment caused by these injuries is only 2%. But this impairment percentage, by itself, does not assist in the calculation of the proper damages to be awarded. It is merely an impairment percentage common to all persons suffering from such an injury. The crucial question, for damages purposes, is the effect of that impairment on the individual earning capacity of a particular defendant. Here that minor impairment has, because of the heavy manual nature of the plaintiff's work, a major effect on her earning capacity. She is disabled from continuing her heavy, but relatively highly paid, manual work. 14. I also considered that, under cross-examination, Dr. Wedderburn agreed that, in the case of a suitable patient, treatment at an estimated cost of $1,000 to $3,000, might be successful in eliminating hyperasthesia. However, even in the case of a suitable patient, the chances of complete success were no more than 40%. He considered that the plaintiff was not suited for this treatment. I accept that opinion and find that the plaintiff is not suitable for such treatment. SPCIAL DAMAGES: 15. I will deal with these in the order in which they are claimed:-
16. In the result I therefore award damages as follows:- 17. GENERAL DAMAGES:
18. SPECIAL DAMAGES:
19. There will be interest at the rate of 8% on $18,000 of the general damages from the date of service of the writ, namely the 13th day of June 1975 to today. The Special Damages amounting to $24,750 will carry interest at the rate of 4% from the 14th day of July, 1974 to today. The total damages are to be paid into Court within 14 days. On payment in there will be payment out to the plaintiff. The plaintiff is entitled to the costs of this assessment and the action. There will be a certificate for Counsel. 20. Dated this 15th day of March, 1978.
Representation: Mr. Wally Yeung instructed by Messrs. W.I. Cheung & Co. for Plaintiff. Mr. William Waung instructed by Messrs. Johnson, Stokes & Master for Defendants. |