Chan Kit-fong and Another v. Ma Sai-ching and Another

HCA001234/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 1234 OF 1976

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Coram: Cons, J.

Date of Judgment: 16th November, 1977.

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JUDGMENT

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1. This action arises from injuries received by the 1st plaintiff just over three years ago when she was a passenger on a private minibus owned by the 1st defendant and driven by the 2nd defendant. Liability has been admitted in full. I am only concerned with the assessment of damages.

2. The 1st plaintiff is a married woman now aged 49. The accident has left her a paraplegic with all the natural consequences that that implies. I do not propose to enumerate them. They are standard and well-known. The 1st plaintiff was detained in hospital for thirteen months immediately after the accident and since then has been looked after by her husband at home. In order to do this he had to give up his own job as a tailoring assistant.

3. At the time of the accident the plaintiff wife was working in a factory earning on the average some $700 per month. I accept her evidence as to that. Since the accident she has, of course, not been able to resume her work and I am satisfied she will never be able to do anything which will bring in more than nominal remuneration. There is no evidence that her wages would have increased between the time of the accident and now. The actual loss of wages is, therefore, 37 months at $700 per month, which amounts to $25,900. From this must be deducted the sum of $3,809 already paid to her as the result of proceedings in another court (K.D.C. 3218 of 1977). The balance is $22,091.

4. In evidence the 2nd plaintiff, that is the 1st plaintiff's husband, said that he gave up his work as soon as his wife was injured. He did not say why this was necessary and it does not accord with what is pleaded in the statement of claim. From that document it would appear that he gave up shortly before his wife was discharged from hospital. I do not think it necessarily follows that the husband is now being untruthful. I think it possible that the draftsman of the statement of claim took the view that there was no reason why the husband should have given up so soon and made appropriate allowance. I agree with that view. There was a family to care for to some extent but the wife had been away from home for long hours each day including Saturdays and frequently Sundays and other public holidays as well. Some part-time additional help was all that was necessary.

5. Once the wife was discharged from hospital she needed full-time attendance. It did not need to be medically qualified. That part was covered by a weekly visit from the nurse. But it needed something more than the usual domestic amah. In fact no such person was engaged. The husband undertook the task himself. That seems to me a very reasonable course. He had to give up a net salary of $600 per month; I think it unlikely that he could have obtained outside attendance for his wife at anything like that figure. There is authority that compensation for nursing services provided by a spouse should not be as high as the cost of outside help: Wong Chi-on v. Yuen Tim-fat⁽¹⁾ and the cases there referred to. But each of those cases concerned a wife who was not working at the time of the accident. There was no question of giving up paid employment. I do not think they assist in the present circumstances. And in addition some allowance must be given to the natural desire of a wife to be cared for by her own husband rather than one who, to begin with at least, is a complete stranger. Wage increases in the tailoring trade appear to have been dramatic in the last three years. The husband's income would now be doubled what it was in 1974. I do not know how these increases have taken place, so I think it fair and convenient to calculate for the whole period upon the mean between the two rates, that is $900 per month. This is still a very reasonable figure. Twenty-four months at that rate is $21,600. To this will be added $2,600 in respect of the period while the wife was still in hospital.

6. The future depends upon many imponderables. For example, how long will the wife live? Her natural expectation of life has been reduced by about ten years. How long would the husband be able to go on working? For after that the rate of compensation would not necessarily depend upon notional wage loss. How long would the husband be able to cope with looking after his wife? He is already 64 years old. And what will be the cost of other attendance or hospitalisation after that happens? Some of these may perhaps cancel each other out. In any event I do not think anything is to be gained by attempts at over-elaborate calculation. Taking all in all I propose to work upon the rate that is good for today and apply a multiplier of 11, giving a total for future attendance at $118,800.

7. Then there is the wife's loss of future earnings. Bearing in mind her age and the ages of her husband and children I would assess the multiplier at 7 giving a further sum of $58,800.

8. Three items of miscellaneous special damages have been agreed at total of $2,024. Added to this is $1,500 for necessary alterations to the doors of the family flat to accommodate the wife's wheel-chair.

9. I turn next to the question of "small luxuries and extra nourishment". The husband says that he spent about $12 each day making soups of various kinds which he took to his wife while she was in hospital. There was nothing to show that these were of any real medical benefit to her and in view of the comments of McMullin J. in Mui Ling-kwan v. Wong Yin-wah⁽²⁾ I have great doubt whether any award at all should be made in this instance. However, I think it must be accepted as customary to take a little something when one visits one's wife in hospital and the defence concedes that despite the Full Court's ruling a small award is usually made in these cases. In the present circumstances I think it ought to be not more than $5 per day, that is a sum of $1,950.

10. I turn then to the general question of pain and suffering and loss of amenities. In an almost identical situation earlier this year the sum of $80,000 was awarded by this court. The only material distinction is that the plaintiff in that action was able to move round his home a little on crutches, whereas the present plaintiff has to rely entirely upon her wheel-chair. I have been referred to several cases decided in England in which the sums awarded appear considerably higher. But English cases can do no more than illustrate comparative trends. The amounts awarded do not directly assist. I consider an award of $85,000 to be appropriate in the present circumstances.

11. The damages to be awarded to the plaintiff wife may be summarised as follows:-

12. It is conceded by the plaintiffs' counsel that the proper guidelines as to interest are those now set out in the recent case of Cookson v. Knowles⁽³⁾, and interest will be awarded accordingly.

13. Finally the husband has made his own separate claim for damages for loss of consortium. The principle in this respect is usefully set out in McGregor on Damages 13th Edition paragraph 1157 et seq. The amount should be little more than nominal. I award $1,000.

14. Judgment is therefore entered for the 1st plaintiff in the total sum of $314,365 with interest on $51,765 thereof at the rate of 4 per cent per annum from the 28th September 1974 until today; and for the 2nd plaintiff in the sum of $1,000; both plaintiffs are to have their costs which shall be taxed in accordance with the Legal Aid Scheme.

Representation:

Mr. Eddis (Director of Legal Aid) assigned for the plaintiffs.

Mr. Michael Asome (Gallant Y.T. Ho & Co.) for the defendants.

(1) High Court Action No. 1120 of 1974

(2) [1973] H.K.L.R. 465 at 478/9

(3) [1977] 2 All E.R. 820