Yip Ping Kwun t/a Ping Kee and Another v. Chow Chi Keung and Another
Read the full judgment text of HCA 1440/1978 on BabelCite. This High Court CFI judgment.
1. The 1st Plaintiff holds a fixed pitch hawker licence; he works as a bicycle repairer. On the 10th September 1976 while engaged in repairing a bicycle at his fixed pitch stall the plaintiff was struck by a private car driven by the 1st Defendant which had mounted the pavement. The plaintiff was literally run over and crawled out from beneath the car after it had come to rest. He not unnaturally suffered injury and was taken to Tang Shiu Kin Hospital where he was detained for 19 days. He was re
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HCA001440/1978
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Barnett in Chambers. Date of Judgment: 13th October 1978. Y.C. Mok instructed by Ng & Lee for Plaintiffs. William Wong of Johnson, Stokes & Master for Defendants. ----------------- DECISION ----------------- 1. The 1st Plaintiff holds a fixed pitch hawker licence; he works as a bicycle repairer. On the 10th September 1976 while engaged in repairing a bicycle at his fixed pitch stall the plaintiff was struck by a private car driven by the 1st Defendant which had mounted the pavement. The plaintiff was literally run over and crawled out from beneath the car after it had come to rest. He not unnaturally suffered injury and was taken to Tang Shiu Kin Hospital where he was detained for 19 days. He was re-admitted at a later date for a period of 6 days. 2. The plaintiff's injuries fell into 3 distinct categories. First, he suffered abrasions and burns caused by the car exhaust pipe. These wounds have now healed but have left a number of large and unsightly scars on various parts of the plaintiff's body. Fortunately, the scars are all covered by clothing and, in view of the fact that the plaintiff is a male who is now aged 63, there is no cosmetic injury. 3. Secondly, the plaintiff received injury to his chest which was subsequently diagnosed as fractures of the 7th and 8th ribs on the left side of the chest. This injury has resulted in permanent disability to the plaintiff in that the expansion of his chest is now 2 inches which is about 1 inch short of the normal for a person of his age and build. This leads to shortness of breath and causes pain if ever the plaintiff takes a deep breath. Consequently, the plaintiff cannot exert himself or handle heavy labour. 4. Thirdly, the plaintiff suffered a wedge fracture, that is crushing in the form of a wedge, to vertebra L3. This has led to displacement of L4 and there is a consequent instability of L2, 3 and 4. The protective mechanism of the back muscles tends to hold the plaintiff back in forward movement and restrict him slightly in other directions. There is still a 1/3 restriction of forward movement. GENERAL DAMAGES 5. For the plaintiff Dr. Harry Fang gave evidence. As far as the spinal injury is concerned he said that if the plaintiff continues to work at normal pace there will be an increase of pain in the future and increasing deterioration of the spine so that perhaps after 5 years (which Dr. Fang emphasised was an arbitrary figure) the pain will be so bad as to be constant and an operation for spinal fusion will be necessary. He said that there would then be a relief of the symptoms which will do away with all the pain. The operation itself will require a minimum of one month in hospital. 6. The plaintiff himself gave evidence and a somewhat surprising picture emerged. The plaintiff returned to work with the approval of his doctor in January 1977. Some time after that he was able to cease using painkillers which he had been taking and the pain even at work has now subsided to what the plaintiff himself described as irritating. Furthermore the plaintiff is now repairing on average 6 bicycles a day whereas before the accident he repaired 5 bicycles and his earnings have increased. It is true that the plaintiff says he cannot walk or stand for more than a few minutes without feeling pain and having to take a rest but nonetheless the situation appears curious. 7. For the defendant Mr. Wong says it is difficult to reconcile the evidence of Dr. Fang with the present condition of the plaintiff. He suggests that there has been an improvement rather than a deterioration of the plaintiff's spinal symptoms and postulates 3 future conditions of the plaintiff upon which to base the award for pain and suffering and loss of amenities:-
8. I am of the view that upon the balance of probabilities Dr. Fang's prediction will prove to be correct. I would give 3 reasons for this. First, Dr. Fang is a specialist of repute. He gave clear evidence which has not in any way been challenged by evidence of a similar calibre. Secondly, the plaintiff struck me as an honest witness who was making light of his problems. As Dr. Fang said, the plaintiff is a man of small means who needs to work to maintain his living. It is not difficult to envisage the effect that the constant wear and tear occasioned by squatting, standing and lifting bicycles will have upon the plaintiff's spine. Thirdly, one has only to look at the X-ray (Exhibit P2) produced by Dr. Fang to see the serious nature of the injury to the spine and I do not think that it needs a specialist to say that there must be serious trouble in the future. 9. Accordingly, I make my award for pain and suffering upon the basis that within the next few years the plaintiff will suffer increasing pain and require an operation. In making the award I take into account that the necessary operation will relieve the pain entirely. As far as the operation is concerned Dr. Fang's evidence is that as a private patient the operation will cost the plaintiff $30,000.00, but if carried out in a Government hospital then it would be no more than the normal daily maintenance charge. Although it has been my usual practice to allow the cost of an operation upon a private basis, in this case I think it would be proper to allow it only upon a first class basis in a Government hospital. I say this for 2 reasons: I do not think that the plaintiff will be troubled where he has the operation and it is well-known that such operations as the one required by the plaintiff are carried out frequently and with success in the Government hospitals. 10. I have been referred to various decisions in connection with the award, the most relevant being Tseng Tien-pei v. Chan Shun-kwong and Anr. (HKLJ 1977, p.142) and Irene Mary Piper and Anr. v. Nancy Francis Tang (ibid. p.143). In Tseng the circumstances were similar to the present case, an operation being likely to improve the condition. In that case I awarded $23,000 plus $13,000 for the cost of medical treatment. In Piper I awarded $55,000 a substantial part of which was for loss of amenities. In both cases the injuries were of a "whiplash" nature and did not involve being run over, burned and having ribs fractured. Bearing in mind the other injuries suffered by the plaintiff in addition to the spinal injury and that the operation will relieve the spinal symptoms, I award $35,000 by way of damages for pain, suffering and loss of amenities. 11. There will be a loss of earnings while the plaintiff is in hospital. Bearing in mind that the plaintiff will need to recuperate thereafter, I consider it would be proper to allow 4 months' loss. For reasons which I shall come to later I put a month's loss of earnings at $1,500.00 so that I award $6,000. SPECIAL DAMAGES 12. Items (e) to (n) have been agreed and I allow these in full. 13. There is a claim for loss of earnings at the rate of $1,500 each month. The plaintiff has been unable to produce any documentary evidence whatsoever to support this claim. He has sought to justify on the basis of his various monthly expenses prior to the accident. However, the evidence is vague and unsatisfactory and is further damaged by the fact that there is a claim for partial loss of earnings after the plaintiff returned to work. If the plaintiff's evidence of what he earned after he returned to work is accepted, the result is a monthly income of $1,300. I do not think that the plaintiff is attempting to mislead the court but that in the absence of any books or accounts he is not entirely sure what his income was. I think it would be proper to accept a figure of $1,300 a month for the purpose of calculating the loss of earnings under this head. However, the plaintiff has satisfied me that his earnings have now increased and calculation of future loss at $1,500 p.m. is reasonable. 14. There was a complete loss of earnings for approximately 4 months and for this I shall award $5,200. 15. There was then partial loss of earnings from the middle of January to the end of September 1977. The plaintiff gave evidence of the exact figure to the nearest cent of his earnings during these months. He was not able to say how he arrived at these figures except that he remembered them. I think the proper thing to do in the circumstances is to make a lump sum award of $4,800. 16. There is a claim of $900 for nourishing food. This is not seriously challenged by the defence who accept that it should be allowed if it is beneficial and reasonable. Accordingly I allow this sum. 17. There is a further claim for a bonesetter's charges of $300. Again the defence accept this should be allowed if reasonable. I allow this claim in full. 18. Total general damages are therefore $41,000 and total special damages are $13,005. 19. The 2nd Plaintiff also claimed damages and these have been agreed at $2,000. 20. It now appears that interest should be awarded in accordance with the principles of Cookson v. Knowles. I award interest upon the damages accordingly. 21. There has been a payment into Court. I award the costs of the assessment (with a certificate for counsel if appropriate) depending upon whether the award is higher than the sum paid in. 22. Liberty to apply. 23. Dated this 13th day of October 1978.
Representation: Y.C. Mok instructed by Ng & Lee for Plaintiffs. William Wong of Johnson, Stokes & Master for Defendants. |