William J. Oram v. China Motor Bus Co Ltd and Others

HCA001828A/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 1828 OF 1973

-----------------

-----------------

Coram: Morley-John, J.

Date of Judgment: 19 June 1974

-----------------

JUDGMENT

-----------------

1. This judgment only relates to the quantum of damages to be awarded in this case, the question of liability having already been resolved in a judgment delivered by me on 8th March, 1974.

2. As a result of the accident in which the plaintiff was involved on 2nd September, 1972 he suffered, inter alia, a fracture of his right hip, fractured ribs, extensive damage to his teeth, extensive bruising and lacerations. The plaintiff also claims that because of this accident his vision has also been adversely affected, and that he has suffered from bursitis of the right elbow from which it is anticipated he will not fully recover. This last claim proved to be incorrect as the plaintiff stated in evidence that the bursitis has now cleared up completely. The plaintiff also claims that due to the injury to his hip he has suffered loss of earnings and that he will also suffer prospective loss of earning capacity.

3. Turning to the particulars of special damage, the plaintiff particularised the dental treatment that had been undertaken as a result of the accident and produced an account from his dentist which amounted to $8,650.00. Counsel for the defendant has criticised this item, although he did not suggest that this treatment had not been carried out he submits that the details of such treatment have not been strictly proved, nor has it been proved that all of this treatment was necessary as a result of the accident. He has also said that there is no proof that this sum has ever been demanded and that the plaintiff has admitted that he has not yet settled this account. The plaintiff in evidence stated that he told his dentist to send the account to his solicitors and such an account giving an itemised total of the fees for work undertaken has been produced. The dentist could not be called to give evidence as he is at present out of the Colony, but this itemised account has been produced, and the plaintiff, who although not a dental surgeon is a Doctor of Medicine and a Fellow of the Royal College of Surgeons of both London and Edinburgh, has stated that this treatment was carried out, and that such treatment was carried out as a result of the accident in which he was involved. I therefore allow this claim of $8,650.00.

4. The second item of special damage claimed is $18,400.00 being the salary paid to a locum tenens whom the plaintiff had to employ for 3 2/3 months at the salary of $5,000 per month. According to my mathematics $5,000 x 3 2/3 only amounts to $18,333.00. However, it is agreed that the salary of the locum tenens was paid by the partnership of which the plaintiff was a 50% partner, and, therefore, that only half this sum should be allowed, so accordingly under this item I award the sum of $9,166.50.

5. There are two items claiming reimbursement of hospital fees. That of the Queen Mary Hospital amounting to $1,368.75 has not been challenged, and the receipt has been produced showing that that amount has been paid, and that sum is allowed. To support the claim of $2,900.00 as being the hospital expenses of the Canossa Hospital, a receipt for $2,500.00 has been produced. The plaintiff stated that $400.00 was also given to the hospital staff in the form of gratuities. Considering the time that the plaintiff was in the Canossa Hospital this amount would appear to be somewhat on the generous side, and I reduce it accordingly to $200, and under this item I award the sum of $2,700.00.

6. The next item is a claim for taxis to and from hospital, taxis hired by the plaintiff's wife when she visited him in hospital, but which were paid for by the plaintiff. Despite the case of Cook v. Wright ⁽¹⁾ where it was held that a claim by parents for the expenses of visiting a child in hospital must show, inter alia, that such visits were necessary in the light of the patient's medical condition at the relevant time. I award the sum of $168.00 claimed under this item. In the case of Cook v. Wright the sum claimed and allowed was $500 and although the court said what I have just quoted, it then went on to say that "every case will depend on its own facts."

7. The next item is a claim for the loss of the motor-car registration No. AN 283 amounting to $4,500.00, i.e. the car that the plaintiff was driving at the time of the accident, and which was treated by the insurance company as a total loss. The plaintiff has stated that he insured the vehicle for $13,000.00 but that the insurance company only paid $10,000.00 on his claim, and that he had looked up the current prices advertised in the newspapers of second-hand cars of a similar age and model to the one which had been destroyed and found that such cars were being advertised at around $14,500.00. hence the claim for $4,500.00. I think that we all know that if you advertise a second-hand car for sale at a certain price that is no guarantee that you will be successful in selling that car for the advertised price. The insurance company considered the car was worth $10,000.00 and that sum was paid to the plaintiff, which sum he put towards the buying of a better and more expensive car. Under the circumstances I do not allow this claim.

8. There are also claims for small items such as damage to clothing, clothing for hospital and the cost of an electric shaver. The defence asked me to apply the de minimis rule. However, so far as these items are concerned I award the sum of $200.00.

9. The next item is a claim for $4,785.00 being the cost of a car for the use of the locum tenens. The plaintiff said that he bought a second-hand car for this purpose, and that the purchase price was $4,500.00, registration fee $125.00. and insurance $150.00, which again according to any arithmetic amounts to $4,775.00. The plaintiff stated that he had a lot of trouble with this car, that he kept it after his locus tenens had departed but that it was unserviceable. Under this item I award the sum of $2,000.00.

10. The next item consists of the medical fees charged by Professor Arthur Yau who treated the plaintiff after the accident. The statement of account amounting to $825.00 has been produced and has not been challenged. It is interesting to note that although the plaintiff stated that he has not settled this account counsel for the defendant has made no criticism as to this as he did concerning the dentist's account.

11. The last item of damages claimed under the heading of special damages, and by far the most complicated, is a claim for loss of earnings from the date of the accident, 2nd September, 1972, to 31st December, 1973 amounting to $142,354.00. The plaintiff stated that this loss was sustained only in relation to the clinic he operated at Repulse Bay, but the income of which went into the partnership account while he was a member of that partnership which ceased on the 31st March, 1973. Thereafter until 31st December, 1973 the income from this clinic went wholly to the plaintiff. The loss was sustained for the reason that when the plaintiff was incapacitated no one could operate the gynaecological side of the clinic, and when he started work again his capacity for work was impaired, and also during his absence the plaintiff stated that he had lost a lot of his patients. According to the figures produced by the plaintiff's accountants during the period from 1st April, 1972 to 31st October, 1972 the average monthly income from that clinic was $25,446.00 not $26,483.00 as stated by the plaintiff in evidence, whereas the average monthly income for the clinic from 1st November, 1973 to 31st March, 1973 was $16,196.00, a drop in monthly average income amounting to $9,250.00. Thus from November to March, 1973 that loss would amount to $46,250.00. However, that was a loss to the partnership of which the plaintiff had only a 50% share. Therefore, the loss to the plaintiff during these months could only amount to $23,125.00. After the dissolution of the partnership from the figures produced by the plaintiff's accountant from 1st April, 1973 to 31st December, 1973 the income from the Repulse Bay clinic was $176,929.00, an average monthly income of $19,658.00. Taking again the monthly average income of the clinic from 1st April, 1972 to 31st October, 1972 as $25,446.00, the monthly average loss after 1st April, 1973 to 31st December, 1973 would amount to $5,788.00 which for the nine months constituting that period would amount to $52,092.00. Thus from the figures produced to me I calculate the loss of earnings from 2nd September, 1972 to 31st December, 1973 amounts to $75,217.00. I do not agree with the plaintiff's calculations which appear, although not strictly accurate in themselves, to have been made by taking an average monthly loss of a sum in the region of $10,287.00 and multiplying it by the figure 14, and also not taking into account that for part of this time the plaintiff was in partnership.

12. Counsel for the defendant has submitted that under this item the plaintiff is not entitled to one cent in damages because according to the figures supplied by the plaintiff's accountant during the period covered by this claim the plaintiff earned more money than he had earned in any previous period. I cannot agree with this argument, the claim is in effect for loss of earning capacity and on the evidence I am satisfied that if this accident had not occurred the plaintiff would have earned more than he actually did during the period, so in fact he still suffered a loss on what he would have earned if his earning capacity had not been impaired. If one accepts the argument put forward by counsel for the defendant it would mean, for example, that if a person left a job in which he had been earning $50,000.00 a year and secured a new job at $150,000.00 a year, and that shortly after taking up that job he suffered an accident which stopped him working for six months, then he would obtain nothing for the loss of earnings during that six months because in the year as a whole he would have earned $75,000.00, more than he earned in the year preceding the accident. Accordingly under this item I award the sum of $75,217.00.

13. So far as the claim for special damages is concerned I award total sum of $100,395.25.

14. The plaintiff also claims general damages. As a result of the accident the plaintiff was in hospital from 2nd September, 1972 until the end of October, 1972 when he sufferer a considerable amount of pain from his injuries, principally from the injury to his hip and teeth. Also, since the accident the plaintiff has suffered from recurrence heal aches which were so severe at times that he had to stop working. he has also suffered from disay spells, the last of which occurred in December, 1973. He had stated that both conditions are improving as the time goes by. The plaintiff also gave evidence that his eye sight has deteriorated as a result of the accident, that before the accident he had excellent eye sight, but that since the accident he has had to wear glasses for close work. Dr. Lor Kai Hung gave evidence that he examined the plaintiff's eyes at the Canossa Hospital and he prescribed reading glasses for the plaintiff. He said that the accident to the plaintiff might have precipitated the need for the plaintiff to wear glasses because an accident such as this causes deterioration of a person's physical condition generally, and this includes some deterioration of the sight. However, Dr. Lor stated that irrespective of the accident he would have suggested that the plaintiff should wear glasses for reading, and that the glasses he prescribed for the plaintiff are much weaker than one would expect for a man of the plaintiff's age even taking the accident into account.

15. However, one condition that has not improved is the persistent pain from the plaintiff's hip which he says occurs at some time every day up to the present, and is likely to continue and get worse in the future. He says that this usually occurs at the end of the day if he has been standing for any length of time which his profession as a surgeon often necessitates. In fact the plaintiff sat during most of the time he gave his evidence. He also stated that as the years go on he expects this pain slowly to increase. This pain is caused by the onset of osteoarthritis in the hip joint, and the plaintiff stated that this onset of osteoarthritis will necessitate an operation to his hip which is a certainty within the next three to five years. He has stated that after such an operation he will be unable to continue his work as a surgeon resulting in a very large decrease in his earning capacity. Professor Arthur Yau of the Department of Orthopaedic Surgery of the University of Hong Kong gave evidence as to the treatment he gave to the plaintiff in hospital and afterwards. Professor Yau stated that he examined the plaintiff on 13th November, 1972 when there was a 90⁰ flexion of the hip joint, and all other hip movements were full, and that as a result of X-rays taken on 10th January, 1973 it was shown that the head of the femur was healing well and that the healing was almost complete. However, Professor Yau stated that he next examined the plaintiff on 29th June, 1973 when the plaintiff complained of stiffness in his hip and X-rays showed arthritic changes in the joint. He next examined the plaintiff on 10th January, 1974 and he described how he found definite limitation of movement in the joint, and further X-rays showed further degeneration of arthritic changes in the joint, and Professor Yau stated that such degeneration is progressive and will definitely continue to progress in the next few years, and that this condition will definitely necessitate an operation for the replacement of the hip joint within three to five years. He said that this is a certainty although his estimate of three to five years is a rough estimate, such an operation might become necessary within a year, but it would definitely have to be performed within the next three to five years. According to Professor Yau such an operation would completely incapacitate the plaintiff for three months and that for the following three months his working capacity would be out by 50 to 60%. Professor Yau stated that after the operation all pain from the joint would disappear and that six months after the operation the plaintiff should be able to carry on as before except that he would not be able to play golf and he would not be able to run as there would be a 50% limitation of the movement of the hip joint. At present the plaintiff is aged 51 and was an active man in good health. Professor Yau disagreed with the plaintiff's opinion that he would have to curtail his original practice and it is the professor's opinion that the plaintiff will be able to carry the same work load as before. Professor Yau is a specialist in this field of surgery whereas the plaintiff is a specialist in gynaecology and obstetrics and I accept Professor Yau': opinion.

16. The plaintiff includes in his claim for general damages the loss of earning capacity that will result from the operation, the cost of this operation and hospitalisation and the employment of a locum tenons during the time he will be unable to work.

17. It has also been submitted to me that in considering the quantum to be awarded as general damages I should consider the question of inflation. However, I adopt the words of Widgery, L.J., as he then was, in the case of Mitchell v. Mulholland ⁽²⁾ when he said:

18. On the evidence as a whole, I assess general damages to be awarded to the plaintiff at $216,000.00.

19. The plaintiff also claims interest on any special damages awarded with effect from 2nd September, 1972 and interest on general damages with effect from the date of service of the writ in this action, i.e. 29th June, 1973. This being so in relation to the quantum of damages awarded as special damages I award interest at the rate of 8% per annum from the date of the accident to the date of this trial. As to the quantum of special damages this includes, inter alia, damages for loss of future earnings and there is ample legal authority which states that interest on such damages should not be allowed, and also applying the same principle I do not allow interest on the sums I have allowed for pain and suffering and loss amenities that I am satisfied will occur to the plaintiff in the future, neither do I allow interest on damages arising from the future operation and hospitalisation of the plaintiff. Therefore, although when assessing the quantum of special damages the courts frown upon the practice of particularising each item of general damages, in this case so that the amount of interest can be calculated I must separate from the question of general damages that amount I have decided should be awarded for pain and suffering and loss of amenities suffered by the plaintiff from the date of the accident to the date of the trial, and I assess that amount to be $40,000.00. Accordingly I award interest upon this sum at the rate of 8% from the date of service of the writ in this action to the date of trial.

20. I therefore give judgment for the plaintiff in the sum of $316,395.25 together with interest at such rate and on such sums as I have already indicated together with costs. As a result of my judgment dated 8th March, 1973 as to liability of the parties, 40% of the damages, interest and costs are to be paid by the defendant, and 60% by the third parties.

Representation:

Donnelly (Gordan Hampton & Winter) for plaintiff.

F. Eddis (Ngan & Wong) for defendant.

M. Asome (Johnson, Stokes & Master) for the 1st and 2nd third parties.

(1) [1967] N.Z.L.R. 1034

(2) [1971] 2 W.L.R. 1271, 1285