Own Sheung v. Wong Charm Kwun and Another

HCA001985/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Jones in Chambers.

Date of Judgment: 27th April, 1974.

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DECISION

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1. This is an assessment of the plaintiff's damages for personal injuries and loss sustained in a road traffic accident that occurred on the 21st June 1971 when the lorry on which the plaintiff was travelling as a passenger along Chai Wan Road Hong Kong collided with a fence on the roadside and overturned. The lorry was driven by the 1st defendant and owned by the 2nd defendant. No appearance was entered by either defendant and judgment in default was obtained against the 1st defendant on the 13th November 1973 and against the 2nd defendant on the 15th January 1974 for damages to be assessed.

2. The 1st defendant attended the hearing of the assessment of damages but the 2nd defendant was absent.

3. The plaintiff who is now aged 38 suffered the following injuries as a result of the accident:-

4. After the accident the plaintiff was treated at the Queen Mary Hospital for a period of fourteen months, during which time he underwent a series of surgical operations. The plaintiff's injuries were so severe that he nearly died whilst he was in hospital. The main in juries suffered by the plaintiff who is right handed were to the right side of the body. Attempts at surgery to mend the fractured forearm bones of the right side were unsuccessful and the plaintiff has had constant pain due to the non-union and also to nerve damage. The right forearm has been badly scarred and there is severe deformity whilst movement and power of the right elbow is considerably restricted. The plaintiff is unable to make a normal grip with his right hand which is atrophic whilst the right middle finger is deformed and he is unable to use chopsticks. The plaintiff's right arm and hand are both sensitive to pain and cause great discomfort. Dr. Poon who gave evidence for the plaintiff expressed the view that the sensory loss will last for the rest of the plaintiff's life but that the pain may improve. For most purposes the right forearm and hand are virtually useless.

5. The fracture of the tibia and fibula has resulted in the right leg being shortened by 1 ½" so that the plaintiff now walks with a limp and with the aid of a stick. He can only walk for about 30 minutes on level ground and for a shorter period up and down hill. Although the fracture has united, the previous compound wound and the infection that followed resulted in chronic osteomyelitis around the fractured site. Despite treatment the infection has never been satisfactorily cleared. There are multiple scars in and around the ankle and the leg is atrophic and weak. The ankle and foot are swollen, painful and stiff. The plaintiff cannot squat down fully on his right leg and he is unable to use a floor toilet. There is a superficial scar over the plaintiff's left eyebrow and he has scars over the left knee. According to Dr. Fang he will amost inevitably suffer in future from arthritis in the ankle and knee joint. So far as the plaintiff's physical condition is concerned no improvement can be expected but his expectation of life has not been affected. Both Dr. Fang and Dr. Poon assessed the plaintiff's permanent disability at 45%.

6. The plaintiff's wife gave evidence that she spent $800 for travelling expenses to visit the plaintiff in hospital and a sum of $4,000 in respect of nourishing food. The plaintiff further suffered damage to his clothing and watch amounting to $900. I accept the figures for the damaged clothing, watch and travelling expenses which will be allowed. No medical evidence was produced to support the claim for nourishing food with the result that this claim will be disallowed. Special damages will therefore amount to $1,700.

7. At the time of the accident the plaintiff was in partnership as a traxcavator driver but as a result of the injuries that he received he will never be able to work again in this capacity and for all practical purposes he is unemployable. The plaintiff said his average earnings at the time of the accident amounted to $2,000 per month which was the figure pleaded in the statement of claim and that they were likely to increase. Mr. Kwan Yip-leung the plaintiff's partner said that his present earnings amount to this sum, which evidence I accept. I was told that as a traxcavator driver the plaintiff could work until 55 and thereafter he could continue to work as a repairer at a monthly wage of $1,200 - $1,300 per month until about the age of 60. The plaintiff's earnings in all probability would have increased but as it is an imponderable I shall take the figure of $2,000 for the purpose of this assessment both for past and future loss and I will lump the two sums together as general damages.

8. I have made no discount for past loss, but I have discounted prospective loss of earnings and other general damages by 20% in view of an immediate payment. Taking into account the vicissitudes of life and bearing in mind that the plaintiff's expectation of life has not been affected I shall adopt a multiplier of 12. Accordingly for past and prospective loss of earnings I shall award the sum of $300,000. For pain and suffering and loss of amenities I shall award the sum of $50,000 as damages. General damages are therefore assessed at $350,000. Special damages of $1,700 will be added to this sum making a total award of $351,700.

9. The plaintiff is entitled to costs and there will be the usual taxation under the Legal Aid (Scale of Fees) Regulations.

10. Dated this the 27th day of April, 1974.

Representation: