Ho Sui Ching v. Lau Pui Chi and Another

Case No.HCA 2052/1973

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA002052/1973

1973 No. 2052

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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BETWEEN
	HO SUI CHING	Plaintiff
	and
	LAU PUI CHI	1st Defendant
	THE EXPRESS TRANSPORT & BUILDING CONTRACTORS LIMITED	2nd Defendant

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Coram: Mr. Registrar Jones in Chambers.

Date of Judgment: 3rd June 1974.

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DECISION

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1. This is an assessment of the plaintiff's damages pursuant to an interlocutory judgment that was entered by consent on the 29th April 1974 in respect of personal injuries suffered in a road traffic accident that occurred on the 13th January 1972. On that date the plaintiff was knocked down by a motor vehicle driven by the 1st defendant who was acting as agent or servant of the 2nd defendant.

2. Medical reports of Dr. H.M. Wu dated the 6th November 1972 and Dr. Wedderburn dated the 9th October 1973 who examined the plaintiff on behalf of the defendants were agreed.

3. The plaintiff who is now aged 31 sustained the following injuries:-

	(a)	Extensive bruising and tenderness over the right side of the chest and abdomen;
	(b)	A 1" long laceration at the left margin of the tongue;
	(c)	Fractures of the right 8th, 9th and 10th ribs;
	(d)	200 c.c. of stale blood with clots in the peritoneal cavity;
	(e)	Two lacerations, 9 c.m. and 12 c.m. long respectively over the surface of the liver and
	(f)	Laceration of serosal covering in the ascending colon.

4. The plaintiff was detained in hospital from the date of the accident until the 2nd March 1972 when he was discharged. Following his discharge the plaintiff convalesced at his home for two months when he was on sick leave.

5. The plaintiff is employed by the Public Works Department as a civil engineering technician and was so employed at the time of the accident. The plaintiff suffered no loss of income as a result of the accident.

6. On the 12th April 1972 a medical board assessed the plaintiff's permanent disability at 2% which was attributed to residual pain.

7. In his report Dr. Wedderburn said that the plaintiff had made a complete recovery from the accident except for a seven inch long upper right paramedian scar. He assessed the plaintiff's permanent disability at less than half of one percent.

8. The plaintiff complained in evidence that he continues to suffer pain often in the region of the scar which he described as a "pulling feeling". Dr. Wedderburn confirmed that he suffers from this "pulling feeling" but should only do so occasionally. The plaintiff said that as a result of the scar and the continued pain he is no longer able to swim, go out for picnics or to play ten pin bowling whilst he has given up the outward bound school. It is as a result of the embarrassment caused by the scar that the plaintiff says that he does not now swim but with regard to the other activities that he no longer pursues he attributes this to the pain that he receives. However, it appears that the plaintiff has made no attempt whatsoever to swim since the accident whilst he has only made two attempts to play ten pin bowling, the last time being in October 1972. It is clear that the plaintiff has made very little effort to return to these activities and I am not satisfied that his amenities have been so seriously affected as he contends. Various complaints were made by the plaintiff to Dr. Wedderburn which he described as unjustified in his report and having seen the plaintiff I am of the opinion that he has exaggerated his symptoms.

9. Special damages of $4,880 has been claimed under four heads, which sum has been disputed by Mr. P.H. Davies who appeared for the defendants. $1,500 was claimed for three months' wages for an amah but it is clear from the evidence that she was employed to assist the family when the plaintiff's wife suffered a miscarriage shortly before the plaintiff was discharged from hospital on the 2nd March 1972. Accordingly this claim fails as it was not attributable to the accident. The sum of $1,500 was claimed in respect of nourishing food purchased by the plaintiff's wife from the market which was consumed by the plaintiff in hospital. Mr. Kim Sing for the plaintiff in support of this claim referred to an article 'Special Food in Personal Injuries Cases' published on page 335 of Volume 3 of the Hong Kong Law Journal 1973. However, it appears that this article was published before the Full Court decision of Wong Yin Wah and Another v. Hung Ping Kwan & Others Civil Appeal No. 6 of 1973 which was delivered on the 28th September 1973. This appeal was from the judgment of Li J. in O.J. 1400 of 1971 referred to in the article in the Hong Kong Law Journal. With regard to the claims for special food the Chief Justice in his judgment said:-

	At least, since Shearman v. Folland (1950) 1 All E.R. 976 it has been customary to claim as special damages a sum for extra nourishment. And the courts have almost invariably allowed a reasonable sum for such a claim.
	Whether such a sum is reasonable must cepend on the circumstances of each case. If the figure is challenged it must be proved that there was expenditure on nourishment suitable to assist the recovery of the injured persons. And it must be a reasonable sum. Obviously if a special diet is ordered by the physician or herbalist, in charge of the case, it should be allowed as an item of special damages, provided the amount is not unreasonable. what is not allowed is to saddle the defendants with the expenses of articles of luxury food and drink which cannot be said to be appropriate and necessary (in the widest sense) in assisting in the cure of the injured person.'
	McMullin J. in the same case in his judgment said:-
	'...... there should always be evidence to show that a special diet was adopted not wholly as a self-prescription of favourite delicacies but on the advice of some qualified person on whose judgment the court can rely, it being left to the court to decide in each given case, having regard to the nature of the advice and the efficacy of the prescription, whether it was in all the circumstances justifiable. Where no such evidence is adduced the claim should be very narrowly regarded especially if it is substantial although no doubt even then it would be open to a judge to make a nominal or small award provided he was satisfied that the diet included foodstuffs of noted nutritional worth ....... where a patient has submitted to regular treatment as an in-patient in any hospital a claim for foodstuffs employed to supplement the regular hospital diet should not be sustained in the absence of evidence to show that that diet was deficient or that a special diet had actually been ordered by a doctor or that the patient had special needs which were not made known to the medical authorities and which if made known would probably have resulted in the prescription of such a diet. what is important in every case is that there should be some evicence put before the court, where a special food is the subject of a claim, to support the a visability of that form of treatment.'

10. There is no medical evidence to support the plaintiff's claim for nourishing food which was in any event consumed by him whilst he was in hospital. No receipts were produced in support of this claim and the plaintiff agreed that he was not placed on a diet at the hospital. Accordingly upon the principles enunciated by the Full Court this claim will be disallowed. Likewise the expense incurred for medicine cannot succeed for it was taken upon the plaintiff's own decision and not upon medical advice. Although the claim for travelling expenses in respect of taxi fares by the plaintiff's wife to visit the plaintiff in hospital is high this item was not seriously challenged by Mr. Davies with the result that the figure of $280 will be allowed. Special damages will therefore amount to $280.00.

11. In view of the plaintiff's almost complete recovery from the accident general damages will be limited to pain and suffering. I do not consider that the plaintiff is entitled to other than a nominal sum for loss of amenities and for the disfigurement caused by the scar which is included in the assessment. Taking all matters into consideration I assess general damages at $10,000. As a result the total award is $10,280.

12. Upon the principles set out in Jefford v. Gee (C.A.) 1970 2 Q.B.D. at page 146 there will be interest on the special damages of $280 at the rate of 4% from the date of the accident the 13th January 1972 until today and at 8% on the general damages of $10,000 from the date of service of the writ which was the 19th July 1973.

13. The plaintiff is entitled to costs. There will be an order for payment out to the plaintiff's solicitor of the sum of $8,000 paid into court on the 5th December, 1973.

14. Dated this the 3rd day of June, 1974.

	B.L. Jones
	Acting Deputy Registrar

Representation: