Param Jit Kaur and Others v. Leung Fat Sang and Others
Read the full judgment text of HCPI 607/1976 on BabelCite. This High Court CFI judgment.
1. On the 12th October 1975 the second and third plaintiffs went to Kai Tak Airport to meet the first plaintiff who is the second plaintiff's wife. The first plaintiff, who works in India, had come to Hong Kong to spend 6 months leave with her husband. On the way home from the airport the taxi in which the plaintiffs were travelling was involved in an accident. All three plaintiffs were injured and now claim damages.
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Barnett in Chambers. Date of Judgment: 5th July, 1976. --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1. On the 12th October 1975 the second and third plaintiffs went to Kai Tak Airport to meet the first plaintiff who is the second plaintiff's wife. The first plaintiff, who works in India, had come to Hong Kong to spend 6 months leave with her husband. On the way home from the airport the taxi in which the plaintiffs were travelling was involved in an accident. All three plaintiffs were injured and now claim damages. Third plaintiff 2. The plaintiff was rendered unconscious. He was taken to hospital where he was found to have a cut in the corner of his nose and left eye and abrasions to his knees. There was also some tenderness in his right shoulder and chest. An X-ray showed that there were no internal injuries or broken bones. The cut was stitched, analgesic was given and he was discharged the following day. 3. The plaintiff complains that he still has pains in his head, particularly when it becomes extremely hot. However, no medical evidence was produced and I discount this complaint. 4. I was referred to O.J. 645 of 1974. In that case, Mr. Registrar Doyle awarded $600 for minor cuts and abrasions. 5. Taking into account the fact that the plaintiff was rendered unconscious, I award $750 for general damages for pain and suffering. 6. The plaintiff's claim for special damages is not disputed. I therefore allow a sum of $263. Second plaintiff 7. The plaintiff suffered a 1 ½" cut on his chin. The cut was stitched. The plaintiff was discharged later the same day. The cut is not noticeable. 8. Bearing in mind the case already referred to, I award $600 for general damages for pain and suffering. 9. The second plaintiff claims special damages as follows:-
First plaintiff 10. The plaintiff suffered 2 small lacerations on her chin and one 1" laceration on her scalp, and a fracture of the right femur. The lacerations were stitched while the fracture was treated by closed K-nail and skeletal traction. 11. The post-operative period was uneventful and on 18th December the plaintiff was sent to the Kwun Tong Margaret Trench Medical Rehabilitation Centre where she stayed until 16th March 1976. She was then returned to Queen Elizabeth Hospital and on 19th March the K-nail was removed. On 24th March she was discharged; on 1st April the stitches were removed and she returned to India on 3rd April. 12. The plaintiff was immobilized for 6 weeks after the first operation until 3rd December when she was able to get out of bed and move around in a wheel chair. She was still using the wheel chair when she went to the Rehabilitation Centre. Later, she used crutches or sticks. 13. The plaintiff gave evidence de bene esse before she left Hong Kong. I have not therefore had the advantage of seeing her. However, Dr. Hodgson's agreed reports reveal certain disabilities. 14. First, there is a scar 2.5 c.m. long on her chin. It is plainly visible and deforming. 15. Secondly, although the fracture is clinically united, the plaintiff's right leg is now 1" shorter than the left. The plaintiff has a pelvic tilt towards the right and walks with a slight limp. She has only ¾ of the usual movement in her right hip. 16. The plaintiff has been advised to have a ¾" lift in the right heel of her shoe so as to level off her pelvis. The other disabilities are permanent and will not improve. Moreover, it is possible that secondary degenerative changes (which I take to mean arthritis) may occur in the hip and knee joints in the future. 17. The plaintiff complains she can now only walk about 2 miles and then feels tired. In India, the plaintiff is a school teacher and travels 1 ½ miles to school on a bicycle. There has been no opportunity for the plaintiff to test her riding ability, nor to discover how she will be able to cope with her duties as a school teacher. No doubt exercise and practice will promote some degree of comfort for the plaintiff, but it is plain that she will suffer some permanent loss of mobility and some inconvenience. 18. In assessing general damages for pain, suffering and loss of amenities, I propose to take into consideration the plaintiff's claim for loss of enjoyment of the holdiday and loss of consortium. These losses were specifically pleaded in the statement of claim but not touched on in argument. My reason for this will be clear when I come to consider the claim for special damages. 19. For the plaintiff, I was referred to Richard T'sing and Chow Ho-chun v. Wong Pui & Anr. O.J.A. 1237/71 reported at 1974 H.K.L.J. p.207. For a similar leg injury and 15% disability, $45,000 were awarded in 1971. 20. For the defendants, I was referred to 5 cases in which awards under this head ranged from $7,000 to $25,000. Each award was at least 2 years ago. The highest award was certainly for more severe injuries than in this case. 21. The plaintiff is aged 30. She was in hospital or the Rehabilitation Centre for almost 6 months. She had 2 operations. She is left with the disabilities already described which include an unsightly facial scar. Bearing in mind the continual decline in the value of money, I award $20,000 for the pain, suffering and permanent loss of amenities already described. 22. It will be apparent that this is a sad case. The plaintiff had come to Hong Kong to spend her leave with her husband. She had last seen him in 1972. Unhappily, she spent virtually the whole of her 6 months' leave in hospital. Money had been spent on her air-fare and visa but she derived no real benefit from this, only pain and suffering. She did, of course, receive twice daily visits from her husband but that, if anything, aggravated the situation in the sense of "so near, yet so far". 23. I am quite satisfied that I should make some award at least for loss of enjoyment of the holiday. Loss of consortium is a more difficult matter being, as I understand it, a common law remedy. If that is the case, then I have no hesitation in saying that in this modern world of equality of the sexes it is time for the common law to catch up with the common good and give a wife such a remedy. 24. I am prepared to make an award in respect of both these losses. The question is, how much? I have not had the benefit of argument. 25. There is evidence that $3,040 was spent on the air fare, $95 on the visa and 200 rupees on the plaintiff's travel between her residence and Delhi. What is beyond dispute is that these sums have been utterly wasted. 26. Since the plaintiff did not enjoy her planned holiday, then it seems reasonable to quantify this loss by putting her in the same position financially as if she had never come to Hong Kong. The return of fares paid will effect this. I will award $3,150. 27. As to loss of consortium, I can do no more than pluck a figure from the air. I will award $1,500. 28. Total general damages are therefore $24,650. 29. Special damages:-
30. Apparently the plaintiff would not eat hospital food as she was not used to it. She was used to Indian curry which was not provided and had to be brought by her husband. It is conceded that one cannot just reject hospital food but it is pointed out that the plaintiff was a visitor to Hong Kong. 31. For the defendants, I was referred to Mui Ling-kwan & Anr. v. Wong Yin-wah & Anr. Part IV, 1973 H.K.L.R. p.465 wherein McMullin, J. in delivering one of the judgments of the Full Court (as it then was) laid down various criteria to be applied when considering a claim of this nature. It was further argued that, even if the accident had not occurred, the plaintiff would have required such food in any event and that the claim is merely a claim for every-day expenses in disguise. 32. In Mui, McMullin, J. said, inter alia, "What is important in every case is that there should be some evidence put before the court, where a special food is the subject of a claim, to support the advisability of that form of treatment. In the present case no evidence was given not even by the plaintiffs themselves." It is true that I am dealing with a case of substitution rather than a special food as such, but at least there is some evidence before me by way of explanation. Bearing in mind that the plaintiff was a visitor, I think the substitution reasonable. 33. It is a fair point that the plaintiff would have had such food in any event. Nonetheless, it is a notorious fact of which I think I can take judicial notice that catering for one is more expensive, (pro rata) than catering for two or more. 34. I will therefore allow $3 per day in respect of this claim which amounts to $495. 35. Total special damages are therefore $847. 36. I award interest at 8% on all three awards of special damages from the date of the accident; and at 8% on all three awards of general damages from the date of service of the writ. 37. Damages to be paid to the plaintiffs' solicitors within 14 days. 38. Plaintiffs' costs. 39. Liberty to apply. Dated the 5thday of July, 1976.
Mr. H.A. Hoosenally of H.A. Hoosenally & Co. for 3 plaintiffs Mr. H. Poon (Vincent Lo & Co.) for 1st & 2nd Defendants |