Chan Yum Wah v. Wai Chung and Another
Read the full judgment text of HCA 449/1969 on BabelCite. This High Court CFI judgment.
1. This is an application by the Plaintiff for assessment of damages pursuant to the order of the Deputy Registrar, Supreme Court dated the 29th July 1970.
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HCA000449/1969 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 449 OF 1969 -----------------
----------------- Coram: B.L., Jones, Assistant Registrar in Chambers. Date of Judgment: 14th December, 1970. ----------------- DECISION ----------------- 1. This is an application by the Plaintiff for assessment of damages pursuant to the order of the Deputy Registrar, Supreme Court dated the 29th July 1970. 2. The Plaintiff suffered personal injuries and loss as a result of a road traffic accident that occurred on the 13th July 1968 when the dual purpose vehicle that he was driving that day along Castle Peak Road in the direction of Yuen Long collided with an omnibus being driven in the opposite direction by the 1st defendant who was driving as an employee of the 2nd defendant. 3. Liability has not been disputed by either of the two defendants. 4. An agreed medical report made by Dr. Yeung of Queen Elizabeth Hospital showed that the Plaintiff had suffered a fracture of the right tibia and fibula, bruises over the inner aspect of the right thigh and leg and a 3" long laceration over the inner aspect of the right knee. 5. Suturing of the Wound and closed reduction of the fractures was performed and a plaster cast applied to the right leg. 6. The Plaintiff was in hospital for 2 1/2 weeks, in plaster for almost 3 weeks and walked with the aid of a stick for 10 months. 7. The Plaintiff who is a public light bus driver was unable to work after the accident for a period of 14 months. He returned to work on the 6th September 1969 and has continued to work since that time. Dr. Loco who gave evidence for the Plaintiff considered that having regard to the injuries received the period of 14 months away from work was reasonable. Although this evidence was challenged by the defendants' counsel I accept that the period was reasonable and I do not consider that the Plaintiff remained away from work longer than was necessary. 8. An agreed medical report dated the 8th April 1970 by Dr. Wedderburn was produced on behalf of the defendants in which he concurs with the opinion of Dr. Low that the Plaintiff has made an almost complete recovery from the accident and that the permanent disability is now not more than 3%. 9. In his report dated the 15th January 1969 Dr. Low was able to prognosticate that the Plaintiff would always suffer a slight weakness of muscle power controlling movements of the right knee and ankle joints and that the wasting of the right calf muscles will remain. Dr. Low expressed the opinion that the Plaintiff's present condition was reached about one year to fifteen months after the accident and that the progress afterwards to now was negligible. The Plaintiff will continue to suffer pain over the fracture sites during seasonal changes whilst he will always walk with a slight Limp. Dr. Low was unable to express an opinion as to whether the Plaintiff will develop osteo-arthritis in his right ankle joint or the joints of his right foot. 10. Apart from the medical treatment he received in hospital the Plaintiff also received treatment from a Chinese bone setter for which he incurred fees amount to $3,040. It was not established whether the Plaintiff's condition improved or worsened as a result of this treatment but no evidence was given that it proved to be of any benefit. In view of the lack of evidence in connection with this item of special damage I do not consider that it was a justifiable expense with the result that the claim for the bone setter's fees will be disallowed. 11. With regard to the other items of special damage the defendants have agreed the medical fees paid to Dr. Low, Dr. S.S. Kwan, Queen Elizabeth Hospital, KowLoon Hospital, the balance of the cost of repairs to the Plaintiff's vehicle and the loss of clothing. 12. The defendants' counsel submitted that a reasonable amount in respect of the travelling expenses incurred by the Plaintiff's son to visit the Plaintiff in hospital would be $68 and for the cost of food $368. The amounts of $163 and $689 set out in the Statement of Claim in respect of these items are excessive and I shall accept the figures suggested by the defendants' counsel. 13. Both claims by the Plaintiff for loss of earning at $50 per day from the date of the accident until the 6th September 1969, the date the Plaintiff resumed work and for loss of use of the Plaintiff's vehicle at $30 per day from the 13th July 1968 to the 28th August 1968 were challenged by the defendants' counsel. However, having heard the evidence I see no reason to disbelieve the Plaintiff nor his witness and I accept the amounts as claimed. 14. Accordingly the special damages will amount to $23,990 made up as follows:-
15. There will be no claim for prospective loss of earnings nor for loss of expectation of life. Consequently general damages will be limited to pain and suffering and loss of amenity in so far as the Plaintiff will always walk with a slight limp. 16. Various authorities were cited by both counsel but those cited for the Plaintiff were clearly too high having regard to the facts of this case. 17. Taking all matters into consideration I shall assess general damages at the sum of $7,000. The special damages of $23,990 will be added to this figure making a total award of $30,990. 18. The Plaintiff's costs of and incidental to this application to be taxed will be paid by the defendants. There will be a certificate for counsel. 19. There will be an order for payment out of the sum of $20,000 paid into court by the defendants on the 2nd and 14th November, 1970.
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