Diana Marion Dayus v. Lui Hoi Kau and Others

HCA001231/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: B.L. Jones, Assistant Registrar, Supreme Court in Chambers.

Date of Judgment: 11th March, 1970.

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DECISION

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1. This is an application by the Plaintiff for assessment of damages against the second defendant pursuant to a judgment obtained in default of defence on the 20th January, 1970.

2. Notice of the hearing was served on the Solicitors who had entered an appearance on behalf of the second defendant but the second defendant was not represented at the hearing of the application.

3. Damages are assessed by the Registrar under Order 37 rule 1 of the Rules of the Supreme Court. However, Order 37 rule 3 provides that 'Where any such judgment as is mentioned in rule 1 is given in default of appearance or in default of defence and the action proceeds against other defendants, the damages under the judgment shall be assessed at the trial unless the Court otherwise orders.'

4. Mr. Chettle for the Plaintiff has given an undertaking on behalf of his client that the action against the first and third defendants will not be pursued.

5. The Plaintiff claims damages against the second defendant for personal injuries received as a result of a road traffic accident that occurred on the 23rd January, 1967. On the date of the accident the Plaintiff was driving her motor car along Saigon Street, Kowloon when a van driver by the first defendant collided with her. It is alleged that the van in question is owned by the second defendant.

6. The Plaintiff said that when the van hit the driver's door her head which was turned to the right received a severe jolt. After a short time the Plaintiff was able to drive herself home. She did not receive any immediate pain which can probably be attributed to shock but later she vomited, had pins and needles, a bad headache and generally felt unwell.

7. The Plaintiff who is a physiotherapist employed by the Hong Kong Government went to work the following day but stayed for only a quarter of an hour and then returned home.

8. On the 26th January, 1967 the Plaintiff saw Dr. Peter Wu as an outpatient at the Queen Elizabeth Hospital. Certain treatment was prescribed and the Plaintiff remained away from work until the 31st January, 1967. She went back to work for a week from the 1st February, 1967 until the 7th February, 1967 but as there was no sign of improvement in her condition the plaintiff the saw Dr. Yau an orthopaedic surgeon. As a result of Dr. Yau's advice the Plaintiff was admitted to hospital on the 17th February, 1967. She received neck traction and was then placed in a plaster of paris collar. The Plaintiff was discharged from hospital on the 28th March, 1967.

9. After her discharge the Plaintiff was away from work until May, 1967 since which time she has continued working.

10. During the rest of the year 1967 the Plaintiff wore a high collar all the time she was at work, and for two or three months in the evening but then in the evening she changed to a smaller collar. In 1968 the Plaintiff wore the smaller collar both at work during the day and in the evening and continued to do so until June. After this time the Plaintiff said she had worn the collar at times when the symptoms of which she complained recurred. Subsequently, the Plaintiff complained of pain down the front of her chest and occasional spells of dizziness and disturbed vision.

11. Dr. Yau gave evidence and produced a medical report in which he stated that the Plaintiff suffered a severe sprain of the neck. In loose terminology the injuries would be described as whiplash. Due to the accident the patient has suffered arthritic changes and as she has a longer than usual neck she is more susceptible to injuries of the neck.

12. In his report Dr. Yau said that the Plaintiff over the past six months whenever she flexes her neck has a swimming feeling and feels that she might lose her balance; that she also feels electric shocks in her feet, "spots", neck pain and pins and needles down both upper limbs which have occurred intermittently. Upon physical examination it was revealed that the Plaintiff's neck has retained a full range of motion but in the extreme range of flexion, lateral flexion to the left and right produces pain in the neck. X-rays that were taken showed an increase in instability between cervical 4 and 5 vertebrae and that arthritic changes are more marked.

13. In view of the symptoms complained of by the Plaintiff Dr. Yau has advised that the Plaintiff should undergo a spinal fusion operation to correct the instability between cervical 4 and 5 vertebrae. If the operation is not carried out the Plaintiff's symptoms will recur from time to time if there is an increase in physical activity or any mild injury to the neck. This would result in the Plaintiff having to take sick leave in order that she may receive physiotherapy treatment.

14. The Plaintiff said she is prepared to undergo this operation and it is possible that it may be carried out later this year when the Plaintiff returns to Hong Kong from long leave in England.

15. The Plaintiff is a spinster aged 38 and her monthly salary as a physiotherapist is $2,500. As a result of the accident the Plaintiff is no longer able to play golf and tennis. Her social life has also been curtailed as the symptoms are worse the next day. In particular she feels worse after dancing.

16. Special damages amount to $2,933.32 which includes $2,615.32 for loss of wages, $273 for hospital expenses and $45 damage to the Plaintiff's car.

17. General damages will be assessed under the following heads:-

18. The loss of future earnings will be for a period of about 3 months when the Plaintiff has the operation which is the time estimated by Dr. Yau in his report. The estimated cost of the operation is $3,000 and there will also be the anaesthetist's fee of $600, daily hospital expenses and loss of earnings.

19. Under loss of amenities the Plaintiff is now no longer able to enjoy golf and tennis whilst her social life has been seriously affected.

20. It is quite clear that under the fourth head the Plaintiff is still undergoing much pain and suffering after a period of over three years since the accident. An important factor to be taken into account under this head is the major operation which Dr. Yau has advised the Plaintiff to have and to which the Plaintiff has agreed. It is, of course, possible that the operation will not take place but if this is so the Plaintiff will have further pain and suffering which will be likely to increase with the years.

21. Taking all these matters into consideration I assess the general damages at $40,000. To this figure will be added the special damages amounting to $2,933.32.

22. Accordingly, the amount of damages assessed in favour of the Plaintiff is $42,933.32.

Representation: