Chow Chiu Cheung v. Hans Joachim Bernick and Another

HCA000371/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 371 OF 1969

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

Date of Judgment: 18th January, 1971.

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DECISION

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1. This is an assessment of damages under Order 37 of the Rules of the Supreme Court 1967 pursuant to the interlocutory judgment obtained by the Plaintiff against the 1st defendant in default of appearance on the 16th July 1969. The assessment originally came before me on the 27th May 1970 when the Plaintiff's counsel undertook not to proceed against the 2nd defendant having regard to the provisions of Order 37 rule 1(3) of the Rules of the Supreme Court.

2. Service of the writ of summons upon the 1st defendant had been effected by way of substituted service and no appearance had been entered to the proceedings.

3. There was no appearance by the 1st defendant at the hearing of the assessment on the 27th May, 1970.

4. Evidence was called on behalf of the Plaintiff on the 27th May but at the conclusion of the evidence I adjourned the hearing sine die in order to enable the Plaintiff to obtain an up-to-date medical report.

5. The hearing was resumed on the 24th August 1970 when I drew the attention of the Plaintiff's counsel to the provisions of Order 37 rule 1(2) of the Rules of the Supreme Court with regard to the fact that notice of the original appointment for the hearing of the assessment had not been served on the 1st defendant. Ultimately the directions of a Judge were obtained with regard to service of the notice of appointment and pursuant to the directions obtained, notice was eventually served by posting a copy of the notice on the notice board of the supreme Court on the 2nd, 3rd and 4th December, 1970 and was advertised in the South China Morning Post on the 5th December, 1970.

6. The assessment came before me again on the 11th January 1971, when there was no appearance by the 1st defendant.

7. The Plaintiff, a female, aged 23 received personal injuries as a result of a road traffic accident that occurred on the 5th May, 1968 when she was knocked down by a motor vehicle driven by the second defendant whilst crossing Wong Chuk Hang Road, Aberdeen from the bus-stop near to the entrance leading to Grantham Hospital. The motor vehicle was owned by the first defendant. The Plaintiff was unconscious for a period of three days after admission to hospital and she remained in hospital until her discharge on the 3rd June, 1968. The Plaintiff suffered a right extradural haematoma in mid. cranial fossa. A burr bole was performed on the 8th May 1968 with evacuation of the haematoma.

8. The Plaintiff regained consciousness slowly after the operation but her rental state at the time was said to have been confused. She developed a urinary tract infection during her convalescence which was however controlled. The Plaintiff also suffered a forked laceration of the right pavital scalp 1" in length and laceration 1" x 1/2" which was 1" below the right iliac crest. There were also minor abrasions on the right side of the calf, front of the knees and hands.

9. The Plaintiff still has two scars on her right hip and a large scar over her head. The Plaintiff complains that she still suffers ...(illegible) in the left upper and lower limbs whilst she is unable to lower her head as she becomes dizzy. Accordingly she walks with her head raised.

10. A report of a medical board dated the 24th July. 1970 that was convened at the Queen Mary Hospital states that there is no evidence that the Plaintiff has any permanent disability as a result of the head injuries received in the accident.

11. After her discharge from the hospital the Plaintiff attended as an out-patient at the Jockey Club Clinic in Western District until June 1969. Whilst convalescing the Plaintiff rented a room at North Point for the purpose of peace and quiet and remained for a period of eight months. The Plaintiff paid a rental of $105 per month for the room.

12. The Plaintiff who is an English teacher was unable to work from the date of the accident until the 1st February 1969. At the date of the accident the Plaintiff's earnings amounted to $410 per month. From February 1969 until May 1969 the Plaintiff gave private tuition earning $80 per month. The Plaintiff did not work from May 1969 - September 1969. In September 1969 the Plaintiff resumed employment as a full time teacher at a salary of $450 per month and continued to do so until May 1970. The Plaintiff commenced work in a garment factory in May 1970 and worked there as an indoor saleswoman until the middle of July 1970 earning $660 per month. The Plaintiff returned to work as a full time teacher in September 1970 earning $550 per month and has continued to do so since that time.

13. The Plaintiff's loss of earnings from June 1968 to August 1968 at $410 per month amounts to $1,230.

14. The Plaintiff received an increase in salary of $40 per month in September 1970 and the Plaintiff's loss of earnings from September 1968 to August 1969 at $450 per month amounts to $5,400 making a total loss of earnings of $6,630. To be deducted from this figure is the sum of $320 in respect of four months private tuition at $80 per month leaving a sum of $6,310 in respect of loss of salary.

15. The other special damages claimed amount to $2,890 made up as follows:-

16. Added to the loss of earnings the total special damages claimed by the Plaintiff amount to $9,200.

17. I do not consider in the absence of medical evidence that the Plaintiff was justified in incurring the expense of renting a room nor was any medical evidence produced to justify the claim in respect of nourishing food. I shall therefore disallow the sum of $840 claimed in respect of the rentals paid. For the nourishing food I will allow the sum of $750 which I consider to be a reasonable figure in the absence of strict proof. The special damages will therefore be assessed at $7,310.

18. In view of the medical evidence before me I shall award the sum of $7,500 in respect of general damages which when added to the special damages will make a total award of $14,810.

19. By virtue of section 30A of the Supreme Court Ordinance Cap. 4 interest may be awarded at such rate on the whole or any part of the damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment. I shall award interest at the rate of 8% as from the date the cause of action accrued viz. the 5th May 1968 until today, the date of final judgment.

20. Costs of and incidental to this application will be paid by the first defendant and there will be a certificate for counsel. As the Plaintiff is legally aided there will be taxation of the Plaintiff's costs in accordance with the provisions of the Legal Aid (Scale of fees) Regulations Cap. 91.

21. Dated the 18th day of January, 1971.

Representation: