Peter Joean Wong and Another v. Mak Yiu Sum and Another

HCA004912/1986

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Master Chan in Chambers

Date of Hearing: 25 August 1987

Date of Delivery: 11 September 1987 (P.I. file)

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Assessment of Damages

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1. The Plaintiffs claim against the Defendants for damages for personal injuries resulting from a head-on collision between the Plaintiffs' and the Defendants' vehicles on 4th March 1984. The 1st Plaintiff was the driver and his mother, the 2nd Plaintiff, was the passenger in their vehicle. By a writ of summons dated 29th August 1986 the Plaintiffs commenced the present proceedings against the Defendants. The Statement of Claim was amended on 29th July 1987 in respect of the special damages claimed by both Plaintiffs. Interlocutory judgment for damages to be assessed and costs to be taxed was entered on 15th October 1986 for failure of a notice of intention to defend.

2. The Plaintiffs duly served the requisite hearsay notice in relation to all the documents which were produced at the assessment. They consisted of a few medical reports, a survey report and a large number of receipts. Both Plaintiffs and a Dr. David Lee gave evidence at the assessment. The Defendants were absent.

3. The 1st Plaintiff said in evidence that his vehicle was written off as a constructive total loss as it was beyond reasonable repair. According to the survey report of Motor Adjusting Company dated 13th March 1984 the estimated repair cost of the vehicle was approximately $20,000.00 while the pre-accident market value of the same was only approximately $8,000.00. The estimated salvage of the vehicle was stated to be in the range of approximately $1,000.00 subject to storage and towage charges. In fact the damaged vehicle was sold for $1,150.00. The 1st Plaintiff alleged he was offered $22,000.00 for the vehicle at the end of February 1984 but he declined to sell it at that time. I do not find the 1st Plaintiff's evidence on the pre-accident market value of the vehicle reliable. The vehicle in question was a 1979 Honda Prelude. I accept the surveyor's estimate of the pre-accident market value of the vehicle at $8,000.00. In the premises, the loss to the 1st Plaintiff on his vehicle is $6,850.00 ($8,000.00 - $1,150,00). The 1st Plaintiff is also entitled to the survey fee of $500.00, the storage fee of $200.00 and the towage charge of $180.00 on the basis of the receipts produced. The 1st Plaintiff also claimed for damage to a pair of spectacles. He was not able to recall the exact value of the damaged spectacles save it was about $600.00 at cost. The replacement cost $460.00. The 1st Plaintiff is awarded $460.00 for loss of his spectacles. The claim for travelling expenses of $160.00 to go to the police station from his residence to give statements is disallowed as being too remote.

4. The 1st Plaintiff was fortunate enough not to have sustained any injury apart from bruises at the 8th and 9th rib area. Mr. Huang for the Plaintiffs was, quite understandably, unable to refer to any comparable authority on the quantum of damages for pain and suffering of a minor injury of such a nature. An award of $2,000.00 is made for pain and suffering of the said injury.

5. The 2nd Plaintiff sustained, as a result of the accident, a fracture of the right clavicle and the 4th rib on her left chest. She was aged 71 at the time of the accident and the medical evidence indicated that as a result of her age it would not be uncommon for her to have a longer than usual period of recovery. Dr. Fung of the United Christian Hospital said the fracture to the clavicle should heal within 3 to 6 weeks (depending on age), and he recommended 3 months' sick leave. She was discharged from hospital after 2 hours of observation. Dr. Fung diagnosed that there would be residual pain in her shoulder for another 1 to 2 months after the healing of the fracture. However, the 2nd Plaintiff continued to experience severe pain to her right shoulder which she alleged is still present, though to a lesser extent than before, at the time of the assessment. She said she was not able to sleep, do any house work or lift any weight. She also said she could no longer take the morning strolls up the hill as often as she did prior to the accident. As a result of the persistent pain she sought help from a total of 5 doctors and 1 bonesetter between March 1984 and December 1985. According to Dr. David Lee, she now suffers from a 10% permanent disability of her right shoulder due to restricted movement consequential upon the development of a secondary frozen shoulder. What that really means is that due to a failure of mobilizing the right shoulder for a long period of time the movement of it had become much restricted. He was of the opinion that had the shoulder been mobilized by physiotherapy treatment immediately after the unity of the fracture to the clavicle the secondary frozen shoulder would not have developed and there should be no residual disability at all. The 2nd Plaintiff was not given any medical advice or treatment by Dr. Fung of the United Christian Hospital to prevent the development of a secondary frozen shoulder. After discharge from the hospital, she immediately consulted a bonesetter between 5th March 1984 and 3rd April 1984 at a total cost of $1,560.00. Between 11th April 1984 and 5th May 1984 she consulted a Dr. Y.Y. Kwok on 17 occasions and was given physiotherapy treatment on 15 of them. The first treatment of physiotherapy was given on 12th April 1984 and the last of such treatment on 5th May 1984. There is no evidence she received any further physiotherapy treatment from Dr. Kwok or anyone else since 5th May 1984. There is also no explanation given as to why such treatment did not continue after 5th May 1984. She had 4 further visits to Dr. Kwok between June 1984 and August 1985. She also attended a Dr. Wong on 20 occasions between 30th March 1984 and December 1985, a Dr. Leung on 3 occasions between 6th October 1984 and 15th November 1984, a Dr. Ho once on 13th October 1984; and Dr. David Lee on 20th December 1984. According to Dr. David Lee's evidence, to his surprise, the 2nd Plaintiff's fracture to the clavicle had still not united in December 1984 when he examined her. He then suggested an operation to forcibly mobilize the frozen shoulder under anaesthesia to free it. He said a secondary frozen shoulder is a painful condition as there would be inflamation. He said he would expect in a normal case of fracture of clavicle of a person of 2nd Plaintiff's age for the residual pain to last for 8 weeks and the unity of fracture to be completed by 10 weeks. There is no evidence as to why the fracture had not united before December 1984 or any suggestion that the bonesetter's treatment had contributed to this unusual slow rate of recovery. It may be due to the premature physiotherapy treatment given by Dr. Kwok in April 1984 before the unity of the fracture that had slowed down the healing. According to Dr. David Lee, such physiotherapy treatment should only be given after the bone has united i.e. at or about end of May 1984. However, on the available evidence before me I am not prepared to he ld that there was any actus causa intervenes to bring about the failure to heal prior to December 1984. It is unclear when in fact did the fracture to the right clavicle did heal. According to Dr. Lee it should be shortly after December 1984.

6. I am not satisfied that the present disability of the 2nd Plaintiff is a result of the accident. Had there been proper medical treatment in the form of physiotherapy given to her immediately after the unity of the fracture of the right clavicle there would not have been a secondary frozen shoulder at all. Dr. Lee prescribed as a cure, at present, intensive daily physiotherapy for a period of 6 to 8 weeks; and a force manipulation of the shoulder under anaesthesia if physiotherapy fails. He said it is difficult to assess if any of the suggested cures would be successful. I find that the pain and suffering of the 2nd Plaintiff up to shortly after December 1984 to be attributable to the accident, but not thereafter. Again no comparable authorities have been cited to me for the quantum of damages for pain and suffering. The nearest case is the case of Sin Sang v. Mak Lung Fei & others H.C.A. No 4776/84 where Master Woolley awarded, in September 1985, a sum of $8,000.00 for pain, suffering and loss of amenities for a 64 year old man who sustained abrasions, bruises, lacerations of the right forearm and a fracture of the left humerus leaving no permanent disabilities. In view of the unusual prolonged period of recovery in the present case and taking into accountthe factor of inflation; an award of $10,000.00 is made for pain and suffering. For reasons supra, no award will be made for any disability.

7. The 2nd Plaintiff is entitled to recover $1,560.00 for the fee of the bonesetter and the related $900.00 travelling expenses. I find her to have acted reasonably to resort to the bonesetter in view of the lack of any treatment given to her by the United Christian Hospital. I also award the sum of $2,820.00 being the fees of Dr. Kwok and the related travelling expenses of $840.00 as being reasonable expenses incurred for medical treatment. According to the 2nd Plaintiff the reason why she went to Dr. Wong, Dr. Leung and Dr. Ho was because she wanted medicine to relieve her pain. She simply went to see a doctor whenever she felt the pain to be severe. No reasonable explanation was given as to why she did not or could not ask Dr. Kwok to prescribe such pain-relieving medicine to her for that period. I find the visits to the said 3 doctors to be unreasonable and the expenses not recoverable. The medical fee of Dr. David Lee in the sum of $300.00 for the examination is to be awarded to her. No evidence was adduced to support her claim for nourishing food in the sum of $2,400.00, and no award is made for that. Her claim for future medical expenses fails for the same reasons given on her disabilities.

8. In the premises the Plaintiffs are awarded the following sums : -

1st Plaintiff

Special Damage

9. There will be interest on the general damages at the rate of 2% per annum from the date of the writ to the date of this assessment; and interest on special damages at the rate of 3% per annum from the date of accident to the date of this assessment. I will hear the parties on the question of costs.

Representation: