Chan Long Ying V Wong Chick Chung and Another

HCA002110/1985

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Master O'Donnell in Chambers.

Date of Hearing: 23rd September 1985

Date of Judgment: 4th October 1985

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ASSESSMENT OF DAMAGES

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1. The Plaintiff, 36 years of age, was employed as a waterpipe worker by an engineering company on 30th April 1984 and while working inside his employer's ground floor premises was injured when a motor vehicle owned by the 1st Defendant and driven by his servant, the 2nd Defendant, reversed into and collided with the said premises and the Plaintiff.

2. In this accident the Plaintiff sustained a puncture wound in the lower left calf and a fracture of the tibia and fibula bones of his lower left leg. The puncture wound was sutured and a long leg plaster applied for 3 months. The Plaintiff was admitted and spent atotal 3½ months in both Queen Elizabeth and Kowloon Hospital. After his discharge from hospital, the Plaintiff required the assistance of 2 orthopaedic walking sticks for 3 months and the use of one walking stick for a further month. Dr. R. G. M. Wedderburn's reports on the Plaintiff's injuries dated 22nd October 1984 and 26th March 1985 were produced in evidence by the consent of the parties. In his report Dr. Wedderburn describes that there was a oblique fracture of the lower third of the tibia about 2 inches above the ankle involving a comminution of 2 small loose fragments. The alignment of the tibia which bears the weight of the lower leg was described as good. The fibula which is the smaller of the 2 leg bones and which does not bear weight was fractured 1½ inches above the ankle with half an inch of over riding of the fragments. Althoug both fractures had united on X-ray examination in October 1984 the union was far from complete at that stage. At the later examination of the Plaintiff's injuries in March 1985 Dr. Weddergburn found that he still had a marked limp and his left ankle was still swollen and painful. The left leg was 5/8 the inch shorter than the right and recovery had not been as good as expected. The Plaintiff had considerable wasting of his left leg muscles and the circumference of his left thigh was 1 inch less than his right thigh and the left calf ½ an inch less than the right calf. The left foot only had 5% of dorsi flexion and 30% plantar flexion. Inversion and eversion of the left foot were both 10% and there was 50% loss of toe movement. The Plaintiff's impairment of his left leg was found to be 14% impairment of the leg from the ankle and 2% from loss of toe movement. This 16% total impairment of the left leg was a 6% impairment of the Wholeman. However, because of the Plaintiff's difficulty with walking and standing Dr. Wedderburn assessed his overall permanent disability as 10% in relation to his earning capacity.

3. Interlocutory judgment was entered by consent against both Defendants on 27th June 1985 with damages to be assessed by a Master. The assessement of damages was heard on 23rd September 1985 when the followed heads of damages were agreed by the parties: -

The only heads of damages in issue on this assessment were as follows : -

4. Turning to the claim for general damages relating to pain and suffering and loss of amenities Mr. LEUNG, Counsel for the Plaintiff, submitted that the injuries in this case were within the lower end of the "serious injury" category in LEE Ting-lam's case for which $90,000 should be awarded after the allowance for inflation at 50% since that award in 1980. Mr. Walter LAU, Counsel for the Defence, cited a series of cases for comparison purposes to show that the injuries here did not come within the category of "serious injury" and he contended that the appropriate award after the allowance for inflation was in the range of $45,000 to $50,000. After consideration of the various authorities placed before me, I would classify the Plaintiff's injuries in this case as being "bad fractures leaving recurrent pain" and, as such, within the bottom end of the "serious injury" category as set out by the Court of Appeal in LEE Ting-lam v. LEUNG Kam-ming (1980) H. K. L. R. 657. Taking into account that the Plaintiff did indulge in physical activities, such as, swimming, playing basket ball and jogging, which will no longer be available to him because of his disability, an appropriate award for pain and suffering and loss of amenities would be $90,000. This figure is fixed on the basis on the guideline set out by the Court of Appeal in the above case together with an allowance of 50% for inflation since 1980.

5. The 3 disputed items under the head of special damages will now be considered. Firstly, the claim for wages paid to a housekeeper to care for the Plaintiff for 2½ months immediately after his discharge from hospital seems to be an appropriate one in the circumstances. The Plaintiff has lived in Hong Kong since 1979 with his wife and family living in China. He has no close relatives in Hong Kong and engaged a friend and clanswoman, Madam CHAN, to act as his housekeeper in preparing his meals, washing his clothes and in performing his household chores while he was incapacitated after his release from hospital. I accept she was paid at the rate of $1,800 per month, and would allow the amount claimed, $3,750, in full. Secondly, the claim for food supplied to the housekeeper while she looked after the Plaintiff does not seem to be justified. The Plaintiff's evidence was that he provided his housekeeper with $18-$20 a day to buy food and that she prepared his meals which she shared with him. As the Plaintiff was not entitled to claim for the cost of his food, I fail to see why the housekeeper should be able to claim the cost of the food purchased for meals shared by the Plaintiff and herself. It may have been more convenient and not that much more expensive for her to have had her meals with the Plaintiff when she had to prepare same, but she could just as easily have had her morning and evening meals at home with her husband and family and would not have been able to claim the cost of same. I find no justification or rationale for this claim for the cost of food provided for the housekeeper and disallow same. Thirdly, claims for nutritious or tonic food are well established and supported by abundant authority. The Plaintiff's evidence is that Madam Chan brought him specially prepared food containing Chinese herbal medicine at least 2 or 3 times a week while he was in hospital and that she continue to prepare this tonic food while she acted as his housekeeper after he was discharged from hospital. I would allow the sum claimed for nutritious food at $1,500 on the basis of the 76 days the Plaintiff spent in hospital and for approximately 1 month after his discharge which slightly exceeds the sum claimed on the basis of $15 a day to purchase such food.

A summary of this assessment of damages is as follows : -

GENERAL DAMAGES

SPECIAL DAMAGES

From the total amount of damages it was agreed by the parties that toal amount of $66,918 paid to the Plaintiff as Employee's Compensation should be deducted so that the balance available to the Plaintiff is $158,567.90.

6. Interest on the special damages totalling $31,373.90 is allowed @5.6% from the date of the accident on 30th April 1984. Interest on the general damages of $90,000 allowed for pain and suffering and loss of amenities will be 11.25% from the date the writ was issued on 3rd April 1985. There will be no interest allowed on the award for loss of future earnings agreed at $104,112.00. The agreed fee of $700 for Dr. Wedderburn's examination and report should be included in the Plaintiff's costs rather included than as an item of special damages.

Representation: