Kwan Lai Hing v. Au Wing Tin and Another

HCA007865/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Master Suttill in Chambers

Date of Hearing: 18th September 1985.

Date of Delivery: 4th October 1985

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ASSESSMENT OF DAMAGES

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1. The plaintiff, Kwan Lai Hing, was a young lady of just over 22 years of age when she was knocked down by and dragged under a taxi driven by the first defendant and owned by the second defendant. This happened on the 15th January 1982 in Nathan Road, Kowloon. Although initially disputed, the liability of the first and second defendants for damage caused to the plaintiff was admitted by consent on the 14th June 1985 and interlocutary judgment entered in pursuance thereof on the same day.

2. On the same day as the accident the plaintiff was admitted to the Orthopaedic Ward of the Kwong Wah Hospital.

3. She was physically examined on admission, and in the words of Dr. NG Yee-hing of the Orthopaedic Unit of that hospital that examination revealed: -

4. The plaintiff rceived the following treatment in Kwong Wah:

5. She was discharged from Kwong Wah on the 14th June 1982 and thereafter regularly attended a Dr. ALI of the same clinic. She also received rehabilitation physiotherapy treatment in the phsiotherapy department of the Queen Elizabeth Hospital.

6. On the 16th October 1982 Dr. NG was able to say there was evidence of keloid formation on her wound. He does not say which wound, but in any event the keloid formation, if such there was, would appear to have disappeared.

7. The plaintiff returned to employment on the 15th December 1982.

8. On the 8th June 1984 the plaintiff was examined by Dr. R. G. M. Wedderburn whose report was the subject of a hearsay notice against which no objection was filed.

9. In this report Dr. Wedderburn considered two areas of damage to the plaintiff which will form an integral part of this assessment.

THE RIGHT LEG

10. As a result of the fractured femur, her right leg is ½ inch shorter than the left.   The long period of traction she underwent caused restriction on the knee joint movement. It was considered that the shortening of the leg was permanent but that the knee movement would recover. Dr. Wedderburn forecast a 2% impairment of the whole man resulting from the combination of both injuries.

THE SKIN GRAFTS

11. As part of her treatment the plaintiff received a skin graft on the antero lateral aspect of the thigh close to the knee causing a 3" diameter smooth brown scar. The donor area was on the front of the upper thigh and the removal of the skin therefrom left a scar 2½" x 6". This scar was described as being flat but with some raised brown streaks. Dr. Wedderburn regarded these scars as a 3% cosmetic impairment but considered that they would improve so as to be a less than 1% impairment.

12. That was the position in June 1984.

13. Dr. Wedderburn gave evidence before me in regard to these two elements of the plaintiff's injuries and regrettably his prognosis of 15 months ago proved to be optimistic.

THE RIGHT LEG

14. The knee joint impairment has not improved and will not improve. The combination of the leg shortening and the knee movement impairment is now in Dr. Wedderburn's view a 4% impairment of the whole man.

THE SKIN GRAFTS

15. The scars resulting from the grafts have not improved and, will not improve and the cosmetic impairment is now 2%. The scars are not ugly but sufficiently noticeable for the plaintiff to be reluctant to reveal them, say, by wearing a bathing suit or shorts or similar summer attire.

16. All the other injuries mentioned in Dr. Wedderburn's report have continued to repair favourably and will not figure further in this assessment.

17. The following items of special damages were agreed at the outset of the hearing : -

I will now deal with the disputed claims for special damages.

18. The part time teaching at the Kwong Wah College causes more difficulty. There is no documentary or other evidence corroborative of the plaintiff's evidence. Not that it is strictly speaking needed in law. However in my view it would be a dangerous method to accept, in an assessment of this nature, the plaintiff's bare ipse dixit on the matter. In that event I assess no further damages under that head.

19. It is the plaintiff's testimony that her mother attended upon her twice daily for one hour each time and that her mother's working hours were flexible as would seem likely from the nature of her employment.

20. It seems to me obvious that some reduction in the working hours of the plaintiff's mother was necessary both during the plaintiff's hospitalisation and afterwards. What I fail to understand is the reason for pleading that it was a full time reduction when the plaintiff was in hospital and only part time thereafter. Common sense dictates that the reverse should apply.

21. Nevertheless it appears to me that it would be a fair assessment to include that the plaintiff's mother, between the period January to December 1982, would have been able to work, but only part time.

22. I now turn to the general damages for pain, suffering and loss of amenities.

23. In this category the prominent items affecting the assessment are:

1.      Six months traction in hospital;

2.      Five months physiotherapy thereafter;

3.       The shortening of the right leg and impairment of the movement of the knee;

4.       The cosmetic. impairment caused by the scars from the slain graft.

24. It has been urged upon me that a special and separate assessment ought to be made for item 4. This has been done in the recent case of Lun Chim Ying v. Lam Sin Nam and another 1984 No. 3527 and there is no doubt in my mind that in that case it was proper to do so.  In that case the scar was conspicious and ugly - two features not possessed by instant case. If any particular injury is prominent it may be appropriate to assess it separately but not in my view otherwise.

25. The plaintiff in this case had immediate and long lasting severe trauma from the accident. She has recovered but has injuries which, while not restricting her future activities in any significant way, remain as a visible and physical reminder of her painful experience. There is nothing in that situation that is in anyway extraordinary or meriting the singling out of any specific injury for special treatment and I decline to do so.

26. I assess the general damages in respect of pain, suffering and loss of amenities at $120;000.

27. The summary of the award is as follows: -

28. Special damages

29. 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 the judgment and at the special damages at 5.6% per annum from the date of the accident to the date of judgment.

30. There will be an order for costs to the plaintiff with the plaintiff's own costs to be taxed under the Legal Aid Regulations.

Representation:

Appearance :   Director of Legal Aid for the Plaintiff

Messrs. Ford, Kwan & Co. for the 1st and 2nd Defendant