Conway Chau Chiu Kong v. Kwok Kwong
Read the full judgment text of HCA 2794/1975 on BabelCite. This High Court CFI judgment.
1. The plaintiff was injured on 23rd July 1974 when the defendant's goods vehicle collided with the rear of the plaintiff's car which was pushed into the wall of a building. The plaintiff claimed damages against the defendant and judgment for damages to be assessed was signed in default of appearance.
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Barnett in Chambers Date of Judgment: 9th March 1976. Mr. K.H. WOO (Peter Mo & Co.) for Plaintiff Defendant in person --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1. The plaintiff was injured on 23rd July 1974 when the defendant's goods vehicle collided with the rear of the plaintiff's car which was pushed into the wall of a building. The plaintiff claimed damages against the defendant and judgment for damages to be assessed was signed in default of appearance. 2. The plaintiff was rendered unconscious in the collision. When he came to, he was still jammed in his car feeling severe pain in his chest and legs and bleeding from his nose. He was taken to Queen Mary Hospital where several injuries were found:
3. He was operated on early the next morning by Dr. Loi (PW 1) who did a partial patellectomy to remove fragments of bone from the right knee, surgical toilet and suturing of the wound; open reduction and screwing of the fractured medial malleolus; and bandaging of the fractured metacarpal in a better position. The operation was carried out under general anaesthetic. The right leg was put in a long plaster from groin to toe. 4. On 27th August, 1974, the long plaster was changed to a short one to allow the plaintiff's knee to be mobilized. On 5th October, the short plaster was removed and the plaintiff was able to get about on crutches. He had not been able to use crutches before because of the injury to his hand. In effect, he had only one good hand but he needed two crutches and two good hands. He had difficulty in getting around. 5. The plaintiff was discharged from Queen Mary Hospital on 20th October after almost 3 months in hospital. He had to be taken home by ambulance. He retained the service of a full-time nurse at home until 9th February 1975. He also continued to undergo physiotherapy, which had commenced during his stay in hospital, daily at home and at Canossa Hospital, until the end of February 1975. 6. When discharged from Queen Mary Hospital, the injuries to the plaintiff's rib and hand had healed. They are no longer significant. Unfortunately, this is not the case with the plaintiff's right leg. The knee has only 65o of movement as opposed to a normal 165o. It cannot be straightened. The ankle has only a few degrees of movement down from the right-angle position and no movement upwards. There are arthritic changes to both ankle and knee although they are not serious at this stage and may be contained if the plaintiff remains active. No further significant improvement is expected. Disability is put at 10% of the whole man. 7. Before the accident, the plaintiff was a healthy and active man, enjoying golf, tennis and swimming. He now needs a stick to get about and cannot walk more than 200 yards without a rest. He limps. Consequently, he can no longer play tennis or golf; he admits he has not yet ventured into the water. He has difficulty going up and down slopes and stairs, especially downwards. He finds escalators are too fast for him to get on and off. He can no longer enjoy a bath as he cannot get up out of the tab; he can only shower. 8. The plaintiff still has some pain in his knee and ankle but basically this comes when the joints are strained over their restricted limits. 9. I turn now to the question of damages. Special damages: 10. I allow items (a), (b), (c), (d), (g), (h), (m), (n), (o) and (q) totalling $20,025.00. Receipts have been produced and I think all the items are justified. 11. I disallow items (i), (k) and (l). No evidence was led. 12. Under item (p), the plaintiff claims loss of earnings at the rate of $5,000 (the equivalent of US$1,000) per month. He admits he was paid in full up to the end of December 1974 and thereafter received a gratuitous payment of US$250 per month from January to September 1975. I will accordingly allow loss of earnings up to the end of February 1976 at the rate of US$1,000 p.m., less US$250 x 9 (converted at 5:1) = $58,750.00. 13. Under items (e) and (f), the plaintiff claims physiotherapy fees incurred both at home and at Canossa Hospital. Receipts were produced but no evidence was led to show whether this treatment was necessary either over such a period or on a daily basis. I will therefore allow 50 days at $30 per day which is $1,500. 14. Finally, the plaintiff claims for the salary of a full-time nurse from 20th October 1974 to 9th February 1975 at $1,000 p.m. totalling $3,367. Receipts were produced but the only evidence of necessity came from the plaintiff who said that "at home, my wife and nurse looked after me. I could do nothing, not walk, not even sit in a chair". I really do not think that that justifies this claim. Evidence that such expert help was required should have been adduced. Failing that, a claim for additional household help for the plaintiff's wife might have been justified. In the circumstances, I disallow item (j). 15. Total special damages are therefore $80,276.00. General damages:
16. I was referred to Kemp and Kemp, 4th Edition, Vol. 2, Part 10. English awards for injuries of a comparable nature appear to range from £2 - 2500. No Hong Kong cases were cited. 17. In Catherall v. Jones (op. cit. 10-459) the plaintiff, a lady of 66, sustained leg injuries. She had to walk with a stick and even then could progress only slowly. She could not kneel or bend and had difficulty climbing stairs and getting to work as she was unable to use the Tube and had to rely on the help of friendly bus conductors to assist her to get on and off of buses. A great deal of pleasure had gone out of her life. General damages of £2,600 were awarded. The award was in 1971. 18. Precisely the same considerations apply to the plaintiff in this case. He is now 65. He has certainly lost the pleasure that his golf and tennis gave him. On the other hand his injuries were less severe than the lady who broke both legs and had cuts to face and arm. 19. Taking into account on the one hand that it is well settled that Hong Kong awards are lower, and on the other the decline in the value of money since 1971, I think the proper award in this case is $25,000.
20. The plaintiff was employed as a special consultant by Pepsi-Cola International, South East Asia Region. He carried out market surveys and feasibility studies in the region. Before he retired, he had previously been employed by Pepsi-Cola, at one time being regional manager. He was a man of wide experience in the soft drink field. Pepsi-Cola perhaps showed the value they placed on him by continuing to pay his full salary of US$1,000 until December 1974 and gratuitous payments of US$250 until December 1975 although the plaintiff did no work at all during this period. The plaintiff's consultancy was in fact terminated in September 1974 because he was no longer able to undertake the travelling involved. He was then 64. 21. The plaintiff thought he could have worked until he was 70. He was sure Pepsi-Cola would have retained his services because of his experience but, failing that, had no doubt that another company in the same field would have employed him. Owing to his age and disability, he thinks it unlikely that he will be able to get another job. 22. Apart from a letter from the current regional manager of Pepsi-Cola International to confirm that the plaintiff was held in highest esteem, there was no other evidence as to the plaintiff's future prospects. 23. In all the circumstances, I think the plaintiff is entitled to future loss of earnings at the rate of $5,000 per month with a multiplier of 2. The award is therefore $120,000. This perhaps is in favour of the defendant and, setting off inflation against the lump sum payment, I do not propose to make any discount. 24. Damages are therefore as follows:-
25. There will be interest (at the rate of 4%) on the sum of $21,525.00 from the date of the accident, and on the sum of $25,000 from the date of service of the writ. 26. The sum of $225,275.00 is to be paid to the plaintiff's solicitors within 14 days. 27. The plaintiff will have the costs of the assessment. 28. Liberty to apply. 29. Dated the 9th day of March,1976.
Representation: Mr. K.H. Woo (Peter Mo & Co.) for Plaintiff Defendant in person |