Ho Tze Ho v. Chui Chung Wah and Another

DCPI994/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 994 OF 2004

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BETWEEN

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Coram : H. H. Judge Wong in Court

Dates of Hearing : 20^th & 23^rd May 2005

Date of Handing down Judgment : 8^th June 2005

JUDGMENT

Facts

1.The Plaintiff, an infant, on 15 August 2003 was at a zebra crossing in On Tai Road Taipo.  He was knocked down by a private vehicle registration No. KF 2080 when he was on the zebra crossing.  As a result he suffered injuries.  The 2^nd Defendant who was the driver was subsequently charged for careless driving to which he pleaded guilty.

Liability

2.The Plaintiff’s evidence is that he had reached the safety island in the middle of the road he saw people still crossing that section of the road he therefore crossed that section of the road in a fast pace.  When he had crossed a bit more than half of the road he was hit and fell to the ground.

3.The Defendant’s evidence is that when he reached that stretch of road he stopped about 2 feet from the zebra crossing and waited for about 10 seconds.  He looked to the left and then to the right when the road was clear he started to move his car, after having driven for about 15 feet he suddenly noticed the Plaintiff running out from his right outside the zebra crossing marks.  He immediately braked and swerved to the left however his vehicle hit the Plaintiff.  The location of impact was the offside bonnet slightly below and in front of the wing mirror thereby making a dent.

4.I have carefully considered all the evidence.  I reject the evidence of the 2^nd Defendant.  I doubt if he had stopped about 2 feet before the zebra crossing because when he was asked how far away from the zebra crossing he was mute for about 2 minutes and when pressed then he said 2 feet.  Had he really stopped he would not have taken so long to answer such a simple question.  I also do not accept that the point of contact was the offside bonnet thereby making a dent.  Form the photograph produced the dent is quite substantial.  Had it happened the way the 2^nd Defendant described then the Plaintiff must have suffered serious injuries to head but the medical evidence did not disclose that the Plaintiff had suffered any head injury.  Further it was the front offside tyre which came into contact with the Plaintiff’s left foot.  Again this is inconsistent with the version given by the 2^nd Defendant.  

5.However from the evidence the Plaintiff was partly to be blamed.  He said he saw people still crossing the road he therefore followed in fast pace.  He did not say that he had looked before he went to the zebra crossing.  In fact in the statement to the police he said he thought there was no vehicle he walked out to the zebra crossing from the safety island without looking.  When asked if he stopped when he walked out from the safety island he answered that he did not stop and walked at a fast pace.  He was further asked whether he crossed the zebra crossing at a fast pace from the very beginning he replied that he walked at a fast pace when he crossed the 1^st section then he ran onto the 2^nd section.

6.Since he ran onto the 2^nd section from the safety island he had been negligent in that he failed to stop to see if it was safe to do so notwithstanding the fact that it was a zebra crossing.  In view of the fact that he was only 8 years old at the time of the accident I find that he was 20% to be blamed for the accident.

His Injuries

7.The Plaintiff had transient loss of consciousness after the accident.  He was detected to have a closed fracture of left tibia and fibula at metaphysical-diaphyseal region with multiple adhesions on both knees, left leg, left forefoot, lip and chin.  Debridement of the leg and foot wounds were performed on 16^th and 21^st August 2003.  Close reduction of fracture and long leg dynacast was applied on 21 August 2003.  He was hospitalized for 12 days and had undergone 8 follow-up treatments.  He received 11 sessions of physiotherapy and 4 sessions of occupational therapy for management of his scars.  The injuries left him with a number of conspicuous, thickened, hyperpigmented and hypertropic scans on his left foot.  Dr. Wong assessed the loss of earning capacity for general labour jobs to be 3%.

Damages

(1) PSLA

8.Miss Cheng for the Plaintiff submitted a number of cases in which the Plaintiffs suffered from fractures of tibia and fibula bones, the award under PSLA was between $500,000 to $600,000.  However for all those cases the Plaintiffs had undergone surgeries with residential disabilities.  In the present case the Plaintiff had not gone through any operations.  He has healed with no residual disabilities.  The pain and suffering is far less than those cases cited.  I assess PSLA to be $350,000.

(2) Mother’s loss of earning and MPF

9.The Plaintiff’s mother had to give up her job to attend to the Plaintiff.  She claimed the loss of earning from 15 August 2003 to 30 May 2004 at $6,500 per month and thereafter for partial loss from 1 June 2004 to the date of trial i.e. 11½ months at $718.90 per month.

10.The employment contract of the Plaintiff’s mother on 1 August 2003 showed that the basic salary was $4,716 plus 1 day’s work on rest day at $157 per month.  So she actually earned $(4,716 + 157) = $4,873 per month immediately prior to the accident.  She said she would be entitled to tips of about $800 per month.  In total she should be entitled to $5,673 per month. 

11.According to the physiotherapist by 10 December 2003 the Plaintiff could walk with normal gait, had full range motion of left knee and ankle, could squat full range and pain free.  He was discharged on that day because of satisfactory progress.  Further after mid-January 2004 he was allowed to attend PE lessons.  This shows that the Plaintiff did not need the care and attendance of his mother form mid-January 2004 onwards.  I assess the loss of earning from the mother for attending to the Plaintiff at $5,673 x 5 months = $28,365.  His mother since June 2004 had a monthly income of $5,505.80 + 275.30 = $5,781.10 with Maxim’s Caterers Ltd.  So she had no further loss of earnings. 

(3) Bonesetter

12.The Plaintiff’s mother said that the Plaintiff had attended a bonesetter and paid $3,600 for 10 consultations and thereafter about 7 follow up sessions for making a total of $5,000.  However the Plaintiff said he had only 3 sessions.  I tend to accept the Plaintiff’s evidence as his mother had difficulty in stating the amount of fees nor was there any receipts to support her claim.  I do not rule out that bonesetter could help the Plaintiff’s recovery.  So I assess the bonesetter’s fees to be $360 x 3 = $1,080.

(4) Tonic food

13.Receipts had been produced for the purchase of calcium pills, vitamins and other essence making a total of $7,730.50.  I find those to be reasonable.  However I do not accept that his mother spent over $30,000 for bird’s nest and soup.  She had not produced any receipts for purchase of bird’s nest.  In any event bird’s nest soup is not specifically for or enhance the recovery of the Plaintiff’s injury.  I would allow a token of $500 for soup making a total of $8,230.50.

(5) Travelling expenses

14.I agree that it was necessary for the Plaintiff and his mother to take taxi to and from attending 8 follow up consultations at $120 per round trip and to Alice Nethersole Hospital on 15 occasions at $48 per session in view of the condition of the Plaintiff.  However to go to visit the Plaintiff at the hospital by taxi is in my view extravagant.  The Defendant has conceded that in view of the difficulty and anxiety of the parents during that period, the Defendant has agreed that the traveling expenses for hospital visits at $800.  The total travelling expenses is therefore $(120 x 8) + (48 x 15) + 800 = $960 + 720 + 800 = $2,480.

(6) Future medical expenses

15.$18,000 under this head is agreed.

(7) Medical expenses

16.The Plaintiff claims a total of $2,080 for medical expenses the break down figure of which is as follows:-

(i)	Hospital Charges 15.8.03 - 26.8.03	$600
(ii)	Admission Charges
	For A & E Dept. of North District Hospital	$100
(iii)	Follow Up Treatment
	$60 x 8	$480
(iv)	Physiotherapy Treatment
	$60 x 11	$660
(v)	Occupational Therapy Treatment
	$60 x 4	$240

I allow in total claims under this head.

(8) Future loss of earning capacity

17.The principle applied under this head is clearly set out in Chan Wai Tong v. Li Ping Sum [1985] HKLR 176 at 183 per Lord Fraser:-

“the award for future loss of earning capacity is intended …… to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market.  The Court has to evaluate the present value of that future risk – see Moeliker v. A. Reyrolle & Co. Limited [1977] 1 WLR 132, 140, where Browne L.J. dealt fully with this matter.  Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment.  If he is, and has been for many years, in secure employment with a public authority the risk may be negligible.  In other cases the degree of risk may vary almost infinitely, depending on inter alia the claimant’s age and the nature of his employment.  Evidence will also be generally required in order to show how far the claimant’s earning capacity would be adversely affected by his disability.  This will depend largely on the nature of his employment.  Loss of an arm or a leg will have a much more serious effect upon the earning capacity of a labourer than on that of an accountant.”

18.The Plaintiff is now 10 years of age.  It is difficult to ascertain what sort of work he is going to be engaged in. 

19.From the report of Dr. Wong he opined that the Plaintiff has healed up as if he were before the accident save for:-

(i) Overall length of the lower limb is longer than the right by 1 cm.

(ii) Left ankle planer flexion is slightly less than the right side by 5 to 10 degrees. 

20.But then he has a lot of time for further growth.  It is most unlikely that the very mild tilting and slight leg-length discrepancy will be remodelled and adjusted during further growth.  Significant functional impairment is most unlikely.

21.The only complaint is itchiness and numbness over the left foot scar.  There is no residual pain from the fracture. 

22.Dr. Wong went on to say earning capacity will not be affected at all if he works in non-manual labour profession.  Even for general labourers job the loss of earning capacity will not be more than 3%. 

23.It is not easy to envisage what sort of job required baring of the left foot.  Even for fashion models, they require exposure of foot on swimming trunks.  So the risk of future loss of employment is minimal. 

24.I agree with Defence Counsel that an award of $50,000 is reasonable. 

25.For reasons aforesaid damages for the Plaintiff is assessed as follows:-

(1)	PSLA	$350,000.00
(2)	Mother’s loss of earning	$28,365.00
(3)	Bonesetters	$1,080.00
(4)	Tonic food	$8,230.50
(5)	Travelling expenses	$2,480.00
(6)	Future medical expenses	$18,000.00
(7)	Medical expenses	$2,080.00
(8)	Future loss of earning capacity	$50,000.00
Total		$460,235.50

26.In view of my finding of a 20% contributory negligence the adjusted damages will be $460,235.50 x 4/5 = $368,188.40.

27.In the premises there be judgment for the Plaintiff in the sum of $368,188.40 with interests for PSLA at 2% p.a. from date of writ to judgment and 4% p.a. from date of accident to judgment for pre-trial loss with no interests for future loss or medical expenses.

28.Order nisi: Costs to Plaintiff – Certificate for Counsel.

29.The Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

Miss Flora Cheng instructed by Messrs. Szwina Pang, Edward Li & Co. assigned by D.L.A. for the Plaintiff.

Mr. K.C. Chan instructed by Messrs. Tsang, Chan & Wong for the 1^st and 2^nd Defendants.