Wong Lan Foon v. Man Wai Ping and Another
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IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 2032 OF 1972 _________________ Between
_________________ Coram: D. Cons, D.J. in Court _________________ JUDGMENT _________________ 1. This is an action for damages from a road accident occurring in November, 1970. Liability is admitted and evidence was heard only as to the quantum of damages. 2. The Plaintiff is a married woman aged 35 with three children. At the time of the accident she assisted her husband in the running of a store known as the Chiu Hing Food Company. The husband made the deliveries for the Company while the Plaintiff looked after the store itself. In addition she was responsible for all the house work of the family who lived in the same premises. 3. The injuries received directly in the accident were not severe - abrasions to one knee, minor lacerations to the back of the head and the mouth. The Plaintiff showed me what she contends are the resulting scars. If there be any trace left by the injury to the head it is now completely concealed by her hair while a very faint mark is just apparent beneath the bottom lip. She was discharged from hospital the day following the accident with instructions to return for follow-up treatment. She did so on one occasion complaining of dizziness and a feeling of numbness in the head but was dissatisfied with the medicine prescribed and sought treatment instead from a bone- setter. 4. At first the Plaintiff was unable to resume her work in the family and the shop. The eldest daughter appears to have taken over as a very temporary stop gap until a replacement was engaged at a salary of $500 per month. The Plaintiff resumed again 4 months later when that assistant resigned on the ground of over work. It would seem now that the symptoms of dizziness and the discomfort in the head had gradually improved of their own accord. Apart from this comment there is little to assist me with regard to the exact state of the Plaintiff’s health a that time. From a comparison with other cases where similar symptoms are reported I would think that she was then fully fit to resume her duties. 5. Some 2 months later i.e. in May, 1971 or a total of 6 months after the accident, the Plaintiff developed a tendency to become irritable and argumentative. By the end of the year her temper had degenerated to such an extent that she was beating her children over trivial matters and in addition was beginning to have trouble sleeping. In May of the following year she submitted herself for psychiatric examination. The diagnosis was “mild anxiety state”. 6. It is submitted that there is insufficient evidence towards the conclusion that the anxiety state arose from the injuries received in the accident, that it might equally well have been caused simply by the undue strain of the Plaintiff’s attempting to be housewife, mother of three children and shopkeeper all at the same time. Dr. Liu who attended the Plaintiff at the Yaumati Psychiatric Centre, was reluctant to commit herself further than to say that the injuries were one of the causative factors, in that the Plaintiff became anxious when she found that she could not carry on her duties as competently as she had done before the accident. The other cause given by the doctor was the attitude of the plaintiff’s husband, who is unsympathetic and drives her too hard. 7. In so far as the present anxiety state results from the conduct of the husband it is a possibility not reasonably foreseeable by the Defendant and cannot found any claim for damages: cf. Mc Laren and ors. v. Bradstreet (1969) NLJ 484. The question whether the state arose from the injuries or otherwise is not so easy of decision. I would have been assisted, I think, by evidence as to the nature of the Plaintiff before the accident. Without it her history is not complete. But taking such history as I have and bearing in mind the evidence of the doctor I have come to the conclusion that the more probable construction to be put upon the events is that the anxiety is attributable to the injuries. Mental disturbance is a reasonably foreseeable result of the injury to the head and the Plaintiff’s claim on this aspect therefore succeeds. 8. I turn now to the problem of assessment. The physical injuries were slight; there were 3 to 4 months of gradually decreasing dizziness and discomfort in the head; for this aspect of the claim I would award $1,500. 9. The mental anxiety is not expected by the doctor to be permanent but has persisted for over one year. Her recovery depends to a large extent upon the co-operation of her husband. Indeed had both of them been less stubborn it is possible that the Plaintiff might have fully recovered alredy. I deliberately say both because the report of Dr. Liu (Exh.4) in the pre-ultimate paragraph mentions that the Plaintiff as well as the husband refused to adopt the day-patient treatment that the doctor advised. It was suggested that I should not hold this against the Plaintiff and her husband in that they are forced to work hard by financial pressures. There is no evidence to support this suggestion, although from my observation of them both I would not think that the husband is making vast profit from his job. However there is evidence that for 4 months after the accident finances were capable of supporting an extra expense of $500 per month for the additional help and no evidence has been put forward to explain why it was or is impossible to finance the lesser help that would subsequently or now be necessary to give the Plaintiff the rest that she needs. I am satisfied that her own conduct has to some extent prolonged the duration of the mental disturbance and, unless it changes, will continue to delay full and final recovery. 10. I have been unable to find any authority in the Hong Kong Law Reports relating to damages for matters of this kind and have had to rely on those English cases collected in the 3rd edition and supplement of Kemps and Kemp’s work. Allowing for some difference in the standard of living in that country and for the conduct of the Plaintiff to which I have just referred I think a proper figure for damages in this respect would be $1,000. 11. The leaves only the question of loss of wages. These were claimed in the writ as a liquidated sum under the title of “Loss of earnings”. Solicitors for the Plaintiff later wrote (Exh.3), in answer to a request from the Defendant’s solicitors, to inform the latter that the Plaintiff was a storekeeper for the Chiu Hing Food Company at a monthly salary of $500. This information was described by Plaintiff’s counsel as misleading. That is a master-piece of under-statement. I can only assume that a grave misunderstanding arose at some stage between the Plaintiff and those to whom she was giving instructions and I trust that steps will be taken to ensure that similar misunderstandings do not happen again. 12. The truth of the matter is that the Plaintiff was not paid a salary at all. Money was taken from the shop for housekeeping, probably as and when it was needed or available. The figure of $500 per month was the amount paid to the assistant engaged when she could not work. As such it may still be recoverable from the Defendants, but certainly not as direct damages to the Plaintiff. I considered for a while whether or not it were possible to look upon the Plaintiff as a partner in the firm with her husband and thereby perhaps, at least partially, to treat her as having the loss of her own services. But I have come to the conclusion that this would be an unjust stretching of the facts, particularly bearing in mind that it is registered as the sole proprietorship of her husband and I have no doubt that, were the boot on the other foot, the Plaintiff would be quick to deny any responsibility for liabilities. This aspect of the claim is therefore dismissed and there will be judgment for the Plaintiff in the sum of $2,500 with costs accordingly and certificate for counsel.
Mr. Dennis Chang, instructed by (Shea & Co) for the Plaintiff Mr. Hoosenally (Hoosenally & Co) for the Defendants. |