Fung Yuen Wah v. China Motor Bus Co., Ltd
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IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 1927 OF 1972 _________________
_________________ Coram: D. Cons, D.J. _________________ JUDGMENT _________________ 1. This is a claim for damages for injuries received when attempting to board a single decked motor bus operated by the Defendant Company. At the close of the trial I was requested by counsel to give my ruling on liability before I was addressed fully on the question of damages. I acceded to that request and gave my decision in favour of the Plaintiff. Both counsel then addressed me further upon the question of damages and I reserved my judgment until today. 2. The Plaintiff is a lady of some 48 years of age. She sustained a fracture of the lower end of the left radius which was reduced and set in plaster. The restrictions enforced by that plaster have resulted in stiffness of three fingers of the left hand and weakness in the grip. A medical board assessed the loss of use in those fingers at 8%. The position will not improve. This is not a severe injury and will to my mind be adequately compensated with regard to pain and suffering and the loss of future amenities – as distinct from loss of future earnings – by an award of $1,000. 3. At the time of the accident the Plaintiff was employed as a private nurse in what appears to have been a very good, albeit demanding, position with a salary of $1,500 per month. Due to the accident she lost that job. Some slight suggestion was made that despite her injury she could have carried on. I do not think that suggestion can be sustained. Her patient was an elderly gentleman sufficiently sick to warrant nursing attendance 24 hours of each day. It would not be reasonable to expect him rely for half of that time upon a nurse one of whose arms was immobilized in plaster. I am satisfied that the loss of her job was direct result of the injury. She did not work again for a very long time afterwards, some of which perhaps be her own fault. But I have no reason to think that had it not been for the accident she would not have continued with the same job for at least the three months for which the doctor subsequently recommended sick leave. That would mean a loss of wages of at least $4,500. This is a matter whereon one would expect to find a claim for special damages. But no mention is made of these in the statement of claim which apart from this, is not a document to be proud of. The draftsman appears very creditably to have taken as a precedent that set out in Atkin’s Court Forms 2nd Edition at page 24, but then very carelessly to have overlooked the reference therein to certain matters set out in the previous precedent. As a result elementary details were omitted, most importantly the claim for earnings lost to date. It is well settled that special damages are not recoverable unless pleaded and particularised: Ilkiw v. Samuels 1963, 2 All England 879. I therefore with some reluctance refuse to consider any question of damages under this head. 4. I might also add in passing that the action was commenced upon an incorrect from of writ and had the Plaintiff taken advantage of the offer set out on the front he might perhaps have been able to limit his liabilities to $95.75. 5. I have also found considerable difficulty with regard to the assessment of loss of future earnings, a difficulty created by the almost total absence of evidence as to the effect, financial or otherwise, that the permanent weakness of the Plaintiff’s left hand is likely to have on her employability. I know that she remained unemployed for approximately one year after the accident, although the medical report indicates that she was fit for some kind of work at least some three months later. She told me that employment as a private nurse is obtained only upon personal introduction and that those upon whom she was wont to rely for introductions in the past no longer have faith in her ability. However none of these persons was called to substantiate that claim. Nor was evidence adduced to show whether she would again be acceptable as a ware nurse a position she has filled in the past. It is possible the objection to continue nursing is based on an inability to lift heavy weights – if she has such an inability – but in a hospital ward one would expect help to be fairly close at hand when this was necessary. Or it may be that she could again work for the Government in a medical innoculation team or something similar where one would not expect heavy weights to figure at all. These positions appear to carry salaries of a little over $600 a month, a considerable difference when compared with $1,500 at the time of the accident. But whether $1,500 per month is an average figure for private nursing or whether it was inflated by the irate temper of the patient and the long hours of each shift I was not told; nor was I informed as to the general state of the market in private nursing so that I might have been able to judge whether, regardless of salary, she could have expected certain periods of unemployment from time to time. I know that she has been employed for the past month but I was not told at what job or at what salary. 6. It is impossible for me to say whether this absence of evidence is deliberate in the sense that enquiries have already revealed that the Plaintiff has in fact no valid claim for prospective loss of earnings or whether it was something else that was overlooked by those provided by the public to assist her. That is something she may wish to consider herself when taking up the matter of the overlooked special damages. For this reason I order that she be given directly a copy of this judgment free of charge and that another copy be delivered to the Director of Legal Aid. It is sufficient for the purposes of this judgment to say that the burden of proving damage in this case lies on the Plaintiff. I find that the evidence adduced does not establish that she will suffer any damage under this head. 7. I should add finally that counsel for the Defendant Company, after hearing my findings on the facts with regard to liability, invited me to reduce the damages by reason of contributory negligence. I cannot accept that invitation,, for contributory negligence is another aspect that must be pleaded if it is sought to be relied upon. But in case this point is important in other proceedings I would say that I would have assessed contributory negligence at 25%. 8. For these reasons judgment is entered in the sum of $1,000 and costs accordingly. The Plaintiff’s costs are to be taxed in accordance with the Legal Aid scheme.
Mr. So (H.M. So & Co) for the Legally Aided Plaintiff Mr. Eddis, instructed by (Nuan & Wong) for the Defendant. |