LUI CHI KIT v. YEUNG KUI AND ANOTHER

HCA000357/1975

1975 No. 357

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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BETWEEN
LUI Chi Kit Plaintiff
and
YEUNG Kui 1st Defendant
TAI Hon Keung 2nd Defendant

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Coram: Mr. Registrar Silke in Chambers.

Date of Judgment: 3rd October, 1975.

Mr. B. Choi of the Legal Aid Department appeared for the Plaintiff.

Both Defendants appeared in person.

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DECISION

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1. On the 28th May, 1973, at about 2.30 p.m. the plaintiff was a passenger in a vehicle AV5841 driven by the 1st defendant and ownedby the 2nd defendant. The vehicle was going along a road within the construction area of the High Island Reservoir, New Territories- it ran off that road into a field and caused injury to the plaintiff.

2. No appearance was entered by either defendant and interlocutory judgment was entered on the 26th March, 1975, against both defendantsfor damages to be assessed.

3. This is the assessment of those damages.

4. At the hearing Mr. B. Choi of the Legal Aid Department appeared for the plaintiff and both defendants appeared in person.

5. Mr. Hoosenally of H.A. Hoosenally & Co. sought to be present in Chambers on a Watching Brief on behalf of National InsuranceCo., Ltd. After hearing Mr. Hoosenally, I refused him permission to be present. I am not aware of the background to this matter whichresulted in the defendants appearing in person and thus, apparently, without the backing of an Insurance Company. Nor am I awareof what, if any, steps the parties intend to take to enforce the eventual award in this assessment.

6. The plaintiff is a mini bus driver aged about 34 at the time of the accident. On admission to Queen Elizabeth Hospital his generalcondition was satisfactory and he was found on clinical examination to have a comminuted fracture of the shaft of the right femur;swelling, pain and deformity over right thigh; laceration 2″ long over the right forehead.

7. He tells me he also lost two of his teeth, though there is no reference to this in the medical report and I note that the particularsof the injuries set out in paragraph 3 of the Statement of Claim at sub-paragraph (d) refers only to the loss of upper left centralincisor.

8. Leaving aside the usual comprehensive report from Dr. Wedderburn of an examination he made in December, 1974, the medical evidenceis sparse.

9. Dr. Sung, a Medical Officer of Queen Elizabeth Hospital, was called but he did not treat the plaintiff and could merely produce hospitalrecords and a report from Dr. William Tham who did treat the patient. It would appear that the plaintiff was in skeletal tractionfor a period of 17 weeks – a period much longer than normal according to Dr. Wedderburn – was transferred on 23rd September, 1973,to Kowloon Hospital for convalescence and rehabilitation which Hospital he left in January, 1974 – a total period of about eightmonths. He remained an out-patient for some time longer. There would appear to have been a readmission for a short period to QueenElizabeth Hospital just prior to his discharge from Kowloon Hospital but I have no evidence as to the reason for this. Dr. Wedderburnspeculated that it might have been for a general check prior to ultimate discharge – but, as I say, this was speculation.

10. Mr. Lui tells me that he was using crutches in hospital prior to his discharge and using two sticks thereafter up to about May orJune, 1974. He had returned three or four times for treatment in the period January to June, 1974.

11. He had dentistry in respect of the lost tooth or teeth in November, 1974.

12. Dr. Wedderburn in his report found the plaintiff had been treated by traction with a pin driven through the tibia just below theknee. He had very transient concussion but no post concussional symptoms. There was a scar of the laceration which runs through theright eyebrow but it is not noticeable. He refers to the upper left central incisor – but no other – and there was a flat 1 ½” scaron the right front of the calf with minute scars on the front of both knees but these are of no consequence and well healed.

13. There was a three-quarter inch shortening of the right leg but the muscles have recovered and there is no muscle wasting. There isfull normal movement of the hip, knee and ankle joint.

14. Mr. Lui complained to Dr. Wedderburn – as he did in evidence to me – of a “peculiar sensation” in his thigh and a weakness of theleg. The net result is that which the plaintiff described as “timidity of the mind” in driving and Dr. Wedderburn calls it a lossof confidence.

15. The fracture itself is well united though with overriding fragments which accounts for the shortening of the leg. There is, however,a very slight posterior angulation of two to three degrees of the lower fragment and a line of new bone stretching up from the fracturesite outside the normal contour of the bone to within 3 ½” of the hip joint.

16. Mr. Lui himself says that he now has to rest for two to three days per week because of fear of weakness in the leg. He apparentlynever had physiotherapy but performs “therapy” himself by jumping and lifting sand bags. He wears a raised heel on his right shoebut has no apparent limp. The likelihood of osteo arthritis is slight.

17. In my view on the evidence adduced his recovery is complete.

As to damages: Specials.

18. I shall deal with the minor items in the particulars first.

(b) Travelling expenses: I would allow four journeys for out-patient treatment at $6 per journey. Total $24.

(c) Damage to clothing: allow in full $50.

(d) Loss of cash in pocket: the plaintiff very fairly said that he could not be sure when he lost this money. I would disallowthis item as the evidence upon it is insufficient.

(e) Damage to watch: no receipts or bills were produced to support this item. The watch is still being worn though Mr. Luitells me the glass and dial were damaged. I would allow $30 in this item.

(f) Dental expenses: only one tooth is claimed for or referred to in the Statement of Claim. I have had produced a bill- or to be correct two bills. I would allow the one dated 4th November, 1974 in full at $60.

19. Now as to (a): Loss of earnings.

20. I am satisfied that there was a total loss from 28th May, 1973, to June of 1974 a period of twelve months, say, overall 13 months.

21. I am satisfied there was a partial loss of earnings from June 1974 to December 1974 and that thereafter full earning capacity asa mini bus driver was restored with a slight diminution of earnings due to “timidity of mind” induced by the accident.

22. I base these findings more on the medical evidence than on that of the plaintiff who tended to exaggerate, somewhat, his plight andin my view was content to resume work at a more leisurely pace that his injuries warranted. He had discarded his sticks in May orJune 1974 but apparently made no attempt to resume work until November. I see no reason why the defendants should have to pay forthe self indulgence of the plaintiff – though I must advert to the fact that, in general, I thought the plaintiff to be a reasonableand truthful witness.

23. Had he exerted himself his incapacity could have been overcome entirely by December 1974 when examined by Dr. Wedderburn.

24. As to the actual earnings.

25. The plaintiff has told me his earning, after deducting rent for the mini bus and its petrol came to between $60 and $70 per day preaccident for a working week of six days. His wife added except when a breakdown occurred.

26. I would allow pre accident earning at $60 per day for a 24 day month or $1,440 per month for 13 months being $18,720.

27. For the period June 1974 to December 1974 there would have been a graduated increase in his working capacity and I would take asan average of fourteen working days per month as being fair at a shift earning of $33 per shift being a loss of $978 per month forseven months or a total of $6,846.

28. From December 1974 to date I would take into consideration a rest day of once a week or four days per month at $50 earning loss perday. A total 9 months at $200 per month giving a total $1,800.

29. From date I find there are no loss of earnings. Any reduction in the actual amount earned is in my view a vicissitude of trade ratherthan a reduction arising from the accident.

30. There would therefore be an award of $27,366 under this head and total under special damages of $27,530.

31. As to general damages:

32. I accept there was considerable pain and suffering, in hospital for 8 months, traction and residual discomfort after discharge. Inote that Dr. Wedderburn thought heavy manual labour to be difficult in the future. There is a permanent shortening of the leg, lossof a tooth, minor scars.

33. I have been referred to Mallett v. Reed Paper and Board (U.K.) and another: Current Law Year Book 1973 para. 834 which on the faceof it is a somewhat more serious case than here. There there was a one inch shortening of the leg with limited ability to bend kneeand the plaintiff was unable to realise pre accident ambition to become a football referee. General damages £3,000.

34. I have referred myself to O.J.A. 445 of 1970 (Briggs, J. – as he then was) (1975) H.K.L.J. Vol. 5, No. 1, p.111; aged 52: compoundfracture of tibia and fibula, hospital 51 days, two readmissions for skin grafting, 20% loss of earning capacity – general damages$30,000.

35. Also O.J.A. No. 449 of 1969 (1974) H.K.L.J. Vol. 4, No. 2, p.207; public light bus driver, similar injuries as in O.J.A. 445 of 1970,laceration right knee, hospital two and one half weeks, plaster three weeks, sticks 10 months – permanent disability 3%, would developosteo arthritis – general damages $7,000.

36. Taking all the evidence into consideration in this instant case including the 10% disability referred to by Dr. Wedderburn and theshortening of the leg and the incapacity for manual work, I think a figure of $30,000 to be the proper award.

37. There will, following Jefford, v. Gee, be interest on the special damages of $27,530 at 4% from the 28th May, 1973, to date and onthe general damages of $30,000 from 19th February, 1975, to date.

38. The plaintiff to have his costs of the action and this assessment to be taxed under Legal Aid Regulations.

39. Dated this the 3rd day of October, 1975.

(W.J. Silke)
Acting Assistant Registrar

Representation:

Mr. B. Choi of the Legal Aid Department appeared for the Plaintiff.

Both Defendants appeared in person.