ROSEMARY SUN HO v. LAU CHAK (OR CHACK) KUEN AND OTHERS

Headnote

Personal injuries Young married lady. Fracture of the pelvis - Great pain - Hospitalised 6 weeks - difficulty walking for 9 months - Minor injuries to legs and ankles - Unsightly scar on right-leg - 1% permanent impairment of wholeman - Can only give birth in future by caesarian section - mother of 2 young daughters - Traditional Chinese family wants to have a son.

Award- General Damages $70,000.00.

1982, No. 10635

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. The Plaintiff who is a married lady aged 33 received injuries in an accident which occurred on the morning of the 20th August 1981. At about 8.30 a.m. she left her home at 54 Kennedy Road to go to work. She went down to the pavement outside her home. It was her intention to travel, to work by taxi. While she was standing on the pavement on the south side of the road she saw a taxi which was proceeding quite quickly in an easterly direction on the other side of the road. She hailed the taxi. She saw that the driver of the taxi had seen her and responded to her waving. The taxi then, without giving any signal, turned right presumably with the intention of entering the entry to the building so as to pick her up. She then noticed that a motor cycle which had been following the taxi came into collision with it and she saw the man who was riding the motor cycle was thrown up into the air. The next thing that she realised was that she was sitting on the ground. She was extremely dazed and she realised that she must have been hit by the taxi.

2. On the simple facts of the case, so far as they related to the Plaintiff, it is clear that she was in no way to blame for this unfortunate accident. The only issue which arises in relation to the question of liability is the apportionment of liability between the 1st Defendant who was the driver of the taxi and the 3rd Defendant who was the rider of the motor cycle. Mr. Pirie who was representing the 1st and 2nd Defendants conceded that the 2nd Defendant was the owner of the taxi and the 1st Defendant was driving the taxi during the course of his duties. This means that no difficulties arise on the question of the vicarious liability of the 2nd Defendant if I find the 1st Defendant in any way liable for this accident.

3. I will deal first with the question of liability. I will say immediately that I was most impressed by the Plaintiff as a witness and I accept her evidence in relation to the accident inasmuch as this is of assistance. It will be appreciated from the circumstances of the accident and the short description I have given of it that there is not much detailed evidence which the Plaintiff can give on the question of liability.

4. The 1st Defendant gave his version of the accident. He said that on the morning in question he was driving along Kennedy Road at about 20 to 21 m.p.h. in third gear. He was looking for a fare. When he came round the corner before house number 54 he saw the Plaintiff on the Pavement on the right hand side of the road. He saw that she was hailing him. He then brought the vehicle to a halt. He signalled that he intended making a turn to the right. He then engaged first gear and started turning to the right in an attempt to enter the car parking area outside the building. He looked in both his mirrors and did not see any vehicle following him. He had waited a short period before commencing his turn to the right so as to enable oncoming vehicles to pass him in a westerly direction. After he had proceeded a short distance and was going at about 5 m.p.h. he suddenly felt a heavy impact on the right of his taxi. He was very frightened. He then held the steering wheel with both his hands and applied his foot brake in an attempt to control the taxi. The next thing he realised was that he had collided with a traffic sign on the pavement. When he got out of the taxi, he saw that the lady who had been hailing him was in a sitting position in front of the taxi. He claimed that the accident had been caused entirely as a result of the motor cycle coming into collision with hire and that he had been forced across the road onto the pavement.

5. The 3rd Defendant then gave his version of the accident. He said that he had been travelling along Kennedy Road in an easterly direction following a taxi. He estimated his speed as approximately 30 m.p.h. He noticed that the taxi appeared to be reducing its speed and it was his intention to overtake it on the straight stretch of road outside No.54 Kennedy Road. He satisfied himself that the road was clear and that there were no oncoming vehicles. As he was preparing to overtake the taxi suddenly and without warning it started turning to the right. He had no opportunity of taking any evasive action and came into collision with the right hand side of the taxi. He was thrown to the ground by the impact. He then picked himself up and went across to where the taxi was stationary and started remonstrating with the driver. He then noticed that the Plaintiff was in a sitting position immediately is front of the taxi.

6. I will now attempt to analyse the evidence of these witnesses. I regret that I considered the 1st Defendant to be a very unsatisfactory witness. I have no doubt that he was an untruthful witness. I base this assessment on a number of aspects of his evidence. He insisted that he must have brought his taxi to a halt before attempting to turn right to pick up the Plaintiff. The reason he gave for this was that it would be quite impossible for him, as a driver, to drive his taxi into the entrance to the car park. I have considered the measurements on the sketch map prepared by the police which was in the agreed bundle and there can be no doubt that this evidence is manifestly wrong. The entrance to the car park is easily wide enough to accommodate his taxi and the manoeuvre could be achieved without difficulty while moving had he wished to do so. I also find his evidence to be totally unconvincing as to what transpired immediately after the impact. If his estimate of speed is correct, namely that he was doing 5 m.p.h. and if he immediately applied his brakes, it is inconceivable how this accident could have occurred. I have borne in mind the fact that the motor cycle which was involved in the accident was quite a large motor cycle. The engine had a displacement of 650 cubic centimetres. This would indicate that the motor cycle was quite large one. Notwithstanding this, I do not for a moment accept that the weight of the motor cycle would have been sufficient to propel the taxi onto the pavement as claimed by the 1st Defendant. I have also particularly borne in mind the Plaintiff's evidence to the effect that the taxi came straight across the road without coming to a halt.

7. I also have some reservations concerning the evidence of the 3rd Defendant. In particular my attention was drawn to the evidence which he gave in the proceedings in a Magistrates Court when he gave evidence for the prosecution when the 1st Defendant was charged with dangerous driving. When giving evidence he denied that he was attempting to overtake the taxi at the time of the accident. However subject to this one serious reservation I found his evidence to be very much more convincing than the evidence of the 1st Defendant. I accept that he was following the taxi and that it was indeed his intention to overtake it. I find as a fact that the 1st Defendant did not give any indication of his intention to turn to the right and this being the case the 3rd Defendant was unable to avoid coming into collision with the taxi. I am satisfied that the sole reason for this accident was the negligence of the 1st Defendant in turning right without any warning and then failing to bring the taxi to a halt after the 3rd Defendant's motor cycle carne into collision with him. This being the case I propose proceeding upon the assumption that the 1st Defendant was fully responsible for this accident.

8. I will now turn to the question of the quantum of damages. The evidence available in this respect consists of the Plaintiff's evidence and three medical reports which were agreed as evidence.

9. The Plaintiff said that after she was admitted at the Queen Mary Hospital, she suffered very great pain. She realised that she had suffered a large loss of blood and feared that there might be serious internal injuries. There were discussions on the first day as to whether surgery should be performed upon her. In view of the condition she was in, she understood that there might be considerable danger if the surgery was proceeded with and accordingly she was reluctant to giving her approval to this course being adopted. Eventually it was agreed that there should not be any radical surgery and this decision was based on the advice she received from her medical advisers. It was agreed that the best course to adopt would be to place her in a surgical corset and immobilize her. There were, however, problems. For some of the time it was necessary for her to be placed on her side so that she could be treated for dispersing liquid from her lungs. When she was placed on her side, she experienced excruciating pain.

10. She was eventually discharged from the Queen Mary Hospital on the 12th October 1981. When she was discharged, she was given a pair of crutches. She needed the crutches for walking until November. She then progressed to being able to walk with the assistance of walking sticks. Even at this stage she was only able to move very slowly and it was a painful process. Throughout the period when she was in hospital and after her discharge, she received physiotherapy treatment. As she still continued to experience considerable pain, she consulted Dr. Harry Fang who advised her to consider having acupressure treatment. It was hoped that this would clear up the haematoma and also relieve her pain. She accepted this advice and I will comment further upon the acupressure treatment when considering the special damages which were claimed in this respect.

11. The Plaintiff maintained contact with her employers Messrs Estee Lauder. Immediately after her discharge from hospital she attended at one of their presentations and attempted to give advice and assistance. Her job involved assisting in the presentation of cosmetic products sold by Estee Lauder and in training other girls in beauty treatments. She was not able to return to her duties after her discharge from hospital as she was too immobile to be of much use. She maintained contact with Estee Lauder and managed to return to work in March 1982. This was not an easy time for her because in addition to her duties at work it was also necessary for her to take time off to receive physiotherapy treatment. There was also the problem that she had to use walking sticks for the purpose of getting around. This created difficulties as her employers did not like the idea of their customers seeing an employee who gave every appearance of being a cripple. They had discussions on this subject. Eventually it was agreed that the Plaintiff should tender her resignation and she did this in May 1982. As soon as she left Estee Lauder she did everything possible to obtain another job and her efforts met with suceess in September 1982 when she secured a post with D'Urban.

12. The Plaintiff then gave evidence on the effect that the accident had had on her life. Previously she had participated in various fairly strenuous activities such as snow skiing and water skiing. She did not think that there was any prospect of her being able to resume these activities. She also gave evidence concerning her family life. At the present time, she has two young daughters. She described her fairly as being an old-fashioned Chinese family. This being the case they were anxious to have a son if possible. At the present time, she is pregnant and realises that almost certainly her baby will have to be delivered by way of a Caesarean Section. She also realised that the size of her family would almost certainly have to be limited as a result of this.

13. As I have indicated earlier in this judgment, I considered the Plaintiff to be an excellent witness. I am satisfied that she is a truthful and honest person and she has not in any way exaggerated the injuries she has sustained. My view of this matter appears to be reinforced by the opinions which have been expressed by the various doctors who have attended upon her. I propose extracting from the medical reports, relevant material which throws light upon the Plaintiff's injuries, the treatment she has received and the prognosis for the future. I propose quoting in full the opinion of Dr. Antony Ng who was the doctor who was responsible for her treatment when she was first admitted to the Queen Mary Hospital.

"         The above nailed patient was admitted to the University Surgical Unit from Tang Shiu Kin Casualty on the 20/8/81 after having been hit by a car.

 

        She was admitted in condition of shock. She sustained fractures of bilateral superior & inferior pubic rami with displacement, as well as soft tissue injuries to her chin, right thigh and left foot. There was no evidence of head injury. There was evidence of severe blood loss.

 

        She was treated with blood replacement, bed rest, pelvic binder and manipulation and was closely observed. The soft tissue injuries were treated with dressing charges. The University Orthopedic Unit was consulted.

 

        Her hospital course was long and protracted. After initial bed rest, intense physiotherapy was started. There was considerable pain and suffering.

 

        She was finally discharged on 12th October 1981, with significant difficulty in walking. She continued physiotherapy as an outpatient and has been cared for by Dr. P.C. Lee of the University Orthopedic Unit. There soft tissue injury healed with some scarring.

 

        Her prognosis of walking normally again after a long period of rehabilitation should be good. The deformity of the pelvis however would probably prevent her from deliverying a baby in the usual manner in the future.

This report was dated the 24th November 1982.

14. The next report I will refer to is the report of Dr. Harry Fang who first saw the Plaintiff in February 1982 and who treated her for some time after that. The first part of Dr. Fang's report is similar to Dr. Ng's report. However, it is of value to consider the conclusions which were drawn by Dr. Fang. I quote:-

"        Mrs. Ho, as a result of a car, accident, has sustained internal abdominal injuries as well as multiple fractures of the bony pelvis and multiple superficial lacerations. She suffered a severe loss of blood which necessitated the tansfusion of 12 pts. of blood. Her main orthopaedic injury was the pelvic bone which involved the pubic rami on both sides. Although the fractures are now healed, the bony pelvis is distorted. This would give rise to difficult child birth in the future.

 

        There is no gross permanent disability that has resulted from her orthopaedic condition apart from the likelihood of difficult child birth. As regarding her internal injuries, a separate opinion will be necessary."

This opinion is dated the 10th October 1983. Fortunately it would appear from the medical evidence which is available and from the Plaintiff's evidence that there are no serious permanent consequences flowing from the internal injuries she suffered.

15. The final report I will refer to is a report prepared by Dr. Wedderburn who examined the Plaintiff recently. The relevant part of Dr. Wedderburn's report reads as follows:-

"         On examination there is now no measurable welling of the right thigh but the tissue on the outer aspect of the thigh is more resistant than normal due to some remaining fibrosis or scar tissue. The thigh at 3 levels does measure ¼inch more in circumference than the left but this is not unusual in a right handed person and  there is a similar slight difference in the sizes of the calves. This is only ascertained by measurement and the difference is not visible. She has slight loss of ankle joint movement on the left at the extremes of movement but the impairment of the leg from loss of ankle joint movement is only 1% which does not form a measureable impairment of the Wholeman.

 

        The fracture of the pelvis took place in the superior and inferior pubic rami, that is the pelvis at the front. The fractures are soundly united in excellent position but there is some distortion of the pelvic inlet so that if she became pregnant she would have a normal pregnancy but delivery would require Casearean Section. She has two children at present.

 

        She complains of discomfort in the right knee and when the knee is bent and the examiner grasps the lower leg, the lower leg can be moved slightly backwards and forwards and this is due to lessening of the cruciate ligaments which normally prevent this movement. X-ray of the two knees for comparison shows that the lateral tibial eminence on the right is slightly spiked although it would not be considered abnormal except for comparison with the X-ray of the left knee. It does tend to confirm am injury of the cruciate ligaments. This should be treated and I have written a letter to take to the Physiotherapy Dept. of the Knosset Hospital. She will have two or three sessions of physiotherapy, afater which she can do the exercises herself at home.

 

        There is a 5 x 1 inch purple scar on the outer side of the right leg which must have been unsightly originally and it still very obvious. She will not wear a skirt unless she is also wearing very dark coloured stockings.

 

        She has full movement of both legs at the hip joint.

 

        She was a sales promotion and training manager for Estee Lauder and had to give presentations. She returned to work after six months but for the first three months made no public appearances and she left the work. I think it was suggested that she leave. In 1982, from September until the end of June '84, she worked for D'Urban.

 

        She has a 1% impairment of the Wholeman from the results of the fracutred pelvis and the condition of the right knee but if she has physiotherapy and keeps up the exercises at home this condition will probably improve and will  certainly not deteriorate.''

16. I accept the validity of the submission made by Mr. Pirie that the Plaintiff's injuries in this case are not of the most serious kind and any award which is made must reflect the fact that basically the Plaintiff has made an excellent recovery and has not sustained any appreciable permanent injuries. This is subject to the problems she will almost certainly encounter in giving birth to further children. I do regard this as a serious matter as I accept and attach considerable weight to the Plaintiff's evidence of her desire to have a son.

17. Mr. Denis Yu who was representing the Plaintiff drew my attention to a number of cases where awards had been made in respect of similar injuries. He prefaced his submissions by referring to Li Ping Sum v. Chan Wai Tong ⁽¹⁾ which emphasised the importance of bearing in mind the dates of the various relevant cases due to the significant increases in awards over recent years. I am satisfied that Mr. Yu is right in his contention that an increase of at least 10% per annum must be provided for from the early to mid 1970's. In considering an appropriate amount for an award of general damages I have borne in mind this necessity. Mr. Denis Yu also referred me to the cases of Wong Mei-yan v. Chan Pui-chin ⁽²⁾ Fung Bik-wah v. Liu Wing-hon ⁽³⁾, Sung Wai-fun v. Chan Yin-min ⁽⁴⁾ and Ra Soon -kyoo v. Yeung Wai-kin ⁽⁵⁾ Obviously none of these cases are exactly similar to the present case. Doing the best I can with all of the material before me, I award to the Plaintiff general damages of $70,000.

18. All of the special damages were agreed in the sum of $20,958.50 save for two items. These two items related to the medical expenses in respect of the acupressure treatment amounting to $15,600 and the claim for loss of earnings from the 1st June 1982 to the 31st August 1982 amounting under a revised claim to $32,275. I will deal with the first contested item namely the cost of the acupressure treatment. Some difficulty was encountered with this item. As I have already indicated the Plaintiff gave evidence that she had received this treatment as a result of the advice she received from Dr. Harry Fang. Dr. Harry Fang did not give evidence in court as his report was agreed as evidence. There is no reference in his report to the advice it is claimed that he gave for the efficacy of acupressure treatment. It was agreed by the parties that an attempt should be made to resolve this problem informally by Mr. Yu telephoning Dr. Harry rang and asking him if he had any recollection of this matter The parties agreed as evidence a transcript of Mr. Yu's conversation with Dr. Fang on this subject which reads as follows:-

                "QUESTION put by Denis Yu:

'Do you recall recommending to Rosemary Sun Ho acrupressure treatment and Chinese herbal medicine?'

 

ANSWER by Dr. Harry Fang:

'I remember that Rosemary Sun Ho was suffering from a huge haematoma and great pain. My answer in the witness box would be I do not specifically recall but I might have recommended to her Chinese  physical treatment - acupuncture and acupressure (which I consider to be the same), and 趺打. That would be for her pain, not the haematoma. I do not recall recommending to her Chinese herbal medicine."'

I do not regard this conversation as being in any way inconsistent with the evidence which was given by the Plaintiff on this subject. I accept that Dr. Fang did in fact advise acupressure treatment and I award the Plaintiff $15,600 special damages under this head as claimed. The second item of special damages which is contested is the claim for loss of earnings. Miss Lai who was the Plaintiff's superior at Estee Lauder gave evidence concerning the Plaintiff's employment with Estee Lauder and this was entirely consistent with the Plaintiff's evidence that she had to leave Estee Lauder. I am satisfied that the Plaintiff has also proved this item of special damages and I make an award under this head of $32,275. The total of the special damages therefore amounts to $68,833.50.

19. The only other matter that remains outstanding is the 3rd Defendant's claim against the 1st and 2nd Defendants for the cost of the repairs to the 3rd Defendant's motor cycle. I understand from the parties that they have agreed that the cost of the repairs to the motor cycle amounted to $3,292. Having regard to my determination of the liability between the parties, I order that the 3rd Defendant will be entitled to judgment against the 1st and 2nd Defendants in that sum.

20. I further order that interest at the rate of 2% per annum will be payable on the general damages from the date of the issue of the writ. Interest of 7% will be payable on the special damages since the date of the accident. Judgment will be entered against the 1st and 2nd Defendants. I will hear the parties on costs.

(1)    14 HKLJ 262

(2)    5 HKLJ 382

(3)    [1976] HKLR 105

(4)    8 HKLJ 376

(5)    10 HKlJ 226