LAM MAN YIN v. CHOY TAK FU

1982 No. 4248

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, a 70 years old pig farmer in the New Territories was on 31st May, 1981 cycling along Kam Sheung Road towards Kam Tin when a car driven by the Defendant came into collision with him.

2. The Defence lodged by the Defendant's solicitors, who subsequently withdrew, denied negligence and in the alternative claimed contributory negligence on the part of the Plaintiff. At the hearing the Defendant, who was not represented, pursued neither that denial nor the claim. He did not cross examine the Plaintiff or any of his witnesses, nor did he give evidence.

3. In his statement to the Police, which was admitted by consent, the Defendant stated that he was following a van along Kam Sheung Road when it suddenly stopped. He pulled out to avoid it and hit the Plaintiff who was on his cycle.

4. Police Constable 11508 Li Ping Kwan produced photographs and a sketch plan.

5. The Defendant was convicted by the Magistrate's Court at Fanling on 11th December 1981 on three counts i.e. careless driving, driving with defective foot brakes, and driving with defective hand brakes.

6. It is entirely clear that the accident was caused by the negligence of the Defendant and that there was no contributory negligence on the part of the Plaintiff; and I so find.

7. The Plaintiff claims general and special damages. The following items of special damages have been agreed -

8. To proceed to the remaining item of special damages i.e. loss of earrings of $180,000 from 31st May 1981 to 31st May 1984, this was not agreed by the Defendant.

9. The Plaintiff has not been able to resume pig farming since his accident nor take up any other gainful occupation. He is now obviously a frail old man who walks with a limp and requires a walking stick. He testified that prior to the accident he was averaging $5,000 profit a month. He gave details of his turnover and of production and sale prices to justify that seemingly high figure. Asked why more people did not rush into pig farming if the gains were relatively so attractive, he pointed out that it was arduous work which necessitated experience and knowledge, and also a great deal of capital particularly in the way of premises. As to whether he could not have mitigated his loss of earnings by letting out his premises he replied that he was hoping that his young son would take up the farm, that in the meantime no pig farmer would take it for only a few years and that in any case all pig farmers who were the only people who could do that sort of thing, had their own farms. Further as to why he could not employ someone to work under his supervision he said that even a labourer would cost him $100 or more per day seven days a week and that he was in no condition to go into the pig sties. Seeing him limp to the witness box, that was entirely credible.

10. The Plaintiff seemed honest and truthful and I see no reason to disbelieve him. His claim to a monthly income of around $5,000 seemed plausible and probable when he explained its circumstances. I find that he did have an average income of $5,000 p.m. prior to the accident. I cannot say that I am convinced that he could not have mitigated his loss by trying harder to let the farm or run it with hired help. But the onus is on the Defendant to establish that the Plaintiff did not take reasonable steps to mitigate his loss of earnings (McGregor on Damages 14th Ed. p,168 et seq.; LEE Yip-kun v. Chius Manufacturing 1976 HKLR 195). And the Defendant made no attempt to discharge that onus.

11. Only 3 years' loss of income is claimed as Dr. Wedderburn's report shows that in early 1981 and after the Plaintiff left hospital following the accident he developed vomiting and lost a great deal of weight. He was operated on in October 1981 for partial obstruction of the intestine, which had nothing to do with the accident. He would have had to have the operation anyway, and to keep his pig farm going would have needed help for 2 to 3 months. Also, it is likely that he would not in any case, in Dr Wedderburn's opinion have been able to work beyond the age of 73; it is on that basis that he claims loss of earnings for only 3 years. On the evidence he should have $5,000 per month for three years, with the exception of the 2 to 3 months for which he would not have been able to work anyway. On the Plaintiff's own evidence a labourer would have to be paid more than $100 per day 7 days a week. In my view $4,000 should therefore be deducted and the Plaintiff allowed $166,000 for loss of 3 years' income from the time of the accident.

12. Finally I come to pain, suffering and loss of amenities. The Plaintiff's injuries and their effect are described by Dr. Wedderburn in the following way:

"         On 31.5.81 after a traffic accident he was admitted to the Princess Margaret Hospital, He had a laceration on the face, right arm and foot. There is a neat 3" scar running down the right cheek, it is not noticeable and difficult to distinguish from the normal lines on his face. There is a 2" neat scar on back of the right forearm.

 

       He suffered a laceration of the right calf and ankle and these were skin grafted, taking skin from the front of both thighs. There is a 5"  × 3" flat scar, the donor areas on the front of each thigh. There is a 9" scar running down the front of the calf, 1½" wide at its widest point where the skin was applied. The graft took well and the area is healed and healthy and there is a 1" ×1½" area on the inner aspect of the right heel which also received a graft and the skin is firm and healthy.

 

         He suffered a fracture of the medial lateral condyles of the Tibia, the weight bearing bone of the lower leg in the knee joint. The upper surface of the Tibia in the knee joint has a plateau which bears weight at each side with small eminences in the middle of the weight bearing surfaces. He was treated with a plaster cast for two months and transferred to the Pok Oi Hospital for two months, after leaving the Pok Oi Hospital he used two crutches for a further two months and still uses one stick outside the house.

 

        He also complains of pain and restriction of movement of the right shoulder. He can only raise the arm from the side through 100^o instead of being able to raise it straight in the air through 180^o. He has lost 20^o of the movement of internal rotation of the arm at the shoulder; this is the movement in which a man puts his hand behind his back and loss of this movement makes taking on and off of a jacket and shirt awkward, X-Ray of the shoulder shows no abnormality but he has a periarthritis of the shoulder due to trauma and restriction of movement frequently lasts for a year to 18 months but usually recovers spontaneously; however as he is 70 he is unlikely to get a full recovery.

 

        He can bend the right knee through 160^oas opposed to the 170^o on the left but the normal range of movement in a Chinese is 160^o, so he has an abnormally great degree of movement on the left. The right knee joint is swollen; the circumference is 13½" as opposed to 12¾" on the left and the lower leg is displaced laterally below the knee by½".

 

        X-Ray shows that the lateral condyle is broadened and the medial condyle slightly depressed. The bone at the knee is widened by ½". I enclose a drawing of the present position of the healed fractures, no improvement will take place.

 

        He walks with a limp leaning on his stick and has gross wasting of the right thigh muscles. He already has some degree of osteoarthritis of his right knee and this will gradually deteriorate but the deterioration will be a fairly slow process and will be unlikely to further restrict his movements for five to six years and will not seriously interfere with his weight bearing until aged 80. By aged 80 he will have a 10% Impairment of the whole Man from osteoarthritis of the right knee. At present he has a 6% Impairment of the Whole Man from loss of right shoulder joint movement which will gradually improve.

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        It is obvious that he is quite incapable of performing the arduous work that he was doing at the time of the accident. The life expectancy of a man of 70 in Hong Kong is 10 years and I do not think the accident directly affects his life expectancy although inactivity in a man used to working hard may have some unrelated effect.

 

        Five years ago he had a gastrectomy for a duodenal ulcer i.e. about half the stomach is removed. In early 1981 and after he left Hospital he started to develop vomiting and lost a great deal of weight and in October, 1981, he was admitted to Hospital and operated on again for a partial obstruction of the intestine. This was probably due to scar tissue pressing on the intestine where it had been anasthamosed or joined to the remnant of the stomach as a by-pass, but according to him a segment of intestine was removed and re-joined. He had lost about 301bs in weight in the previous 8 or 9 months and is now able to eat fairly well and has put on some weight since the second operation.

 

        The necessity for the operation in October, 1981, of course bears no relation to his accident and because of this if he had had help with the pig farm for two to three months he might have been able to resume his full work, but I do not think it is likely that he would have worked beyond the age of 73 because of his abdominal condition and certainly I think it is very unlikely that he would have worked beyond the age of 75 with, or without, the abdominal condition."

13. The report of the medical officer at Princess Margaret Hospital is as follows:

"                Re     :     LAM MAN Yiu M/70 years

14. On the Lee Ting-lam scale [1980 HKLR 657] the Plaintiff's disablement would fall within the first category of serious injury, i.e. in the range of awards from $60,000 to $80,000, suitably adjusted for inflation (Li Ping Sum v. Chan Wai Tong CA 53/83 and PC 22/84). But the Privy Council in the latter case, while approving the use of guide-lines, pointed out that it could not do away with the need to compare the facts of the particular case under consideration with the facts of reported cases.

15. Proceeding then to the cases drawn to my attention, in Lau Chow-lam v. Fung Mong-yau & anor. (1981 HKLJ 127) an ironing worker in a garment factory, aged 44 sustained a fracture of the femur and some lacerations to the face. The fracture was treated by the insertion of a nail, a plate and six bore screws.  The Plaintiff spent about 2½ month. in hospital, then used crutches and thereafter had to use a walking stick. Although the fracture had united firmly there was some overriding which caused shortening of the left leg of  ¾ inch. There was also loss of 20^o of internal and external rotation and the Plaintiff was still limping at the date of the trial. His impairment was placed at 7% and disability at 12%. He would occasionally suffer from aching in the left hip and thigh, particularly in wet weather and with weather changes. $35,000 was awarded for pain, suffering and loss of amenities on 31st October 1980.The injuries were somewhat more serious in that case than in this.

16. In Mak Leung-yau v. CMB & Chan Yick-yee (1982. HKLJ 92) the Plaintiff a 66 year old stone cutter sustained a fracture of the neck of the femur, was in hospital for 1½ months, used 2 crutches for 3 months and was still using one at the trial. There was half an inch shortening of the right leg, 6% impairment of the whole man, a limp, pain and inability to squat. $20,000 was assessed on 22nd July 1981. In terms of severity the injuries in that case seem very close to this.

17. In Che Che v. Leung Siu-Tong & anor. (1982 HKLJ 394), the Plaintiff was a blacksmith aged 64. He sustained a fracture of the femur which was treated by insertion of a nail bone plate and screws. The injury to the knee caused it to be swollen to twice normal size. The Plaintiff was 8 weeks in hospital and one month on crutches thereafter. There was 8 continuing limp, difficulty in standing for long periods, crepitus due to osteoarthritis, 4% impairment of whole man and 20% disability. The Plaintiff was awarded $25,000 on 27th April 1982.

18. Finally in Chan Hang v. Foo Yee-Nui (1984 HKLJ 114) the Plaintiff, a 76 year old woman, sustained a fracture of the left femur, half inch shortening of the left leg, limited rotation giving a 22% impairment of the leg and a 9% impairment of the whole person. Also the Plaintiff was diabetic and the result of the accident would probably reduce her life expectancy by half. An award of $35,000 was made on 26th May 1983 taking into account the considerable pain suffered.

19. On the foregoing and taking into account inflation since the several awards, Mr. Y.W. Yung instructed by the Director of Legal Aid claimed $35,000 as an appropriate sum for pain, suffering and less of amenities. I accept that that would be a reasonable sum and certainly not overgenerous.

20. I accordingly make the following award:

Special damages

General damages

Pain, suffering and loss of amenities                 $ 35,000.00

21. There will accordingly be judgment for the Plaintiff in the aggregate of the foregoing amounts, together with interest on the special damages at 5½% from the date of the accident to judgment, and on the to judgment general damages at 2% from the date of service of the writ to judgment. Costs to the Plaintiff.

22. As the Defendant's insurers have gone into liquidation since the accident, it is unlikely that the Plaintiff will recover anything more than a fraction of the judgment debt. The Director of Legal Rid may therefore deem it appropriate to waive wholly or partly his statutory charge on the damages recovered.