LEE KING CHIU v. CHUNG HON FAI AND ANOTHER

1983 No. 430

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

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ASSESSMENT OF DAMAGES

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1. Represented by Mr S. Chow of Counsel the Plaintiff claimed damages for injuries received as a result of a motor accident on the 16th January 1980.

2. She had extensive ragged lacerations of the head with many pieces of glass in her scalp which were not removed until long after.

3. She complained of lower back pain and on the 24th January was seen in the orthopaedic unit of the Queen Elizabeth Hospital at which time osteochondritis was diagnosed.

4. She had had this complaint for the preceeding 6 months according to the report.

5. She was discharged on the 28th January, 1980.

6. She had extensive follow up treatment both from the orthopaedic and neurosurgical departments of the hospital and also from bone-setters whom she regularly attended.

7. She first saw Dr. Wedderburn in April 1982. His opinion was that her back condition should rather be described as spondylitis or spondylosis than osteochondritis, and upon X-ray saw that the bodies of the thoracic vertebrae numbers 6 to 10 were partially collapsed.

8. He thought that the spondylosis had been aggravated by the accident producing conditions very similar to senile osteoporosis.

9. He prescribed for such a condition and the latest report, in October 1982, seems to show that the process has been arrested, even reversed.

10. She attended the hospital on two different occasions for the removal of the glass pieces and these were produced to me, occasioning me some surprise why they were not removed on the day of the accident.

11. In February 1984 she saw Dr Wedderburn with a complaint of formication in the left temporal region and told him she was still able to continue at part-time hawking of light articles.

12. He assessed her permanent disability as 3%.

13. The conclusion I draw from reading these reports is that the accident aggravated a pre-existing condition of her lower thoracic spine, which now gives her only occasional discomfort with a change in the weather, and that is what she told me in her evidence.

14. She was and is a licensed itinerant hawker, having kept up her payments of the annual fee for renewals, although, apart from the hawking she mentioned to Dr Wedderburn, she told me that she had reverted to being a housewife after the accident.

15. Although I asked, I was not told what kinds of articles she was licensed to hawk, and apart from the reservations Dr Wedderburn had in 1984 about her lifting heavy weights, I cannot see why she should have continued as a housewife except from choice, especially in view of his opinion in October 1982 that she would be able to do her hawking activities with the same degree of efficiency as before the accident.

16. Dr Wedderburn assessed her as having 5% impairment of the whole man with 3% loss of earning ability.

17. I give his assessments the greatest consideration and accept them. But so far as the 3% loss of earning ability is concerned, my view is that having regard to the especial vicissitudes of the life of an itinerant hawker it is neither reasonable nor practicable to attempt to quantify so small a percentage loss.

18. I will deal with the special damages first.

Hospital Expenses

19. Although claimed for $75, has now been satisfactorily vouched at $425 and this is the figure I allow.

Travelling Expenses

20. Present a problem. I know she went to hospital on 3 occasions and that she attended for out-patient treatment, but I have no knowledge of the total number of dates she attended, either as an in-patient or as an out-patient.

21. I allow a sum of $250 under this head.

22. For the item tonic food vouchers supporting expenditure of considerable sums on ginseng tea, royal jelly, dates and so forth were produced but I had no evidence before me to satisfy the test of reasonableness, use, need and suitability laid down in Mui Ning Kwan v. Wong Yiu Wah 1973 HKLR 465. Nevertheless, following Yu Ki v. Chiu Kin Lam I allow expenditure at $15 per day for 12 days in hospital after the accident but not for the occasions for the removal of broken glass. Hence $180 under this head.

23. There are also many vouchers for attendances on bone-setters and for Chinese medicines, but such evidence as there is is that all her attendances on the bone-setter overlapped her attendances at the osteochondritis and neurosurgical departments of the hospital. There is no evidence that such attendances and medicines were of benefit to her, nevertheless, on the authority of Yu Ki referred to above I may make an allowance for reimbursement of reasonable fees incurred under this head. My difficulty is that I do not know what is a reasonable expenditure. $7,158 is claimed, it seems low in comparison with private western medical practitioner's fees and I allow it in full.

24. Lastly I come to her claim for loss earnings baldly stated in the statement of claim at $2,500 per month and continuing, but the evidence does not bear this is out, nor is it quantifiable as I have said earlier. I accept that she was in bed whether at hospital or at home for four weeks and that the course of treatment prescribed for her accelerated osteoporosis needed to be maintained for 3 months and thereafter only by way of maintenance doses.

25. I therefore allow total loss of earnings for 4 months at her own figure of $1,000 per month, but after that I find there has been no compensable loss.

26. For her general damages for pain and suffering, loss of amenities the cases cited to me, not surprisingly are none a directly in point, but with them in mind and having regard to her medical history I allow $40,000 under this head.

In summary therefor

Special Damages

	Hospital expense	$425.00
	Travelling expense	$250.00
	Tonic food	$180.00
	Bone-setter fee	$7,150.00
	Loss of earnings	$4,000.00 _________	$12,005.00

General Damages

$40,000.00

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			$52,005.00
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27. I make an order for interest at 6.5% p.a. on the special damages for the period from the date of the accident to the date of trial and interest at 2% p.a. on the general damages from the date of the service of the writ to the date of trial. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.