IP LAM YUK LIN v. YEUNG FAT AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT ACTION NO.1266/91

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ASSESSMENT OF DAMAGES

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1. On 30th December, 1988, at about 4 p.m., the female plaintiff was walking along the pavement near 59 Percival Street, when she was knocked down by the 1st Defendant, who was carrying a boxed television. The 1st Defendant was in the employ of the 2nd Defendant.

2. The plaintiff was aged 64 at the time of the accident. She suffered a fracture of the left femur and the left radius.

3. Proceedings were commenced on 20th February, 1991, interlocutory judgment was entered against both defendants on 24th May, 1991; the assessment of damages was heard on 27th. September, 1991.

4. The two defendants appeared in person at the assessment. The plaintiff was represented by Mr. T. Wong.

5. Four medical reports Were adduced at the hearing of the assessment under the provisions of order 38, no counter notices having been filed.

6. The medical reports show that the plaintiff was taken to the Tang Shiu Kin Hospital, then transferred to Queen Mary Hospital, where a left colle's fracture and left trochanteric fracture were confirmed. She was treated by close reduction with plaster of paris for the left wrist and a left D.H.S. performed for the left hip fracture. She was transferred to Sandy Bay Convalescent Hospital on 10/1/89 for physiotherapy.

7. The plaintiff gave evidence, telling of the accident on the 20th December, 1988. By April, 1990, she had recovered sufficiently to seek work, but no one was willing to employ her. Prospective emplopers said "you are crippled, how can you carry on your works." Normally an amah's job is found by means of an introduction by another amah, but when she went to seek such an introduction, the other amahs expressed the view that she could no longer carry on with work, and did not assist.

8. She feels no discomfort in her hand, but she cannot lift heavy objects. The pin in her hip itches around the site, and she has to rub it to relieve the itchiness.

9. At the time of the accident she was employed by a Mrs. Lam, and was paid $20 per hour. Her hours of work varied, depending on her employer's requirements, but she normally worked 4-6 hours per day. She earned $2500 per month on average. Wages have increased in the interim, and she thinks that she could now earn $3000 per month. Her employer supplied her with a meal, which is the normal practice with amahs paid on an hourly basis.

10. The plaintiff was discharged from Sandy Bay on 20th January, 1989. She produced receipts for Sandy Say in the sum of $234.00, and for Queen Mary in the sum of $338.00. She incurred expenses for physiotherapy, and produced receipts totalling $676.00, saying that she had spent more than this, but could not find the receipts. The Receipts produced were for 33 visits between 15/2/89 and 29/8/89.

11. She had been given a monthly appointment with the hospital but she suffered from severe itching, describing it as "horrible", saying that she "actually suffered". As a result she sought private medical care, and produced receipts in the sum of $525.00 for that. She spent $800 on taxi fares for hospital Visits. She spent more than this, but cannot remember precisely. She spent about $1,000 on tonic foods, which she took from time to time on the advice of friends.

12. Had she not had the accident, she would have continued working until she "passed away."

13. In cross-examination, she said that she had not had any sickness nor had she suffered any injury prior to the accident. She usually started work some time after 8 a.m. and would sometimes work to 8 or 9 p.m. She was on the street at the time of the accident because it was part of her job to shop for her employer.

14. In re-examination, she says that she averaged 4-5 hours per day, but that the hours varied. She mostly started at 8 a.m., would work to noon, then go home and return to cook dinner in the afternoon. If she felt tired, she would remain at her employer's home and take a rest there. She confirms that she was paid $20 per hour. She normally worked six days per week.

15. The defendants did not give evidence or call witnesses.

16. The plaintiff's solicitor referred to Dr. Alvin P.S. Yeung's report, dated 25/7/89, which sets out the history of the plaintiff's care, noting that a plaster cast was applied to the left wrist for six weeks, and the left hip fracture treated by means of a hip compression system. Two months prior to her attendance on Dr. Yeung, she started to have pain in the left wrist, and a wrist splint was applied at the Queen Mary Hospital. She was still receiving physiotherapy and occupational therapy at the date of the report.

17. Physical examination showed a mild limp, with a full range of movement, and normal muscle power. There was no deformity of the wrist, muscle power and sensation were normal, as were hand grasp grip and pinch grip.

18. X-ray showed the hip compression system in situ.

19. Dr. Yeung comments that the plaintiff had recovered well from the crack fractures, with only very mild stiffness of the wrist and mild weakness in the hip. The pain in the left wrist was caused by traumatic tenosynovitis and, splint treatment having failed, a steroid injection into the tendon sheath should produce excellent results, with no further disability expected.

20. Dr. Yeung assessed disability from the left hip at 2%, and from the left wrist at 1% with total permanent disability at 3%. The plaintiff was capable of returning to work as a domestic helper.

21. Mr. Wong submitted that, although the plaintiff was capable of working, she was not able to find work. He referred to her age at the time of the accident, and of the pain and suffering she had experienced, and the operations she had undergone, which were horrifying for a woman of her years. The plaintiff was an energetic woman who had hoped to work until the end of her life, and who was disappointed in not being able to do so.

22. Mr. Wong noted that there were no reported cases similar to the circumstances found in this case. He Submitted three cases which might be of assistance.

23. The first is in the March 1987 Current Law, at D.57, KUNG Kit-shing v. Star Synthetic Flower Factory and others (HCA No. 8967/1981, unreported). That case dealt with a male of unspecified age who suffered minor injury, returning to his job 18 days after the accident, who was awarded $20,000 general damages by the Court in March. 1987. The Court took the view that the claims of residual pain, suffering and disability were grossly exaggerated and rejected them. There was no permanent disability or loss of. earning capacity. The injuries consisted of three lacerations, short loss of consciousness, and neck pain, and he was hospitalised for one week for observation and convalescence, with physiotherapy for the neck pain for about a year.

The second case is found in the December, 1988, Current Law at D.7, under the name LAM Siu-king, where a 42-year old male was awarded $90,000 general damages for pain suffering, and loss of amenities. That case involved multiple injuries of a more serious nature, including post-traumatic amnesia of eight hours duration, fracture of the odontoid process of the second cervical vertebra, a two centimetre linear laceration of the scalp, damage to the left side of the spinal cord at the level of the 5th, 6th and 7th cervical vertebrae, and the plaintiff remained in hospital for two months, having undergone traction for 6 1/2 weeks. He wore a Minerva plaster cast for three months, and thereafter an orthopaedic collar. He had physiotherapy three times per week for three months. His injuries fell short of the "serious injury" category in LAU Che-ping.

24. Noting that LAM Siu-king was decided in 1988, Mr. Wong submitted that $80,000 was an appropriate figure for the plaintiff now before the court.

25. Mr. Wong noted the case of YIU Yun v. A.G. (civil appeal No. 68/1990). In that case, the Court referred to Hughes and Goodall (CA 100/1977) where it is said by Bridge L.J. that with regard to the level of general damages, in the absence of comparable cases, "the only possible approach .... was one of impression based of necessity in large measure on the combination of intuition and experience." Mr. Wong submitted that the Court is entitled to exercise its intuition and experience, that the two cases referred to were some guidance, and that the Court should bear in mind the horrible experience that the plaintiff had undergone and the discomfort she continues to suffer.

26. In addressing the Court, the 2 defendants asked the Court to consider whether the plaintiff could have worked until the end of her life, and whether she could have earned as much as she said.

27. I accept the plaintiff as an honest witness. I am satisfied that she did all she could to find employment after her recovery, but understandably she had difficulty in finding a willing employer. She has made a good recovery from two serious fractures, and I accept that she had had a frightening and painful experience, bearing in mind her age and her pervious good health. Taking all these matters into account, and considering the cases before the Court, I am of the view that an award of $70,000 general damages for pain, suffering, and loss of amenities is appropriate to this plaintiff in these circumstances.

28. On the loss of earnings, I accept that at the time of the accident, the plaintiff received $20 per: hour, that she worked an average of 5 hours per day, that she worked 25 days per month, and that she was provided with a free meal from her employer, which was worth $600 per month.

29. Therefore, her earnings in 1988 would have been:

30. 5 x $20 x 25 + $600 = $3,100 per month

31. I am satisfied that at the present time, she would earn $24 per hour, and that her meal would be worth $800 per month.

32. Therefore her current earnings would be:

33. 5 x $24 x 25 + $800 = $3,800 per month

34. The average of these two figures is $3,450 per month.

35. I calculate her pre-assessment loss of earnings as follows:

36. 30/12/88 to 27/9/91, being 33 months x $3,450, being a total of $113,850.

37. Mr. Wong submitted that her future loss of earnings should be calculated for a further three years. The plaintiff's IDC shows her year of birth as 1924. I accept that she would have worked into her 70th year, and I am therefore satisfied that her future loss of earnings should be calculated on that basis, as follows:

38. 28/9/91 to 28/9/94, being 36 months at $3,800 per month, which amounts to $136,800.

39. I am satisfied with the evidence of the plaintiff as to special damages and I am satisfied that they are reasonable; I award the sum of $3,573 as follows:

SUMMARY OF AWARD:

40. Interest on the general damages will run at 2% from the date of the Writ until assessment. Interest will run at 5%, on the special damages and on the pre-assessment loss of earnings, from the date of the accident until assessment. There will be no interest on the future loss of earnings.

41. Costs of the assessment to be to the plaintiff, to be taxed, if not agreed. The plaintiffs own costs are to be taxed in accordance with the Legal Aid regulations.