LI YEE YUEN v. TAM WING KEUNG AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The Plaintiff in this action was injured when a collision occurred in Tai Po Road between goods vehicle being driven by himself and a similar vehicle being driven by the 1st Defendant as the servant or agent of the 2nd Defendant. The two vehicles were driving towards each other, and the averment in the Statement of Claim is that the vehicle being driven by the 1st Defendant crossed over the centre of the road and caught the Plaintiff a glancing blow. On that version, of course, it would be difficult to see how any allegation that the Plaintiff had been negligent could be sustained. In the event it has not been put forward and I ought to say a word or to about that.

2. This action comes to be heard today from the running list. Neither party, would know that the matter was listed for today unless they had attended yesterday afternoon to see which cases out of the warned list had been put in for hearing. The Plaintiff's solicitor did attend and that is why the Plaintiff is here today. At one time the Defendants had the advantage of solicitors, but they came off the record in 1983, since when both Defendants have been unrepresented in the action. It is very likely that neither Defendant reads English, even if he speaks it or understands it. It may be, therefore, that unless they took the trouble to have the notice which they ought to have received from the Court some time ago translated it is doubtful that either one of them knew that they were expected to attend yesterday afternoon to see whether or not this case was listed for hearing today. At one time I thought that Order 34 might impose some duty upon the Plaintiff's solicitor to inform the Defendants that the case was in for hearing today. But on reading Order 34 again, and having compared it with the English Rule, I am satisfied that the only duty which is imposed upon the party setting down the action is to notify other parties without delay of any communication received by him from the officer who keeps the list in relation to actions on the fixture list and has no application to cases which come out of the running list. Nevertheless having regard to the matters which I have ventilated I did consider whether or not I ought to adjourn the hearing of this action under Order 35 rule 3 as it seems to me that under the present system there is a risk that someone who is unrepresented and who neither reads nor speaks English might be under a considerable disadvantage when it comes to discovering the precise arrangements for the hearing of an action in which they are concerned. But in the end, I have decided that I should allow the Plaintiff to proceed because it seems to me that in the circumstances of this case where liability was unlikely to be in issue, that little hardship would be sustained by the Defendants through not attending as in any event they have the right to seek to have any judgment set aside. Moreover, I consider that were I to adjourn this matter I should simply be adding to the burden of costs.

3. Mr. Tang, who appears for the Plaintiff, had little difficulty in proving his car with regard to liability. It was still necessary for him to prove the special damages said to have been incurred and the pain, suffering and loss of amenity which leading to an award of general damages.

4. The Plaintiff is now a gentleman of 54 years of age. He suffered what is commonly referred to as a whiplash injury, and from his own evidence I gathered that he was unconscious for a short while. He was received in the Queen Hlizabeth Hospital. He was there for a matter of days. He was discharged. After an interval of just a few days, he was re-admitted, again for a matter of a day or so. Following his release he was suffering from injuries which Dr. Wedderburn describes in some detail in the first of his two reports which was made on the 18th June 1982. He describes how it was necessary for the Plaintiff to wear a collar for a year and thereafter how it was necessary for him to attend for physiotherapy over a protracted period of time. He describes how that by the time that he came to examine the Plaintiff it was painful for the Plaintiff to turn his head acutely to the right and how there was a generalized discomfort in the lower neck on the left side and some restriction of movement. He describes pain and restriction on tilting the head to the right and how the injury had affected the reflexes in the right arm. At the time of the report there was a substantially reduced grip in the left hand and an overall loss of grip in both arms. The Doctor acknowledged the possibility of the coincidence of the degenerative changes and the effects of the accident but he concluded then that the condition was chronic and that the slight improvement noted over the previous year was unlikely to continue. Indeed at that time he thought there was likely to be continuing deterioration which happily has not proved to be the case. At that time, however, he thought that there was a 10% impairment of the whole man from the condition which he describes as cervical spondylosis and the additional 10% from loss of muscle strength and loss of co-ordination. He thought that at that time be would not have been able to pass the Plaintiff as fit for driving and that consequently the job which he, the Plaintiff, had taken up in October 1981, which was light work at less remuneration than he earned as a driver was entirely suitable and justified. He also expressed the view that he was not able to work between the date of the accident and October 1981.

5. But when the Doctor came to see him again in October 1984 he was able to say that this was one of the rare cases in which the patient had responded to treatment and had improved so markedly that the overall disability was by that time no more than 3% to 4% and he took the view that by that time, if asked, he would have to say that it was quite safe for the Plaintiff to return to driving. And I have to assume that the improvement had been progressive between the date of the earlier report and this later one so that the end position observed by Dr. Wedderburn had been reached at some date prior to 8th October 1984. The Doctor, perhaps going outside his own diseipline, made certain observations as to the difficulties facing such a man in re-establishin himself as a self-employed lorry driver. I think these are matters for me to take into account as a matter of common sense if not strictly as an expression of expert evidence.

6. Now, at my invitation, Mr. Tang has helpfully referred me to two decisions in 1982 reported in 1983 Hong Kong Law Journal at pages 423 and 424, which he says are examples of personal injury cases not wholly to dissimilar to the present where substantial awards were made and suggests that I might find guidance from them. Both those cases, one a decision of Master Betts and one of the Chief Justice were in relation to cases where the injuries were very different from the present case. In relation to pain, suffering and loss of amenity, the award in the first had been $45,000, and in the second $40,000. Mr. Tang goes on to say that whilst acknowledging that the injuries in those cases were more severe than in the present, nevertheless once brings into account such other factors as inflation and the fact that perhaps awards at that time in Hong Kong were rather lower than now, one would come out with a figure of something like $48,000 or $50,000 under that head of damage. I think I prefer not to adopt that approach but to accept the general principles to which I have been referred by Mr. Tang and apply them to the injuries as I see them today in the light of the medical evidence. I think that an appropriate award for pain, suffering and loss of amenity would be $35,000. I have regard not only to the content of Dr. Wedderburn's reports but also to the fact that some disability even though slight, is likely to continue, perhaps indefinitely, and to the fact that, though the Plaintiff has had a very uncomfortable time as a result of this accident in the past, as I saw him in the witness box his discomfort was by no means disabling or even severe. This is sort of thing that unforturately many people have to put up with in life and I do not think that any greater award of damages would be appropriate under that head.

                I turn to the claim for special damages. There is a claim for loss of earnings at the full pre-accident rate from 6th of May 1980 up to 20th October 1981, which is the date when Mr. Li found work. $3,900 a month is what Mr. Li told me he was earning prior to the accident and I have no reason to disbelieve him. The period is 17½ months bringing the total to $68,250. Mr. Tang has not urged upon me that there ought to be some progressive increase in the monthly rate even though I was told that where he a driver now Mr. Li would be earning very much more than he was prior to the accident. I do not think that the figure is unreasonable and I think that it can be supported on the medical evidence which I have before me. I allow that sum in full. The next head of claim is for loss of earnings at a reduced rate from the 21st of October 1981 when Mr. Li took up his employment up to the present time. I indicated to Mr. Tang that on the evidence before me I would take it that Mr. Li was able to return to his pre-accident employment no later than the date of Dr. Wedderburn's second report, that is the 8th October 1984, and on that basis accepting the average figure put forward by Mr. Tang one arrives at a figure of $67,680. The total loss of earnings, therefore is $135,930. In addition, hospital expenses have been proved of $179. I accept on the evidence of Mr. Li that he incurred travelling expenses of $600, no less at any rate, in atterding for physiotherapy. There is a claim for bone setters fees of $800. The evidence showed that only some $630 had been expended. I have been referred to authority with regard to bone setters fees. Authority apart I would have found that in principle the Plaintiff is not disentitled to bone setters' fees simply because the treatment he received at the bone setters hands was in addition to that which he received from a mere conventional source. The question is; was it reasonable for him to seek relief at the hands of a bone setter? Since conventional medicine had not achieved a complete cure and indeed for a period his condition was deteriorating and since it is an accepted method of treatment in Hong Kong, I think it was reasonable for him to turn to a bone setter for help and I accept that that sum of $630 is recoverable. I am more doubtful, however, of the claim for $4,000 for tonic or customary foods. The authorities seem to suggest that where a figure is challenged it must either be proved or only a nominal amount allowed. And the authorities do seem to show, and in particular the decision of the Chief Justice in YU Ki and CHING kit-lam and another⁽¹⁾, that the cost of tonic foods would normally be recoverable only for the period when the patient was undergoing hospital treatment. I think on any view $4,000 would be excessive in the circumstances of this case bearing in mind the nature of the injuries. I think a proper, if rather arbitrary figure would be $750 which brings the total for special damages to $138,089. Judgment for the Plaintiff in the sum of $173,089. There will be interest on the special damages (i.e. $138,089) at 7% from the date of the accident to the date of judgment and at 2% on the general damages (i.e. $35,000) from the date of the service of the writ to the date of the judgment. Costs of the Action to the Plaintiff. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

(1)   [1981] HKLR 419