Read the full judgment text of CACV 000199/1996 on BabelCite. This Court of Appeal judgment was delivered on 8 October 1997 before Mortimer, V.-P., Godfrey, J.A. and V. Bokhary, J..
Tort – personal injuries – quantum of damages – loss of earnings – unlicensed hawking – whether an unlicensed hawker can recover damages for loss of earnings in a personal injuries claim – ex turpi causa – public policy – Hawker (Urban Council) By-laws Cap. 132 – Public Health and Urban Services Ordinance (Cap. 132) s.83B – fixed-pitch hawking by sham arrangement with elderly licence-holder deceiving the Urban Council – subsequent grant of hawker's licence after trial – relevance of causal link between negligence and illegality – whether recovery of past and future loss of earnings is barred – costs – split costs order against plaintiff who succeeded on liability and general damages – whether a losing defendant who fights every issue should recover most of his costs. The Court of Appeal held, allowing the appeal, that the principles governing recovery of a loss of earnings claim tainted by alleged illegality require the court to examine all the circumstances – the nature of the illegality, the moral and criminal culpability, the plaintiff's conduct, and the relevant legislation – and to ask whether awarding compensation would affront the public conscience. The earlier Hong Kong line of authority disallowing such recovery (Tam Choi and Ho Wai Hing v The Kowloon Motor Bus Co (1933) Ltd and the decisions following it, including Mak Yuk-kiu v Tin Shing Auto Radio CTR Ltd [1981] HKLR 77) was not binding and was not followed. The Australian decision in Mills v Baitis [1968] VR 583 was applied: the licensing requirement is regulatory, selling is not itself illegal, and there was no causal link between the defendant's negligence and the plaintiff's unlicensed hawking. The appellant was therefore entitled to recover loss of earnings in toto – for the entire period from accident to trial and into the future at $3,000 per month for a multiplier of 12, giving $432,000 in future loss, plus interest on past loss. The trial judge's unusual split costs order – one-third of the plaintiff's costs to the plaintiff and two-thirds of the defendant's costs to be paid by the plaintiff – was set aside as wrong in principle on the defendant's side (a defendant who failed to make any payment in and lost should not recover most of his costs from the plaintiff) and modified on the plaintiff's side to three-quarters of taxed costs below, reflecting the trial judge's finding of exaggeration. The plaintiff was awarded the costs of the appeal.
Legal issues: Recovery of loss of earnings by unlicensed hawker in personal injuries claim · Propriety of the trial judge's split costs order
Outcome: Appeal allowed. The appellant is entitled to recover his loss of earnings from unlicensed hawking for the entire period from the accident to the date of the trial, and to future loss of earnings assessed at $3,000 per month. The trial judge's split costs order was set aside and replaced with a modified order. The appellant was awarded the costs of the appeal.