Tang Kwong-chiu v. Lee Fuk-yue

CACV000022/1980

Non-deductibility of Public Assistance payments from an award of damages.

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Coram: Huggins and Cons, JJ.A. and Bewley, J.

Date of Judgment: 23 July 1980

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JUDGMENT

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1. This appeal arises from a traffic accident in which the Defendant, when driving a small van, knocked down the Plaintiff near the 10½ milestone in Tai Po Road. We gave our decision, together with the reasons on which it was based, at the end of the hearing, but the judgments were not recorded. As we differed to some extent from the conclusion of the learned trial judge and as we dealt as well with an aspect of damages that had not previously been litigated in this court we think we should place our reasons briefly on record.

Liability

2. There was some dispute at the trial as to the exact circumstances of the accident. The Plaintiff, a man now in his middle 60s, said that he was waiting on the pavement near to a bus-stop on the other side of the road from that on which the Defendant was driving, and was watching for a bus that would have come from the other direction, when he was struck suddenly from behind. The agreed sketch plan shows that the Defendant's vehicle had in fact skidded from just over the middle of the road right across its wrong side, mounted the pavement and finished against an iron fence which stood some six metres back from the kerb. The mark left by one tyre was 25 metres long. On the other hand, the Defendant said that the skid was caused by his sudden need to brake when the Plaintiff dashed out from some steps on his left hand side of the road and crossed in front of him.

3. The Plaintiff and the Defendant were the only two witnesses in this respect. Neither was completely satisfactory. The Plaintiff marked the position in which he was standing on the sketch plan at a point where he could not possibly have been hit. The Defendant by a similar marking changed the point of impact on the road under cross-examination, only to change it back again later. He likewise changed his evidence as to which side of the front of his van actually came into contact with the Plaintiff when it was pointed out that his evidence in court was inconsistent with the statement he had given to the police at the time. These lapses are perhaps understandable when it is realized that the witnesses were giving evidence as to something that had happened almost four years before. The recollection of the Plaintiff faced the further disadvantage that he was knocked unconscious by the impact and did not come to until a few days later.

4. Six months after the accident the Defendant pleaded guilty to a charge of careless driving. The "facts" put before the magistrate, which were admitted as correct by the Defendant, were that the Plaintiff crossed the road in front of the Defendant, were that the Plaintiff crossed the road in front of the Defendant but that the Defendant was driving too fast to be able to stop in time. The Plaintiff pleaded the conviction in his Statement of Claim and the record went in by agreement at the trial. It was, of course, some evidence of negligence on the part of the Defendant, but it went in no way to establish that the accident happened in the manner that the Plaintiff said it did. On the other hand it carried the Defendant's case no further than his actual testimony.

5. The judge was considerably influenced by the fact of the Defendant's plea of guilt and took it as evidence against him. He said in his judgment:

"If the accident occurred as the defendant alleged then there was no reason for the defendant to plead guilty to careless driving at all."

6. With the greatest respect to the judge that was not right. The Defendant had accepted from the beginning both that he was going too fast for the prevailing conditions and that he was not keeping a proper lookout. Regardless of the conduct of the Plaintiff he had no alternative to pleading guilty. Having, as it were, set out from a false position we think the judge was too easily tempted to accept the Plaintiff's evidence, and thereby impose full liability upon the Defendant, when, in our view, the other evidence was overwhelming in the Defendant's favour. The injuries to the Plaintiff were all on his right side, which would be the natural side if he were hit in crossing in front of the Defendant's van but highly unlikely in the circumstances he described. More importantly we can envisage no circumstances which would have produced the skid which did in fact occur other than those put forward by the Defendant. The natural result of simple loss of control through excess speed, or the need to brake on a bend for the same reason, would encourage a slide away from rather than into the centre of the curve. We find ourselves compelled to the conclusion that the Plaintiff was indeed crossing the road at the time of the accident and that he ought therefore to bear some portion of the blame. The trial judge indicated that were he wrong to reject the Defendant's version, he would have found the Plaintiff 25 per cent to blame. We see no reason to disagree with that apportionment.

Herbalist's fees

7. The impact broke three ribs of the Plaintiff and damaged a kidney. He was in Queen Elizabeth Hospital for just over a month, being treated for haemothorax and haematuria. On his discharge he consulted a herbalist cum bone-setter, complaining of trouble with his right shoulder and right knee. The bone-setter gave treatment and proscribed certain type of herbs as medicine. The judge allowed $3,400 as special damages in this respect

8. It is argued that nothing should have been awarded under this head on the grounds that there was no medical evidence as to the fact of the injuries or as to the efficacy of the treatment given. It is true that there is no mention of these complaints in what is usually meant by "the medical evidence". However the Plaintiff consulted the herbalist almost immediately he was discharged from hospital. The judge had the benefit of the Plaintiff's evidence and the evidence of the herbalist himself, who has been in practice for some five years now. It was not suggested to him that the Plaintiff's complaints were other than genuine or that he treated them in any way which would not be accepted as proper by others in his profession. The judge accepted the evidence. We see no reason to think he was wrong.

Public Assistance

9. For loss of wages between the accident and the date of trial the judge awarded $26,400. It is accepted that during the same period he received more than that sum by way of payments from the Social Welfare Department. The judge refused to have regard to those payments. He followed a decision given at first instance some years ago: Li Pui-kee v. Ng Chuk-kong O.J. Action 1973 No. 1429, 4 H.K.L.J. 199. The question now is whether he was correct to do so.

10. Counsel for both sides have taken us through a host of English cases which decided whether certain monies ought or ought not to be discounted in the award of damages. They cover many varieties of social benefit, pensions contributory or otherwise, donations and even payments by way of income tax. They range from decisions at first instance to the House of Lords.

11. We do not propose to go into them in detail. This implies no disrespect to counsel. We are grateful for their assistance and their attempts to rationalize one or two decisions which appear on their face to be inconsistent. It is sufficient, however, with regard to the present situation, to say that the cases illustrate two well established principles.

12. The first is that damages are compensatory. They should be such a sum of money as will put the injured party in the same position as he would have been in if he had not sustained the injuries. This principle was reiterated by the House of Lords in British Transport Commission v. Gourley 1956 A.C. 185.

13. The second principle is that damages are not to be reduced because the Plaintiff has been the object of benevolence or the recipient of charity. This principle was primarily justified by reference to causation in Redpath v. Belfast and County Down Railway 1947 N.I. 167. Payments from a locally raised distress fund were considered not attributable to the accident itself but to have arisen independently from an extraneous factor. The court added a comment that, were the opposite view to be taken,

"the inevitable consequence in the case of future disasters of a similar character would be that the springs of private charity would be found to be largely if not entirely dried up."

The element of public policy was emphasized by Lord Reid in Parry v. Cleaver 1970 A.C. 1. At p. 14 he said:

"It would be revolting to the ordinary man's sense of justice, and therefore contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large, and that the only gainer would be the wrongdoer."

14. Counsel for the Defendant has sought to limit the principle to private benevolence. But English authority is against him, Daish v. Wauton 1972 2 Q.B. 262, and we likewise can see no good reason for distinction.

15. The two principles are poor bedfellows yet both have reference to the present situation. It is not unreasonable to accept that the public assistance payments put the Plaintiff, as between the accident and the date of the trial, in much the same financial position as he would otherwise have been. Strictly speaking the payments may not have been made as a direct result of the accident; but had it not been for the accident the Plaintiff would have continued his work and would not have needed assistance. On the other hand, the payments are undoubtedly of a benevolent nature.

16. We do not see how the dilemma can be solved by logic. Legislation may take a hand, as it has done elsewhere. If so, we venture to think that the most just course would be to provide that welfare payments should be disregarded in the assessment of damages, but that the amounts so paid out should then become recoverable by the authority. Yet there may be objections to this course, for we note that United Kingdom legislation has adopted a compromise position: the Social Security Act, 1975.

17. The courts, however, cannot compromise. Lord Wilberforce in Parry v. Cleaver at p. 39 said:

"but this type of solution is not open to the courts. They have to grapple with each type of benefit as it arises, and they have done so sometimes by setting themselves to ascertain what is 'fair,' sometimes by attempting to squeeze the appropriate answer from, or to explain the answer arrived at by reference to, such words (and I do not wish to depreciate their utility) as 'compensatory,' 'loss,' 'collateral,' or 'caused.' On the whole, reasonably consistent results have been achieved."

In our view the overall trend that appears from these "reasonably consistent results" is against deduction, and in particular against the deduction of what we take to be the benefit closest to our Public Assistance, that is the now defunct National Assistance. We respectfully agree that that is the better view and think the judge below was correct to make no deduction in this instance.

23rd July, 1980.

Representation:

M. Ozorio (Messrs H.A. Hoosenally & Co.) for Appellant/Defendant.

R. Ribeiro (Messrs. K.M. Lai & Li) for Respondent/Plaintiff.