China Motor Bus Co Ltd v. William J. Oram

CACV000036/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO.36 OF 1974

(On appeal from O.J. No. 1828/73)

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Coram: Huggins, McMullin & Pickering, JJ.

Date of Judgment: 30th December, 1974.

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JUDGMENT

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Pickering, J.:

1. The respondent, a doctor of medicine practising general surgery, obstetrics and gynaecology, sustained severe injuries when, on the afternoon of 2nd September 1972, the car which he was driving from Shek 0 in the direction of Shaukiwan was involved in a collision with a motor omnibus owned by the appellant company and driven by one of its servants or agents. In the proceedings in the court below two third parties were involved, being respectively the owner and driver of a public light bus. The learned judge found that the public light bus stopped at a bend of the road and that the driver thereof, who could not see sufficiently far ahead to ensure that there was no traffic approaching in the opposite direction, signalled the omnibus to overtake him, a process which involved the bus having to drive on the right hand side of the road. Before the omnibus had regained its correct side of the road it collided with the respondent's car which had been travelling in the opposite direction.

2. The learned judge found that both the appellant company, through its driver, and the third parties were liable for the accident; he awarded to the respondent damages totalling $316,395.25 together with interest and apportioned liability in the ratio of 60% against the third parties and 40% against the appellant company. That company now appeals upon both the issue of liability and that of the quantum of damages.

3. On the issue of liability Mr. Eddis, for the appellant company, does not seek to argue that there was no liability but does argue that there was contributory negligence on the part of the respondent to the extent of 20% or possibly as little as 10%. Counsel based his contention upon the existence and length of certain skid marks and upon the evidence as to the speed of the respondent's car before the impact. Viewing that evidence in the light of the plan exhibited and being conscious that the learned judge in the court below had visited the scene of the accident together with counsel, we could see no justification for interfering with his conclusion that there was no negligence upon the part of the respondent and, upon this issue of liability, we stopped Mr. Donnelly, counsel for the respondent.

4. The award of $316,395.25 was divided as to $216,000 general damages and $100,395.25 special damages. Mr. Eddis submits that the quantum of general damages awarded is completely unreal and that nothing at all should have been awarded in respect of special damages.

5. Dealing with general damages, Mr. Eddis referred to the evidence of Professor Yau who had testified that, owing to the presence of progressive osteoarthritis occasioned by the collision, it would be necessary for the respondent, after a period which Professor Yau estimated at three to five years, to undergo a major and painful operation for the total replacement of the right hip joint. This would entail a period of some three months during which the respondent would be wholly incapable of carrying on his profession and of a further three months during which he would be incapacitated for that purpose to the extent of some 50 to 60% although during that latter period he would be capable of performing some operations in a seated position. After this total period of six months, Professor Yau considered, the respondent would be able to carry on his profession normally - an opinion which differed from the respondent's own view that he would have to curtail his practice. Professor Yau being a specialist in this field of surgery, whereas the respondent specialises in gynaecology and obstetrics, the learned judge accepted Professor Yau's opinion.

6. That opinion went on to state that the respondent, who is a keen golfer, would be unable, after the operation, to play golf or to run and would have to slow down his walking pace as a result of a 50% limitation of the movement of the hip joint

7. Mr. Eddis, pointing out that the learned judge had allocated from the award of $216,000 general damages some $40,000 for pain and suffering and loss of amenities between the date of the accident and the date of trial, said that the remaining $176,000 must be taken to be attributable to pain and suffering and loss of amenities in the future, to hospitalization to be incurred in respect of the future, operation and to loss of future earnings. The first and third of these items, counsel urged, were negatived by the evidence of Professor Yau who was of the view that having regard to the improved quality of modern hip operations the respondent would be able, after a period of six months, to carry on his practice normally. In two relatively recent Hong Kong cases (Pillai v. Kwok Hung⁽¹⁾ and Chung v. Haigh & Champion⁽²⁾) general damages in respect of hip injuries had been awarded at $22,000 and $25,000 respectively and in these cases the injuries had been more severe than those of the respondent. The reason for the very large award in the present case would appear to relate to the high earning capacity of the respondent and to the fact that he would be totally or partially incapacitated for a total of six months: but having regard to Professor Yau's evidence there would appear to be no reason for awarding any greater sum than say, $25,000 in respect of the hip injury plus the cost of the future operation and that of hiring a locum tenens to look after the practice during the period of incapacitation necessitated by that operation. Thus the total of general damages so far from amounting to $216,000, should not exceed $45,000 to $50,000.

8. We would say at once that we cannot regard two cases, one decided in 1965 and one in 1973 as necessarily establishing a pattern in regard to the damages which should be awarded in respect of hip injuries. Moreover in neither case was the hip injury the only injury sustained. Mr. Pillai also suffered fracture of the left shoulder, a disability which at the trial had recovered to the extent of some 60% but would never recover completely. The evidence was that he would have to have an operation for fusion of the hip which would prevent movement of that organ and leave a permanent limp. He was awarded a total sum of $22,000 including $10,000 for the cost of future operations and it may be that that award was on the low side. Mr. Chung, in case No. 582 of 1973 (unreported), suffered a fracture of the right femur which resulted in a hip condition which left his right lower limb shorter by 1 ½ inches than the left and produced a gross limp unless he wore special shoes. In addition he suffered contusion of the urethra which caused an unpleasant condition which had to be the subject of operation. Mr. Eddis suggests that the injuries in these two cases were greater than those in the present case. That is a proposition which we are disinclined to accept since, in addition to the fractured dislocation of his right hip, the respondent in the present case suffered also two fractured ribs, extensive damage to his teeth and lung contusion; his vision was affected and he became subject to headaches so severe at times that he had to stop working; these were accompanied by dizzy spells and a condition of bursitis in the elbow; that last condition had cleared by the date of the trial but the respondent continued to have persistent pain in the hip. Physical injuries are of course a matter of degree and we incline to the view that there is not a great deal to choose between the extent of the injuries in these three cases, the common factor being damage to the hip.

9. Whilst the awards in the two earlier cases were perhaps somewhat low, it remains true that even a 50% increase upon those awards would leave a formidable gap between the awards hypothetically so adjusted in those cases and the $216,000 awarded purely for general damages in the present case. Indeed that portion of the award of general damages allocated to pain, suffering and loss of amenities up to the date of the trial, is itself far greater than the total awarded in either of the two earlier cases. From the fact that the figure of $216,000 is not a round figure, it would appear that the learned judge arrived at that figure by a process of calculation but we are given no clue as to what that calculation was based upon.

10. Whilst not regarding the two earlier cases as setting a pattern in regard to damages for hip injuries accompanied by other injuries, the difference between the awards in those cases and that in the present case is so great that we must ask ourselves what is the feature of the present case which could justify so enormous a discrepancy. Mr. Eddis suggests that it can only have arisen from a consideration of the respondent's high earning capacity and argues that since the judge accepted Professor Yau's opinion that the respondent would be able to practise normally some six months after the inevitable future operation, only that six-month period of incapacity or partial incapacity remains to be considered in relation to earning ability. When the operation came to be performed the respondent would have a measure of control over its timing and would have adequate opportunity to arrange for the employment of a locum tenens experienced enough to run the respondent's practice for him with no greater loss of income to the respondent than the amount of the salary paid to the locum, say $7,000 per month, estimated on the basis that the locum the respondent employed following his accident in 1972 was then remuerated at $5,000 per month.

11. Mr. Donnelly, for the respondent, says that the $176,000 representing the balance of the award of general damages after deduction of the $40,000 allocated to loss of amenities, pain and suffering between the date of the accident and the trial, must represent loss of amenities (the inability to play golf, to sail, to walk at the former pace) and pain and suffering since the date of the trial, plus the cost of the future operation. Any balance, he says, represents loss of earning capacity.

12. Against that breakdown, we have Professor Yau's evidence, accepted by the trial judge, that there should be no loss of earnings after a period of six months from the date of the operation yet to be undergone. On that basis we think it impossible to justify the award of $216,000 general damages. It is true that the respondent in the present case is a professional man and it may be that minor injuries, bruises, abrasions etc., are more easily shrugged off by a working man not unaccustomed to such experiences than by a person in a more physically secluded walk of life. But intense pain such as that which must have been experienced by the plaintiff in each of the three cases, remains intense and there can be no justification for any differentiation in awards for pain and suffering by virtue of the occupation of the victim. We do not know if such a differentiation was the basis upon which the learned judge approached the matter, for he has not told us. If it was the basis, it was a wrong approach. If it was not the basis, it is difficult to come to any other conclusion than that, despite his acceptance of Professor Yau's opinion that six months after the future operation there would remain no loss of future earnings, the learned judge arrived at the figure of $216,000 by reference to some such loss.

13. We are satisfied that the award made under the heading of general damages was manifestly excessive and it remains for us, upon the material before us, to ascertain what is the appropriate figure. Taking the broad view we are of the opinion that the sum of $35,000 is appropriate in respect of pain, suffering and loss of amenities. To this figure must be added the sum of $42,000, the probable cost of hiring a locum tenens during the period of incapacity occasioned by the operation yet to be undergone. We are unable to accept Mr. Donnelly's contention that a further figure should be added for the contingency that Professor Yau's estimate of a six-month incapacity may prove an under-estimate. The learned judge accepted that estimate on the basis of Professor Yau's expertise in regard to this type of operation and we see no reason to differ. It must be conceded, however, that obstetrics and gynaecology represent a particularly personal field of medicine and is not unreasonable, in our view, to assume that some patients, perfectly content to accept the respondent's ministrations will, whether logically or not, choose to go to some other known practitioner rather than to whatever locum tenens is obtained and that some loss of earnings can be anticipated from this source. We estimate that figure at $25,000 and, being unable to foresee the rate of tax to which the respondent will be liable in three to five years time, we adjust the figure by the present rate of 15% to $21,250. To this must be added the cost of the future operation. On the basis of the cost of almost two months hospitalization after the accident, hospital fees and operating fee, accepting Professor Yau's figure of $1,500 for the latter, assuming a similar period in hospital, will amount to $5,500 bringing the total of general damages to $103,750.

14. The prospect of any further loss arising as a result of patients who may desert the practice during the respondent's enforced absence of three months, never returning or returning only tardily is, we consider, too speculative for assessment - the more so since the timing of the next operation will be, to some extent, within the respondent's control and since he will have opportunity to select a locum at leisure.

15. Mr. Eddis's primary attack upon the award of special damages was in relation to loss of earnings. At the date of the accident the respondent was in partnership with a Dr. Nicholson and the two had consulting rooms in the Central District. In addition the respondent, as part of the partnership, operated single-handed a clinic in the Repulse Bay area and the claim for loss of earnings related solely to the profits of this clinic. The learned judge found that a loss of earnings persisted from 1st November 1972, when the respondent resumed his practice, up to 31st December 1973 and he divided that period into two parts, that is from 1st November 1972 to 31st March 1973 and from 1st April 1973 to 31st December 1973. The reason for this division was that as from 1st April 1973 the respondent and Dr. Nicholson had dissolved their partnership and from that date the respondent practised on his own. The learned judge found that for the five months from November 1972 to March 1973 inclusive there was a reduction, as compared with the previous six months, of $46,250 in the profits at Repulse Bay clinic; one half of these profits were attributable to the respondent and in respect of that period the learned judge awarded $23,125 as special damages. The average loss of earnings from April to December 1973, both months inclusive was somewhat less and the total reduction in profits for that period was $52,092, all of which was attributable to the respondent since he was by that time practising on his own. The total award in respect of loss of earnings was therefore $75,217.

16. Mr. Eddis attacks this award on the basis that although profits from the Repulse Bay clinic declined, the profits of the partnership in Central, prior to the dissolution of the partnership, actually increased despite the respondent's accident; and the profits from the consulting rooms which the respondent operated single-handed after 1st April 1973 likewise showed an increase over the earlier period. Mr. Eddis concedes that had Dr. Oram been present and fit for the whole of the period under review, the profits would no doubt have increased still more but urges that any attempt to quantify this hypothetical increase is altogether too speculative and that, in effect, the increased profits from the Central consulting rooms should be regarded as mitigating the damage to the profits from the Repulse Bay clinic. We are unable to agree that this represents a true element of mitigation or that the attempt to quantify the probable increased profits had Dr. Oram been present and fit throughout the whole period is too speculative. What we are dealing with is loss of earning capacity and the learned judge's approach was to have regard to the only tangible figures available, that is to the demonstrated loss of profits at the Repulse Bay clinic. There was no element of speculation in these figures revealing, as they did, demonstrable loss and in adopting them we consider that the learned judge took the only practical course open to him. We would not interfere with his award in respect of loss of earnings except to the extent that, as Mr. Donnelly concedes, that award should have been subjected to a reduction of 15%, being the tax which the respondent would have had to pay upon the amount awarded had he actually earned that amount in his profession. For that reason the award of $75,217 is reduced to $63,934.45.

17. A further item of special damage criticised by Mr. Eddis was the award of $8,650 in respect of dental treatment and he suggests this figure should be reduced to $1,580 since there was no evidence to show that treatment of more than two teeth was necessitated by the accident. We are unable to agree with this submission. The learned judge accepted the respondent's evidence that the whole of the dental treatment which he underwent was necessitated by the accident and we see no reason to interfere with that conclusion.

18. The remaining ground of appeal concerned the award of interest on the special damages. Mr. Eddis contends, and Mr. Donnelly concedes, that the award of 8%, from the date of the accident to the date of the trial, upon the sum allowed in respect of dental charges was an error in that the dental charges had not been paid at the date of the trial. The appellants must succeed upon this point.

19. The further point is made that interest upon the balance of special damages should be at 4% and not 8% since interest on special damages should be awarded at half the normal rate following the rule laid down in Jefford v. Gee⁽³⁾, which rule has been adopted in recent years by the taxing masters in Hong Kong. This ground of appeal is also conceded.

20. In the result the appeal is dismissed in regard to the alleged contributory negligence of the respondent but succeeds upon quantum of damages to the extent that the award of $316,395.25 is set aside and substituted by an award of $192,862.70. That figure is arrived at by totalling the general and special damages reached by this Court; that is general damages of $103,750 and special damages of $89,112.70. This latter figure accords with the figure arrived at by the learned judge in respect of special damages except that in regard to his figure of $75,217 representing loss of earnings, a deduction of 15% has been made in respect of the tax which the respondent would otherwise have had to pay upon those earnings. From the general damages we attribute the sum of $17,500 as representing pain and suffering and loss of amenities from the date of service of the writ to that of trial and on this sum interest will be payable at 8% during that period both dates inclusive. So far as special damages are concerned, we have already said that no interest is payable upon the award in respect of dental charges unpaid at the date of trial. Upon the balance of special damages interest will be payable from the date of the accident to the date of trial, both dates inclusive, at 4% per annum.

21. As to the costs of the appeal, we consider that the appellants should have 75% of their costs.

Representation:

F. Eddis (Ngan & Wong) for appellant

D. Donnelly (Gordon Hampton & Winter) for respondent.

(1) 1966 H.K.L.R. 366

(2) O.J. 582/73 unreported.

(3) (1970) 2 W.L.R. 702.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 36 OF 1974

(On appeal from O. J. 1828/73)

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Coram: Huggins, McMullin & Pickering, JJ.

Date of Judgment: 30th December 1974.

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JUDGMENT

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Huggins, J.:

22. I agree that in so far as the appeal concerns the issue of contributory negligence it must be dismissed. This was essentially a matter of fact for the trial judge. It was urged that because the Plaintiff was on his way to attend a patient he must have been hurrying and that the marks on the road supported the conclusion that he was hurrying. The Plaintiff's evidence was that he was in no particular hurry and the marks were not conclusive, so that it was open to the judge to find the Plaintiff guiltless of contributory negligence.

23. I also agree that the award was unduly high. The learned judge assessed the past pain and suffering and loss of amenities at $40,000: he has not indicated how he arrived at the amount which represents the balance of the general damages. Some of the award must relate to future pain and suffering and loss of amenities. Counsel for the Defendants has submitted that it would be wrong to allow anything under this head, because of the advances which have been made in hip surgery. There is no indication that the judge accepted this proposition and I think it would be unrealistic to make no award: any surgical operation involves some pain and suffering and while it may be that the Plaintiff's full earning capacity will be restored once the anticipated operation has been performed it is unlikely that there will not be some residual loss of amenities. I would not dissent from the suggested figure of $35,000 to cover all the pain and suffering and loss of amenities, being as to 50% in respect of the period up to the date of the action and 50% for the future.

24. I see no reason to interfere with the judge's assessment of special damages for past loss of earning capacity at $75,217 beyond making a deduction of 15% in respect of tax which would have had to be paid. It is a strange situation that a tortfeasor should in this way obtain a benefit at the expense of the Inland Revenue, who would have been able to claim tax had the money been received as profit and not as damages in lieu of profit, but that is the law. The judge reasonably rejected the contention that because the profit actually increased after the accident there was no loss of profit, for this was an expanding practice. Equally I think there was sufficient evidence that the Plaintiff's liability for dental treatment resulted from the Defendant's negligence.

25. I therefore concur that the appeal should be allowed to the extent that the special damages be reduced to $89,112.70 and the general damages to $103,750, of which $17,500 is attributable to loss on which interest at 8% per annum is payable from the date of service until judgment. Interest at 4% per annum is to be paid on the special damages other than the $8,650 for dental expenses from the date of the accident until judgment.

30th December 1974.

Representation: