Li Ping Sum v. Chan Wai Tong and Others

CACV000053/1983

__________

Coram: Roberts, C.J., Barker, J.A. & Baber, J.

Date: 13 October 1983

_______________

J U D G M E N T

_______________

Barker, J.A.:

1. The judgment I am about to deliver is the judgment of the Court.

2. This is an appeal by Miss Li Ping Sum from an Assessment of Damages made by the Master in Chambers on the 7th March 1983.

3. Miss Li might well be forgiven if she feels somewhat disenchanted with lawyers and the legal system.

4. Following the Master's decision, she applied to the Director of Legal Aid for legal aid to appeal against it. For reasons which are not known to us that application for legal aid was refused. She thereafter appealed to a Master against the refusal to grant her legal aid, and for reasons which, again, are not known to us, the Master disallowed her appeal.

5. This matter came before another Division of this Court on the 2nd June of this year. That Division took a different view and purported to grant a Legal Aid Certificate to the appellant.

6. When this decision was referred to the Acting Director of Legal Aid he, very properly, pointed out that this Court has no power, under the Legal Aid Ordinance, to grant a Legal Aid Certificate in a civil matter and, the Master having disallowed the appellant's appeal from a refusal to grant her legal aid, the Acting Director of Legal Aid did not, in those circumstances, feel able to accord to the appellant the benefit of legal assistance. Consequently she comes before us in person.

7. It will be apparent from what I am about to say that this Court shares the view of the previous Division of this Court that she should have been legally aided.

8. Her claim was for damages for personal injuries sustained by her on the 30th January 1981, when the public light bus in which she was travelling overturned. She suffered from compression fractures of thoracic vertebrae 11 and 12 and lumbar vertebra No. 1.

The medical evidence in this case was agreed. It is difficult to see why it ever was agreed because there was a difference between the two doctors who had reported, one for the appellant and one for the respondents.

9. According to a report from Dr. Dickinson who examined the appellant on her own behalf:

"She used to work full time as an accountant but since the accident she finds that she is unable to sit for long periods and now she can only manage to work half days. Her walking distance is limited to half an hour because of back pain and she is also unable to carry heavy shopping. I would not expect her symptoms to improve at this stage and feel she will have a permanent disability as regards ability to lift, sit and walk."

And in a subsequent letter dated the 28th December 1981, the same doctor said:

"Because of the degree of her incapacity, as regards activities she was able to undertake prior to the accident, I would assess her permanent disability at 25%."

10. There was a later medical report dated the 3rd August 1982 from Dr. K.P. Chan who examined the appellant on behalf of the respondents. He was of the view that there had been some improvement in the appellant's condition in that she could then work full days and her walking distance was, as he put it, approximately three hours. He was of the view that further improvement may still occur. But even so, he thought that there would be a permanent disability, which he expressed as follows:

"I think the amount of permanent disability should perhaps be reduced to 15%."

11. Dr. Chan did not dissent from the view expressed by Dr. Dickinson that there would be permanent inability to lift heavy weights and permanent disability so far as sitting or walking were concerned.

12. These are serious difficulties in the case of a young woman such as the appellant. She was at the time of the accident twenty five years of age and is still unmarried. She cannot henceforth engage in her pre-accident vigorous hobbies. She is going to find it difficult when she goes shopping. It may be that her prospects of marriage will be reduced. If she does get married it may be that there will be difficulty over sexual intercourse and, of course, her inability to lift weights will make it difficult for her if ever she should have children.

13. The Master, when assessing general damages for pain, suffering and loss of amenities, arrived at a figure of $27,500.

14. We were reminded in argument by Miss Mok, who appeared on behalf of the respondents, of the principle enunciated in the case of Davies and Another v. Powell Duffryn Associated Collieries, Limited⁽¹⁾ that an Appellate Court should be slow to interfere with an assessment of damages, (such assessment in every case being a matter of opinion), unless the assessment was wrong in principle, or for some other reason was a wholly erroneous estimate of the dameges.

15. In our view, the Master's assessment of the general damages for pain, suffering and loss of amenities was a wholly erroneous assessment of damages.

16. We were referred to the case of Lee Ting-Lam v. Leung Kam-ming⁽²⁾. That was a decision of the Court of Appeal in which the Court laid down general guidelines as to the amount of damages which should, in May 1980, be awarded for various categories of injuries. Before we deal with those injuries, we cannot refrain from quoting from one passage in Mr. Justice Cons' judgment at page 659 wherein he said this:

"We think it is now accepted without question that in this jurisdiction the appropriate standards are to be found in the decisions of the courts of this Colony and not in those of England and Wales or any other jurisdiction."

We respectfully but profoundly disagree with that observation. We think it is helpful in considering what kind of awards should be given in Hong Kong that the Court's attention should be drawn to decisions of other jurisdictions and, in particular, England. For it then rapidly becomes apparent that the awards for general damages for pain and suffering in England are of the order of three times as great as they are in Hong Kong. We are, of course, fully aware and accept that it is not correct to take an English decision and simply translate that from sterling into Hong Kong dollars but it is difficult to understand why there should be such a startling disparity between the level of awards in the two jurisdictions.

17. Be that as it may, and we return now to Lee Ting Lam⁽²⁾, the first category dealt with by Mr. Justice Cons is headed "Serious Injury" and it reads:

"This is the lowest category. It covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain. The general range of awards is from $60,000 to $80,000."

18. Immediately prior to that sentence, there appeared in the judgment these words:

"Finally we should say that in order to bring out the pattern we have updated the awards as best we can in relation to the fall in value of money. The figures at which we have arrived paint the picture as it is today. As time passes they too will have to be updated."

19. In our judgment the time has come when those figures do have to be updated.

20. If one looks at the Hong Kong Monthly Digest of Statistics for August 1983, it will be seen that the value of money has fallen between May of 1980, which was the date of Lee Ting Lam's⁽²⁾ decision, and today by well over 40% and in our judgment the figures set out in Lee Ting Lam⁽²⁾ should now be increased by about 50%.

21. It was strenuously argued by Miss Mok that the injuries which the appellant sustained did not come within the category of "Serious Injury" as set out in Lee Ting Lam's case⁽²⁾. We disagree.

22. In our view, these were "Serious Injuries" which will leave their mark on a young lady for the rest of her life and will mar her general activities and enjoyment of life.

23. On the other hand, we are of the view that these injuries come at the bottom of the bracket in Lee Ting Lam's case, and so, for general damages for pain, suffering and loss of amenities, we consider that the correct figure is $90,000.

24. The appellant then seeks to claim before us a further figure for loss of future earning capacity. This was something that was not pleaded. It would have been better if it had been pleaded. But since there are no special circumstances relied on, which, if not pleaded, would have taken the respondents by surprise, we do not think that the absence of pleading is any bar to the point being taken.

25. It was further argued before us that this was a matter not pursued or argued before the Master. This may well be so. But if, on a perusal of the evidence which was before the Master, it becomes obvious that thare is a loss of future earning capacity, we do not think that this prevents us from considering the matter.

26. Finally, Miss Mok argued that, even if she be wrong on both those previous points, there was no evidence on which any finding of loss of future earning capacity could properly be made. This is a submission which we find ourselves unable to accept.

27. There was evidence before the Master that the appellant from time to time was away from work altogether and then was off work for half days. This is a situation which, in our judgment, is likely to continue in the future.

28. The difficulty is to put a figure on this loss. The appellant's present income is admitted by the respondents to be $3,000 a month. One doctor assessed the appellant's incapacity or disability at 25%, the other at perhaps 15%. We think a reasonable way of assessing loss of future earning capacity would be to take a midway percentage figure, namely 20% and say that her loss of earning capacity will be of the order of $600 a month, that is one fifth of her present salary. That means that the loss of future earning capacity is $7,200 a year and we see no reason to apply a multiplier of less than 15 to that sum. Therefore the total sum for loss of future earning capacity is $108,000. That deals with the item of general damages.

29. I now turn to the special damage. The Master assessed the special damage for loss of earnings at $2,600. Miss Mok, who has conducted this appeal on behalf of the respondents with great fairness, as one would expect of her, agrees that the proper sum for loss of earnings should be $5,200.

30. The Master refused to allow any item for the cost of seeing a bonesetter. It is not disputed that the appellant did see a bonesetter and that she saw him for twenty five times at a cost of $60 each time. The Master merely said with regard to that head of claim:

"She has failed to justify the need to see the bonesetter."

31. In the case of Yu Ki v. Chin Kit-lam and Another⁽³⁾, the Chief Justice said this at page 422:

"I do not think that a plaintiff, whether he is claiming recompense for the cost of treatment by conventional medicine or by Chinese medicine, must show that the treatment was 'beneficial'. It is sufficient, in my view, if it is established that the cost of treatment was reasonable, that the plaintiff had some faith in its possible efficacy and that the money claimed was in fact spent."

32. Shortly after that decision was arrived at, Mr. Justice Liu, in the case of Yu Shee Pui v. Urban Council⁽⁴⁾ a decision of 19th May 1981, said this at page 8, with regard to bonesetters:

"I cannot subscribe to the view that reasonable bone-setter's fees and reasonable expenses for Chinese herbs dispensed are not claimable items. But in this case, no expert evidence was tendered on the nature of these treatments and the effect of the herbs, none of which brought proven result. There is every indication that they were unwarranted duplicate expenses. For these reasons, I do not allow such apparently overlapping expenditure."

And Miss Mok urges us to follow the latter case. That, again, is a submission which we are urable to accept.

33. In our view, the proper approach to this matter is that set out by the Chief Justice in the Yu Ki's case⁽³⁾. We see no reason to suppose that these fees were not properly and reasonably undergone nor do we think it necessary, nor indeed desirable that there should be expert evidence as to the nature of the treatment, or of its proven result. For that reason, we shall allow the bonesetter's expenses of $1,500.

34. The only other item of special damage which was contested was the doctor's fees. The appellant claimed $1,402 for doctor's fees. What the Master said about that was as follows:

"Again, repeating what I said earlier, she attended 5 doctors besides those at Q.E.H. Clearly, it was not necessary for the Plaintiff to consult all these doctors. I accept, however, that she was entitled to seek a second opinion. In the circumstances I am placed in, I can only decide on a figure arbitrarily. I award $500."

35. We can see nothing wrong with the approach of the Master to that item. Clearly, a person suffering from injuries is entitled to a second opinion. He cannot however go on having a third, fourth, fifth and sixth. We therefore leave that part of the award undisturbed.

36. The remaining items are not disputed: $250 for travelling expenses, $500 for nourishing food and $45 for hospital expenses.

37. The result is, if my arithmetic is correct, that the total sum to which the appellant is entitled is the sum of $205,995.

38. Accordingly, we allow the appeal.

39. In view of the decision of the House of Lords in Wright v. British Railways⁽⁵⁾, the interest on the general damages for pain suffering and loss of amenity will be at the rate of 2% from the date of service of the writ until the date of judgment. There will be no interest on the sum awarded for loss of future earning capacity. Wright's case⁽⁵⁾, however, dealt solely with non-economic loss. Accordingly, we award interest on the special damage at the rate of 7% from the date of the accident to the date of judgment.

⁽¹⁾ (1942) A.C. 601

⁽²⁾ (1980) H.K.L.R. 657

⁽³⁾ (1981) H.K.L.R. 419

⁽⁴⁾ High Court Action No. 252 of 1979

⁽⁵⁾ (1983) 3 W.L.R. 211

Representation:

Appellant in person.

Miss Alice Mok instructed by Messrs. Gallant Y.T. Ho & Co. for 1st and 2nd Respondents.

3rd Respondent absent.