Wong Yin Wah and Another v. Hung Ping Wan and Others

CACV000006/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 6 OF 1973

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Coram: Briggs, C.J., McMullin & Pickering, JJ.

Date of Judgment: 28th September 1973

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JUDGMENT

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Briggs, C.J.:

This is an appeal from a decision of the Supreme Court (Li, J.) dated January 16th, 1973 when damages for personal injuries were awarded to the first respondent, WONG Yin Wah, and also to YUNG Wing Woo, who was the second plaintiff and the second respondent.

2. The notice of appeal is dated February 27th, 1973. On April 23rd, 1973, YUNG Wing Woo, the then second respondent, died.

3. At the hearing of the appeal this court allowed counsel for the appellant to call evidence of the death of the second respondent and ordered that his widow, TANG Kam Ling, be substituted as the second respondent. A copy of the death certificate of YUNG Wing Woo was placed before the court. This does not disclose the cause of his death.

4. The first respondent, who was and is an infant, and YUNG Wing Woo were both injured in a traffic accident which occurred on July 6th, 1969. At the time they were passengers in a nine-seater van which collided with a goods vehicle as it was travelling along Cheung Sha Wan Road.

5. The then plaintiffs sued the driver and owner of the goods vehicle, the present appellants, and the driver and owner of the 9-seater van, the present third and fourth respondents.

6. The trial judge found that the driver of the goods vehicle was wholly to blame for the accident and that there was no contributory negligence on the part of the driver of the nine-seater van.

7. The first ground of appeal is that the driver of the nine-seater van was partially responsible for the accident.

8. The driver of the nine-seater van did not give evidence in court, as he could not be traced. The trial judge had to be content with the evidence of the driver of the goods vehicle (the first appellant) and the evidence of the two injured persons such as it was.

9. The evidence was that the driver of the goods vehicle drove his lorry out of Tonkin Street, which is a minor road into Cheung Sha Wan Road, which is a major road, intending to turn to his right. Two vehicles were coming from his right along Cheung Sha Wan Road, the first of which turned into Tonkin Street. He had already driven out into and partially across Cheung Sha Wan Road when he saw the second vehicle, the nine-seater van, coming along that road from his right. The van was travelling at speed in the centre of three lanes of traffic. And a collision ensued.

10. The goods vehicle hit the rear near side of the van which ran out of control. The trial judge found as a fact that the goods vehicle collided with the van as it, the goods vehicle, was moving forward. He did not accept the account of the accident of the first appellant that he had stopped the goods vehicle before the collision occurred. Evidence was called to the effect that the first appellant later pleaded guilty to and was convicted of careless driving.

11. There was, in my view, ample evidence for the trial judge to find that the driver of the goods vehicle was wholly to blame for the accident. The deceased plaintiff said in evidence that the nine-seater van was hit on the rear near side. And this is borne out by the photographs which were exhibited. At the time of the accident the goods vehicle was well into Cheung Sha Wan Road. This is clearly shown on the sketch map which was also an exhibit. And the driver admitted he could not see clearly what traffic, if any, was coming towards him from his right hand side.

12. Counsel for the appellants urged that the trial judge should have held that the nine-seater van was travelling too fast and that therefore its driver was partially responsible for the accident. This point was carefully considered by the judge in his judgment and he found that there was no evidence of excessive or dangerous speed. It is true that the driver of the nine-seater van knew, or ought to have known that he was approaching the crossing of Tonkin Street with Cheung Sha Wan Road. Cheung Sha Wan Road is a major road and Tonkin Street a minor road, though they were not designated as such in any way. It was an uncontrolled crossing. The trial judge held that the speed of the van in the circumstances was, as I have said, neither excessive nor dangerous. And, therefore, the driver of the van was not guilty of contributory negligence.

13. The finding of fact that the driver of the goods vehicle, the first appellant, was wholly to blame for the accident was one particularly for the trial judge who saw and heard the witnesses. Counsel for the appellant has not been able to convince me that he was wrong to make such findings of fact. Nor have I been persuaded that such inferences as were drawn from such facts were wrongly drawn. In my view this ground of appeal fails.

14. The second ground of appeal is that the amount of general damages awarded to the deceased respondent, YUNG Wing Woo, was excessive. Mr. Woo's argument is in two parts. First, he says that the amount of general damages awarded was "manifestly excessive" in any event. Secondly, he says that the damages must be re-assessed because YUNG Wing Woo has died. The trial judge, when making his award was awarding compensation to YUNG Wing Woo himself. The damages awarded will now form part of his estate and will benefit his widow or other persons. One basis on which the award was made the continuing life of YUNG Wing Woo has been falsified.

15. At the time of the accident, YUNG Wing Woo was 39 years old. He was employed as a printing worker at a monthly salary of $620. He suffered very serious injuries and was rendered unconscious for a week. His most serious injury was a fractured skull.

16. There was an emergency operation which left him with, in the words of the Judge "three deep indentations on his forehead, one on each side on the temporal region and one right in the centre of his forehead." The judge went on to say that the evidence showed that in the area of these indentations there was no protection for the brain apart from the skin and flesh. The bone had been removed.

17. In addition, the bones of his nose were fractured depriving him of his sense of smell. There were other multiple abrasions to other parts of his body as well. YUNG Wing Woo suffered a severe change of personality as a result of the accident; it affected his memory and eyesight. There was a possibility of epilepsy in the future which would affect his earning capacity. He was recommended to have an operation on his brain to give him some protection. This would be a major operation, and it would only relieve the present position, it would not restore the pre-accident condition of the deceased's skull and the indentations would still be clearly visible on his forehead. The trial judge made an allowance of $8,000 for the operation. Finally there was evidence that the deceased still suffered some discomfort and pain.

18. The judge took into consideration all these matters and awarded the sum of $75,580 as general damages.

19. Laying aside the question of the subsequent death of YUNG Wing Woo for the moment, the question is: Was this award too great?

20. The point to be decided is: Was the sum of $75,580 awarded a fair sum in all the circumstances? It is always possible to criticise the amount of general damages awarded for personal injuries but it must be emphasized that damages can never be a perfect pecuniary compensation (See Watson v. Powles⁽¹⁾).

21. An appellate court is always reluctant to disturb an award of general damages. Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd.⁽²⁾ said this:-

"In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damages suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency."

22. Applying these principles to the present case although I think that the award of the trial judge is high, I do not think that it should be disturbed on the grounds that it is excessive, ignoring the death of YUNG Wing Woo for the moment.

23. Mr. Woo's second argument on this ground of appeal is that the damages must be re-assessed because YUNG Wing Woo has died. This court has received evidence of his death. Mr. Woo urges that it is therefore open to this court to re-assess the general damages awarded to YUNG Wing Woo on the basis that he died in April, It would be wrong, he says, to allow the present assessment to stand because it was made upon the basis that YUNG Wing Woo was alive and would live for a considerable time.

24. Much reliance was placed on the decision of the Court of Appeal in England in McCann v. Sheppard⁽³⁾ which is a case with facts not dissimilar from those in the present case.

25. Counsel for the respondents did not oppose the application to call fresh evidence. And as I have already said we admitted the evidence of the death of YUNG Wing Woo.

26. Two matters call for consideration. In assessing the general damages the trial judge included the sum of $8,000 for a second operation to his brain. This, of course, cannot now take place. And it should therefore not form part of any sum awarded. The judge also allowed the sum of $5,580 for the risk of epilepsy. This was calculated at a percentage of his probable earnings over a period of 15 years. There has been a period of over four years between the date of the accident and the date of the death. The sum of $5,580 should be reduced therefore to $1,500.

27. I do not think it necessary to make any further reductions from the amount awarded. The judge makes it clear that though Mr. Yung was a frail person, yet he had largely recovered from his accident. It was past pain and suffering and past changes of personality for which he awarded damages.

28. I now come to the third ground of appeal. Each of the plaintiffs claimed as an item of special damages a sum for "special food necessitated by injuries". The infant plaintiff claimed $400, the deceased plaintiff $2,000. The trial judge awarded half those amounts in each case.

29. Counsel for the appellant referred the court to several decisions which he said showed that the authorities in Hong Kong are in disarray. This is, in my view, more apparent than real.

30. At least, since Shearman v. Folland⁽⁴⁾ it has been customary to claim as special damages a sum for extra nourishment. And the courts have almost invariably allowed a reasonable sum for such a claim.

31. Whether such a sum is reasonable must depend on the circumstances of each case. If the figure is challenged it must be proved that there was expenditure on nourishment suitable to assist the recovery of the injured persons. And it must be a reasonable sum. Obviously, if a special diet is ordered by the physician or herbalist, in charge of the case, it should be allowed as an item of special damages, provided the amount is not unreasonable. What is not allowed is to saddle the defendants with the expenses of articles of luxury food and drink which cannot be said to be appropriate and necessary (in the widest sense) in assisting in the cure of the injured person.

32. For example, it sometimes happens that a person will claim both for hospital treatment and for the expenses of treatment by a Chinese herbalist, in each case including in the claim sums for extra food. If the two treatments cover the same period of time obviously the plaintiff cannot be entitled to both.

33. In the present case, evidence was given that the money had been spent. The trial judge considered the matter carefully and as I have already said, awarded half of the amount claimed in each case. He was careful to disallow items of expenditure which he considered extravagant or excessive. And I do not think that the court should interfere with his awards. This ground of appeal therefore fails.

34. The appeals against the first, third and fourth respondents are dismissed with costs. The appeal against the second respondent (now represented by Tang Kam Ling) is allowed to the extent that the sum of $70,000 awarded as general damages will be reduced to $62,000 and the sum of $5,580 awarded for "the risk of epilepsy" will be reduced to $1,500. The rates of interest awarded by the judge and the time at which interest is payable will not be changed. There will be no order as to the costs of the second respondent, which are to be taxed under the Legal Aid Regulations.

Representation:

K.H. WOO (H.H. Lau & W.S. Lo) for the Appellants.

Mrs. Le Pichon (K.C. Yung & Co.) assigned for 1st & 2nd Respondent.

K. Bokhary (H.A. Hoosenally & Co.) for 3rd & 4th Respondents.

(1) (1967) 3 W.L.R. 1364.

(2) (1942) A.C. 601 at 616.

(3) (1973) 1 W.L.R. 541.

(4) (1950) 1 All E.R. 976.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 6 OF 1973

(ON APPEAL FROM O.J. ACTION NO. 1400 OF 1971)

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Coram: Full Court (Briggs, C.J., McMullin & Pickering, JJ.)

Date of Judgment: 28 September 1973

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JUDGMENT

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McMullin J.:

On the 6th of July 1969 both of the plaintiffs were passengers in a 9-seater van registered number AN6819 when it was involved in a motor accident with a lorry registered number AE6627 as it was travelling south to north along Cheung Sha Wan Road. The first plaintiff is a young girl who sued by her next friend and who suffered comparatively minor injuries to her buttocks and private parts. She was in hospital for about nine days and has made a full recovery. The second plaintiff was, at the time of the trial, a man of 39 years of age, a printer by profession. He received multiple injuries including serious injuries to the head, as a result of which he was unconscious for a week and remained in hospital a further two weeks then leaving upon his own motion and being sufficiently recovered to do so.

2. At the time of the accident the first defendant, HUNG Ping-wan, was the driver of the van, TANG Fu-keung, the second defendant, was the registered owner thereof; the third defendant, MUI Ling-kwan, was the driver of the lorry which was owned by the fourth defendant, WONG Wood-seong. The issue of liability was therefore a straightforward contest between the drivers of the two motor vehicles. The driver of the van (the first defendant) was however not available to give evidence at the trial, and since the two plaintiffs were unable to give to the court any material assistance bearing upon the cause of the accident the learned trial judge was left with the evidence of the lorry driver (the third defendant), coupled with such supporting facts as could be gleaned from a sketch made by the police of the scene shortly after the accident together with certain reports of damage done to the vehicles. In addition there was the fact that the first defendant had subsequently pleaded guilty to a charge of careless driving (which evidence was admissible by virtue of the provisions of section 38K of the Evidence Ordinance). Neither in the court of trial nor at the hearing of the appeal was it contended on behalf of the third defendant that he had not been to some degree careless in the manner in which he drove, but it was contended on his behalf that the driver of the van (the first defendant), had materially contributed to the dangerous situation which resulted in the accident by the manner of his driving immediately prior thereto. In the upshot the learned trial judge found that the driver of the lorry (the third defendant) was 100% to blame for the accident and he awarded to the second plaintiff a sum by way of general and special damage amounting in all to $80,210 and to the first plaintiff a sum to talling $1,373 of which $373 of which $373 was by way of special damages.

3. On the hearing of the appeal both of the principal issues viz. that of liability and that of quantum were canvassed afresh, Mr. Bokhary for the first and second defendants and Mrs. Pichon for the first and second plaintiffs being concerned to sustain the learned trial judge's findings on both issues. Mr. Woo for the third and fourth defendants contested the findings both as to liability and as to quantum of special and general damages. There is little controversy over the facts. The van, driven by the first defendant, was travelling in a generally northerly direction along Cheung Sha Wan Road in the vicinity of the junction between that road and Tonkin Street which cuts across it at right angle. There were several passengers in the van including the two plaintiffs. The third defendant was driving his lorry west to east along Tonkin Street, the time being about 3.00 p.m. He told the court that he was following a small goods vehicle and that it was his intention to turn right into Cheung Sha Wan Road. Cheung Sha Wan Road at this point is a wide dual-carriageway which carries three lanes of traffic in each direction i.e. six lanes of traffic in all. Tonkin Street is a much smaller street which however also carries traffic in both directions, two lanes travelling west to east and one lane travelling east to west. The junction is not controlled by traffic lights nor is there any line upon the road to indicate that persons entering Cheung Sha Wan Road from Tonkin Street should slow down or halt at the junction. It was conceded by the plaintiffs that there is no "Major Road Ahead" sign in Tonkin Street in the neighbourhood of the junction, but there is no reason to doubt that Cheung Sha Wan Road is indeed major road and that this was obvious to any driver approaching from Tonkin Street. The first defendant said that the vehicle which he had been following went across the junction and was actually entering the easterly reaches of Tonkin Street at the moment when his vehicle had drawn level with the westerly border of Cheung Sha Wan Road. It was common ground that at this stage the van with its passengers was travelling in the centre lane and was approaching the junction immediately to the rear of a large goods vehicle which, just before the accident occurred, began to turn left into Tonkin Street. The first defendant said that he was unsighted by this vehicle and was unable to see what traffic was travelling towards the junction from his right along Cheung Sha Wan Road. When he first observed the goods vehicle turning into Tonkin Street his own vehicle was already protruding to the extent of 5 or 6 feet into Cheung Sha Wan Road. His lorry was carrying a half load and he said that as he approached the junction he had been travelling at 12 to 13 miles an hour in the third gear, but at the junction he had changed to second gear and was travelling more slowly. When he was unsighted by the van he continued to travel very slowly out into Cheung Sha Wan Road when he suddenly became aware of the van racing towards him from his right at a speed which he estimated being in excess of 30 miles an hour. He said that he at once applied his brakes and came to a halt and that then the van brushed against the front of his vehicle, turned right, struck a traffic bollard at the sentre of the junction, ran out of control, bounced off the railings running down the centre of the carriageway, and turned over. He admitted that he was negligent in having proceeded so far across the junction without being clearly aware of what traffic might be appreaching from his right. On his behalf, however, it was argued that these facts, even taken in combination with his admission, were not sufficient to absolve the driver of the van from all blame in relation to the accident. The only element in the evidence on which Mr. Woo could rely to support the suggestion of negligence on the part of the van driver was this rather nebulous evidence concerning the speed at which the van had been proceeding. He contended that it was to some degree negligent of the van driver to maintain his speed around 30 miles an hour when the large vehicle ahead of him had begin to turn to its left so that he himself was nnsighted as regards traffic which might be entering from Tonkin Street, just as the driver of the lorry admitted that he had been unsighted to traffic entering Tonkin Street from Cheung Sha Wan Road. The trial judge did not beliove that the van was travelling at more than 30 miles an hour and although, as Mr. Woo points out, the reason which he gave (viz. that the van must have been compelled to slow down when the vehicle ahead of it began to turn into Tonkin Street) is speculative the point is not of great importance since it was never suggested by any witness that the speed of the van was greatly in excess of 30 miles per hour. The learned judge said that even if it did somewhat exceed 30 miles per hour. The learned judge said that even if it did somewhat exceed 30 miles per hour he would not regard that as being in the circumstances an excessive speed. With that opinion I am in respectful agreement. A van driver travelling in the middle lane of three lanes along the major carriageway at a speed which is either within the lawful limit or so little beyond it that the excess is not significant, is surely entitled to maintain his pace in the expectation that any person emerging from a side road will so conduct himself and his vehicle as not to constitute a danger to vehicles travelling on the major road at a speed which any experienced motorist would be expected to anticipate. The fact is that there was apart from this question of speed no other element in the evidence which could found the allegation of negligence. Indeed the evidence was the other way, and slender though it was, it tended to refute the lorry driver's allegation that he was stationary and that it was the van which had struck the front of his vehicle a glancing blow. The photographs and the vehicle accident report make it clear that the van was damaged on its rear near panel. In one of the photographs the indentation made by the impact and an associated horizontal line of scratch marks in the paint work lend clear visual support to the view that the van must almost have cleared the front of the lorry and that it was butted by the lorry's bumper on its near side towards the rear. The appeal as to liability must therefore fail.

4. Among the items awarded in respect of special damage to both plaintiffs only one calls for mention. Each of the plaintiffs claimed sums of money to defray the cost of providing special nourishing foodstuffs allegedly consumed by them during their post-operative recuperation. The first plaintiff claimed $400 for the supplementary diet of fish soup and chicken brought every other day to the hospital by her mother and which she also consumed after discharge from hospital up to the 19th of July. The second plaintiff claimed $2,000 alleging that he had spent on an average $5 a day upon a special diet which included fish, ginseng, pig brains, chicken and pig's liver. These special diets were not recommended by any doctor or other qualified expert, either during hospitalisation or for any period thereafter. The learned trial judge took the view that claims for such special noarishment are not only a common feature of actions such as this but, being a traditional form of invalid self treatment in Hong Kong, are, provided they are reasonable, sustainable on the basis that, irrespective of any actual thereapeutic value they may have, they are conducive to healing and recovery by helping to maintain a good morale in the patient. He cut each of the present claims in half, however, awarding $200 to the first plaintiff and $1,000 to the second plaintiff. It was pointed out by counsel on both sides that such claims have sometimes been allowed in whole or part, and at other times been completely disallowed in these courts. Two decisions of the learned president were referred to in this regard in which, he had dismissed such claims on the basis that they had not been expressly recommended either by a medical practitioner or by an experienced herbalist and that they amounted to the supplementing of an adequate hospital diet by the self-prescription of special luxuries. Thus in O.J. Action 1582 of 1972 the learned Chief Justice delivering judgment on the 18th of July 1973 said of the plaintiff's claim:

"He claims $700 for travelling expenses and extra nourishment. There is no evidence as to how that sum should be divided. A claim for extra nourishment whilst in hospital unless it was ordered by the doctor cannot succeed. It is wrong that the defendant should have to pay for the plaintiff's luxurious foods unless it is so ordered."

On the other hand in KWAN Mei-king v. AU Hong-keung⁽¹⁾ Leonard J., awarded a sum in respect of traditional Chinese herbal treatment to a middle aged woman who, following her discharge from a Government hospital as incurable, resorted to a bone setter to cure pain in her arm. She gave evidence that the treatment had resulted in some improvement and the learned judge took the view that whether this improvement was due to her belief in the treatment or to the actual therapeutic action of the treatment itself it was a justifiable claim since it was made at a time when there was, as he put it, no overlap between treatment of the ordinary sort in hospital and traditional treatment thereafter. We were also referred to a case decided in the present year in which I myself awarded damages of $500 in respect of such treatment, the original claim being for $4,000. I had relied upon certain observations which appear in the 4th edition of Munkman at p.77 where, citing the case of Shearman v. Folland⁽²⁾, the author subscribes to the view that extra nourishment may be made the subject of a claim provided it is money spent on recognised invalid food such as chicken broth, Bovril, etc. I do not think there is any open collision between these decisions, although each approaches the problem from a somewhat different direction. I think however there should always be evidence to show that a special diet was adopted not wholly as a self-prescription of favourite delicacies but on the advice of some qualified person on whose judgment the court can rely, it being left to the court to decide in each given case, having regard to the nature of the advice and the efficacy of the prescription, whether it was in all the circumstances justifiable. Where no such evidence is adduced the claim should be very narrowly regarded especially if it is substantial although no doubt even then it would be open to a judge to make a nominal or small award provided he was satisfied that the diet included foodstuffs of noted nutritional worth. Even where "traditional" and "western" forms of treatment are being resorted to simultaneously such assorted claims might be sustainable although in that case it would be highly advisable that exponents of each type of treatment should be called by the claimant to give expert evidence and although any collision in their view as to the value of the special foodstuffs involved would no doubt tend to weaken such a claim considerably. I am however in respectful agreement with the view of the learned Chief Justice (in the case cited above) and would add that where a patient has submitted to regular treatment as an in-patient in any hospital a claim for foodstuffs employed to supplement the regular hospital diet should not be sustained in the absence of evidence to show that that diet was deficient or that a special diet had actually been ordered by a doctor or that the patient had special needs which were not made known to the medical authorities and which if made known would probably have resulted in the prescription of such a diet. What is important in every case is that there should be some evidence put before the court, where a special food is the subject of a claim, to support the advisability of that form of treatment. In the present case no evidence of that kind was given not even by the plaintiffs themselves. The learned trial judge took the view that a certain amount of "pampering" of the patients was a legitimate expense. It is a commonsense view but it involves the difficulty that in the absence of evidence as to the nature on the foodstuffs and of the patients' state of mind the trial judge, in allowing such an expense or in trimming it or in greatly reducing it (as happened here) is necessarily disposing of the matter on the basis of his personal knowledge or private experience without any guidance from expert testimony. Where a large claim is made this may be a very arbitrary procedure. The first plaintiff claimed the special food only for a period of two weeks but the second plaintiff claimed for a period of one year after his release from hospital. I am loth to interfere with this finding although as regards the second plaintiff I would like to say (in the interest of establishing some fixed principle in the matter) that his claim for special damage in relation to this particular item might well have been disallowed in toto.

5. No question is made as to the figure of general damages awarded to the first plaintiff and the principal remaining issue for consideration arises from the figure assigned to compensate for the multiple injuries sustained by the second plaintiff which are enumerated at considerable length in his statement of claim. Very much the most serious are the various fractures to the skull and the fracture to the nasal bone. It was principally these injuries and their sequelae which exercised the learned judge in finding his figure of general damage. There was gross injury to the skull which, apart from certain linear fractures, included comminuted fractures one on each side of the temporal region and one in the centre of the forehead. These injuries necessitated the removal of bone leaving three deep indentations in the skin underneath which the brain, unprotected by any bony covering, could be seen to pulsate. Dr. Hunter strongly advised surgery to protect these areas either by bone graft or by the introduction of some plastic material to shield the brain from further damage. There had been loss of memory and marked change in personality persisting for about a year and a half following upon the accident. These symptoms had however substantially disappeared at the date of the trial. There was permanent total loss of the sense of smell. There was a risk of epilepsy which the doctor quantified as 25% at the date of his evidence but he said that this could not be properly ascertained until at least 5 years had passed from the date of the occurrence of the accident. He added that in any event there would always be a 5% permanent risk of lapse into epilepsy. Because of this uncertain feature of the evidence as to epilepsy the judge first of all assigned a figure of $70,000 general damage to all the other items and then, rather than adjourn the question of the risk of epilepsy until the elapsing of the 5-year period, chose to accept the figure of permanent 5% risk. He assumed that if epilepsy should intervene it would totally incapacitate the plaintiff for his work as a printer. He assumed further, for the purpose of his assessment, that this result had actually come about at the date of that assessment and applying a multiplier of 15 to the annual earnings of the plaintiff came to a sum of $111,600 which, with the onset of the disease reduced from the status of a present reality to a 5% permanent possibility yielded a figure of $5,580. The total figure awarded against general damage therefore was $75,580.

6. Mr. Woo analysed the judge's findings on injury and consequent loss into an assortment of nine separate items including the risks and pain which would be likely to attend upon any future surgery and the prospective loss of earnings associated therewith and by assigning hat he regarded as reasonable figures to the principal items (viz. permanent loss of sense of smell and cost of future operation) he sought to persuade us that a figure of about $48,000 out of the original $70,000 allowed (leaving aside the figure set against the 5% risk of epilepsy) must have been assigned against pain and loss arising from any future operation; temporary change of personality; acceleration of minor defects of the eyes; some residual weakness in constitution; occasional pain in the head in cold weather; minor scars upon the trunk of principally cosmetic significance. He asked us to say that for such things a sum of $48,000 was a grossly excessive award. I confess that at first I was very much inclined to agree. It is now 4 years since the accident. When he returned to his normal work in January 1970 the most the second plaintiff could say in reference to persisting disabilities (beyond the permanent loss of sense of smell) was that since the accident his strength and vision were not as good as formerly. With the exception of one matter to which I will later refer the elements in the award which must refer to past pain and suffering viz. loss of memory, change of personality, loss of earnings are scarcely in themselves such as to merit an examplary award especially in view of the fact that as the plaintiff honestly admitted there was no element of pain as distinct from loss of amenity or discomfort associated with the operation and the recovery. The same is true of the evidence concerning future disability. If one takes the one substantial future detriment which was likely to be permanent i.e. the loss of the sense of smell and adds to it the minor continuing ailments together with all the various forms of detriment inherent in the possibilities of the future remedial operation, including its cost, and assuming that the operation would be successful, one is still confronted with an award which to put it at its lowest would be in the region of $46,000 to $48,000 by way of general damages for past pain suffering and loss of amenity. It is very difficult and often not very fruitful to try and make direct comparisons between awards in previous cases whether in Hong Kong or in England but I must say that I have been unable by consulting a very large number of awards made in the past two or three years in England and in this territory to find anything comparably generous in respect of a plaintiff who on the evidence and assuming the future operation was successful would face a working future in the same trade for a period which the judge estimated at about 25 years having made something approaching a total recovery. Were it not for one factor in the second plaintiff's case which may conveniently be placed under the general heading of loss of amenity, I would think that a total figure of general damages in the region of $40,000 to $45,000 would have been ample. I am however in the last analysis persuaded that a period of more than four years spent with the living tissues of the brain protected only by the outer skin and constantly vulnerable, perhaps fatally, to contacts which would otherwise be of negligible significance, is in itself an exceptional disamenity such as would invite an exceptional solatium. For this reason, although I regard the award as unusually high, I am not prepared to say it was high to that degree of excess which would compel me to hold that it was: "an entirely erroneous estimate of the damage to which the plaintiff is entitled" (per Greer L.J. in Flint v. Lovell⁽³⁾; referred to in Mayne as the classic statement on the subject). I think therefore, despite these misgivings that the figure of $70,000 must stand. That figure however must be considered subject to the major change which has occurred between the time of the award and the presenting of this appeal. The appellant died upon the 23rd of April this year a fact of which we were apprised only at the very commencement of the hearing of the appeal. We were informed that he died intestate and, the other side offering no objection, at the invitation of Mr. Woo the widow was joined as an interested party under Order 15 rule 15. It should be said at once that there was no attempt to have additional evidence adduced to show a connection between the accident and the death of the second plaintiff and the matter is to be dealt upon the basis that they are totally unrelated events. The only fresh evidence a duced upon Mr. Woo's application under Order 59 rule 10(2) was the death certificate attesting the death of the second plaintiff which was put in evidence before this court without objection from the other side. The importance of this new circumstance to the present case becomes clear in the light of the decision in McCann v. Sheppard⁽⁴⁾. In that case the appellant McCann had been wholly incapacitated as a result of a motor accident on 15th August 1968. His injuries, which were to the lower part of the body, were gross and very painful. In 1972 he was awarded damages amounting to £37,548 of which £35,000 were in respect of general damages. By this time he had become so reliant upon certain drugs to relieve his constant pain that he had become addicted to a particularly dangerous drug called palfium, and in October 1972 he was prosecuted for procuring this drug. He was put on probation on terms that he should receive treatment as an in-patient at a certain hospital. A few days later he left the hospital for a weekend at home in the course of which he took an overdose of drugs from which he died. At this point of time there was pending an appeal by the defendant in the action against the award of damages. The Court of Appeal received fresh evidence concerning the death of McCann and the defendant asked the court to vary the amount of damages to such sum as would have been the proper award had it been known at the trial that McCann's expectation of life extended only to October 22nd 1972. The Court of Appeal considered the principles which should guide a court upon the admission of such evidence and reference was made in the several judgments to the cases of Jenkins v. Richard Thomas and Baldwins Ltd.⁽⁵⁾; Murphy v. Stone-Wallwork (Charlton) Ltd.⁽⁶⁾ and Mulholland v. Mitchell⁽⁷⁾. What principally exercised their Lordships was the tension between the two cardinal principles which they discerned in the previous cases: firstly, the necessity for finality in litigation and, secondly, the need to attend to events occuring between the making of an award and an appeal therefrom when such events are of such a dramatic kind as effectively to falsify the award to a material degree so that it would affront commonsense (to employ the language of Lord Wilberforce in Mulholland v. Mitchell⁽⁷⁾). for the court to shut its eyes to the fact of death. In McCann's case⁽⁴⁾ the original award included £15,000 against loss of future earnings over a period of 15 years at a rate of £1,000 a year and general damages for pain suffering loss of amenities and risk of loss of expectation of life in the sum of £20,000. The court took the view that these two items had effectively been falsified by the event of death. For the risk of loss of expectation of life a sum of £750 was substituted for the actual loss of expectation of life; £400 was awarded for loss of future earnings from the date of trial to the date of death. No award was made in respect of loss of earnings during the "lost years" and although death had cut the actuallength of time during which the plaintiff would have suffered from an estimated 20 years to an actual 4 years the court reduced the figure of £20,000 by only £5,000 in view of the very grave nature of the injuries and the associated pain and suffering.

7. Mrs. Pichon for the second plaintiff argues that the decision in McCann is unsatisfactory in that it reintroduces a considerable clement of uncertainty into awards which ought to be final if it is to be employed in every case in which death occurs between the making of an award and the hearing of an appeal therefrom. Secondly, she says that it is in any event on its facts distinguishable from the present case and finally she says that even if the principle enunciated therein is applicable in the present case it should not be applied since the award, however one regards it, cannot be said to be excessive. For my own part I can see no danger in the principle adopted in McCann. In cases such as the present one it is adequately restricted by the limiting consideration that the court will not employ it save where the fact of death has effectively falsified some substantial and material finding of the court below. Nor am I persuaded that the present case can be distinguished on its facts merely because in McCann the greater part of the award related to compensation for future detriments. Such factors are not negligible in this case either, though much the smaller consideration. There are therefore, as it seems to me, several items which will require tailoring in accordance with the needs of this principle. I am in agreement with what has been said by the learned president on the nature and quantum of these deductions, and with the order which he proposes as to costs.

Representation:

(1) (1972) H.K.L.R. 352.

(2) (1950) 1 All E.R. 976.

(3) (1935) 1 K.B. 354.

(4) (1973) 1 W.L.R. 540.

(5) (1966) 1 W.L.R. 476.

(6) (1969) 1 W.L.R. 1023.

(7) (1971) A.C. 666.