Read the full judgment text of CACV 000006/1973 on BabelCite. This Court of Appeal judgment was delivered on 28 September 1973 before Briggs CJ, McMullin J, Pickering J.
Personal injury – motor vehicle accident – liability – assessment of damages – general damages – special damages – special nourishment – death pending appeal – appellate reassessment of damages – contributory negligence – On 6 July 1969 two passengers in a nine-seater van were injured when the van collided with a goods vehicle at the uncontrolled junction of Cheung Sha Wan Road and Tonkin Street in Hong Kong – The first plaintiff was an infant who suffered comparatively minor injuries and made a full recovery; the second plaintiff, a 39-year-old printing worker earning $620 a month, sustained very serious injuries including multiple skull fractures with bone removed leaving three deep indentations, permanent loss of the sense of smell, marked change of personality for about eighteen months, and a 25% quantified risk of epilepsy, with the brain left unprotected by bone for more than four years – The lorry driver was subsequently convicted of careless driving – The van driver could not be traced to give evidence – The trial judge (Li, J.) found the lorry driver 100% to blame for the accident and on 16 January 1973 awarded $1,373 to the first plaintiff and $80,210 to the second plaintiff, including $75,580 general damages, $8,000 for a future brain operation, and $5,580 for the 5% permanent risk of epilepsy – First issue: whether the trial judge erred in finding the goods vehicle driver 100% to blame – Held: the appellate court found ample evidence supported the finding, including the police sketch, photographs showing impact on the rear near side of the van, the lorry driver's admission that he could not see clearly traffic approaching from his right, and his subsequent conviction for careless driving admissible under section 38K of the Evidence Ordinance; the argument that the van was travelling at excessive speed was rejected as a basis for contributory negligence – Second issue: whether the general damages of $75,580 were excessive – Held: the court considered the award high but not so excessive as to warrant interference, applying Davies v. Powell Duffryn Associated Collieries Ltd. that the scale must go down heavily against the figure attacked, and treating the four-year period with brain tissue protected only by skin as an exceptional disamenity warranting an exceptional solatium – Third issue: whether damages should be reassessed because the second plaintiff died on 23 April 1973 before the appeal – Held: yes, following McCann v. Sheppard, the appellate court accepted fresh evidence of death and reassessed the award, removing the $8,000 for future operation (which could no longer take place) and reducing the $5,580 for epilepsy risk to $1,500 to reflect the shortened risk period – Fourth issue: whether claims for special food or nourishment are recoverable as special damages – Held: yes, such claims are sustainable where supported by evidence of a special diet and its nutritional value, particularly where recommended by a qualified person, but in the absence of such evidence the claim should be narrowly regarded and luxury foodstuffs disallowed; the trial judge's awards of half the claimed amounts would not be disturbed – Outcome: appeal dismissed as to 1st, 3rd and 4th respondents with costs; appeal against 2nd respondent (substituted by widow Tang Kam Ling) allowed in part – general damages reduced from $70,000 to $62,000 and the $5,580 epilepsy risk figure reduced to $1,500; interest rate and timing of interest left unchanged; no order as to costs of the second respondent, to be taxed under the Legal Aid Regulations
Legal issues: Liability for motor vehicle collision · Whether the general damages award of $75,580 was excessive · Reassessment of damages following plaintiff's death pending appeal · Recoverability of claims for special nourishment as special damages
Outcome: Appeal against 1st, 3rd and 4th respondents dismissed with costs; appeal against 2nd respondent allowed in part, with the general damages reduced and the epilepsy risk sum reduced