Leung Shing and Another v. Cheung Ping Kwai and Others

CACV000093/1982

Tort - negligence - damages for personal injury - quantum - insufficient compensation for loss of job options - interest - judge entitled to find no unjustifiable delay in conduct of proceedings - interest properly ordered from date of writ to date of judgment.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

Date of hearing: 15 December 1982

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. This is an appeal against the quantum of an award in an action for damages for personal injuries. The Plaintiff was injured in a road accident. He suffered severe injuries to ore leg and as a result his leg was amputated below the knee somewhere about the mid calf. He was at the time only ten years old and, because he was still growing, the amputation stump has had to be operated on already three times, with the possibility that he may require a further operation: as his tibia grows this affects the skin covering the stump, causing great discomfort, and a further operation becomes necessary.

2. The cross-appeal, with which we are now concerned, complains that the judge's award of $90,000 to the Plaintiff by way of general damages is too little and it is said that it is too little because it does not include sufficient compensation for the loss of job options which will result from the injury. We have had some difficulty in ascertaining exactly what it was that the judge decided. He said:

"This award will include any possible loss of future earnings. For the reasons I have given earlier I do not think it is likely that there will in fact be any loss of future earnings."

3. I think that is enough quotation to shoo the extent of the difficulty: either this award does include compensation for loss of job options, in which case the Plaintiff says the award of $90,000 is too low, or, alternatively, the award of $90,000 does nit include any compensation for loss of future earnings and ought to have done so.

4. Whichever is the correct way of approach, I am of opinion that the Plaintiff is right: it seems to me that the award of $90,000 was, on any view, too low. There are in an award of general damages five main elements: pain, suffering, less of amenities, less of expectation of life, loss of earning capacity. The first three are normally dealt with together and it is conceded by counsel for the Plaintiff before us that, if the $90,000 was for pain, suffering and loss of amenities, it was a proper award. I say nothing about that. The question which the now have to decide is whether, if it does include any loss of options, it was enough. It is argued on behalf of the Defendant that the judge was in fact holding that there was a loss of options but that it was not of any material value. If that is what the judge held - and I am not satisfied in my own mind that that necessarily is what he thought - I think it was wrong; but equally I think, as I have already said, that if it is included in the $90,000 then the $90,000 is too low.

5. Having regard to the nature of the injuries I think it is axiomatic that there must be some loss in respect of earning capacity. This young boy is, according to the judge,- and we must accept this - likely to be restricted in the labour market to jobs of a clerical nature, but even within that class or category of job there are limitations on the jobs that he can take. I gave as an example in the course of argument a clerk whose duty it is to accompany a land surveyor. This young man will not be able to walk long distances and stand for long periods of time. There is bound to be some limitation on the jobs that he can take, and it seems to me that he must be given some compensation for that loss.

6. I accept that the task of assessing that loss is one of extreme difficulty and, to use the phrase that has been used in argument and in other cases, it seems to me all that we can do is to pluck a figure out of the air: I am not disposed to try to assess an annual loss and then to take a multiplier. It seems to me that it would not be unfair to assess the possible loss of options at $50,000. I would therefore allow the appeal and increase the award to one of $140,000 for general damages only.

Yang, J.A.:

7. I agree ant have nothing to add.

Barker, J.A.:

8. I agree and would merely add this. In view of the concession that was made by the Appellant's counsel that if $90,000 were purely for pain and suffering and loss of amenities of life that is sufficient. It is not proper for this court to discuss the adequacy or otherwise of that sum. I merely wish to record that I do not wish to be taken as agreeing it.

[Argument was then heard upon the appeal].

Sir Alan Huggins, V.-P.:

9. The learned judge awarded interest to the Plaintiff from the date of service of the writ until the date of judgment at the rate of 14%. No question has been raised before us as to the rate of interest, although in Birkett v Hayes 1982 1 WLR 816 the Court of Appeal in England said that the rate of interest should not exceed 2%. I say nothing, therefore, about the rate of interest which ought to be awarded in Hong Kong.

10. The argument we have had relates to the period of the payment of interest, and it is argued on behalf of the Defendants that the period ought to be reduced by the period from the service of the writ until the service of the Statement of Claim because, it is said, there as unjustifiable delay. The writ was issued on 15th November 1979 - and I presume was served on that date since that is the date mentioned to us - and no step was taken in the action until 9th June 1981, when Notice of Intention to Proceed was served, and the Statement of Claim was not served until 16th September 1981. It as observed by Lord Justice Watkins in Birkett v Hayes that in his view it is wrong that interest should run during a time which can properly be called unjustifiable delay after the date of the writ: during that time the plaintiff will have been kept out of the sum awarded to him by his own fault: the fact that the defendant has had the use of the sum during that time is no good reason for excusing that fault and allowing interest to run during that time. I would respectfully agree with that observation, but in the present case the learned judge's attention was drawn to Birkett v Hayes by counsel for the Plaintiff anal it would appear from the notes of the learned judge that counsel sought to justify the delay by pointing out that there would have to be revision amputations. No doubt he was indicating that it was desirable that the trial judge should have as much medical evidence as could reasonably be obtained before he was called upon to make his assessment. The learned judge, having heard that submission and, apparently, there being no contention against it on behalf of the Defendants, obviously concluded that there was no unjustifiable delay, because he made the order which I have already indicated. Mr. Wong has asked us to say that the finding that there was no unjustifiable delay was wrong. We do not have the full details of the argument put before the judge, but for my part I am not prepared to say that no reasonable tribunal of fact could come to the decision which he reached, whether or not I myself mould have come to the same conclusion. That being so I think that the order made by the judge for the payment of interest must stand as regards both the rate and the period, but it will of course apply only to the $90,000 in respect of pain, suffering and loss of amenities and not to the $50,000 which we have ordered in respect of loss of earning capacity.

Yang, J.A.:

11. I concur.

Barker, J.A.:

12. I agree and there is nothing I can usefully add.

15th December 1982

Representation:

R. Wong (Deacons) for 1st and 2nd Appellants.

C.Y. Lee (John Ip & Co.) for Respondent.