Kuo Yan Chung v. Nishimatsu Construction Co Ltd and Another

HCA006164/1985

[A plaintiff in an action for damages for personal injuries who includes, as part of his claim for general damage, a claim to have suffered an unusual injury, must give sufficient particulars thereof to enable the defendant to appreciate the nature of the case he has to meet; but the plaintiff is not required to give further particulars of his claim unless he makes a claim for special damage in relation to that injury]

1985, No. A6164

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Godfrey J.

Date of judgment: 20th November 1989

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J U D G M E N T

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1. This is an appeal from an order of Master Chan made on 30th October 1989 whereby he refused an application by the defendants for an order for particulars of the plaintiff's (amended) Statement of Claim.

2. The action is an action for damages for personal injuries. The plaintiff, who was injured in the accident referred to in the Statement of Claim, has pleaded that, by reason of the accident, he suffered shock, pain and suffering and has sustained loss and damage. In paragraph 5 of the Statement of Claim, he gives these particulars of his injuries:-

"                     PARTICULARS OF INJURIES

(a)    Fracture of right 5th rib with displacement.

(b)    Consequential hemothorax necessitating aspiration from January, 1983 and 25th July, 1983.

(c)    Continuing pain in the right chest region from the date of injury.

(d)    The said injuries necessitated hospitalisation of the Plaintiff as follows:-

(i)    On 29th November, 1982 until 30th November, 1982.

(ii)    From 26th January, 1982 and he was later transferred to the Grantham Hospital where he was discharged 19th March, 1983.

The Plaintiff was aged 25 at the time of the accident. The accident has caused profound changes to the Plaintiff's personality in that a paranoid psychosis and a hypochondriacal neurosis, both of them severe, have developed. He suffers from delusions and hallucinations of persecution and loss of contact with reality. Further, he believes himself to suffer various diseases related to the accident none of which has a factual physiological basis. He has no insight into these mental shortcomings. He is now a mentally disordered person within the meaning of the Mental Health Ordinance and is likely to need compulsory psychiatric treatment at intervals throughout his life. He will also require some care and supervision permanently. He is and will remain unfit for employment."

3. Paragraph 5 of the Statement of Claim also gives these particulars of special damage:-

"                 PARTICULARS OF SPECIAL DAMAGE

(a)Loss of Earnings from 28th November, 1982 at 45,549.60 per month and continuing.

(b)Hospital and medical expenses (to be quantified).

(c)The Plaintiff will give credit for the sum of $21,393.60 being the pay and allowances received by him since the date of the accident from the 2nd Defendant and/or any sum received from the 1st or 2nd Defendant pursuant to an award made under the Employees' Compensation Ordinance, Cap. 282."

4. The particulars of special damage are particulars of damage suffered by the plaintiff and to be suffered down to the date of the trial. No claim is specifically attributed to any of the allegations as to his injuries particularised in paragraph 5 of the Statement of Claim. In particular, there is no claim for special damage in relation to the allegations that "[the plaintiff] is likely to need compulsory psychiatric treatment at intervals throughout his life. He will also require some care and supervision permanently". So far as these matters are concerned, the claim is not one in relation to special damage, but in relation to general damage.

5. However, the defendants, anxious to consider their position (and in particular whether they should make a payment into Court and if so, how much) are anxious to obtain as much information as they can from the plaintiff as to the dollars and cents, if I may put it that way, involved. The nature and substance of his case had in my judgment been sufficiently stated in the Statement of Claim; but on 26th September 1989 the defendants took out a summons for particulars. They asked for particulars of the allegations that the plaintiff was "likely to need compulsory psychiatric treatment at intervals throughout his life. He will also require some care and supervision permanently". They asked the plaintiff to state:-

"(1)    How often each year it is anticipated Mr Kuo will be institutionalised;

(2)    For how long in terms of weeks or months Mr Kuo will be institutionalised;

(3)    Where Mr Kuo will be institutionalised;

(4)    What the cost will be, if any of Mr Kuo's anticipated institutionalisation;

(5)    What care and attention will be required when he is not institutionalised;

(6)    Who will provide the alleged care and attention; and

(7)    What the cost of the alleged care and attention will be."

These particulars might well have been sought in relation to a claim for special damage, if one had been advanced; but as I have said, no such claim had been advanced.

6. The nature and substance of the plaintiff's case having been sufficiently set out in the Statement of Claim in relation to these components of general damage, there is, in my judgment, no call for the giving of such particulars as are asked for the defendants' summons. Counsel for the defendant, contending otherwise, relied heavily on the judgment of the Court of Appeal in England in Perestrello E Companhia Limited v. United Paint Co. Ltd. [1969] l WLR 570 (a breach of contract case). But it seems to me that there is nothing in that judgment inconsistent with the conclusion to which I have come.

7. The master, by his order, refused to make any order for the particulars. The fact was that the plaintiff had already given, voluntarily, some information about these matters to the defendants in the form of an answer to their request for particulars; and in the result the master simply made no order on the application save that the costs be the plaintiff's costs in any event. I propose to affirm that order.

8. As the debate before me proceeded, it become increasingly apparent that the defendants were under the impression that the allegations of which they sought particulars were allegations of a claim for special damage. Before me, the plaintiff by his counsel made it clear that this was not so. The allegations are merely, as I have said, component parts of the claim for general damage. It is on that footing that I dismiss this appeal and affirm the order of the master.

9. I now have to decide how to deal with the costs of this appeal. Clearly things have gone wrong. The first error, as it seems to me, and the one from which everything else stems, is the defendants' incorrect belief that the allegations of which they sought particulars were allegations of special damage, of which the economic loss suffered by the plaintiff has to be quantified in terms of dollars and cents. But no relevant claim for special damage is made in the amended Statement of Claim. The allegations are made in that part of the amended Statement of Claim which is concerned with items of injury, not special damage. Of course, it behoves a plaintiff to state, in an unusual case like this, the nature and substance of the case which he is going to require the defendants to meet (and it is unusual for a chest injury to result in the sort of major psychosis that is pleaded here). But that is what the plaintiff has done, and sufficiently particularised.

10. The defendants are aggrieved. They say they were misled because, having made their request for particulars, they then find the plaintiff co-operating with them. The plaintiff goes off to his doctor and gets a report from the doctor, which he supplies to the defendants, and which gives the defendants more or less the information they wanted. They might have achieved that by a without prejudice letter saying "this information would be helpful to us in computing the sort of figure we might be consider paying into court. We need more detail about this aspect part of your claim. Have you got a doctor's report about the man? If so, may we have a look at it? Can he deal with the following questions?" A letter like that would, I hope, have achieved the intelligent response that the request for particulars got. Why should the plaintiff be condemned in costs for having made that response? Why he should be condemned as having misled the defendants? I completely fail to understand it. No doubt, the fault is mine. But since I fail to understand it, there is nothing I can do about it. In the result, the defendants must pay the plaintiff's costs of this appeal in any event.

Representation:

Mr McCormick, Senior Legal Aid Counsel of Legal Aid Department for Plaintiff

Mr Michael Ozorio instructed by J.S.M. for Defendants