Hui Kau-chuen v. China Motor Bus Co Ltd and Another

HCA000689/1977

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Coram: O'Connor J.

Date of Judgment: 7 November 1977

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JUDGMENT

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1. The parties tell me that the only issue to be tried is quantum and that I should reduce the amount I find by 7 ½% on account of the negligence of the plaintiff.

2. On 24th January 1976 the plaintiff a man then aged 63 years was knocked down by a bus and rendered unconscious. He was taken to hospital where he recovered consciousness. His right leg had been badly crushed with fractures of the right fibula and tibia. Six days later due to the blood supply to the leg ceasing, the leg was amputated at thigh level. He suffered considerable pain which however has almost completely ceased though he still has discomfort. In April 1976 he was supplied with an artificial leg and transferred to the Kun Tong Rehabilitation Centre where he stayed until 20th November 1976 when he went to live in a hut where he stayed until August this year when he went to live in an old people's home. As is to be expected in a person of his age he has difficulty in using the artificial leg and still requires the use of two sticks when walking. He can only walk the distance of 10 - 20 shop spaces before feeling discomfort. There is not likely to be any further improvement. He has no relatives in Hong Kong except a son who lives apart but visits him. The plaintiff was employed for more than 20 years immediately preceding the accident as a delivery man at a rice shop. His employer gave evidence and it was clear that there was a certain paternalistic almost feudal relationship between them. The plaintiff is a well-built man of strong constitution for his years who has never had a day's illness prior to the accident and is of a cheerful temperament obviously his whole life having been centred on his workplace and working companions. He enjoyed his work and obviously feels lost without it. He is now completely unfit for work.

Special Damages

3. It is agreed his annual salary was $8,680.00 plus food and lodgings and that the loss only runs from November 1976. The plaintiff's counsel suggests that the value of the board and lodging should be arrived at by taking the figure of $80.00 a month for lodging and $12.00 a day for food these being the figures the plaintiff had to pay to rent a hut and to buy meals at cooked food stalls after his discharge from the rehabilitation centre. Defence counsel on the other hand says that it would be closer to the figure of $207.00 which is the amount he pays for board and lodging at the old people's home. That home is, I understand, run by a charitable organisation. I consider the proper figure is $320.00 a month which is the figure pleaded and which I accept as being correct.

4. His special damages I find at $8,680.00 plus $3,840.00 that is $12,520.00.

General Damages

5. I do not consider there is any significant loss of expectation of life. I have considered LEE Koon-keung v. NG Chi-yat⁽¹⁾ where an 18 year old youth was awarded $55,000.00 for the loss of one leg and CHIU Fai v. CHAN Yue-hung⁽²⁾ where a 49 year old man was awarded $120,000.00 for the loss of both legs. I am dealing with a considerably older person and consider the proper sum for pain, suffering and loss of amenities is $35,000.00.

6. There is evidence which I accept that he would if he survived so long probably have worked for about another 8 or 9 years in the rice shop no doubt doing less work as the years went on. The work he did was not very taxing. In the circumstances I consider the proper multiplier is 5 making allowances for the vicissitudes of life and the fact that he is getting a lump sum. The multiplicand is $12,520.00 so the figure for loss of future earnings is $62,600.00. Adding to that the sum of $35,000.00 for pain, suffering and loss of amenities and the sum of $12,520.00 for special damages gives a total damages of $110,120.00. From that must be deducted $24,192.00 on account of workmen's compensation which has been paid. That gives a figure of $85,928.00. That sum is to be reduced by 7 ½% which gives a figure of $79,483.40.

7. Mr. Bunting for the plaintiff asked me to award interest on the principles of Jefford v. Gee⁽³⁾ and not to follow Cookson v. Knowles⁽⁴⁾. He pointed out that one of the reasons for the course adopted in Cookson v. Knowles⁽⁴⁾ was the rampant inflation in England, which we in Hong Kong had escaped. Furthermore he said that there was a fallacy in Lord Denning's reasoning in that if awards have increased since the date of the accident solely due to inflation then the real value, or to put it another way the purchasing power of the award remains the same as it was at the date of the accident and the plaintiff does not receive any compensation for being kept out of his money unless the court awards interest. In those circumstances the plaintiff would be a loser in real terms unless interest is awarded. Mr. Bokhary for the defendant says I should follow Cookson v. Knowles⁽⁴⁾. There is substance in Mr. Bunting's first point that we in Hong Kong do not have inflation such as they have in England and therefore no cause on that ground to follow Cookson v. Knowles⁽⁴⁾. As regards his second point that if awards are merely keeping up with inflation there is no compensation for being kept out of one's money unless interest is awarded, I would agree with Mr. Bunting, if the increase in the size of the sums the courts are awarding was only due to inflation. However in my view it is not only due to inflation but also to some extent due to a recognition that awards in the past have been on the low side.

8. In PANG Yu v. CHANG Kwok-hing⁽⁵⁾ Cons, J. followed Cookson v. Knowles⁽⁴⁾ and I understand he has subsequently followed it again. I consider that unless there are compelling reasons not to do so a judge at first instance should follow a decision of the Court of Appeal in England particularly where it is following the recommendation of the Law Commission. Accordingly I will follow Cookson v. Knowles⁽⁴⁾ and PANG Yu v. CHANG Kwok-hing⁽⁵⁾ and I award damages in the sum of $79,483.40 with interest at 4% per annum on the special damages from date of accident to to-day's date.

9. Stay for 14 days. Defendant to pay plaintiff costs. Plaintiff's costs to be taxed under Legal Aid Regulations.

Representation:

(1) (1975) H.K.L.R. 153.

(2) (1976) H.K.L.R. 981.

(3) (1970) 1 All E.R. 1202.

(4) (1977) 3 W.L.R. 279.

(5) No. 2215/76.