Wong Chi-on v. Yuen Tim-fat
Read the full judgment text of HCA 1120/1974 on BabelCite. This High Court CFI judgment.
1. The question of liability in this action has already been settled. There remains only the question of damages.
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HCA001120/1974 IN THE SUPREME COURT OF HONG KONG HIGH COURT ACTION NO. 1120 OF 1974 -----------------
----------------- Coram: Cons, J. Date of Judgment: 3rd March 1977 ----------------- JUDGMENT ----------------- 1. The question of liability in this action has already been settled. There remains only the question of damages. 2. The plaintiff was injured in a traffic accident and became a paraplegic. That was over five years ago when he was aged about forty-two and a general coolie employed by a flower farm. For some eighteen months after the accident he was detained in one hospital or another and since that time he has been at home and looked after by his wife. He is able to get about his home a little on crutches but is otherwise confined to his bed or wheel-chair. He has all the natural disabilities consequent upon paraplegia. 3. There was no dispute over the loss of wages in the past or over one small item of damage to clothing. There was some argument over the past costs of medicine and medical equipment. On the evidence of the plaintiff's wife and such documents as she produced I would assess them at $50 per month for two years and thereafter at $70 per month. 4. There was considerable argument as to the proper value to be placed upon the wife's services to her husband. The figure asked for was $800 per month but nothing was adduced to show how this figure had been arrived at; per haps it was chosen by reference to the probable cost of a general amah. However, there is authority that the award should not be as high as that required for outside help: Davies v. Tenby Corporation (1). In that case the court awarded £15 per week. In another case, Larkham v. Lynch (2), the award was nearer £10 per week, but there the wife had someone else to take care of her husband during the day and also a home help. The cost of all that, together with some physiotherapy, was approximately £35 per week. Differences in the way of life detract from a strict comparison with English figures but I do not think I shall be straying too far from principle if I award one half of what outside domestic help would probably cost. 5. Monetary loss to the date of the trial may therefore be set out thus:
6. Future loss depends a great deal upon the age to which the plaintiff can now expect to live. This in its turn depends upon the skill with which the plaintiff can control his internal functions or realize when any of them has gone wrong. The doctors were not in agreement as to the probable future that lies before the plaintiff although there was not much difference between them. I propose to work upon his reaching the age of 62 and to adopt therefore a multiplier of 8. I shall apply that multiplier to both the loss of future wages and also to future medical costs and the attendance of his wife, for I think it probable that given a normal life he would have worked at least to his early 60's. 7. Monetary loss in the future may therefore be set out thus:
8. There remain only the sums to be awarded for loss of expectation of life and for pain and suffering and loss of amenities. For the former the conventional figure is still $8,000. For the latter I have been referred to various cases where the amounts have varied from $60,000 in circumstances not too dissimilar from the present to $150,000 for a bad case of quadriplegia (Liu Ying-muk v. Choi Lun-kui and Another (3) and Wong Tak-hing v. Tai Sang Industrial Co. Ltd. (4). I think the proper figure in the present case should be $80,000. 9. Then there is the question of interest upon the damages awarded. The plaintiff asks that it should be ordered in accordance with the principles laid down by the English Court of Appeal in Jefford and Another v. Gee (5). The defendant objects. He relies upon the case of Lee Pui-kee v. Ng Chak-tong (6). That was a decision of my own. I said this :
That was three years ago. In one sense the position has not changed The legislation has still not been brought into operation. In another sense there has been change. It has become even more obvious that the delay is intentional. The legislation is designed to operate by way of an amendment to the Supreme Court Ordinance. Now that Ordinance was completely redrafted in December 1975. It would have been a most suitable opportunity to include the amendment. But the opportunity was not taken. It cannot have been an accidental oversight. The Law Reform (Miscellaneous Amendments) Ordinance was itself specifically amended at the same time to accord with the new Supreme Court Ordinance. 10. This is not the only instance of its kind. When the Workmen's Compensation Ordinance, Cap. 282 was amended in 1969 a whole new part was introduced to provide for compulsory insurance. This too was not to come into operation until a date was appointed by the Governor in the Gazette. That date has still to be appointed. The unsuspecting lawyer might think that there as well there was surely no good reason for delay. However, he would be wrong. The Commissioner of Labour said so on the 2nd February this year. His reasons are reported in the South China Morning Post published the following day. 11. Then it is said that in any event the practice of this court has now changed and interest is now awarded as a matter of course. I am not quite sure that one can go that far. Interest has certainly been ordered in many cases. I have done so myself often. But only where counsel for the defendant consented to the order, either because he disagreed with my view of the position or because the amount involved was not sufficient to warrant the possible costs of an appeal. I do not know why interest has been ordered in the other cases. If it was by consent then it is hard to say that a practice of the court has been established. If not then I would only say, and with the greatest respect to my brothers, that it is not the function of judges to anticipate the command of the legislature. It was suggested in argument that this is precisely what that most eminent judge, Lord Denning, in fact did do in Jefford and Another v. Gee. But a perusal of his judgment will show that this is not so. The new law was already in force by the time that he dealt with it, although it had not been so when the case was tried at first instance. 12. So far as I am aware the matter has not yet come effectively before the Court of Appeal. It was mentioned in passing in China Motor Bus Co. Ltd. v. William J. Oram (7) at p.8 of the transcript. It may be that in doing so the Full Court, as it then was, tacitly approved the order of interest and the principles on which it was based. But it does not seem that either point was argued at all. The rules laid down in Jefford and Another v. Gee have not survived without criticism: Law Commission Report on Personal Injury Litigation - Assessment of Damages (8). Even if interest is to be ordered at this time it may well be that with the benefit of full argument it will be found that these rules as they presently stand are not necessarily the best that can be devised for this Colony. 13. For these reasons judgment is entered for the plaintiff in the total sum of $315,690. There will be no order for interest on those damages. The plaintiff is to have his costs and they shall be taxed in accordance with the Legal Aid Scheme. Representation: Edward Chan (Hastings & Co.) assigned for the plaintiff. William Waung (Johnson, Stokes & Master) for the defendant. (1) Times Newspaper 10th April 1974. (2) [1974] 2 Ll.L.R. 544 at 553 (3) [1975] 5 H.K.L.J. 263 (4) [1975] 5 H.K.L.J. 380 (5) [1970] 2 Q.B. 130 (6) [1974] 4 H.K.L.J. 199 (7) (unreported) Civil Appeal No.36 of 1974 (8) House of Commons Papers 29th July 1973 at pp.71 to 78 |