Pang Yau v. Cheung Kwok-hing and Another

HCA002215/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 2215 OF 1976

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Coram: Cons, J.

Date of Judgment: 21st July 1977

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JUDGMENT

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1. This is a running down action. The questions of liability were settled at the trial. All that now remains is the assessment of damages.

2. The accident occurred in 1974. The plaintiff was then a manual labourer working for the Highways Division of the Public Works Department. He was virtually fifty-four years of age. His injuries put him into hospital for some seven months. He had a multiple fracture of the tibia and fibula of the right leg. These were set, reset with an attempt at nailing and finally settled by a bone graft operation. He then attended hospital as an out-patient for a further five months.

3. The effect of the injuries and the operations is that the right leg is now shorter than the left. Curiously enough before the accident the position was the reverse, due to disease the plaintiff must have suffered unknown to himself during his adolescence. But since he worked on the roads for some thirty years without difficulty, I think the previous condition can be safely ignored.

4. The latest medical examination was well over one year ago. The doctor found considerable restriction of the movements of the knee and ankle. He did not expect there to be any substantial improvement in these quarters in the future. He did however expect that within six months from that time the plaintiff would be able to walk a little without support. I do not know whether that expectation has been realised. The plaintiff used crutches when he was in court. In any event his ability is greatly impaired and he will always suffer some discomfort in his right leg. The award for pain and suffering and loss of amenities is $20,000.

5. The Government paid the plaintiff his salary and cost of living allowance in full all the time that he was in hospital and up till the 13th February last year. On that date he was retired. He was already a little over the basic age for retirement, that is fifty-five. But I understand from the Staff Welfare Officer who gave evidence that Government looks sympathetically upon applications to extend by persons such as the plaintiff, and that if it had not been for his injuries he would almost certainly have been kept on until he was sixty. At the time of his actual retirement the plaintiff's salary and allowance came to $825 a month. At the present time they would be $880. Unfortunately no evidence was given as to when the increase took effect and I must therefore use the lower figure for the whole period. In addition to that the plaintiff used to earn a few tens of dollars a month by making baskets from bamboo in his leisure time. I would accept that as $20. He can no longer do this as he is unable to climb the hillsides to collect the bamboo.

6. The last sixty-two days for which the plaintiff was paid by Government were days on which he would not in any event have been required to work. They were days of leave that had accrued due to him. It was argued for him that if he had been uninjured he would have taken on other employment during those days and that his loss for that period was therefore doubled. With respect that argument is not tenable. Under this head of damage calculations are made as though the plaintiff had been regularly employed up to the date of trial. He cannot have the best of both worlds. It may be that it is customary for persons employed by Government to accumulate a long period of leave prior to retirement and then for permission to be given to accept paid employment during that time. If this is so it would be a matter for consideration in the general damages. But no evidence to support that suggestion has been adduced in the present case.

7. Special damages will be awarded therefore as follows:

The total sum shall carry interest at the rate of 4% per annum from the date of accident until today.

8. The award for future loss of earnings should be based on the figure of $900 per month, that is the amount which the plaintiff would have been earning now from Government and up to the age of sixty together with his spare time basket making. After the age of sixty he had hoped to work as an earth coolie at a rate which on the face of it would be somewhat higher. But I have to take into account the very real possibility that at that age he might not be able to find full time employment. He has a young family and would have gone on working, I think, for so long as he was able. The proper multiplier according to his age at the time of the accident would have been ten. Since then three years have elapsed, making it seven. That gives a figure of $75,600. From this must be deducted $3,562, which has already been paid to him under the Workmen's Compensation Ordinance, leaving a final sum of $72,038.

9. Since the 15th April this year it has become compulsory for a court which awards damages in excess of $3,000 in respect of personal injuries to award "interest on those damages or on such part of them as the court considers appropriate": section 48(4) of the Supreme Court Ordinance. Similar legislation was introduced in England in 1969. Almost immediately the English Court of Appeal suggested principles which should be applied in giving it effect. That was in Jefford v. Gee ⁽¹⁾. One of the principles was that interest on the amount awarded for pain and suffering and loss of amenities should run from the date of service of the writ to the date of trial. That however was seven years ago, at a time when, as the Master of the Rolls put it, "inflation did not stare us in the face": Cookson v. Knowles⁽²⁾. Since 1970 there has been massive and continuing inflation in the United Kingdom. As a result the English Court of Appeal has suggested a change to that particular guide-line. There should in future be no interest upon the lump sum awarded for pain and suffering and loss of amenities. That lump sum should be assessed on the "scale" current at the date of trial, which will be much high than the figure current at the date of the injury or writ.

10. Discretionary power to award interest was given in this Colony in 1970. From time to time that discretion has been exercised in relation to awards for pain and suffering and loss of amenities in accordance with the suggestion of Jefford v. Gee. But I am not aware of any authoritative decision and am free to adopt whichever I think is the more appropriate course. Generally speaking the rate of inflation here has not been quite as high as that of the United Kingdom. It is nevertheless a continuing reality. I propose therefore to adopt the new guide-line suggested although I should add that I do so without the benefit of argument to assist me. The question of interest was not averted to in any way at the trial.

11. One final word should be added on the claim itself. Special damages were claimed for "loss of earnings as from 11/9/74 (the date of the accident) to 10/10/75 (possibly the date on which the claim was drafted)". That is all. There must of course have been some misunderstanding then because, as I have already mentioned, the plaintiff was in fact still receiving his wages from the Government. But that is not the point I wish to make. It is well settled that loss of earnings after the date of trial are a matter of general damages. They do not need to be spelled out in detail. On the other hand loss of earnings up to the date of trial are matters of special damage and as such must be specifically pleaded. Where the loss continues in whole or in part after the date of the writ, this is normally done by quantifying the amount lost up to some appropriate date and by adding words to the effect that the loss continues thereafter. If these words are not added the court has no power to make any further award. There may, as in the present instance, be a considerable difference. Counsel should therefore ensure that this point is not overlooked and if necessary apply for amendment at the trial. No leave has yet been asked for in the present instance, but I think it right that leave should be given, to amend appropriately without the need to re-serve on the defendants. This judgment shall not be enforceable until that has been done. The costs of that amendment are not to be included in the plaintiff's costs against the defendants and it is to be hoped that they will not be included in the bill rendered to the plaintiff himself.

12. Judgment is entered for the plaintiff in the total sum of $104,530 and interests on $12,492 thereof as I have already indicated. The plaintiff is to have his costs against the defendants, to be taxed in accordance with the Legal Aid Scheme.

Representation:

K.H. Woo (Fairbairn, Kwok & Wang) assigned for plaintiff.

Defendants absent.

(1) [1970] 2 Q.B. 130 at 146

(2) Times Newspaper 25th May 1977.