Man for Yung v. Ma Shing Man

HCA000181/1978

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Coram: Cons, J.

Date of Judgment: 18th October, 1978.

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FURTHER JUDGMENT

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(This extract of the judgment is circulated for the matter discussed therein. The remainder of the judgment has no general interest.)

1. The second question relates to interest, whether it should be ordered upon damages awarded for pain and suffering and loss of amenities. There is no dispute with regard to interest upon special damages. It is accepted that this should be ordered at half the normal rate from the date of the accident until the trial.

2. The three arguments in favour of making no order of interest upon damages awarded for non-pecuniary loss are set out in the report of the Law Commission of 1973⁽¹⁾. They may be very briefly summarised as follows:

3. The Court of Appeal in England appeared to rely solely upon the third argument when in Cookson v. Knowles ⁽²⁾ it altered the guideline it had originally laid down in Jefford v. Gee ⁽³⁾. It may be noted however that in the original case Lord Denning M.R. appeared to agree with the first argument. He said at p.147:

"It is not possible to split those misfortunes into two parts; those occurring before the trial and those after it. The court always awards compensation for them in one lump sum which is by its nature indivisible."

The revised guideline is that no interest should be awarded under this head. The House of Lords has granted leave to appeal in this respect but until their lordships express their opinion that guideline stands as authority in England. I have ventured to follow that guideline in earlier cases. So has O'Connor J. in Hui Kau-chuen v. China Motor Bus Co. Ltd. ⁽⁴⁾. He said:

"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."

I would respectfully agree with him.

4. Leonard J. has adopted a different approach. In Leung Chi-ming v. So Ki-yim⁽⁵⁾ he awarded interest at the full rate upon apparently that part of the damages which he thought appropriate to the pain and suffering prior to the date of trial. In Chan Yi-keung v. Chu Jau-choy⁽⁶⁾ he made a similar order in respect of the period prior to the issue of proceedings. There is something to be said for an approach of this kind if one assumes that each day's suffering earns a specific portion of the total damages awarded, although one might then expect it to be treated in the same way as wages lost, that is to merit interest from the accident to the trial at half the normal rate. However, with respect this seems to me to add yet a further degree of unreality. I understand that one of the two cases is being taken to the Court of Appeal on the question of quantum of damages. We may hope therefore that the matter of interest will then be fully argued before that court and suitably laid to rest. Until that is done I prefer, in the interests of certainty, to continue to follow the English practice.

5. Further judgment is therefore entered in favour of the plaintiff in the sum of $537 by way of special damages and $55,000 by way of general damages with interest upon the total sum of special damages awarded at the rate of 3% from the date of the accident until today.

Representation:

Mr. Denis Chang (Rowdget W. Young & Co.) for the plaintiff.

Mr. R. Faulkner (Johnson, Stokes & Master) for the defendant.

(1) Law Commission No. 56 paras. 273-277

(2) [1977] 2 All E.R. 820

(3) [1970] 2 Q.B. 130

(4) (unreported) High Court Action 1977 No. 689

(5) (unreported) High Court Action 1976 No. 433

(6) (unreported) High Court Action 1977 No. 2887