Li Ting Chun and Another v. Li Ting Fai

HCA001257/1980

Personal injuries-man aged 38 reduced to child-like state-$180,000 awarded for pain, suffering and loss of amenity-multiplier of 15 chosen for cost of future constant care and attention-multiplier of 12 for loss of future earnings.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Rhind, J. in Court

Date of Judgment: 20th October, 1980.

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JUDGMENT

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1. The 1st plaintiff claims damages in negligence for personal injuries sustained in a traffic accident on 3rd April 1978 when he was a passenger aboard car, registration number BM1093, which was owned and driven by Li Ting Fai (now deceased) when it came into collision with lorry, registration number BG7286, on Castle Peak Road.

2. Leave was given for the 2nd plaintiff to withdraw her claim that she, as another passenger in the defendant's vehicle, was also injured, her counsel informing the court that she had left the jurisdiction.

3. There could be no doubt from the evidence brought out during the trial that the 1st plaintiff was aboard car BM1093 when it was involved in a collision with lorry BG7286 at the date and place pleaded, and also there is no doubt he sustained serious brain injuries in that crash as the result of the negligent manner in which BM1093 was driven.

4. Nothing was admitted by the Defence in its pleadings, save that the crash had taken place, but I must say that it came as somewhat of a surprise to me-and also no doubt to the 1st plaintiff's counsel-when Defence counsel saw fit to take the points in his final address that there was insufficient proof that the 1st plaintiff was a passenger rather than the driver of BM1093, and also that there was no proof that Li Ting Fai, deceased, had been the owner of BM1093 at the material time.

5. Defence counsel, playing his cards extremely closely to his chest, gave no indication by his conduct of the trial that the point was going to be taken ultimately that the 1st plaintiff could have been the driver. In cross-examining the 1st plaintiff, Defence counsel never put it to him that he was the driver, notwithstanding that the 1st plaintiff had said in chief that he was a passenger.

6. Not cross-examining on the point of who was the driver tended to draw attention away from the possibility that there was a live issue on this. By contrast, it could not be suggested that anything occurring during the trial produced the effect of diverting attention from whether the ownership of the car was a live issue: there was just silence on this.

7. Under our adversary system there is no obligation on counsel for either side to give any indication, whether explicit or by implication, of what are the issues which are in fact going to be actively contested at the trial, but, generally, in practice most counsel do try to draw each other's and also the judge's attention to what are the real areas of dispute. In that way time gets saved, and the likelihood is increased that the judge will reach a decision based on truth rather than technicality.

8. After Defence counsel, relying on the pleadings, made the point about ownership in his final submission, the 1st plaintiff's counsel immediately sought to underpin his case by asking the court at that late stage to admit a certificate under Regulation 8(2) of the Road Traffic (Registration & Licensing of Vehicles) Regulations to show that Li Ting Fai was the owner of BM1093 on 3rd April 1978.

9. No doubt the 1st plaintiff's counsel will know to be more vigilant in future, but I think that he, not entirely unreasonably, never expected his learned colleague to allow him to fall into such a trap.

10. Had Defence counsel given any indication during the trial that he was playing the adversary game up to the hilt by insisting on strict proof of such matters as ownership of the car, I would have felt bound to exclude the certificate after each side had closed its case, but in view of the way in which the trial had proceeded before me, I considered that the truth would be concealed and, consequently justice denied, unless the certificate went into evidence.

11. A factor which also played a part in deciding me to exercise my discretion to admit the certificate at a late stage was that it related merely to a matter of public record, namely the registered ownership and other details of a car. How justice would be advanced by my refusing to take cognizance of a matter of public record I failed to see.

12. Besides exercising a discretion on the aspect of the late tendering of the certificate, I also exercised a discretion to admit what is technically hearsay evidence.

13. Besides Regulation 8(2) of the Road Traffic (Registration & Licensing of Vehicles) Regulations, I also relied on Sections 18, 19, 49 and 51 of the Evidence Ordinance (together with Rule 11 of the Evidence (Hearsay) Rules) in deciding to admit the certificate, and also in concluding ultimately that it proved Li Ting Fai owned BM1093 on 3rd April 1978.

14. To obviate the risk of any injustice to the Defence arising from the admission of this certificate, I offered them an adjournment so that rebutting evidence might be called in case the certificate contained untruthful information. However, the Defence did not wish to avail themselves of such an opportunity.

15. If the 1st plaintiff was the driver his claim must obviously fail because he cannot rely on his own negligence. However, I regard it as proved to be more likely than not that he was a passenger rather than the driver.

16. Firstly, there is the 1st plaintiff's unchallenged evidence on this. As I have already indicated, he stated explicitly in his evidence that he was a passenger without being directly challenged on this.

17. Whilst the 1st plaintiff could by no means be regarded as a reliable witness on account of the massive intellectual impairment he suffered as the result of the accident, he was not, however, wrong in everything he said. For example, he was adamant that he had employed two men before the accident and sure enough, it was confirmed by a totally reliable witness, Cheung Sheung (PW7), that he had indeed employed two men. It did not sound as if the 1st plaintiff could have been correct on peripheral details such as his description of what he paid them but he at least got the central fact right about employing them.

18. Even though the 1st plaintiff could not remember any details of the accident itself, I considered that his insistence that he had been a passenger was deserving of some, albeit slight, weight.

19. In addition to the 1st plaintiff's direct testimony there was also circumstantial evidence tending to show that it was less likely than not that he was the driver, and that, moreover, the owner, Li Ting Fai, was in fact the driver.

20. According to the driver of the lorry BG7286, So Shek (PW4), whose evidence I accepted, the car BM1093 which was heading towards him, collided with the off-side of his lorry from the lorry's off-side front wheel to its rear tail. From PW4's description of the crash and from the photos of the vehicles after the accident, it is clear that the off-side front part of car BM1093 collided with the off-side front part of lorry BG7286, resulting in the extensive damage to the off-sides of the two vehicles, as visible in the exhibited photos (Exh. P1).

21. One needs only to look at the photograph P1A4 to realize that it is extremely unlikely that the driver of the car could have emerged alive from that crash. With the front off-sides of the two vehicles coming into collision the driver would have been the nearest of the occupants of the car to the point of impact, and the fact, revealed by the photos, that the steering wheel of BM1093 finished up pressed against the dash-board would indicate that the driver got thrown forward against the steering wheel, presumably with the extensive chest crushing which is all too commonly the fate of drivers in head on collisions. I do not regard this as esoteric knowledge, but just commonsense and common knowledge among people who drive.

22. Bearing in mind the nature of the plaintiff's injuries, as set out in Dr Gordon Ma's report (Exh. P5), and the fact that he survived at all, lends some support to the view that the plaintiff was not the driver that night.

23. We know in the present case that Li Ting Fai, the owner of BM1093 on 3rd April 1978, is now dead. This we deduce from the fact that the action had to be commenced against his personal representatives, and an appearance was duly entered, without protest, by them. I know that the pleadings do not expressly admit that he is dead and Defence counsel has never conceded it, but I consider that as a matter of commonsense I am justified in finding that he is dead. If it turns out I am wrong on this, I will be very happy for Li Ting Fai's sake.

24. The fact that Li Ting Fai was alive on 3rd April 1978, and now turns out to be dead is at least consistent with his having been killed in the accident which smashed his car up. Add to this the fact that in practice the owners of private cars are not normally too keen to lend out their cars to others, and also that most owners of private cars drive their own cars, and a picture begins to emerge where the probabilities point towards Li Ting Fai having been the driver of his car that night. That there was another man lying injured in BM1093 in addition to the 1st plaintiff was established by PW4's evidence. I am satisfied that Li Ting Fai was that other man.

25. There was sufficient evidence to conclude on a commonsense basis that Li Ting Fai probably was the driver so I found to that effect.

26. Theoretically, I suppose, it is possible that neither the plaintiff, nor Li Ting Fai was the driver that night. If such were the case it would not necessarily avail Li Ting Fai anything because of the principle that as owner he can be liable for the negligence of the driver who is presumed to be his agent, but I do not think this aspect needs exploring as it just does not arise on the view I take of the facts.

27. Having concentrated on the questions of who was the owner and driver of BM1093, it remains for me to say a few more words about the accident itself. So Shek (PW4), the driver of the lorry BG7286, Left me with the impression that he was a thoroughly reliable and honest witness, so that, as already indicated, I accepted his evidence as a wholly correct description of what happened. His testimony established that as he drove his lorry on its correct side in a perfectly proper manner along Castle Peak Road in the early hours of 3rd April 1978, car BM1093, coming towards him from the opposite direction around a bend, crossed over the centre-line into its wrong carriageway and collided with his lorry. A clearer case of negligence on the part of the driver of BM1093 could not be imagined.

28. In view of my findings about who owned and drove BM1093 at that time I concluded that the defendants are liable to the plaintiff in negligence.

29. Next, the amount of damages to be awarded to the 1st plaintiff falls to be considered.

30. His physical injuries are described in Dr Ma's report (Exh. P5). At the time of admission to hospital on 3rd April 1979, the 1st plaintiff was deeply comatose and in poor general condition, with bleeding from both ears. He had one laceration of 3½" and another of 2" over the right side of his face, a fracture of the right zygoma and abrasion over the dorsum of his right hand and right shin. A tracheotomy was performed on him and his facial lacerations sutured.

31. According to his wife's evidence, which I accept, his stay in hospital lasted up till August 1978.

32. The only lasting damage which the 1st plaintiff has suffered has been to his brain. That brain damage, however, has resulted in what Dr H.K. Cheung, a psychiatrist, describes as gross intellectual and personality deterioration. What that means briefly in practical terms is that, whereas at the time of the accident he was a normal man aged 38 who led an ordinary domestic life, supporting his wife and the four young children they were raising by his labours in operating a lorry, he is now reduced to a child-like state in which he is nothing better than a nuisance to his family and permanently unemployable in any capacity. A measure of his deterioration is that his only apparent interest in life is opening the taps at home so that he can play with the water-just like a little boy.

33. Previously, so the evidence showed, he was your typical Hong Kong working man-living at home with his family, supporting them and enjoying a few, simple pleasures like the odd game of mahjong, a visit to the cinema or just a chat with friends.

34. Now there are drastic changes. No one could conceivably get any pleasure from his society so that his prospects of enjoying an ordinary social life have ceased to exist. His wife can get no sense out of him, and has to treat him like a child, reminding him to eat and drink, and even having to wash him. He is obviously now heavily dependent on her.

35. His moods are unpredictable, and it was obvious from his wife's evidence that his irritability now makes him a difficult man to live with. It was clear that he gets no pleasure from his children's company now, his wife stating that he dislikes them and throws things at them.

36. From the psychiatric evidence, it emerged that he now has poor concentration, poor memory - a point not overlooked in deciding what weight, if any, to give to his own testimony - and a pathetic level of attainment in even the simplest tasks. Any improvement in his condition is going to be, at best, marginal.

37. How aware he is of his condition and to what extent he can appreciate what it is that he has lost was difficult to gauge from the evidence. I tend to doubt that he is now capable of understanding what has befallen him.

38. Whatever his awareness of the past, I do not think he can be regarded as a particularly happy man now, though. His general irritability and the frustration he must experience at not being able to perform even simple tasks are bound to have an effect on his general feeling of well-being.

39. In any event, lack of awareness of the loss of amenities of life does not result in any reduction in the amount to be awarded under this head : H. West & Son Ltd v. Shephard (1964) A.C. 326 and Lim Poh Choo v. Camden & Islington Area Health Authority (1979) 2 All E.R. 910.

40. Pain and suffering are invariably coupled with loss of amenity for the purpose of making a global award. In the present case, there is no direct evidence to show that the 1st plaintiff experienced any pain and suffering from his injuries, but, as a matter of commonsense, he must have done while the physical injuries described in Dr Ma's report, (Exh. P5) healed. It is virtually inconceivable that the 1st plaintiff would have been without some pain and suffering during his spell in hospital from April till August 1978.

41. Even after his discharge from hospital he experienced urinary incontinence for a while, and the discomfort associated with that condition is in the nature of pain and suffering. Now I regard him as freed from all pain and suffering traceable to the accident.

42. Awards for pain, suffering and loss of amenity are "conventional". There can be no precision about them because there is no real correlation between such intangibles and money. The best that the courts can do is to work in broad categories of generally similar cases, and try to evolve tariffs for such categories, but even then there is an element of arbitrariness in deciding where a particular case fits into the tariff.

43. Immense assistance has been afforded to trial judges by the Court of Appeal's recent decision in Lee Ting-lam v. Leung Kam-ming (Court of Appeal, Civil No. 11/1980) which seeks to give guidance on a tariff approach for various broad categories of disablement.

44. I regard the 1st plaintiff's case as falling into the "Disaster" category where awards range from $150,000 upwards. He fits the description of requiring constant care and attention, and will be incapable of ever leading or appreciating an independent adult life. He is left with the mental age of a young child.

45. Under this head, I fix my award at $180,000.

46. By his negligence the defendant has also created a need on the 1st plaintiff's part for supervision and constant care and attention. Although such supervision and constant care and attention are rendered gratuitously by the 1st plaintiff's wife and family, this does not mean that the 1st plaintiff is not entitled to be compensated for the value of such services. A long line of cases, of which Donnelly v. Joyce (1973) 3 W.L.R. 514 and Taylor v. Bristol Omnibus Co. Ltd (1975) 2 All E.R. 1107 are perhaps the best known have established that this head of claim is based on the need which the guilty party has created. This head of damages need not be specially pleaded as it comes within general damages. There was no evidence led as to what it would cost to employ someone to give the 1st plaintiff the constant supervision and care and attention he now needs. What the court has to do in such circumstances is use its general knowledge of the community to arrive at a reasonable figure for the value of these services. I do not regard it as realistic to suppose that anyone these days would work for less than $750 per month to provide the services the 1st plaintiff needs. In fact it might well be that the figure should be considerably higher but I obviously must, if anything, err on the conservative side as the defendant should not be unfairly prejudiced by the 1st plaintiff's failure to call evidence on this. My figure of $750 per month is meant to be the minimum realistic figure for which anyone requiring payment would supply these services.

47. When it comes to a multiplier for the cost of these services, I choose a figure of 15 years, bearing in mind his present age of 40. That multiplier is higher than the one I am going to choose for his loss of future earnings, because his loss of future earnings is related to his estimated future working life, whereas his need for supervision is related to the longer period of the whole of his expected natural life span. This distinction in choice of different multipliers for working life, and whole natural life span can be observed in Lim Poh Choo v. Camden & Islington Area Health Authority (1979) 2 All E.R. 910. Applying my 15 year multiplier to an amount of $750 per month results in a figure of $135,000 for my award under this head of the value of services needed.

48. Attention can now be turned to the head of the 1st plaintiff's loss of earnings. At the time of the accident, he made his living driving a heavy lorry. One person he worked for - PW7, Cheung Sheung Yuen - paid him $2,500 per month for delivering rattan ware from PW7's factory. Although PW7 had priority in the use of the lorry the 1st plaintiff drove, he did not have the exclusive use of it. It is clear that PW7 did not own the lorry, but whether the 1st plaintiff did, or whether he just hired it, did not emerge from the evidence but is of no consequence for present purposes.

49. Whoever owned the lorry, all that PW7 paid for its hire was $2,500 per month, and that amount covered all running expenses and labour. Besides the 1st plaintiff's labour, there were also two men he employed to help him aboard the lorry.

50. Allowing for the expenses of running a lorry and the cost of employing two men, there could not have been all that much left from PW7's $2,500 for the 1st plaintiff's own remuneration.

51. Nonetheless the 1st plaintiff was in a position where he was able to pay his wife $1,800 per month for house-keeping.

52. The most reasonable inference from the fact that he could pay his wife $1,800 per month, despite receiving only $2,500 per month from PW7 in circumstances where a substantial proportion of that sum of $2,500 per month would be needed for disbursements, is that the 1st plaintiff must have had other customers who paid for the use of the lorry at the times when PW7 did not require it.

53. For the sake of completeness it might be as well if I formally note that I found both PW7 and the 1st plaintiff's wife to be witnesses of truth.

54. As the 1st plaintiff gave his wife $1,800 per month, I would not regard it as realistic to suppose that his earnings could have been less than $2,200 per month. Like any man, he would need some money for his own personal expenses, and also he paid the water and electricity bills.

55. While it can be argued that the 1st plaintiff will not be worse off to the full extent of $2,200 per month now that he is not working because he no longer has to bear any of the expenses usually associated with earning a living, there also has to be borne in mind the counter-argument that any saving on expenses is likely to have been more than off-set by increases in his earnings which could have been expected from the effects of inflation. Doing the best I can on the material available, I am going to treat any saving on expenses and any increase on earnings from inflation as cancelling each other out with the result that the figure I arrive at for monthly loss of earnings is $2,200.

56. That figure is what I am going to use both for the special damages covering his lost earnings from the date of the accident till judgment, and his general damages for future loss of earnings.

57. The special damages for lost earnings cover a thirty month period so the total from this is $66,000 ($2,200 x 30).

58. For the general damages of loss of future earnings, I select a multiplier of 12 years for this forty-year old lorry driver. The total of the general damages under this head is therefore $316,800 ($2,200 x 12 x 12).

59. An item of special damages which I allow is $1,000 for travelling expenses occasioned by the accident. This covers the wife's visits to the 1st plaintiff in hospital and his accompanied visits to the psychiatrist.

60. $3,500 was also claimed for special foods but I disallow this item on the basis that there was no evidence of any need for such special foods.

61. My total award amounting to $698,800 can be summarised as follows :

General Damages

Special Damages

62. On item (i) of the general damages there will be interest at 10% from the date of this issue of the writ till judgment. (Pickett v. British Rail Engineering Ltd (1978) 3 W.L.R. 955). My choice of interest rate reflects the high cost of borrowing money of recent times. It does not pretend to be a precise average but is meant to be a fair rate appropriate to the times we have just lived through. Items (ii) and (iii) which relate to future economic loss do not qualify for interest to date.

63. The special damages will carry interest at 5% from the date of the accident till judgment.

Representation:

Mr N. Pirie (Hampton, Winter & Glynn) for plaintiffs

Mr H. Poon (Cheng & Lam) for defendant