Chik Shiu Sheung-man v. Leung Wai-hung and Another

HCA003170/1979

Damages for personal injuries -- recoverability of special damages incurred by the victim's husband for her needs arising from a traffic accident -- a lower multiplier adopted in a market of higher interest rate.

-----------------

-----------------

Coram: Mr. Commissioner Liu, Q.C. in Court.

Date of Judgment: 24th January, 1980.

-----------------

JUDGMENT

-----------------

1. This is a claim by the plaintiff for damages arising from a traffic accident on the 2nd February, 1978, whereby the plaintiff was injured by a public light bus driven by the 2nd defendant as a servant and agent of the 1st defendant.

2. Vicarious liability has been admitted; so is liability but to the extent of 70%. Thus, it falls upon me to assess quantum.

3. The plaintiff was then 56, and as a result of the injuries sustained, she was hospitalized for three to four months. During her confinement, she underwent a tracheotomy and brain surgery. She was discharged on the 28th May, 1978. Her conditions were said to have improved until February 1979.

4. The plaintiff suffered brain damage. As the plaintiff was constantly under medication in regulated conditions, the question of pain has, therefore, considerably lost much of its prominence, particularly in comparison with her mental and psychological disturbances. She is and will remain hemiplegic. On her way to partial recovery, a great deal of distress and anguish was experienced. There is no loss of expectation of life. The hemiplegia on her left side is to remain permanent. Disparity in functions between her normal right and her sub-normal left will hopefully be further reduced. She will forever be barred from leading an active life to which she had grown accustomed prior to the accident, and she will be suffering from hemiplegia with all the attendant impairment in speech, motion and vision.

5. I turn next to the doctors' evidence. In substance, with different professional objectives in mind, the medical opinions of the two doctors do not seem to be inconsistent. I accept both of their conclusions. Dr. Wen has opined that the plaintiff will have to be aided for the rest of her life, but the extent of her ultimate dependency will have to be re-assessed in approximately a year from today, yet, according to the surgeon, with no certain hope of precision. Dr. Cheng testified to the stagnation in the plaintiff's progress after February 1979. Physiotherapy is, according to both doctors, necessary to arrest muscular atrophy due to the disuse of the left limbs. Dr. Cheng was adamant that further significant improvement of the limbs, in its true utility aspect, is nowhere in sight, nor expected.

6. On these information, I am invited to assess damages. It has been strongly urged on behalf of the defendants that in the state of evidence the Court finds itself, it must necessarily be a matter of speculation on the plaintiff's condition after a year, and it was sought by counsel for the defendants to impose a limitation on damages to a period of not more than some twelve months from today on account of the plaintiff's alleged failure to establish, by cogent evidence, her future disabilities.

7. Counsel for the plaintiff has, with meticulous care, led me through his lay client's claim for special damages both in the course of the evidence and in his final submission. I do not propose to repeat these items to which my attention has been drawn. Suffice it for me to say that on the evidence given in this case, I find the special damages proved to the extent of $329,742.50. It goes without saying that I accept and rely on the evidence given in support of these various items of damages by the witnesses called by and on behalf of the plaintiff.

8. As to the question of recoverability of these special damages, I further find that all these items of special damages have been reasonably incurred as judged by the plaintiff's station in life. The plaintiff is a housewife and owner of no less than nine properties. Her husband is a shipping manager as well as running his own private business on the side. Mr. Cheuk, PW9, confirmed that he had paid all the expenses incurred and proved in this Court as special damages. Each and every item of expenditure so proved is, in my view, directly attributable to injuries sustained by the plaintiff in the accident, subject matter in this action. Such injuries and the plaintiff's consequential needs were, in my judgment, directly caused or brought about by the defendant's wrong doing, as it were. I have been invited to peruse various authorities submitted by both counsel, and I am reminded that the question remains very much a live issue in Hong Kong today. There are well-reasoned expositions given obiter in Fuk Mui v. LAI Man-wai & PONG Kam-tai⁽¹⁾ by Cons J., the judgment of which was delivered on the 3rd March 1978. The learned judge preferred and adopted the approach in Donnelly v. Joyce⁽²⁾. There appears to be no justification, having been ably assisted by both counsel, for departing from the wisdom of the learned judge in his observation. In the result, I also take the view that expenses incurred for the needs of the plaintiff arising from the traffic accident in question are recoverable in these proceedings.

9. I turn next to consider general damages, the two main items of which are "pain and suffering and loss of amenities" and "future expenditure". Under the first head, at one time a lower figure than $100,000 seemed to have much to commend itself, but I ought really to bow to counsel's virtually joint wishes for a sum not below $100,000. Taking all into consideration and bearing in mind that I have not seen or heard the plaintiff herself in this case in the witness stand, I am, nevertheless, prepared to and do find the figure of $100,000 as being appropriate and reasonable in the circumstances.

10. Counsel for the plaintiff calculated for my benefit $6,200 as one year's expenses claimed for the nurses, day shift and night shift, inclusive of substitutes. Fees for the physiotherapist $2,880 in one month, fees for group occupational therapy $176 a month at David Trench Clinic, the total comes to $9,256 per month or $111,072 per year. Dr. Wen's fees are expected to be $1,200 for the year. Dr. Cheng's visits at $600 per month would come to $7,200 per year, and therefore inclusive of the doctors' fees the total annual expenditure claimed is $119,472.

11. Dr. Wen testified that the plaintiff's present needs would continue for at least another year subject to future re-assessment in the course of the next twelve months. I would expect the plaintiff to have to incur in the coming year $119,472.

12. At my invitation, the table of life expectancy in "Kemp and Kemp" was produced. Mr. Stone took exception to my perusal of and reliance on that table. I can see nothing intrinsically objectionable to references being made to such table of life expectancy. For a female of 57 at the date of trial, with all things being equal, life expectancy is given as 20.73 years, but then one must not overlook that that is an estimation of an individual resident in the United Kingdom or England. It would not be arbitrary of me, knowing the local conditions as I do or as everyone should, to decline drawing a strict parallel. To do the best I could, a life expectancy of 15-16 years for the plaintiff would not appear to be uncharitable. I must concede that I have dragged myself within the sphere of criticism raised by counsel for the defendants, Mr. Stone, but assessment of general damages in a running down case lies very much in the field of educated conjecture and surmise guided by known principles.

13. I have not seen the plaintiff in the witness stand. From the transcript before the learned magistrate, there is no indication that she was handicapped in giving sensible and relevant evidence. Mr. Cheuk told the Court that his wife is not as perfect as she was before the accident. That, of course, is only too true, coming from a man who holds the plaintiff close and dear to his heart.

14. Adjustments in care and attention will have to be made in the circumstances as known. Miss Cheung, the physiotherapist, told the Court that if the plaintiff could walk steadily, physiotherapy treatment could be reduced to as little as three times a week. Her professional charges are $60 per half an hour, and each session of an hour and a half is $180; three times a week would make it $540; fifty-two weeks in a year would make it $28,080. Despite the evidence of Dr. Cheng that the plaintiff's progress seems to be slow after February 1979, in all the circumstances, it would not be out of bounds for me to project into the future with a need for only three sessions a week with the physiotherapist. The plaintiff had two nurses after the incident and for quite some time after her discharge. As the plaintiff's conditions improved, she and those who are caring for her have become wiser. Not locally qualified persons are now being engaged at a somewhat moderate remuneration. In all the circumstances known, it would be open to me to and I do so find that ultimately only an additional domestic help cum companion is all that would be required, but of course, her task is expected to be more cumbersome and demanding. Projecting into future, I find the sum of $2,000 representing her remuneration as being appropriate. That would make it $24,000 a year. Eventually, with good will from the Dr. Cheng and no doubt comforting words and persuasion from members of her family, I can see no reason why visits cannot be made by the plaintiff to Dr. Cheng's clinic and with less frequency instead of the present regular house visits. To do the best I could, I consider that eventually once a month to see Dr. Cheng at his clinic would be sufficient, staying perhaps a little longer than an ordinary patient, incurring about a hundred dollars' fee. That would make $1,200 a year. In the circumstances, the frequency of clinic attendance with Dr. Wen will not be expected to be reduced. That will stay at approximately once every three months at $300 per visit. That again will come to $1,200 a year. The doctors' fees in time to come after one year would, I imagine, be in the region of $2,400 a year.

15. All in all, the expenditure after the coming year would come to $54,480 per annum. I have mentioned a life expectancy of 15-16 years. Bearing in mind the computation of the number of years of purchase based on the rate of interest set out in pages 982H to 983A in the case of Cockson v. Knowles⁽³⁾, though the decision was not followed in another case in Their Lordships' House, the guidance to be gained is that the higher the interest rate, the lower will be the number of years of purchase adopted. I have given this matter my concerned considerable, and I have swayed, during submissions of counsel, from one view to another. I have ultimately selected the figure of six years' purchase in the light of the present trend of high interest rate which is anticipated to continue and taking into account acceleration and practical absence of tax liabilities.

16. I have allowed one year in full to the extent of $119,472. Therefore, there are five more years to come at $54,480. That should come to $272,400. To recapitulate: (1) special damages of $329,742.50, (2) pain and suffering and loss of amentities, $100,000, (3) the first full year's expenditure of $119,472 and (4) five years' purchase out of the six, $272,400. The grand total is $821,614.50. 70% of that comes to $575,130.15.

17. Finally, I come to the question of interests. I have been referred to the case decided by Mr. Commissioner Lee Q.C. in LAM Mei-lan v. LEUNG Yuk and others⁽⁴⁾, the judgment of which was delivered on the 8th December last year. Counsel for the plaintiff invited me to follow the ratio on the award of interests. There is a marked distinction between Section 48 and Section 49 of the Supreme Court Ordinance. Whilst the former deals with award of interest on claim and damages, the latter deals with interests accrued on a judgment debt. Section 49 provides that a judgment debt shall carry interests at such rate as may be prescribed by the rules of court, and Order 42 Rule 1(4) fixes the rate at 8% per annum. There does not seem to be any inhibition against granting any interest higher than 8% on a claim for damages as envisaged by Section 48 of the Supreme Court Ordinance, particularly Section 48(4) which incorporates S. 22 Administration of Justice Act. 1969. As a matter of fact the converse is true. Passages at pages 40 to 42 in the 1979 White Book (marginal reference 6/2/7B) provide interesting reading in conjunction with Pickett v. British Rail Engineering Ltd.⁽⁵⁾

18. However, Mr. Stone submitted that there was no evidence as to the average interest rate throughout the period from February 1978 to today, early 1980. The Court has not been assisted as to the fluctuating rates of interests during this period spanning over almost two years. One must be conscious of the phenomenon in the present over-heated money market, the interest rate in which can give no real guidance for an accurate computation of the realistic compensation for having kept the plaintiff out of her entitlements during the past two years, and for this reason I do not find enough justification for making a departure from the norm of 4% and 8%.

19. 70% of special damages, should come to $230,819.75, and interests be awarded at 4% per annum on that sum from the date of the injury that is the 2nd February 1978 to the date of judgment today that is 24th January 1980. 8% is to be awarded on $70,000 from the service of the writ on the 23rd July 1979 to again date of judgment i.e. today 24th January 1980.

20. It remains for me, therefore, to order (1) judgment for the plaintiff against both defendants in the sum of $575,130.15, (2) interests at 4% per annum on $230,819.75 from the 2nd February 1978 to the 24th January 1980, (3) interest at 8% per annum on $70,000 from the 23rd July 1979 to the 24th January 1980 and (4) costs against both defendants. I further order a stay of execution for ten days without prejudice to the defendants' right to apply for further stay.

Representation:

Mr. A.H. Sakhrani instructed by Messrs. Johnson, Stokes & Master for Plaintiff.

Mr. W. Stone instructed by Messrs. John Ip & Co. for both Defendants.

(1) High Court Action 2661 of 1977

(2) [1974] 1 Q.B. 454

(3) [1978] 2 W.L.R. 978

(4) High Court Action 676 of 1979

(5) [1978] 3 W.L.R. 955.