Lee Koon-keung v. Ng Chi-yat and Another

HCA001297/1974

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 1297 OF 1974

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Coram: Cons, J.

Date of Judgment: 30 January 1975

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JUDGMENT

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1. In October, 1971 the plaintiff was a young man aged 18 years. He was an apprentice metal worker. On the morning of the 14th of that month he was cycling to work as usual when he was knocked off his bicycle by an oil tanker driven by the 1st defendant, belonging to the 2nd defendant. I have already decided that the liability for that accident rests entirely upon the defendants and have given that decision and my reasons at the conclusion of the trial. All that remains is the assessment of damages.

2. It would seem that the tanker first brought the defendant to the ground and then ran over his left leg with one of its wheels. The plaintiff was, of course, taken to hospital. There was no fracture or open would in the leg but not surprisingly there was considerable damage to its tissues. This hindered the blood supply and caused gangrene. The surgeons advised amputation. The plaintiff resisted but eventually one week later he accepted their advice and the leg was removed from just above the knee. Altogether the plaintiff was detained in hospital for nearly six months. During the latter part of this period he was fitted with an artificial leg and taught how to use it.

3. He can now walk reasonably well and can manage staircases. It is obvious to the on-looker that there is something wrong with his leg but in general he has made a good recovery. It is better than would on the average have been expected. To a large extent this is due to his own character and determination. Nevertheless it has been a long road. When he was discharged from hospital he could walk only slowly and for short periods and with the help of a stick. It was not until January, 1973 that he was fit enough to start looking around for employment. And not until September that he found some. That was almost two years after the accident. These dates are accepted as reasonable by the defence. The plaintiff now has a sedentary job making model ships for display purposes. He is able to get to his place of employment by minibus, or sometimes, if he feels like it, by walking. That takes about half an hour. Apart from this he does little that is particularly active. He is too embarrassed to resume swimming which is a past-time in which he indulged before the accident. On the other hand, the evidence does not really suggest that he used before to lead an active out-door life. On the contrary, indications are that he was a fairly quiet, homely person.

Pain and Suffering and Loss of Amenities

4. I am told that in Hong Kong there is no reported decision dealing with the loss of a leg. I was therefore referred to English cases. In Ward v. James⁽¹⁾ Lord Denning put the usual pattern of awards for loss of a leg at £4,000 to £6,000. That was nearly nine years ago. The pattern is now much higher. The author of a note at 1974 New Law Journal 279 puts it at £7,000 to £10,000. Individual cases recorded in recent issues of the Current Law Year Book confirm this level. However, I would respectfully agree with the comments made in this Court in Lung Chun Ming v. Yeung On⁽²⁾. The correct approach is not to decide what would be awarded in England and then convert into Hong Kong dollars. Damages of this kind must in general be related to the way, standard and cost of living in the jurisdiction in which they are awarded. To hold otherwise would leave litigants at the mercy of rates of exchange. It would be intolerable for example that the general level of damages in Hong Kong should be reduced overnight because the United Kingdom authorities thought it desirable to devalue the pound sterling.

5. Conventional awards in Hong Kong for serious and permanent injuries to the leg which require one or more operations but fall short of amputation have an upper limit in the region of $25,000 to $30,000. In a recent case before the Full Court, The China Motor Bus Co., Ltd. v. Oram⁽³⁾, the plaintiff had sustained serious injury to his hip which would in time require an operation to replace it completely with an artificial joint. There were other lesser but still important injuries. His damages were assessed at $35,000. Bearing these matters in mind I think a proper figure in the present instance should be $55,000.

Special Damages

6. At the time of the accident the plaintiff was earning 13 a day including Sundays when he was not actually required to work. That means that the earnings he lost during his stay in hospital, some 173 days, amount to $2,249. By the time of his discharge he would in the normal course have finished his apprenticeship and have been able to command wages of $600 per month. The claim for loss of earnings from then until he finally obtained other employment is, therefore, and properly so, based on this enhanced figure. It amounts to $10,440. In addition there are charges for hospital fees, blood plasma and the cost of the artificial leg. These add up to $1,312, giving a grand total of special damages in the sum of $14,001.

Loss of Future Earnings

7. This is more difficult to assess. There is no independent evidence of what the plaintiff might otherwise have been able to earn now. He tells me that the figure would have been $35 per day. On the other hand, he is unable to tell me the current wage of master craftsmen in his trade. I think it would be safe to assume that if he would have been able as a recently qualified craftsman to earn $600 a month at the end of 1971 he should be now able to command a wage of $900 to $1,000. I doubt if in the future he would have been able to go beyond that figure apart from the natural and general increase in wage levels. The only line of advancement he could put forward was to set up business on his own, but that would probably have required capital.

8. At the moment he is earning $450 per month. Future prospects must be slight in that particular job. But I cannot accept that he will do nothing to improve his lot. He is young, determined and not unintelligent. He will also at the conclusion of this case be in possession of a considerable capital sum. A fair figure for future loss of earning capacity is $35,000. To this should be added the sum of $3,000 to represent the cost of replacement of his artificial leg and other recurrent medical expenses.

Interest

9. I am asked to award interest on the damages recovered. Early last year in Lee Pui Kee v. Ng Chak Tong⁽⁴⁾ I set out the reasons why to my mind this Court should not yet alter its general practice of making no such award in personal injury cases. The law still remains as it was then and I see no reason to alter my opinion. However, it is in general not desirable that the Court should raise questions which the parties themselves do not seek to litigate, and in this instance no objection is raised to the request for interest. I am, therefore, prepared to exercise my discretion in the plaintiff's favour.

10. The principles upon which the award itself should be based were suggested by the English Court of Appeal in Jefford v. Gee⁽⁵⁾. They were apparently approved by the Full Court in Oram's case to which I have already referred, although I understand there was no argument upon the point. This was a pity. It would be interesting to have comments on the view of the Law Commission that interest should not be awarded on damages for pain and suffering and loss of amenities⁽⁶⁾. Jefford v. Gee suggested that interest at half the rate allowed should be awarded on the total sum of special damages from the date of the accident; and upon the amount awarded for pain and suffering and loss of amenities at the full rate from the date of the service of the writ. No further division of the latter sum should be made. And no interest should be awarded for loss of future earnings.

11. The English Court of Appeal felt that the rate of interest should be the same as that awarded after judgment. But in England that rate was unrealistic and he Court was forced to look elsewhere. In Hong Kong the post judgment rate is fixed by section 30B of the Supreme Court Ordinance at 8%. That is a realistic rate and I am happy to adopt it. I intend also to follow the example of the English Court and leave the defendants to decide for themselves whether they should, when making payment, deduct tax in accordance with Part V of the Inland Revenue Ordinance.

12. Damages are awarded to the plaintiff in the sum of $107,001, made up of special damages of $14,001, damages for pain and suffering and loss of amenities $55,000 and for future pecuniary loss $38,000; interest is awarded at the rate of 4% upon the sum of $14,001 from the 14th October, 1971 and upon the sum of $55,000 at the rate of 8% from the 8th June, 1974 in both cases up to the date hereof; the plaintiff is to have his costs against both defendants which shall be taxed in accordance with the Legal Aid Scheme.

Representation:

D.M. Goodbody (Gordon Hampton & Winter) assigned for the plaintiff.

Ronald E. Mayne (H.H. Lau & Co.) for 1st and 2nd defendants.

(1) [1966] 1 Q.B. 273 at 297

(2) [1963] H.K.L.R. 572 at 583

(3) Civil Appeal No. 36 of 1974

(4) O.J. 1429 of 1973

(5) [1970] 2 Q.B. 130

(6) Law Commission No.56, 1 case of Commons Paper No.373 of the 24th July, 1973