Basil Peter Barnett and Another v. Chan Ting Chung

HCA003021/1974

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 3021 OF 1974

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Coram: Cons, J.

Date of Judgment: 24 June 1975

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JUDGMENT

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1. Mr. Barnett, the 1st plaintiff, was the Secretary/Manager of the Royal Hong Kong Golf Club. He started on the 10th January 1970. Mrs. Barnett, the 2nd plaintiff, joined him soon afterwards. They lived in very high quality furnished accommodation provided by the Club at Fanling. At that time the Club was engaged in a vast expansion exercise that would make it, according to its own boast, one of the largest golf centres in Asia. It was a great challenge to Mr. Barnett. He met it with great excitement and obviously with great success. He was very fond of his job with the Club and the Club was equally pleased with him.

2. Then some two years later on the 21st October 1972 he met with a car accident. He was a passenger in a car being driven by the defendant when it collided with another car. Mr. Barnett was taken to hospital with a lacerated scalp and concussion. All told he was detained for about eight days and after a few more days' rest returned to work. But he did not recover. He was suffering, and still is, from what is called post-concussional syndrome. This syndrome has two aspects, the physical and the mental. Physically the patient suffers from dizzy spells and headaches. Mentally he becomes irritable, unable to concentrate and subject to depression and anxiety. Usually the symptoms clear up with time, varying from a few weeks to sometimes several years. A lot depends upon the temperament of the individual. Those predisposed towards neurosis are more severely affected. The circumstances of the injury also appear to play a part. The effects are generally much longer lasting in injuries received in traffic or industrial accidents than those received in sport or play.

3. Mr. Barnett's symptoms have not cleared up even though now it is more than two years since the accident. Almost certainly the nature of his work is largely to blame. One of the things that the victim of this syndrome should avoid is stress or pressure. That was naturally impossible in his job, although he did discontinue as far as he was able the social aspects of his work. Unfortunately also his only form of relaxation had been golf, which he was now unable to pursue because of the dizzy attacks which came after one or two holes. Instead of getting better after the accident Mr. Barnett steadily got worse. Increase in the daily dosage of drugs produced no relief. Things came to a head towards the end of last year. On four occasions the dizzy spells led to actual physical collapse. His doctor came to the conclusion that the only thing to do was to change his job and find something that would be less demanding, something that would give him more time to himself. When he collapsed for the 4th time just after Christmas Mr. Barnett finally took that advice. He did not leave immediately but carried on until the end of February so that the Club could find a replacement. He and Mrs. Barnett then moved to Perth in Western Australia where they had recently purchased a house, but he has not as yet been able to find any other employment. He is still suffering from the dizzy spells and headaches.

4. Defence counsel does not seriously dispute negligence, but for the sake of the record I should say that on the evidence I am satisfied it has been shown. Counsel does, however, dispute liability for damages, in particular with regard to those that flow from the loss of employment. His argument is divided into three parts.

5. Firstly, he says there is doubt that Mr. Barnett's symptoms are the result of the accident. Post-concussional syndrome, as its name implies, usually follows upon injury to the head. But according to Dr. Lee, the neurological specialist called by the defence, this is not always so. It may arise independently of injury, from purely psychological causes. Several possible causes were put forward by counsel. Only two merit mention. One was domestic trouble between Mr. and Mrs. Barnett. Apparently they were separated for three months in 1971 when Mrs. Barnett went to her daughter in South Africa. Also at first she was not very happy at having to live in such a remote place as Fanling. But there is evidence that after the accident the two became extremely close and I am not satisfied that earlier marital friction played any effective part in Mr. Barnett's later condition. The other possibility was change in the Club's administration early in 1974. This was when the Club was forced more suddenly than it had intended to take over its own billing and accounting work which had previously been sent out to independent accountants. To some extent this imposed more responsibility upon Mr. Barnett although at the same time he was given professional staff to deal with the extra work. It is probable that these changes aggravated the situation but I am not satisfied that they constitute a new or separate cause. Dr. Gribben, who had known Mr. Barnett for the two years that he had worked prior to the accident and has treated him regularly ever since, is confident that but for the fact of the accident Mr. Barnett would have taken these changes in his stride. The doctor is firmly of the opinion that the accident is directly responsible for all that Mr. Barnett has suffered. I accept that opinion.

6. Some criticisms were made of Dr. Gribben's handling of the case, but no real alternative has been offered. Dr. Lee said he would have gone deeper, but he was not asked to elaborate. And the various medical authorities to which I have been referred generally seem to indicate that the treatment adopted by Dr. Gribben is what would normally have been expected.

7. Then it is suggested that even if the symptoms did arise from the accident they were not so serious as to make it necessary for Mr. Barnett to resign, but that rather he sought to exploit for his own benefit what he thought was a rather favourable opportunity. In support counsel relies upon:

8. Mr. Barnett's general credibility is also attacked. This is a matter of importance because so little of his condition can be positively established by objective evidence. Reference was made to

9. There is merit in these criticisms but at the same time I have had ample opportunity to observe Mr. Barnett. I have come to the conclusion that he is substantially reliable. I accept his explanation of the letters of recommendation and the "application" for work in Australia. I do not think anything adverse should be inferred from the actions in Australia. They were wise precautions in view of the possibility, which was by then already apparent, that he might not be able to carry on with his employment here. I see nothing significant in the conduct of his solicitors nor in the fact that he managed to carry on for one month longer than he needed until the Club found a suitable replacement. The criterion by which his resignation must be judged is whether it was reasonable at the time. Having regard to the circumstances and the advice given by Dr. Gribben I am satisfied that it was.

10. Finally it is argued that as the contract under which Mr. Barnett was employed was due to and did in fact expire at the end of January this year and as the Club was under no obligation to renew, no future loss of earnings has been proved. That is true in so far as it relates to the strict legal position. But after hearing the evidence of Mr. Holgate and Mr. Browning and reading the evidence of Mr. Slack I have no hesitation in concluding that in fact the Club would have continued to employ Mr. Barnett for many years to come.

Special Damages

11. Special damages present little problem. The figures for doctors and hospital fees have been agreed, although I have amended them slightly to allow for the sigmoidoscopy which is not related to the accident and for the cost of drugs since the 14th November last year. There is a claim for clothes lost by Mr. Barnett at the hospital and for expenses incurred by Mrs. Barnett in visiting him. Mr. Barnett has been virtually unable to drive his car since the accident and I am satisfied that the amount claimed was reasonably spent on hired cars to attend various meetings of Club Committees. Some of the monies may really belong to the Club or to the Club's insurers but there seems to be no doubt now that they are recoverable by the plaintiff in the first instance: Donnelly v. Joyce⁽¹⁾. The amounts are as follows:

Pain and Suffering and Loss of Amenities

12. This award must depend to a large extent upon how long it will be before the condition clears up. Neither doctor gave a definite prognosis and I have to estimate it for myself as best I can. I think that it should not be long now. I arrive at this conclusion for two reasons. Firstly, however one looks at the evidence the period of post-traumatic amnesia was not long and this is accepted as a rough guide to the length of the subsequent symptoms. Secondly, two of the psychological features that must have played an important part in Mr. Barnett's condition have now been removed. One is the pressure of his job at the Club and the other more recenfly is the uncertainty of the outcome of this action. Bearing this in mind and having regard to other awards in this jurisdiction and to some extent to awards for similar injuries in England⁽²⁾ damages under this head are assessed at $20,000.

Loss of Future Earnings

13. In addition to his basic salary Mr. Barnett was provided with free furnished accommodation and all utilities, a car and all its running costs, annual passages to England for himself and Mrs. Barnett, and a discount on anything purchased at the Club. He was also entitled to certain benefits from a Provident Fund. The total value therefor of his employment to him, after allowing for the tax he would have to pay is, in round figures, something like $150,000 per annum. He is now 55 years of age and but for the accident would have been normally healthy. He intended to work for another ten years. However, allowance must be made for the usual contingencies, and as a general basis for my decision I have adopted a multiplier of 6.

14. Two other matters have then to be taken into account - the possibility of other employment and the fact that damages are paid in a lump sum. The former is very much a matter of conjecture. On the one hand 55 years of age is not a good age at which to be looking for employment. On the other positions for persons like Mr. Barnett do arise here from time to time and presumably also elsewhere. And when that time comes Mr. Barnett can put himself forward as an experienced and capable man with an extremely high reputation in this Colony. Bearing these matters in mind I have come to the conclusion that the proper figure for damages to be awarded under this head should be $300,000.

15. Judgment is therefore entered for Mr. Barnett in the total sum of $332,126.10, and for Mrs. Barnett in the sum of $350. Interest is awarded on the sum of $20,000 thereof at the rate of 8% from the 24th December 1974 until today and on the sums of $12,126.10 and $350 at the rate of 4% from the 21st October 1972 until today.

Representation:

R.H. Mills-Owens (Deacons) for 1st and 2nd plaintiffs.

A.J. Sanguinetti (Peter Mark & Co.) for defendant.

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

(2) reported in 1971 2 & 3 C.L.Y. Books