Liu Chun Kow Joe v. Lee Sau Wing
Read the full judgment text of CACV 304/2007 on BabelCite. This Court of Appeal judgment was delivered on 16 April 2008.
1. The plaintiff was injured in a traffic accident on 28 June 1998 as a result of the negligent driving of the defendant. The plaintiff claimed damages for personal injuries against the defendant. The defendant conceded liability and assessment of damage was made by Waung J. After a hearing which lasted for 10 days the Judge assessed damages in the sum of $648,444.93. The award is made up as follows :
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IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 304 OF 2007 (ON APPEAL FROM HCPI 399 OF 2001) ----------------------
---------------------- Before: Hon Cheung JA, Sakhrani and Chu JJ in Court Date of Hearing : 1 April 2008 Date of Judgment : 16 April 2008 ---------------------- J U D G M E N T ---------------------- Hon Cheung JA : Assessment of damage 1.The plaintiff was injured in a traffic accident on 28 June 1998 as a result of the negligent driving of the defendant. The plaintiff claimed damages for personal injuries against the defendant. The defendant conceded liability and assessment of damage was made by Waung J. After a hearing which lasted for 10 days the Judge assessed damages in the sum of $648,444.93. The award is made up as follows :
The appeal 2.The defendant lodged an appeal against the following awards :
3.The defendant further appealed against the Judge’s failure to apply a 60% discount to the following items :
4.The defendant also appealed against the order that the plaintiff was entitled to 70% of the costs of the action. The cross appeal 5.The plaintiff also lodged a cross appeal in respect of the following :
Day-off-in-lieu 6.The plaintiff is an officer of the Correctional Services Department (‘CSD’). The evidence showed that staff at the CSD are required to perform an additional shift of duty and will be compensated with one-day ‘Day-off-in-lieu’ (‘DOIL’) for that shift duty. In monetary terms it means that the staff will be entitled to a day’s leave with pay. 7.The plaintiff’s claim on DOIL was for the sum of $82,932.00. The plaintiff used his DOIL for the purpose of medical appointments. The arrangement he made with CSD was that on the day he would attend a medical appointment, he was given half a shift and he himself took the other half day off from his DOIL for medical examination. The Judge recognized that CSD would give the staff proper time off to attend medical examination and the staff do not need to take time off themselves for such a purpose. He, however, held that :
The defendant’s case against this award 8.The defendant’s argument against this award is that on those occasions when the plaintiff took the half DOIL, he was in fact paid by the Government and he therefore had suffered no loss. The defendant relied on Lord Reid’s speech in Parry v. Cleaver [1970] AC 1 at 13D that it is a universal rule that the plaintiff cannot recover more than he has lost. It was argued that the distinction between pecuniary loss and non-pecuniary loss was overlooked. The difference is set out in Heil v. Another [2002] 2 WLR 1173 where Lord Woolf MR held that
9.It was further argued that the award made by the Judge was in fact a compensation for the loss of amenities aspect of PSLA suffered by the plaintiff as a result of the injury and as the Judge had already given a generous award of $140,000.00 (based on $350,000.00 discounted by 60% due to pre-existing disability), it was wrong to make a further award under this head. The defendant relied on McGregor on Damages 17th Ed, Para 35-215 which gives a summary on the well known PSLA :
10.In Ichard v. Frangoulis [1977] 1 WLR 556 a driver was injured while on holiday. He was able to continue with the holiday but suffered pain from the injuries he sustained and the discomfort of having to wear a leather harness. It was held by Peter Pain J that there should not be a separate head of award but the loss should be considered under general damage (i.e. PSLA) and as a factor which will lead to a more generous award. My view 11.I do not consider that the Judge has overlooked the distinction between pecuniary or non-pecuniary awards. Nor do I regard the award under challenge should be considered as a ‘loss of amenities’ award. Despite the expansion of the scope of PSLA since 1950 (see McGregor) the award is still in the nature of an award for the discomfort and inconvenience suffered by a tort victim. Such discomfort and inconvenience are intangible in the sense that they are not easily quantifiable in monetary terms and as such the Court strives to determine what is the fair, reasonable and just equivalent in monetary terms. 12.However, the claim by the plaintiff under this head is totally different from the discomfort and inconvenience situation. DOIL was a benefit to him. He was entitled to take a day off with pay. But because he had to use the DOIL to attend the medical examination he could not in fact obtain the real benefit of the DOIL. He suffered a loss and he quantified the loss by reference to the amount of wage for that day. I just do not see why he was not entitled to recover this from the defendant who caused him the loss. The loss of benefit is a well recognised head of damage. In Liffen v Watson [1940] 1 KB 556 a worker was given a benefit of 25 shillings a week by her employer as board and lodgings in kind. After the injury the worker was provided with lodging by her father. The English Court of Appeal held that the worker was entitled to a claim for the loss of her benefit. Slesser L.J. held that this is based on the general principle that :
13.Goddard LJ held that,
14.I agree with these observations. The plaintiff here lost the value of the DOIL and he was entitled to be compensated by the defendant. I will reject the defendant’s appeal of this item. Loss of vacation leave 15.The plaintiff claimed $53,392.00 for loss of 32 days of vacation leave (from 22 February 2002 to 25 March 2002) because he had used up his sick leave with pay and used his vacation leave for the purpose of his sick leave. 16.This plaintiff as a civil servant was entitled to sick leave with pay. However, he was only entitled to a specific period of such leave. Thereafter if he applied for sick leave, he might be granted sick leave but without pay. In this case he had used up his paid sick leave. If he applied for days off during the period when he was granted sick leave it would mean that he had had to forgo his pay for that period. Instead he used his vacation leave (when he was paid by the Government) for the purpose of taking those days off and he made a claim for the loss. 17.The defendant relied on the same argument in respect of the DOIL claim. I would likewise reject this argument. The plaintiff lost a benefit he otherwise would be entitled to by using the vacation leave for the purpose of his sick leave. He was entitled to be compensated by the defendant. Apportionment 18.In the written submission of Mr. Ronny Wong S.C. and Mr. Tony Ko, counsel for the plaintiff, it was submitted that both Items 3 and 5 should be subject to a 60% discount adopted by the Judge in respect of PSLA. However, at the hearing, this was not pursued. Instead it was argued that the Judge should have, as he had done in relation to Item 3, apportioned Item 5 because under Item 3 the plaintiff only used half days for medical examination. 19.The difference between the two claims is that the plaintiff was between 13 February 2002 and 19 February 2002 hospitalised. He was granted sick leave by the government doctors between 13 February 2002 and 25 March 2002. The relevant period of claim was between 22 February 2002 to 25 March 2002. This being the case there was no question that he was still able to work for half a day as in his DOIL claim. Plainly he was not able to do so. Hence there should be no apportionment for Item 5. Discount on other items 20.The defendant in the written submission had submitted that a 60% discount should be made on the other items but at the hearing, however, it only maintained that the 60% discount should be applied to the following items
21.In respect of Item 2, although initially the defendant in its ‘Amended Answer to Revised Statement of Damages’ denied that the plaintiff was entitled to this claim because of his pre-existing condition, in the Scott Schedule the defendant agreed to this sum and in the written closing submission of the defendant’s counsel (not Mr. Wong and Mr. Ko who only appeared in this appeal) the past loss of earning was agreed at $135,711.00. 22.As this was an agreed sum, the defendant was not entitled to challenge it in the appeal. I also refused leave to the defendant to reopen this issue as this would be unfair to the plaintiff when the question of apportionment was not raised below. 23.As to loss of overtime work, the plaintiff claimed $46,042.00 but the Judge only awarded $5,000.00. This is a huge discount and I do not consider it to be right to make any further discount. 24.As to future costs of maintenance of $10,000.00 (Item 13), this was not specifically identified in the defendant’s written submission. This was originally a claim of $15,000.00 for further psychiatric treatment. The Judge allowed $10,000.00. I am not prepared to order a further discount. Was the Judge entitled to discount the plaintiff’s disability by 60%? The physical injury 25.The plaintiff was injured on 28 June 1998 when the defendant’s car collided with his. He lost consciousness and only regained consciousness after the arrival of the firemen. He was then admitted to the Queen Mary Hospital (‘QMH’) where on examination it was found that (1) he could move both his upper and lower limbs; (2) local tenderness was elicited at the lower back region; (3) the abdomen was soft; (4) rectal examination was normal; (5) x-ray of his neck, chest and pelvis showed no obvious abnormality. 26.The Plaintiff’s symptoms of back and neck pain improved with physiotherapy and he was discharged from QMH on 1 July 1998, 4 days after the accident. A follow-up appointment at Sai Ying Poon Clinic (‘SYP’) for 31 July was given to him. 27.The Judge then summarised the subsequent medical history of the plaintiff :
The psychiatric problem 28.The psychiatric problems of the plaintiff referred to in the summary was discussed in the Joint Psychiatric Report of Dr. K Singer and Dr. Chung See Yuen dated 23 August 2003 (page 23) :
Evidence on pre-existing disability 29.It is clear from the evidence that the plaintiff had, prior to the accident, problems with his back and also psychiatric problems. Based on the following records of PYNEH, namely, the Attendance Records between 1995 and 1996, Discharge Summary as amended and the Medical Insurance Hospitalisation and Surgical Claim Form, the Judge found that the plaintiff had back pain and attended on multiple occasions at PYNEH for muscle spasm and hyperventilation from 1995 to 1996 and that he was referred by the Orthopaedic Department to the Psychiatry Department of PYNEH. The plaintiff was seen by the Psychiatry Department on 11 April 1996 and was diagnosed to have anxiety disorder and panic disorder but he did not seek follow up treatment after 6 June 1996. 30.The plaintiff himself admitted that after swimming on 8 April 1998 he had lower back pain, difficulty in walking and was hospitalized for 8 days. Then on 26 April 1998, he had a fall at home. Apportionment of disability : physical 31.The Joint Orthopaedic Report of Dr. David Cheng and Dr. Danny Tsoi dated 16 September 2003 stated there should be apportionment between the disability suffered by the plaintiff by reason of his precondition and the accident. They said that,
Apportionment of disability : psychiatric 32.The two psychiatrists, however, differed on whether the plaintiff’s current anxiety problem was caused by pre-existing conditions prior to the accident. Dr. Singer was of the view that there was such a causal connection. He said at page 30 that,
33.Dr. Chung, however, disagreed. At page 30 he stated that
The Judge’s finding on pre-existing condition 34.The Judge found that the plaintiff prior to the accident had a pre-existing physical problem with his back and also pre-existing psychiatric problem. As to the latter he relied on the diagnosis of ‘Anxiety Disorder and Panic Disorder’ by PYNEH in 1996. He also preferred the evidence of Dr. Singer. He held
35.Based on this finding the Judge made a discount of 60% based on pre-existing disability of the plaintiff when he assessed the award for PSLA. Principles on pre-existing disability 36.There are three possible outcomes regarding pre-existing disability of a plaintiff : 1) The plaintiff would probably go through life without being affected by the disability. If this is the case the defendant would be liable for all damage caused by his wrongful act. 2) There is a strong possibility that some other event or natural progression of the condition would have brought about the plaintiff’s present state. The Court would then need to assess the degree of possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life. 3) The pre-existing condition would certainly lead to disability and loss in the future. In such case, an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred. See Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLR 958. As Mortimer JA observed in that case,
The plaintiff’s case against apportionment 37.Mr. Sakhrani’s (counsel for the plaintiff) argument against the apportionment is that there was no evidence which could indicate when the preconditions would manifest themselves into disability and loss. He referred to the evidence in Chan Kam Hoi which showed that the precondition would have affected the plaintiff’s working life from his mid-50’s and the medical evidence in Cheung Fat Tim v. Wong Siu Ming and Another (H. C. Action No. A5079 of 1991) which showed that the plaintiff could have been able, without the accident, used his diseased elbow relatively normally for another three to five years before the pain would become noticeable and drive him to seek treatment. 38.It is true that there was no such evidence in the present case. However, I do not regard such evidence to be the pre-requisite for an apportionment. Ultimately the issue has to be decided by the overall evidence that is available in a case. In this case the two orthopaedic specialists had stated that the degenerative back of the plaintiff was already symptomatic prior to the accident and that in the course of time is likely to deteriorate on its own right to cause symptoms even if the accident did not take place. By apportioning 70% of the plaintiff’s impairment to the pre-existing condition and 30% to the accident, the doctors clearly recognized the seriousness of the pre-accident condition. Dr. Singer likewise observed that ‘at least without the pre-existing back pain the likelihood of triggering of the Adjustment Disorder would have been much reduced say by 70%’ and that ‘his pre-existing psychiatric condition also partly caused his Adjustment Disorder’. In my view the Judge was clearly entitled to make an apportionment in this case in the light of such evidence. 39.Judges are not actuaries but their tasks frequently require them to make assessments of probabilities in quantitative terms based on available evidence. This is not done by way of a clinical, mathematical approach nor by intuition but in a way which more or less reflects the condition of the plaintiff based on the available evidence. In this case while a different judge may have given a different figure, I am not convinced that the Judge’s assessment that the plaintiff’s preconditions accounted for 60% of his impairment is so perverse that an appellate court should intervene. This is in the realm of a finding of fact. In any event it is to be noted that the discount was only applied by the Judge to the PSLA and not to loss of wage or other items. Hence the question of when in the future the preconditions would begin to affect the plaintiff’s work and his earning would not arise. Prospect of promotion 40.The plaintiff claimed that as a result of the accident, he lost his chance of promotion to one higher rank, namely, Principal Officer. Principles in assessing chance 41.In Davies v Taylor [1974] A.C. 207 at 213, Lord Reid stated that
42.Consistent with this approach, the English Court of Appeal in Allied Maples Group v Simmons & Simmons [1995] 1 WLR 1602 at 1610 per Stuart-Smith LJ held that
43.This was expanded later in the judgment under the third category of situations which may arise where the plaintiff’s loss depends upon the action of an independent third party. 44.The three situations are best summarised by Otton LJ in Doyle v Wallace [1998] PIQR Q146 at Q149 as follows :
The plaintiff’s hurdles on promotion 45.The plaintiff faced two hurdles on the issue of promotion. First he has to pass a promotion examination before he would be considered for promotion. This is a pre-requisite. Second, after passing the examination, his supervisors would then decide whether he is suitable for promotion. 46.Mr. Wong submitted that even before the Court comes to assess the chance of promotion of the plaintiff under the third situation, the plaintiff has to show on a balance of probability that he would be able to pass his promotion examination, a matter that falls within the second situation. 47.The Judge considered both issues and found against the plaintiff on both of them. This is what he said
48.In rejecting the plaintiff’s claim on promotion the Judge considered the following matters : (1) The plaintiff had not taken the promotion examination before the accident. He rejected the plaintiff’s explanation that he did not take it earlier because he wanted to reach the highest possible rank first. (2) The plaintiff, after withdrawing from the 2000 examination, chose not to retake it again afterwards. (3) The low passing rate of the examination. 49.All this indicated the difficulty of passing the examination and the plaintiff’s own assessment of his chance of passing the examination. The Judge further considered the low promotion rate of becoming a Principal Officer. 50.In my view the Judge had properly considered the reasons when he rejected the plaintiff’s claim for loss of chance of promotion and I disagree with Mr. Sakhrani’s submission that the Judge had not given reasons for his decision. This is again a finding of fact both in terms of primary facts and inference to be drawn from such facts. I do not consider the Judge had erred in any way. Costs of the trial 51.The defendant argued that the Judge was wrong to award 70% of the costs to the plaintiff because the defendant was the successful party. It was argued that costs had to be decided by reference to the issues raised by the parties. The plaintiff lost three major issues, namely, his pre-accident physical and mental state and his promotion prospect. The plaintiff’s claim of $5.8 million was reduced to $648,444.93 after trial. 52.The plaintiff argued that he was entitled to the whole costs of the trial. My view 53.I disagree with the defendant. In my view the plaintiff was the successful party. He recovered damages in the assessment. In respect of the 17 heads of damages claimed he recovered judgment on 14 of them. The three he had lost were loss of future earnings, loss of earning capacity and promotion related awards (grouped under one head of damage). 54.In my view in personal injury litigation where a plaintiff has recovered an award of damages it would be most unusual to deprive him of the costs on the ground that he has lost on the major issues that were raised at the hearing. Ultimately payment into court by a defendant in a personal injury case is the means by which the defendant would protect his position on costs. If there was no payment in or if the payment does not exceed the final award, it would be wrong to deprive the plaintiff of his costs even if the final award was a substantial reduction from the original claim. Further to give the defendant costs of the whole action would be something it could not achieve even if it succeeds in its payment in because it would then only be entitled to the costs of action after payment in and not before. 55.In any event an award of costs is a matter of discretion. Having regard to the circumstances of the case the Judge awarded 70% of the costs to the plaintiff. I am not convinced that the discretion was wrongly exercised. 56.For the same reason I reject the plaintiff’s argument that he should be entitled to a full costs of the action. Conclusion 57.Both the defendant’s appeal and the plaintiff’s cross appeal are dismissed. Costs of appeal 58.I will make a provisional order that each party bears his own costs. Hon Sakhrani J : 59.For the reasons given by Cheung JA I agree that the defendant’s appeal and the plaintiff’s cross-appeal be dismissed. I also agree to the order for costs proposed by Cheung JA. Hon Chu J : 60.I agree.
Mr. Ashok K. Sakhrani, instructed by Messrs Munros, for the Plaintiff Mr. Ronny F. H. Wong, SC and Mr. Tony Ko, instructed by Messrs Ip Kwan & Co, for the Defendant Application for leave to appeal to Court of Final Appeal by the defendant to Court of Appeal refused. Please refer to CACV304/2007 dated 18 June 2008 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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