Lee Ting-lam v. Leung Kam-ming

CACV000011/1980

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Coram: Cons, J.A., Yang and Bewley, JJ.

Date of Judgment: 30 May 1980

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JUDGMENT

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Cons, J.A.:

1. This appeal is concerned only with the quantum of damages.

2. The plaintiff in the proceedings below is now a boy of twelve years and three months. Two and a half years ago, to the exact day, he ran across Castle Peak Road in front of an oncoming lorry and was knocked down. He received severe injuries. The trial judge has described them vividly:

3. The judge awarded $150,000 damages for pain and suffering and general loss of amenities, and $156,000 for diminution of future earning capacity. The defendant appeals against both those figures and says that, viewed either separately or as a total, they are too high and beyond the awards normally made in comparable cases.

4. The court's approach to damages for personal injuries is, with very great respect, succinctly set out by Diplock, L.J. in Every v. Miles⁽¹⁾. He said this:

"We are left, therefore, with a decision as to what is the right compensation in money for the physical injuries that (the plaintiff) sustained, and their effect upon (the plaintiff's) life. Any such decision involves an attempt to equate the incommensurable. Such an equation is insoluble, and in the logical sense there is no answer which is right. But since justice is not justice unless even-handed, so that one man gets roughly the same treatment from the courts as another in comparable circumstances, and since the law requires that compensation be awarded for physical injuries, and the only kind of compensation which the courts can award is money, the courts are compelled to make a pragmatic solution. They have done so by fixing arbitrary standards of monetary compensation for physical injuries which I must loyally accept are not susceptible of analysis; see Wise v. Kaye [1962] 1 Q.B. 638, and H. West & Son Limited v. Shephard [1964] A.C. 326. These standards have evolved from such current consensus of opinion of damage-awarding tribunals as is manifested by the amounts they have in fact awarded in broadly comparable cases."

5. We think it is now accepted without question that in this jurisdiction the appropriate standards are to be found in the decisions of the courts of this Colony and not in those of England and Wales or any other jurisdiction. Mr. Mumford, who appears for the appellant, has referred us to many of those decisions which deal with persons who have been seriously disabled in one way or another. We think that a general pattern emerges in so far as awards have been made for pain and suffering and general loss of amenities in that kind of case.

6. Disablement may be divided into four categories of ascending order according to its severity. There is, of course, no rigid distinction. That cannot be, for severity of injury presents a sliding scale. Furthermore there may in a particular case be factors not in themselves disabling, which are sufficient to take that case from one category into another. Nor should these categories be confused with the "brackets" of awards which are used by the appellant courts in deciding whether or not they ought to interfere with any particular award⁽²⁾. Finally we should say that in order to bring out the pattern we have updated the awards as best we can in relation to the fall in value of money. The figures at which we have arrived paint the picture as it is today. As time passes they too will have to be updated.

Serious Injury

7. This is the lowest category. It covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain. The general range of awards is from $60,000 to $80,000.

Substantial Injury

8. This category extends to injuries which require treatment in hospital for many months and leave the victim with a much reduced degree of mobility, for example, a leg amputated from the thigh, so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim's life. Awards at this level range from $80,000 to $100,000.

Gross Disability

9. This comprises injuries which leave the victim with very restricted mobility or cause serious mental disability or behavioural changes. This bracket includes paraplegics who, particularly if young, can expect to be placed at the upper end of the bracket. Awards in this category range from $100,000 to 150,000.

Disaster

10. This is where the victim requires constant care and attention and is incapable of ever leading or appreciating an independent adult life. This bracket includes tetraplegics and those reduced to "living cabbages" or left with the mental age of very young children. Awards are from $150,000 upwards.

11. We should add that in these last two categories additional awards can be expected to cover nursing or other attendant care.

12. The injuries suffered by the present plaintiff are broadly comparable to those falling within the second category. By itself his disability would place him at the upper end of that category. However there are two factors which we think take him out of that category and some way into the next:

The combination of these factors is likely to produce grave physical and psychological problems when it comes to sex or marriage.

13. For these reasons we think the appropriate figure for damages under this head should be $120,000.

14. We turn then to the figure for diminished earning capacity. Here the imponderables present even more difficulty. There are previous awards to look to, but the circumstances are so different that it is not possible to discern even a vague pattern. Kemp and Kemp put it this way (p. 135):

"In this class of case (i.e. where the plaintiff is a child or youth and has not commenced on any career, and so there is no figure for net annual loss at the date of the trial) the court is really reduced to pure guess-work. It is very rare for the court to attempt to divide the award of general damages into separate heads. Usually one global sum is assessed, its amount varying with the seriousness of the plaintiff's injuries. In this class of case the damages are so much at large that there is a very wide sphere for the individual judge's discretion and an appellate court is even more reluctant than usual to interfere with the trial judge's assessment."

15. In the present instance the trial judge did make a separate assessment. He estimated the probable future loss as $12,000 annually and took a multiplier of twelve. This method is challenged, in particular upon the ground that there was not sufficient evidence to support the basic figure. That is so. The judge himself commented that the evidence was "really of little help". But there are times when a judge must apply his judicial intuition to what little there is. Had we been left to ourselves to assess this head of damage it may be that individually we would have arrived at lower figures, but we do not think that the figure he reached in the exercise of his discretion is wholly erroneous and we are not prepared to disturb it.

16. For these reasons we allow the appeal to the extent only that the damages for pain and suffering and loss of amenities be reduced to $120,000.

Representation:

E.C. Mumford (Johnson, Stokes & Master) for the appellant.

K. Bokhary and Miss C. D'A. Remedios (Director of Legal Aid) for the respondent.

(1) 1964 C.A. No. 261, set out in Kemp & Kemp Vol. I at page 19

(2) see Kemp & Kemp Vol. I pages 22 and 23 and note 28