Chan Siu Lun v. Hui Cho Yee and Another
Read the full judgment text of CACV 124/1998 on BabelCite. This Court of Appeal judgment was delivered on 12 November 1998.
1. About 6 pm on the evening of 7 December 1988, while the appellant was jogging across Cloudview Road near its junction with Tin Hau Temple Road, he was struck and injured by a car driven by the 2nd defendant in the course of his employment by the 1st defendant. Ultimately his claim for damages came before Nguyen J in March 1998. The judge found both the plaintiff and the 2nd defendant guilty of negligence which he apportioned equally between them. He accordingly reduced the total amount of dam
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CACV000124/1998 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL 1998, No. 124
------------------------------------- Coram: Hon Chan, CJHC, Nazareth, V.-P., and Suffiad, J. in Court Dates of Hearing: 17 and 18 September 1998 Date of Handing down Judgment: 12 November 1998 ---------------------- J U D G M E N T ---------------------- Nazareth, V.-P. (giving the judgment of the Court) : Introductory 1. About 6 pm on the evening of 7 December 1988, while the appellant was jogging across Cloudview Road near its junction with Tin Hau Temple Road, he was struck and injured by a car driven by the 2nd defendant in the course of his employment by the 1st defendant. Ultimately his claim for damages came before Nguyen J in March 1998. The judge found both the plaintiff and the 2nd defendant guilty of negligence which he apportioned equally between them. He accordingly reduced the total amount of damages he assessed at $535,704 by one half and awarded $267,852 to the plaintiff. The plaintiff now appeals from that award. The plaintiff's evidence 2. The plaintiff's evidence is that he was jogging along Tin Hau Temple Road. It was dark or getting dark. When he came to Cloudview Road at its junction with Tin Hau Temple Road, he turned a little way into Cloudview Road continuing along the pavement inside the tubular metal railings. He stopped at the gap in the metal railings which, being so provided, he regarded as the legitimate crossing point. The traffic heading downhill into Tin Tau Temple Road being stationary, he jogged slowly across the downhill lane between two stationary vehicles. When he got to the middle of Cloudview Road, he looked both ways to ensure no vehicles were approaching and started to jog across the uphill lane. When he reached the middle of the uphill lane, he saw a beam of strong light dashing towards him at high speed from the direction of Tin Hau Temple Road. Thinking that he would be killed by the fast running object, he attempted to escape but just had time to take one step forward before being hit by the defendants' vehicle on his left thigh. He heard a loud braking sound. After he was hit by the car bumper, he was thrown up and struck by the left side of the car bonnet. He landed on the opposite pavement on his left arm and the back of his head, resulting in a cervical spine fracture. He lost consciousness for a while. When he regained consciousness he sat up on the curb close to a lamp post alongside the uphill lane of Cloudview Road. He was in hospital for three months. The defendant's evidence 3. The 2nd defendant's evidence at the trial was confused. In his statement to the police on 7 December 1988 he stated that he stopped in Tin Hau Temple Road in the "turning pocket" for going up Cloudview Road. He checked that all the traffic in the downhill lane of Cloudview Road had stopped and that the westbound carriage way of Tin Hau Temple Road, across which he would have to go, was clear of traffic. He then made a right turn into the uphill lane of Cloudview Road. He engaged first gear and drove at a speed of about 10 miles per hour while negotiating the right turn. When he had completed the right turn and was straightening his vehicle, he suddenly saw a male running out from a gap in the stationary vehicles going downhill on the right. The man was running very fast. His vehicle was very close to the man at the time. He could not brake in time and, as a result, the left side of his car knocked the man who then fell to the ground. He alighted from the vehicle and found that the man's head was bleeding. The judge's findings on negligence 4. In making his "findings of facts" on liability the judge said this:
Damages awarded 5. The judge then went on to consider the quantum of damages and made the following award:
The judge also made an order for interest, the details of which we shall come to. Plaintiff's submissions on liability 6. The plaintiff attacks both the judge's finding of liability, and the apportionment of liability between him and the defendants. He submits that he did not dash out between the vehicles but checked to see whether there was any traffic approaching. That was also his evidence and submission before the judge. Clearly the judge rejected his evidence. He was entitled to do so. Nothing the plaintiff has urged upon this Court leads us to think that he might have been wrong to do so. Furthermore, it was dark at the time, and the plaintiff admitted that he was wearing a black vest, as the judge noted. In the circumstances it seems to us that the judge's finding of negligence on the part of the plaintiff was clearly right. Moreover, the finding of negligence is very closely linked with the judge's primary findings of fact which an appeal court should only disturb upon the "rarest occasions", "if convinced by the plainest considerations"; see e.g. Hongkong and Shanghai Corp v Chan Yu Wah [1988]1 HKLR 457, 477, where the authorities on the very high threshold for interfering with a trial judge's findings of fact were reviewed by Fuad V-P. 7. Turning to the apportionment of liability, the plaintiff submits that it was the 2nd defendant who was entirely liable. The accident, he submitted, was caused entirely by the excessive speed of the 2nd defendant. 8. As mentioned, the 2nd defendant's evidence was confused. There were glaring inconsistencies in it. Nevertheless, he consistently maintained that the plaintiff dashed out between the cars giving him no time to stop. 9. The plaintiff made much of the unsatisfactory nature of the 2nd defendant's evidence. The undoubtedly unsatisfactory nature of that evidence weighs with respect to two points made in the plaintiff's submissions. First, the apparent acceptance of the 2nd defendant's evidence that the plaintiff dashed out from between the stationary vehicles in the downhill lane. As to that, to the extent that the judge did rely upon that particular piece of the 2nd defendant's evidence, he was, in our view, entitled to do so. Again, we can see no reason to indicate that he might have been wrong. 10. The other point the plaintiff made in reliance upon the 2nd defendant's unsatisfactory evidence, was that it was the 2nd defendant who appears to have drawn the attention of the investigating police officer at the scene to the point of impact, and to where the vehicle came to rest, leading to the marking of those positions on the police officer's sketch map. In finding that the 2nd defendant turned right into Cloudview Road at a speed of about 40 kph, the judge clearly rejected the 2nd defendant's evidence that he was driving at about 10 miles per hour. How the judge reached his conclusion that the 2nd defendant was travelling at about 40 kph is not revealed by his judgment. However, it appears to be common ground that the judge inferred that speed from the distance of roughly 21 metres between the junction of the two roads where the 2nd defendant would presumably have first sighted the plaintiff and the point at which the vehicle came to rest, using tables of reaction times and stopping distances. The plaintiff sought to contend for a far greater stopping distance upon the basis of his own observations when he recovered consciousness at the scene of the accident and of measurements he took at the site following his discharge from hospital three months later. However, his submissions could not have been regarded as having even got off the ground. His ability to accurately observe the scene, hear conversations and recollect what transpired immediately after recovering consciousness, moreover in his injured condition, must be suspect. Above all, from the stopping distance he contended for and a bump on the bonnet, he submitted that a proper inference could be drawn of a speed of 60 kph on the part of the 2nd defendant. The distance of the point of impact from the junction of the two roads, i.e. about 8 meters on the evidence, renders such a speed highly improbable, even absurd. Having carefully reviewed the evidence and considered the submissions, particularly all that the plaintiff has written and said, we have no difficulty in rejecting his submissions and concluding that there is no warrant for interfering with the judge's findings on liability, or his apportionment of liability between the plaintiff and the 2nd defendant. Even if we were able or minded to conclude that the defendant's negligence was of a somewhat higher order than that of the plaintiff (which we are not) this would not entitle us properly to intervene. That is plain from the following dictum of Lord Wright in British Fame v Macgregor [1943] AC 197; 200, 201:
The plaintiff's appeal against liability and the apportionment of liability, in our view, must therefore fail. 11. We turn then to his appeal against quantum. Appeal against quantum - background A general account of the plaintiff's injuries and the facts relevant to the award for damages can be taken from the following passages in the judgment:
It was a very long list, which we do not think needs to be set out here. The medical evidence 12. Five doctors gave evidence, three for the plaintiff and two for the defendants. For the purposes of this appeal it is only necessary to make reference to very limited portions of their evidence. 13. Dr Yu was the first doctor called for the plaintiff. He estimated permanent impairment of the whole person ("PIWP") at 8%, and loss of earning capacity at 5% in 1993. He recommended a psychiatric assessment as he considered that the plaintiff had also suffered from psychological trauma as a result of the accident, which would also affect his earning capacity. Subsequently, in 1997, on further examination he increased his estimates to 11% (PIWP) and 10% (loss of earning capacity). 14. The second witness was Dr Desmond S.S. Fung, who had qualified in medicine and specialised in psychiatry. He had examined the plaintiff several times in 1996 as had Mr Wong Chee-wing, a clinical psychologist. They found that he exhibited emotional signs of over excitement, and also an over-zealous obsession in documenting details of the on-going court proceedings. They stated that with respect to the plaintiff's physical pains and sufferings, there was good evidence to show some forms of subjective exaggeration but added that this did not necessarily suggest that he was wilfully and deliberately feigning somatic disorders; his symptoms could be quite true although very much over-rated. Such extreme forms of somatic preoccupation could be part and parcel of his disabling depressive illness which afflicted him between 1992 and 1994. 15. Significantly, they added
16. They found that the plaintiff had largely recovered from his previous depressive illness which had disabled him between 1992 and 1994. However he still exhibited residual symptoms of dysphoria, and because of the psychological impact mentioned, his emotional state remained vulnerable after undergoing a roller coaster ride in recent years. They considered that the plaintiff would definitely need ongoing psychotherapy and counselling for his dysphoric mood. If his depression became more prominent he would need a course of anti-depressants for treatment. At that point in time his condition was fluid and far from stationary. He remained a very vulnerable person. The chances of a psychiatric or psychotic decompensation under stressful events remained high. However, as the he was so obsessed with future vindication for the perceived injustice perpetrated on him, they strongly believed that his mental status and physical complaints would certainly improve spontaneously if he were eventually vindicated in his legal battle in court. 17. Dr Fung prepared another report dated 21 January 1998 together with Dr Timothy Law, a clinical and neurological psychologist. They said it was most evident that the plaintiff continued to suffer from the impact of the accident and the complications of his legal pursuits which kept his memories of the accident alive and painful through the intervening years. They said the result was an obsession, a near paranoiac state of mind that continuously affected the plaintiff's recovery and adjustment through the years. They considered he needed cognitive behavioural psychotherapy, with focus on his present and future adjustment to pains. 18. In court Dr Fung said that before the accident, the plaintiff was well adjusted and his mental state quite well but after the accident, there was a different mental picture because the plaintiff suffered from depression which required further treatment. He added that the events which took place after accident could be a major factor in the development of the plaintiff's mental condition. In cross-examination he said that the prognosis was that if the plaintiff did not receive treatment, he remained vulnerable. However, if he were to win the Court case, it might be a strong anti-depressant and he would definitely require less treatment for his condition. 19. The plaintiff's third witness was Dr David Fang, an orthopaedic surgeon. He first saw the plaintiff in June, September and October 1994. In his report dated 27 January 1995, he said that despite prolonged treatment, the plaintiff still had persistent and mild sciatic pain. Permanent disability was not expected but it was difficult to anticipate how long the pain would last. Dr Fang examined the plaintiff again in April and May 1996 and made a second report in which he said that he believed the plaintiff might be suffering irritation to the left sciatic nerve due to some form of chronic neuritis. That was not a serious condition in his view as the function of the sciatic nerve was still intact. He made a third report dated 29 December 1997 following examinations on 16 December and 20 December 1997. He said that an x-ray taken of the cervical spine showed definite healing of the previous odontoid fracture with no obvious evidence of degenerative change. The plaintiff, he said, was obsessed with legalities relating to his injuries but was not a malingerer. His anxieties would be very much allayed when legal proceedings were concluded. He concluded that part of the symptoms might improve, but it was unlikely that everything would disappear. 20. The first medical witness for the defendants was Dr Karam Singer, a psychiatrist. He examined the plaintiff on 25 February 1998 for 3 3/4 hours at his clinic and on 28 February 1998, he conducted a telephone interview of the plaintiff for 15 minutes. In his report he noted that during the examination that the plaintiff went into profuse and unnecessary details besides often going off at a tangent so that it was difficult to get straight answers. He referred to that as pressure of speech, namely talking rapidly and tending not to stop in spite of interruptions. We pause here to mention that these characteristics were also evident during the plaintiff's submissions in this Court. Reverting to Dr Singer's report, such speech, according to him, was characteristic of an obsessive-compulsive personality, and because it was evidenced in an excessive form, he characterised it as obsessive-compulsive personality disorder. He said the disorder predated the accident. 21. The stresses of the plaintiff's involvement in litigation and the problems of such involvement - financial, occupational, recreational and social - were the main causes of the plaintiff's psychiatric symptoms. Dr Singer's opinion was that this disorder influenced the cause of the plaintiff's condition post-accident. Any physical disability that he suffered as a direct result of the accident would be doubly stressful and magnified because of his perfectionism. To someone who overvalues his body and health, any threat of injury to these was, in his view, particularly stressful. While not all marathon runners have obsessive-compulsive disorder, marathon-running has with its inflexibility, pre-occupation with mental control and the high amount of devotion required exploits obsessive-compulsive tendencies. People with this disorder are vulnerable to depression. However, he thought the plaintiff was not suffering from any such depressive disorder at the time of his report in March 1998. The symptoms which the plaintiff had were those of normal people anxious or unhappy when facing stress or loss such as litigation or difficulty with jobs and did not amount to a psychiatric disorder. In addition, the plaintiff's psychological state had aggravated his perception of pain in the neck, achilles tendon and left buttock. Dr Singer's prognosis was that the plaintiff's depressive mood and sleep impairment would dissipate rapidly with settlement of the litigation. The plaintiff did not, in his opinion, require treatment for these. 22. In Dr Singer's view in March 1998, the then current loss of earning capacity was 2% and PIWP 2%. Permanent loss of earning capacity, after litigation, would be 1% and PIWP 1%. 23. In court, Dr Singer said the accident was only a minor cause and that the main cause of the symptoms, i.e. the depressive mood and the impairment of sleep was the personality disorder. He said that what the plaintiff had was what normally people would have under the circumstances. 24. In cross-examination Dr Singer said that in his opinion the plaintiff in his then mental state would be capable of earning what he was earning prior to the accident. 25. The defendants' second medical witness was Dr Jake O'Donovan, a general and traumatic surgeon who examined the plaintiff on 28 August 1997. In his report he said he found the plaintiff tended to exaggerate his weakness and difficulties, but when told to perform properly, he was perfectly able to do so. In his opinion, the plaintiff's complaints were not borne out by his examination. As regards the plaintiff's neck, he had a good range of pain-free movement with radiation of slight pain to the left root of neck posteriorly. Clinically, his neck was well recovered from his fractured odontoid and the rest of his neck was really unremarkable. Dr O'Donovan assessed PIWP at 5% and loss of earning capacity at 10%, adding that the plaintiff would be able to take up his pre-accident job after his recovery. 26. Dr O'Donovan also said that the plaintiff had told him in August 1997 that he was still engaged in marathon running and regularly ran a few times a week. He had taken part in more than one marathon since the accident. Dr O'Donovan expressed the view that a person had to be 100% fit to do a marathon. The submissions on injuries 27. Only two aspects of the plaintiff's diffuse submissions on his injuries need to be considered. The first was with regard to the depression he suffered for two years from 1992 to 1994. The judge did not overlook this. In his judgment he said:
28. Before us, the plaintiff complained of the severe depression he suffered from during the two years in question and the consequences. He contended this was all because of the litigation. Mr Poon, who appeared for the defendants below and before us, contended that the depression was too remote and on the evidence resulted from the plaintiff's obsessive-compulsive personality disorder, and also from the police initiating a prosecution for jay walking against him, which gave rise to an unrestrained desire on his part to vindicate himself. It seemed to us at first that the judge may have been wrong in not holding that the legal proceedings were a necessary consequence of the accident and the failure of the defendants to compensate him, thereby driving him to legal proceedings. However, on further consideration, it seems to us that the situation is not clear enough to fault the judge's conclusion. For one thing, the defendants may not have been unreasonable in the situation that confronted them in not compensating the plaintiff in advance of liability having been established. The other matter, which was not unrelated to the former, was the plaintiff's attack on Dr Singer's evidence. We have to say that in his attack upon numerous aspects of Dr Singer's evidence, he did make some plausible points. The comparatively short and virtually single interview that Dr Singer had with him, relative to the several examinations by the plaintiff's own medical witnesses, does at first sight appear to raise questions about whether he had had sufficient opportunity to reach the several strong and damaging conclusions that he did. However, the point was effectively disposed off by Mr Poon pointing out that Dr Fung and Mr Wong Chee-wing in their reports considered that the impact on the plaintiff's emotional and psychological status "was not so much attributed to the nature and severity of the accident per se, but to the emotional disturbance and depression which occurred as a result of the police decision to prosecute Mr Chan; and a chain of events which took place in connection with Mr Chan's High Court proceedings". In the result we do not think that the judge can be faulted in his acceptance of Dr Singer's evidence. 29. Quite apart from the plaintiff's foregoing submissions as to Dr Singer's evidence, he included in his written submissions elaborate and very detailed extracts from the reports and evidence of the medical witnesses and points in support of his claim for physical and psychological injuries. Having carefully gone through them, it is clear that there could be no justification for burdening this already over long judgment with them. They do not, in our view, lead to the conclusion he contends for nor can they stand against the conclusions that the judge did reach and was entitled to reach. 30. We mention also that the plaintiff sought to rely directly upon the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association, Washington DC. None of the passages he sought to rely upon had been referred to by the medical witnesses. Such books are not evidence per se. A judge may not form an opinion upon a part of such books not referred to. Still less may counsel read out particular passages as part of his address (see Phipson on Evidence 14th Edition para 32-16). Moreover, Mr Poon did not agree to their inclusion in the bundle the plaintiff produced. In the result, they are to be disregarded. Quantum Pain, suffering and loss of amenities ("PSLA") 31. We turn then to the matter of quantum, beginning with the PSLA award. Having addressed the matters already mentioned, the judge then went on to make the following finding:
32. The plaintiff contended that this award was too low apparently upon the basis of the apportionment of liability. That aspect has been dealt with but it seems to us implicit that he must be taken also as contending that the award was too low upon the authorities. In this regard, Mr Poon helpfully took us to the following cases:
33. These show clearly enough that the award of $250,000 was by no means ungenerous. Indeed, some of the awards in the foregoing cases were considerably smaller for injuries that were significantly more serious. Furthermore, there is nothing in this case that would suggest that the minimum sum for serious injury specified in Chan Pui-kee v KMB [1996] 2 HKLR 401 needs to be updated. 34. The appeal against the PSLA award of $250,000 must therefore fail. Past loss of earnings 35. The plaintiff also appeals against the award of only four months' income, i.e. $22,430 x 4 which totalled $89,720. That period was adopted because he apparently told the court that he returned to work four months after the accident. He claimed about two years' income for the period he did not work when he suffered depression. This claim must be rejected, the judge, as we have already indicated, having been right in concluding that the depression was not attributable to the accident. 36. However, in the course of the hearing before us, we were referred to documents recording the period of sick leave immediately after his accident and it is clear that this was not four months but five months. It seems to us that since he has appealed against the amount of pre-trial loss of earnings, and since the documentary evidence of five months' sick leave was in fact before the judge, his appeal should be allowed to that extent. Although it is not entirely clear how he came to overlook the additional month, it seems most likely that he made a mistake or had forgotten. We would accordingly increase the award of $89,720 for past loss of earnings to $112,150. Loss of future earnings/loss of earning capacity 37. The judge disposed entirely of these matters in the following short passage:
38. Both these individual heads of damage fall within the general head of future loss. Their nature and the difference between the two is perhaps best explained in the judgment of Browne LJ in Moeliker v Reyrolle & Co Ltd [1977]1 WLR 132 at 139H:
Continuing at F and G of the same page, Browne LJ said:
39. In the schedule of special and general damages appended to the plaintiff's Statement of Claim in accordance with the relevant Practice Direction by his solicitors (the plaintiff was represented at that time) the claim for loss of future earnings was put at a little over $5m on the basis that he was then 42 years of age, would have worked until the age of 65 and that he had suffered several periods of unemployment since the accident and in spite of continuous efforts had failed to secure employment since July 1996. One cannot but have some sympathy for the judge in having to deal with that claim. It does not appear to have been pursued in any credible way by the plaintiff, by then unrepresented, before him. However it is not only in circumstances where a plaintiff is in actual employment at the time of the assessment of his claim that he would be entitled to an award for loss of earnings. He might yet be able to prove that he would probably have remained in his employment for some period and would have received wages at a demonstrable level, all or some of which he has lost because of his injuries. Had the plaintiff been represented, the judge may have been enabled to address the claim for loss of future earnings. This Court is now confronted with the fact that he was not; the reasons are not entirely clear. The claim has not been specifically pursued before this Court. Nor are we able to see any realistic basis for that to be done upon the material before us. The plaintiff appears to be unfortunate in that respect as it is conceivable that some loss of earnings could be established, particularly if he had proceeded more expeditiously with his claim. But almost 10 years have elapsed since the accident, and almost all of the delay seems to us to be attributable to him, as opposed to the defendants. However all that may be, we have now to take this case as we find it. The plaintiff was given legal aid on two occasions and elected to proceed without the legal representation provided. That is the fact, notwithstanding his reasons which he mentioned. It could not be right for this Court to attempt to now reopen the claim for loss of future earnings. 40. We turn then to the award for loss of earning capacity. The judge found that the accident had caused the plaintiff to be disadvantaged in the labour market and awarded him $60,000. The plaintiff's general contention that the compensation award he has received is inadequate, requires us to address this specific award. 41. It is implicit in the judge's finding that the accident caused the plaintiff to be disadvantaged in the labour market, and likewise implicit in his award of damages that he found the risk that the plaintiff would be looking for a job sometime in the future to be real and substantial. We think there can be no doubt about that, since the applicant appeared already to have begun to suffer the effect of being disadvantaged and had actually been unable to obtain employment since 1996. Hopefully if the preponderance of medical opinion proves right, the finality of these legal proceedings will lead to the expected improvement in his condition which will enable him to secure employment. But the fact remains that the risk has been shown to be real and substantial; even if his non-employment cannot be totally attributed to the accident and its consequences, it seems to us that it must very substantially be so attributable. 42. As to other relevant circumstances, Dr Yu, his own medical witness specialising in neurology, assessed his loss of earning capacity at 10%, with which assessment Dr O'Donovan, the orthopaedic surgeon called by the defendant, agreed. True, Dr Singer opined that his loss of earning capacity would be only 1% after the litigation, but as a psychiatrist he was concerned primarily with his own discipline. Moreover, the plaintiff is a relatively young man and would be expected to have at least 23 years of working life before reaching 65, an age beyond which most Hong Kong people appear to continue to work. Besides his pre-accident and indeed, post-accident earnings appeared to have ranged between $20,000 - 25,000 a month. This is a sum considerably in excess of many of the claimants in the many cases we have reviewed. That said, it has to be acknowledged that it is not possible to deduce any general level of awards by reference to the circumstances. Browne LJ's judgment in Moeliker recognised that difficulty. It has been recognised in other cases too. In Tait v Pearson (reported in substance in paragraph 6-621 of Kemp v Kemp 6189; 6192) Butler-Sloss LJ addressing a similar task in relation to residual earning capacity said this:
Likewise doing the best we can and taking account of all the relevant considerations and circumstances we think that the award of $60,000 too low and that it should be increased by two-thirds to $100,000. Costs of future treatment 43. There was a range of conflict and inconsistency in the opinions of the medical witnesses in this respect. 44. Dr Yu was of the view that the plaintiff would need medical consultations once every month at about $700 per visit exclusive of medication and physiotherapy, twice a week for one month, then weekly for two months and then monthly for about 12 months. The fee for each physiotherapy section would be about $400. Dr Fung said that the plaintiff would require a period of 6-9 months of therapy and that the cost for each session would be $1,200 on a weekly basis; the total would be $1,200 x 9 x 4 which equals $43,200. Dr Singer's view was that the plaintiff's depression and sleep impairment would disappear with settlement of the litigation and that he accordingly would not require treatment. Dr O'Donovan considered that the plaintiff had achieved recovery from his physical injuries but would need psychological help to get a job. 45. Dr Fang's final view was that the plaintiff should have an orthopaedic consultation annually for the following five years at a cost of $500-1,000 per consultation. Dr Fang also said that the plaintiff might need physiotherapy for his neck pain and pain in the upper left and lower limbs. He thought an annual course of physiotherapy would be sufficient and that this would cost $4,000 per year for five years. 46. The judge decided the matter in the following way:
47. The judge saw and heard all the medical witnesses. He was entitled to accept Dr Fang's evidence. We can see no reason why this should not have been the assessment preferred. It was certainly not ungenerous to the plaintiff in the context of all the medical evidence. We would dismiss his appeal against the award for his costs of future treatment. Special damages other than past loss of earnings 48. The judge dealt with this in the following way:
49. It appears that the plaintiff is in general terms appealing against the special damages award, though on what specific grounds is not entirely clear. We would reject any appeal against the award of $5,000 for tonic food. The judge could have quite properly disallowed the claim for tonic food altogether. 50. However, as to the deduction of $2,000 and $15,000 in respective of Dr Fang's and Dr Fung's medical reports, both were extensively relied upon by the judge and appear to have been canvassed to some extent before him. Upon that basis, it was not clear why the judge made these deductions. Mr Poon suggested that this was because those items had been included in the general costs of the action. However, not only were there several medical reports from Dr Fang and Dr Fung, but there were numerous others from Drs Chan, Cheung, Cathagan, O'Donovan and Singer, which do not appear to have been disallowed. Those from Drs Chan, Cheung and Cathagan appear on their face to have been provided to the plaintiff. Accordingly, if the fees for the latter were not deducted, it is difficult to see why the two deductions in question were made. Moreover, it is far from clear that the deducted items were included in the costs. We are, therefore, unable to find any justification for the deduction of the two amounts; we think they should have been included. We would accordingly re-instate them and increase the amount awarded for medical expenses from $93,784 to $110,784. Interest upon PSLA and special damages awards 51. The judge said this:
52. The plaintiff submitted that as a layman he had great difficulty prosecuting his claim on his own. He originally instructed solicitors but had to withdraw instructions when he ran out of funds. Then it appears he had difficulty getting his papers back and ultimately had to seek the assistance of the Law Society. Much later, when he was allowed legal aid, it has to be said that he appears to have had good cause to feel aggrieved with his solicitors' conduct of his claim, and some justification for withdrawing instructions and proceeding on his own. If he thereafter lacked trust in the legal profession, as mentioned by two of the medical witnesses, (which in one instance was taken as evidence of his compulsive-obsessive personality) then that seems to us to be entirely understandable. However all that may be, it cannot justify the inordinate delay that has occurred in these proceedings. The matter came to trial after almost 10 years. Even if the plaintiff encountered difficulties with his advisers and in coping himself, this can in no way warrant the defendants being penalised by way of additional interest. We can see no ground for interfering with the judge's award of interest and his reasons. Accordingly, here, too, we would reject the plaintiff's appeal. Conclusion 53. In the result we would allow the appeal to the following extent, that is to say, to increase
There will be orders to that effect. 54. Coming then to the matter of costs, the plaintiff has succeeded only in part, but he had to appeal to do so. Although not represented for the most part, he has incurred some costs. Having regard to these and other relevant considerations and circumstances, it seems to us that the proper order should be that there be no order as to costs. There will be an order nisi to that effect.
Representation: Appellant in person Mr Herman Poon (M/s T.S. Tong & Co) for 1st Respondent and 2nd Respondent Remarks: |
Cases cited in this judgment