Law Yin Pok Bosco v. Dr Chan Yee Shing

CACV 276/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 276 OF 2012

(ON APPEAL FROM HCPI NO. 369 OF 2010)

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BETWEEN

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Hon Barma JA (giving the judgment of the Court):

Introduction

1.This was an appeal by the plaintiff, Law Yin Pok Bosco (suing by his mother and next friend) against the judgment of Deputy Judge Seagroatt dated 20 November 2012, by which the plaintiff was awarded HK$314,608 in damages for an injury suffered by him as the result of admittedly negligent medical treatment provided to him by the defendant, Dr Chan Yee Shing.  By this appeal, the plaintiff seeks a substantial increase in the amount of damages awarded (on the basis of the figures proposed in the plaintiff’s skeleton argument, the increase would be some HK$2,240,605).

2.The background facts can be briefly stated.  On 10 August 2009, when the plaintiff was an infant aged 14 months, he suffered a serious laceration to the distal phalanx of his right ring finger when it became caught in an iron gate at the entrance to his home.  He was taken to the Prince of Wales Hospital for treatment, where the attending doctor recommended suturing the wound under a general anaesthetic (because of the plaintiff’s very young age, and the consequent likely difficulty of keeping him immobilised during the suturing).  However, the plaintiff’s parents decided to place him under the defendant’s care, having apparently been advised by the defendant that anesthesia was not appropriate for such a young child, and that the wound could be treated by the application of a medical adhesive instead.  Unfortunately, the result of the treatment by the defendant was that when bandages that had been applied to the plaintiff’s finger were removed after several days, it was discovered that the condition of the finger had deteriorated, and that gangrene had begun to develop.  On 21 August 2009, the plaintiff was taken to Queen Elizabeth Hospital for treatment, but despite some weeks of conservative treatment in an attempt to preserve the finger, this proved impossible, and surgical amputation of part of the finger (by which the distal phalanx and half of the medial phalanx were removed) was carried out on 30 September 2009.

3.Actions were brought against the defendant by the plaintiff, and subsequently also by his parents (who claimed damages in their own right for nervous shock allegedly caused to them by the injuries suffered by the plaintiff).  Although both actions were at one point consolidated, with a view to their being heard together, the parents’ action was subsequently deconsolidated from that of the plaintiff, and will now be heard at a later date.

4.At the trial, the judge had available to him three joint orthopaedic expert reports prepared by Dr Dicky Lam (instructed on behalf of the plaintiff) and Dr Josephine Ip (instructed on behalf of the defendant), and two joint psychological expert reports prepared by Professor Wong Chee Wing (instructed on behalf of the defendant) and Professor Peter Lee (instructed on behalf of the plaintiff).  So far as factual evidence was concerned, this consisted of a number of witness statements from each of the plaintiff’s parents, both of whom attended at the trial, but were not cross-examined.

5.In the Consolidated Revised Statement of Damages (which dealt with the damages claimed by the plaintiff and his parents, as it was prepared at a time when their actions were consolidated), the amount of damages claimed by the plaintiff totalled some HK$6,564,766.16.  This included (so far as material to this appeal) HK$750,000 for pain, suffering and loss of amenities, HK$25,000 for tonic food, HK$296,000 for the value of care provided by his father, HK$105,000 for the value of care provided by domestic helpers, HK$148,800 for the cost of future orthopaedic consultations, HK$93,600 for the cost of future treatment of stump pain, HK$232,500 for the future cost of prostheses, HK$200,000 for the future costs of revision operations, HK$75,000 for the future costs of psychological counselling, HK$840,000 for the future costs of care by domestic helpers, HK$2,880,000 for future loss of earnings, and HK$500,000 for loss of earning capacity.

6.The judge regarded these claims as unreasonably high, describing them (at trial and in his judgment) as “grossly exaggerated” or “grossly inflated” (a matter of which complaint was made in this appeal).  At the end of the day, in respect of the items mentioned in the previous paragraph, he awarded HK$150,000 for pain, suffering and loss of amenities, HK$2,000 for tonic food, nothing for the value of care provided by his father (although a question arises as to whether this claim was stood over to be dealt with at the same time as the parents’ claims, or was rejected and left to be claimed as part of the father’s claim), nothing for the value of care provided by domestic helpers, HK$12,000 for the cost of future orthopaedic consultations, HK$2,500 for the cost of future treatment of stump pain, HK$20,000 for the future cost of prostheses, HK$20,000 for the future costs of revision operations, HK$37,500 for the future costs of psychological counselling, nothing for the future costs of care by domestic helpers, and nothing for either future loss of earnings or loss of earning capacity.

7.On this appeal, Mr Ko, who now appears for the plaintiff (he did not represent the plaintiff below), submitted that in respect of each of the heads of damage mentioned above, the amounts allowed by the judge should be substantially increased.  We shall deal below with each item in turn.

Was the judge apparently biased?

8.However, before doing so, it is necessary to dispose of the complaint that the judge was guilty of apparent bias, principally by reason of his having expressed the view at an early stage of the trial, that the amount of damages sought was “grossly exaggerated”.  With respect to Mr Ko, there is nothing in this point.  The judge was, in our view, clearly entitled to regard the claim as being very much on the high side – as we have noted, the total damages sought in respect of an injury resulting in the amputation of part of one finger was in excess of HK$6.5 million.  The judge awarded damages of just over HK$314,000.  On appeal, the amount of the increase sought is just over HK$2.2 million – even if the appeal were to be entirely successful, the damages recovered will be less than half the amount already sought.  In the result, although some increase to the award made by the judge is, in our view, justified for the reasons which we explain below, the appropriate increase is significantly less than what has been contended for.  In these circumstances, the judge’s view of the claim was entirely justified.  It must be noted that although he expressed his views early on in the trial, the judge would, by that time, have had available to him the expert evidence and witness statements, which he would no doubt have read and considered in preparation for the trial. The experts were not (as one would expect) called to give evidence, and the only witnesses (the parents) were not cross-examined.  In these circumstances, there is, in our view, no reason to suppose that the judge would not consider such submissions as were made to him fairly, and a fair minded and informed observer would not consider that there was any such risk.

Did the plaintiff have a fair trial?

9.Mr Ko also suggested that the plaintiff had not had a fair trial, pointing to the following matters:-

(1)  the exclusion by the judge of material which the plaintiff alleges demonstrates that Dr Ip’s evidence in the joint reports by her and Dr Lam was subject to interference from the plaintiff’s solicitors;

(2)  the exclusion by the judge of a supplemental report prepared by Dr Lam which had been annexed to the third joint orthopaedic report, on the basis that having been included as an annexure to that report, it formed part of it and regard should have been had to it;

(3)  the judge’s decision to accede to the request for further discovery as to the plaintiff’s parents bank statements;

(4)  the judge’s decision to “transfer” the plaintiff’s claim for the value of care provided by his father to the father’s own action; and

(5)  the judge’s refusal to adjourn the trial to allow the plaintiff to instruct new solicitors, or to allow sufficient time for the Director of Legal Aid to familiarise himself with the proceedings before carrying on with the trial.

10.Again, we do not think that there is substance in these complaints, whether viewed individually or cumulatively:-

(1)  Mr Ko did not press the point about alleged interference in the drafting of the joint orthopaedic expert report by Dr Ip at the hearing before us.  In our view, he was right not to do so as the material relied on falls well short of showing anything other than legitimate attempts to clarify the substance of what Dr Ip was saying.

(2)  The inclusion of Dr Lam’s supplemental report and further materials annexed to it in the third joint orthopaedic report was an illegitimate attempt to introduce a further unilateral expert report without leave, and the judge was entirely justified in excluding it from consideration.  In any event, it is clear from the transcript of the hearing below that the plaintiff’s counsel at trial accepted that the supplemental report itself should be excluded, and so far as the publications annexed to it are concerned, it is clear that the judge took the view, having looked at the material, that it was of a very general nature, relating as it did to a range of amputations, including much more severe amputations of limbs, and as such was not likely to assist greatly in evaluating the views of the orthopaedic experts.

(3)  The judge’s decision to allow the further discovery was one which was made in the exercise of his discretion, and no attempt was made to appeal against the decision at the time.  It is not a matter of which complaint can properly be made at this stage.

(4)  The decision to defer dealing with the claim for the cost of care provided by the plaintiff’s father was a case management decision, which was well within the range of reasonable decisions open to the judge in the light of the further discovery order which had been made.  As we explain below, so long as that claim is considered in due course as part of the plaintiff’s claim, there is no prejudice to the plaintiff beyond an element of delay in dealing with it.

(5)  Finally, the judge’s decision to carry on with the trial following the plaintiff’s discharge of the solicitors assigned to his claim was again a case management decision.  Bearing in mind that the trial date is a milestone date, that the plaintiff, although discharging his solicitors, continued to be represented by the same counsel, and that the Director of Legal Aid did take up representation of the plaintiff, we do not think that it could be said to be a decision which the judge could not, properly exercising his discretion, reasonably have made.

11.Having disposed of the general complaints made by Mr Ko on behalf of the plaintiff, we turn to consider in turn each of the specific complaints as to particular aspects of the assessment by the judge of the damages to be awarded to the plaintiff.

Pain, suffering and loss of amenities

12.So far as the award for pain, suffering and loss of amenities is concerned, the plaintiff seeks an increase from the HK$175,000 awarded by the judge to an award of HK$600,000 (although the Notice of Appeal suggests that the award should have been HK$750,000, Mr Ko, in his skeleton argument and before us, contended for an award of HK$600,000).

13.The plaintiff’s notice of appeal complains that the judge failed to take into account the degree of the pain which the plaintiff (as a young child) had to suffer in silence, over an extended period of time, or that the impact of the injury on a young child was likely to be greater than on an adult, in terms of the possible need for further operations, and in terms of psychological impact.  As to these points, we are satisfied that the judge was well aware of the nature of the injury, the reasons for the injury developing in the unfortunate way that it did, and the consequent prolonged pain suffered by the plaintiff (see paragraph 13 of the judgment).  Equally, the judge was aware of and had regard to the likely psychological impact of the injury at later stages of the plaintiff’s life (see paragraphs 15 to 17 and 21 of the judgment), and of the possibility of future surgery being required (see paragraph 20 of the judgment).  We do not think that it can be said that these matters were overlooked by the judge.

14.The plaintiff also complains that the judge failed to have regard to Dr Lam’s unilateral supplemental report.  This point has been discussed in paragraph 11(2) above, and for the reasons there explained, is not one which carries any real weight.

15.In Mr Ko’s skeleton argument, the point was additionally made that the judge was wrong to rely on the English guidelines for assessment of damages in personal injury cases, and that he should have assessed the level of damages for pain, suffering and loss of amenities by reference to Hong Kong authorities to which he was cited.  Although we do not think that the judge relied on the English guidelines in place of the Hong Kong comparables, it does seem to us that having regard to the Hong Kong authorities (which must be recognised as establishing the appropriate standards for awards in our courts – see Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 at 659 and Leung On v Chan Pui Ki [1996] 2 HKC 565 at 572A-E), the award of HK$175,000 under this head was too low.  Mr Ko provided a table of awards made in respect of injuries involving amputations of fingers in recent years, in which the awards made ranged from HK$150,000 to just over HK$500,000 – these are of limited assistance, since the nature and impact of the injury may well vary markedly from case to case.  Mr Ko relied particularly on two authorities: Sung Fuk Wah (unreported, 22.2.95, HCA 3676 of 1994), in which the adult plaintiff’s right ring finger had to be amputated below the first joint (i.e. in about the same position as in this case), where the award was at a level equivalent to half of the bottom of the range of damages for injuries falling within the lowest bracket of “serious injury”; and Chung Tat Ho (unreported, 6.9.04, HCPI 472/2003) where HK$350,000 was awarded for loss of half of the left index finger of a right handed adult plaintiff, who suffered residual pain and discomfort.  While these cases provide limited assistance, it does seem to us that having regard to the level of damages awarded in them, the award in the present case was some way below that which one might have expected.  Applying the approach in Cheung Kai Chi v Chun Wo Contractors Ltd [2008] 1 HKLR 102 at paras 69 to 73, this is a case where the Court of Appeal should intervene.  In all the circumstances of the present case, we are of the view that the award for pain, suffering and loss of amenities should have been significantly higher, and in the region of HK$275,000, which is slightly over half of the current level for an injury at the bottom end of the “serious injury” range, and which appears to us to be broadly in line with the awards to which our attention has been drawn.

16.We would therefore increase the amount awarded by the judge under this head to HK$275,000.

Tonic Foods

17.The next challenge is to the award for the costs of tonic foods – Mr Ko suggests that the judge’s award of HK$2,000 should be increased to HK$20,000, having regard to the evidence of the plaintiff’s mother, and the receipts supporting such expenditure.  The judge took the view that having regard to the nature of the injury, and the fact of the plaintiff’s very young age, it was difficult to justify a substantial award under this head.  We do not think that it is possible to say that he was wrong to adopt this course, and consequently do not think that it would be appropriate to interfere with the award made by the judge.

Cost of care by plaintiff’s father

18.Mr Ko next complained of the failure to make any award in respect of the cost of care provided by the plaintiff’s father, in respect of which HK$296,000 had been claimed.  The judge dealt with this claim by saying (at paragraph 32 of the judgment) that it fell to be considered in the context of the father’s action, in which there was a claim by the father for loss of earnings occasioned by his alleged need to care for the plaintiff and thus to work closer to home and/or on a part time basis.  Mr Ko submitted that it was not right to relegate this claim to the father’s claim, since it was a claim that could be, and was, legitimately put forward by the plaintiff as part of his own (as opposed to his father’s) losses, and pointed out that the plaintiff’s claim was for the value of care provided by his father, in respect of which the considerations as to recoverability (such as the reasonableness of such care being provided by the father, and the cost to be attributed thereto) were different from their recoverability as damages claimed by the father on his own account (where questions of the recoverability of the father’s alleged loss of income would involve issues of whether or not such loss of income arose out of the psychological injury allegedly suffered by the father).

19.In principle, this would appear to be correct, and it should have been left to the plaintiff and his father to choose in which claim to seek to recover the father’s loss of earnings.  Moreover, an examination of the consolidated revised statement of damages, strongly suggests that in fact, the father’s loss of earnings which were claimed by the plaintiff as the cost of care provided by his father was claimed only in the plaintiff’s action, and not as loss suffered by the father and claimed in the father’s own claim.  Thus, the value of care provided to the plaintiff by the father is claimed by reference to the father’s loss of earnings at item 41, and in the part of the statement dealing with the father’s own claim, item 75 states that the bulk of the father’s pre-trial loss of earnings was claimed under item 41 (which is part of the plaintiff’s claim).  This implies that the relevant part of the father’s loss of earnings has been claimed only in the plaintiff’s claim, a view which is confirmed by the calculations at the end of the consolidated revised statement of damages, where each of the claims of the plaintiff, his father and his mother are separately totalled, from which it seems clear that this element of loss is claimed by the plaintiff alone.

20.In these circumstances, if the judge had it in mind that the father’s loss of earnings (for the period when he was caring for the plaintiff) should be dealt with exclusively within the father’s own claim for damages, this was not the right course to take.  If, on the other hand, the judge meant by paragraph 32 to say no more than that this claim should be hived off from the hearing then ongoing, to be dealt with at the same time as the father’s and mother’s claims, given the relevance of the discovery of the father’s financial information which had only recently been ordered, this would, in our view, have been a matter of case management within the discretion of the judge, which could not be said to be plainly wrong.

21.In any event, this part of the plaintiff’s claim has not yet been considered at all, and the father’s evidence as to his earnings has yet to be tested in cross-examination.  It would therefore not be appropriate for this Court to attempt to assess it.  Rather, the appropriate course would, we think, be for it to be made clear that this element of the plaintiff’s claim has not yet been determined, and that it should be stood over for determination at the same time as the parents’ claim is heard, with whatever amount is awarded in relation to it forming part of the plaintiff’s damages recovered in these proceedings.  This can be achieved by varying the judge’s order so as to order that the plaintiff’s claim for the value of care provided by his father be adjourned and heard together with the father’s own claim in HCA 62/2011. In consequence of this, questions of costs of these proceedings in the court below (which had been the subject of an order nisi that they should be paid by the defendant on a common fund basis – an order which is the subject of an application for variation) should be reserved to be considered after the final disposal of these proceedings after the plaintiff’s claim for the value of care provided by his father has been dealt with.

Cost of care by domestic helper

22.The judge declined to make any award in respect of the alleged costs of employment of a domestic helper, on the basis that this was not directly attributable to the plaintiff’s situation.  Although this aspect of the decision below was also challenged in the notice of appeal, Mr Ko did not press this point before us.  This aspect of the claim was, in fact, abandoned by the plaintiff’s counsel during submissions before the judge, and the failure to make an award in respect of it is therefore not something of which complaint can now be made.

Cost of future orthopaedic consultations

23.As we have noted, the plaintiff had claimed some HK$48,000 for future medical costs in relation to future consultations with orthopaedic specialists.  Mr Ko submitted that the judge’s award of HK$12,000 for this item (which was based on the figure offered by the defendant) was too low, and that it should be increased to the amount claimed, on the basis that the claim should be assessed on the basis of four consultations per year, in the private sector, at a rate of some HK$1,200 per consultation.  As to this, the judge had before him conflicting views from the orthopaedic experts, with Dr Lam suggesting that after the initial year (during which four consultations would be needed), consultations would be required twice a year.  Dr Ip, however, suggested that in the absence of complications, one annual follow-up or review consultation would suffice.  Dr Ip also pointed out that the follow-up consultations to date had been in the public sector hospitals.  Faced with this difference of view, for which no reasoned justification was really put forward by either expert, it seems to us that the judge was entitled to prefer, as he did, the view of Dr Ip.  On this basis, we would not disturb the award under this head.

Cost of future treatment of stump pain

24.The plaintiff also seeks an increase in the award made by the judge in respect of possible future treatment of stump pain, from HK$2,500 to HK$93,600.  Both orthopaedic experts recognised that stump pain was often experienced in relation to amputations, but both also noted that to date (some three years after the injury and amputation) it did not appear that the plaintiff had suffered from stump pain.  In these circumstances, where there was no evidence of stump pain in the period since the injury, it was open to the judge to take the view that only a modest sum should be allowed in respect of the possibility that such pain might arise in future.  We would not, therefore, disturb the award made in respect of this item either.

Cost of future prostheses

25.The judge next awarded HK$20,000 in respect of the possible future costs of a prosthesis.  The plaintiff seeks an increase to some HK$452,625.  The plaintiff’s figures are arrived at by assuming the cost of a single prosthesis, sourced in the private sector, at HK$12,500 (the average of the range suggested by the orthopaedic experts), and multiplying that by 20 (2 prostheses per year) to cover the period until the plaintiff attains the age of 17, and multiplying the same figure of HK$12,500 by 16.16 on the basis that a prosthesis will require to be replaced every two years for the rest of the plaintiff’s life.  The judge appears to have reached his assessment on the basis that a child was unlikely to use a prosthesis, or find one helpful (a view which was supported by the orthopaedic experts), but that a particularly sophisticated device might become available in future, which the plaintiff might wish to use, going on to make the award in order to reflect that possibility.

26.Mr Ko submitted that while the orthopaedic experts had both expressed the view that a prosthesis was of little functional use, and was unlikely to be suited to use by a young child, they had indicated that regard should be had to the views of the psychological experts as to the need for a prosthesis.  He pointed to passages in the joint psychological expert reports in which reference was made to risks of sensitivity and negative self-evaluation due to the disfigurement of the plaintiff’s hand, and the hope that with modern prosthetics, the plaintiff would adjust well to his injuries, and suggested that this supported the need for a prosthesis throughout the plaintiff’s life.  Mr Ko also referred to the evidence of the orthopaedic experts (in particular Dr Lam) to the effect that the plaintiff might well opt for a prosthesis as an adult, to disguise the injury in social and work settings.  On this basis, Mr Ko submitted that the judge had erred in failing to make a substantially higher award for this element of the plaintiff’s claim.

27.We think that it is fair to say that the effect of the orthopaedic expert evidence was that it was to be expected that the plaintiff would opt for a prosthesis as an adult, and that a prosthesis would be likely to be used for a fair number of years, so that provision would have to be made for periodic replacements (it was the experts’ view that replacement would be required every two to three years).  On the other hand, it does not seem to us that the evidence really supported the view that it was more probable than not that the plaintiff would be fitted with a prosthesis as a child, notwithstanding his mother’s desire for this to be done, given the lack of functionality of a prosthesis, and the fact that a child (particularly a young one) might well find it difficult to deal with it.  Taking the evidence as a whole, we think that the likelihood of a prosthesis being used by the plaintiff for a significant period of his life is very much higher than that which the judge adopted, and justifies a substantially higher award than that made by the judge.  That said, however, in our view it is very unlikely that the plaintiff would make use of a prosthesis for the whole of his life, particularly while he is still young and less able to deal with one, and probably also later in life, after he is long settled in whatever work and family situation he eventually has.  While it is not possible to be very precise as to this, we are of the view that an award of HK$125,000, which would enable some 10 prostheses to be obtained, over a period of 20-30 years (covering the period from the plaintiff’s late youth to middle-age), would be a fair award to make for this aspect of the claim.

Cost of future revision operations

28.The next element claimed in respect of which complaint is made relates to the cost of one or more possible revision operations in future to correct excessive bone growth, in the event that bone growth outstrips growth of the covering soft tissue.  The judge accepted Dr Ip’s view that generally speaking, bone and soft tissue growth would occur at the same rate.  Mr Ko complains that in coming to this view, the judge failed to explain why he preferred Dr Ip’s opinion to that or Dr Lam, who had expressed the view that the risk of requiring a revision operation was between 2% and 45% (emphasising the latter figure in his unilateral supplemental report).  Mr Ko also submitted that having regard to Dr Lam’s view that there was a 20% chance of further revision operations being necessary, it would be appropriate to quantify this aspect of the claim on the basis that two revision operations would be required, giving a figure of some HK$162,400 instead of the HK$20,000 awarded by the judge.

29.We do not think that the complaints are well founded.  As we have already explained, the judge was quite right to exclude Dr Lam’s supplemental report from his consideration.  This left a situation where Dr Lam’s view was that the risk of needing a revision operation might be as low as 2%, ranging up to 45% (which is still less likely than not).  This is not really inconsistent with the view of Dr Ip that, in general, bone and soft tissue growth are likely to happen at the same rate (a general statement, which clearly admits of exceptions).  In this state of the evidence, it seems to us that the judge was entitled to take the approach which he did, of making an award to reflect the risk of the need for further revision operations.  Taking such an approach, and bearing in mind that it was not clear whether any such operation (if needed) would be carried out in the public or private sector, it seems to us that the judge’s award is not one which should be disturbed.  The amount suggested by Mr Ko is in any event much too high, assuming as it does the certainty of two revision operations, whereas the risk of a first operation being needed was, on Dr Lam’s view, somewhere between 2% and 45%, and that of a second operation only about 20%.

Cost of future psychological treatment

30.Complaint is also made of the amount awarded for future psychological treatment – the judge awarded HK$37,500.  It is now suggested that HK$57,500 should be awarded, on the basis that the psychologist being consulted by the parents charges HK$2,300 per session, as opposed to the HK$1,500 per session rate adopted by the judge (compared to a claimed rate of HK$3,000 per session).  There is no merit in this point – the rate adopted by the judge was that suggested by the psychological experts in their joint report.  The fact that the parents consulted a psychologist charging at a higher rate is neither here nor there.

Loss of future earnings/loss of earning capacity

31.The final area of complaint concerns the judge’s failure to make any award in respect of loss of future earnings, or loss of earning capacity.  The judge declined to make any such award on the basis that, in his view, the plaintiff’s injury would not affect the plaintiff’s eventual career.  Mr Ko submits that this was wrong, as there was no medical evidence to this effect, and that, on the contrary, the orthopaedic experts agreed that it was unlikely that the plaintiff would be able to pursue a career in music (or at least, a career involving the playing of musical instruments), or in sports – at least in certain sports in which he might not be able to achieve his full potential because of the injury.  Mr Ko also referred in this context to the likelihood of psychological issues which the plaintiff might face, and to the fact that the plaintiff might now not be able to pursue further studies abroad, as his parents had had to give up an insurance plan intended to fund such studies owing to their losses of earnings, suggesting that this might mean that the plaintiff would not be able to pursue a career in the information technology industry.

32.Mr Ko submitted further that the difficulties in predicting what sort of career the plaintiff might have had but for his injuries was not a reason for depriving him of an award of damages under this head.  In this connection, he referred us to a number of cases in which the courts had grappled with this problem.  In Blamire v South Cumbria Health Authority [1993] PIQR Q1, a nurse who suffered a work related back injury which prevented her from continuing to work as a nurse was awarded a lump sum award that was not determined by reference to a multiplier/multiplicand approach, having regard to the many imponderables (as to the amount of her future earnings, the pattern of such earnings, and whether the plaintiff would have continued in employment at all (and if so, whether full time or part time).  In Webster v Hammersmith Hospitals NHS Trust [2002] All ER (D) 397, the multiplier/multiplicand approach was used in relation to a child suffering from severe disabilities in all four limbs due to cerebral palsy arising from an injury caused at birth, the difficulty being as to the sort of career she might have had but for the injury.  In Mitchell v Liverpool Area Health Authority (The Times, 17.6.85, CA) it was held that the difficulties in determining what sort of career a plaintiff, who had suffered the loss of an arm as a child, might have had but for the injury did not justify a refusal to make any award at all. Finally, in Chu Man Ting v Kwan Kam Kei [2003] 1 HKLRD 404, where the question centred upon what sort of career a 12 year old traffic accident victim might have had, the approach adopted was to award a substantial lump sum, utilising as a cross check an estimate of the monthly sum awarded had the same final sum been arrived at using a multiplier/multiplicand approach.  Mr Ko suggested that the judge should have adopted a modest loss of earnings of some HK$2,000 per month throughout the plaintiff’s life, and award some HK$673,680 for this head, using a multiplier of 28.07, on the assumption that the plaintiff would work from the age of 18 until retirement at 65.

33.There are, as these cases demonstrate, a number of possible approaches to the assessment of damages in cases where there are significant uncertainties involved as to the future career path of a plaintiff who has suffered serious injuries.  However, it does not seem to us that any of these approaches are of assistance to the plaintiff here.  The plaintiff’s injuries were, compared with those suffered by the plaintiffs in the cases to which we were referred, much less serious.  The evidence before the judge did not suggest that the plaintiff would not be able to pursue any particular career or line of work, other than certain types of careers in music or sport.  There was, no doubt because of the plaintiff’s young age, no evidence to suggest that a career in either of those areas was realistically in contemplation (indeed, the basis of the claim in the consolidated revised statement of damages was that the plaintiff would be unable to pursue a career in the information technology or similar businesses, and would be left with only a relatively low-earning clerical career – a view of things that was not supported by the evidence, since even if the plaintiff might not have been able to go abroad to study, there was nothing to suggest that he would not fulfil his academic potential locally).  In these circumstances, it was perfectly open to the judge to come to the view that the plaintiff was not, in fact, disadvantaged in relation to his potential career, or in the labour market generally, as a result of the injury he suffered.  That being the case, there would be no basis for making an award under either of these heads of damage.

34.In these circumstances, this complaint is not one which should be upheld.

Disposition and costs

35.For the reasons which we have explained, we would allow this appeal to the limited extent set out above, by:-

(1)  increasing the award for pain suffering and loss of amenities to HK$275,000;

(2)  increasing the award in respect of the costs of prostheses in the future to HK$125,000; and

(3)  ordering that the plaintiff’s claim for the value of care provided by his father be adjourned and heard together with the father’s own claim in HCA 62/2011.

36.So far as costs are concerned, as the plaintiff has enjoyed some success in relation to the aspects of the claim mentioned in the previous paragraphs (although not to the extent claimed in either the notice of appeal or Mr Ko’s skeleton argument), but has failed on a number of challenges to other aspects of the award of damages made by the judge, we would propose an order nisi in respect of the costs of this appeal that the defendant should pay half of the plaintiff’s costs of the appeal, to be taxed on the common fund basis if not agreed, and that the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.  So far as the costs below are concerned, these should be reserved to be considered after the final disposal of these proceedings after the plaintiff’s claim for the value of care provided by his father has been dealt with.

Mr Tony Ko, instructed by W.H. Chik & Co., for the Plaintiff/Appellant

Mr Adrian Huggins, SC, instructed by Howse William Bowers, for the Defendant/Respondent