Gordon Taylor Graham v. P.J. Mansell
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CACV000017/1976
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----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 14th May, 1976 ----------------- JUDGMENT ----------------- Pickering, J.A.: 1. The plaintiff was employed by Taikoo Dockyard & Engineering Co. of Hong Kong Ltd. as electrical superintendent when, on 2nd May 1971, he suffered serious injury as the result of a collision between his motor-car and that of the defendant. At that time the plaintiff was 49 years old and in normal circumstances would have retired from his employment at the age of 55. He was in fact compelled to retire, as a result of his injuries, in June 1972 which is five years and two months before his expected date of retirement. Judgment by consent was entered against the defendant upon the issue of liability and an assessment of damages was made by a registrar in chambers. The learned registrar assessed the damages at $498,000. A constituent element of this total was a sum of $40,000 in respect of the loss of provision of free furnished accommodation by the plaintiff's employers for the five-year period from August 1972 to August 1977. The plaintiff now claims that this award should have been made in the sum of $280,000 or alternatively that it should have been substantially higher than $40,000. Items which did not go to make up the total of $498,000 were (a) loss of future earnings after the plaintiff's normal retirement age of 55, (b) the loss to the plaintiff of the benefit of having his utilities (gas, electricity, etc.) paid for by his employers and (c) the loss allegedly sustained by the plaintiff in respect of an education allowance for his daughter for a period of 1 ½ years, that is, until she would have attained the age of 18. It is in respect of these four items that the plaintiff now appeals, alleging that his total award was too low. 2. Dealing with the question of loss of accommodation, the learned registrar confessed that he had no idea as to how to quantify that loss but he awarded a sum of $40,000; this was based upon an estimate of the cost of furnishing and equipping the bungalow in Australia in which the plaintiff now lives and of keeping it in repair for five years. 3. We think the true measure of damages under this head is the cost of renting, for five years and two months, comparable accommodation in the area in which, upon medical advice, he has settled, that is to say, Western Australia. It is true that he has bought and not rented the bungalow in which he now lives but that fact does not alter the yardstick by which, ideally, his compensation should be measured. I say "ideally" because there was not a shred of evidence before the learned registrar as to the rental value of the bungalow. That being so the ideal yardstick is beyond our reach. We are satisfied, however, that the award of $40,000 under this head was too low and that the $280,000 striven for by Mr. Mills-Owens is too high. 4. In those circumstances we propose to adopt an approach which, unless the rental values of domestic accommodation in Western Australia are inordinately low, results in an award which, although higher than the $40,000 awarded by the registrar, will not be so great as that likely to have been reached had the most appropriate evidence been before us. It is, we consider, legitimate to have regard to the fact that one aspect of the loss suffered by the plaintiff in regard to accommodation was the necessity to buy a bungalow in Western Australia at the precise time when he had to do so. By which we mean that the bungalow had to be purchased some five years and two months before any such purchase would have been necessary but for the accident; indeed such purchase might never have been necessary since the plaintiff had a house in Scotland, since disposed of, to which he had intended to retire. It follows that at the very least the plaintiff lost the use of the monies representing the purchase price of the bungalow for some five years and two months. We consider it immaterial that the purchase price was in fact raised from an advance payment of damages by the defendant for had such monies not been available the plaintiff could have utilised his own monies or mortgage monies for the purpose. 5. The calculations inherent in this line of approach are as follows:- the bungalow cost, on the plaintiff's evidence, A$24,000 or A$25,000. Adopting the latter figure for ease of calcuation and taking the conventional figure of 8% interest, the plaintiff has been deprived of interest on his purchase price amounting over five years and two months to A$10,333.33 or HK$67,164 and this is the amount which we would substitute for the original award of $40,000 under this head. 6. The next important regard in which the assessment of the learned registrar is challenged relates to loss of future earnings after the normal retirement age by virtue of the plaintiff's handicap in the labour market as a result of his injuries. In this respect, the registrar found that the question of future employment after the age of 55 was too uncertain and speculative and made no award for damages for future earnings after that age. 7. We think this was an incorrect conclusion for the plaintiff is at present employed as a store-keeper at A$8,250 p.a. which sum, after deduction of tax at the appropriate Australian rate of 25%, amounts to $6,187.50 p.a. There is evidence that if he has to have the operation for replacement of his right hip by an artificial hip - and on the medical evidence he soon must undergo this operation - his employers will be unable to retain him in their employment owing to the length of time required for recuperation. There is also the possibility of failure of the operation. Either success or failure would leave him unemployed for a period of time and then faced with the task, one by no means assured of success on such evidence as is available in regard to the Australian labour market, of finding alternative employment at equal remuneration. In addition to the injury to his hip he still has, according to the joint report of the two doctors consulted respectively on behalf of the plaintiff and the defendant, tenderness about the right occipital crest accompanied by some loss of rotation of the neck to both sides; some limitation of both right and left lateral flexion, some loss of rotation, both internal and external of the shoulder joint. In short, whatever the result of the hip operation, he will not be the best candidate for the labour market either in relation to acquiring or retaining employment. 8. We consider that these combined infirmities and possible infirmities should entitle him to a 20% disability rate based upon his present net earnings. In the court below Mr. Mills-Owens strove for a disability factor of $5,000 but it is not clear whether this referred to Hong Kong dollars per month or Australian dollars per year. In any event in this Court Mr. Mills-Owens conceded that the figure was probably high and suggested a disability factor of $1,500 to $2,000 per annum. As it seems to us, all these suggested figures were plucked out of the air, whereas we have attempted to relate the disability factor to present earnings. Rounding up the figure of those earnings net of tax, from A$6,187.50 to A$6,200 the total net earnings per annum are HK$40,300 at HK$6.5: A$1. A 20% disability factor, using a multiplier of five years - the multiplier agreed by both sides to be appropriate if any award is to be made under this head - results in the same figure i.e. $40,300 and this is the amount we would award for probable loss of future earnings after the normal date of retirement. 9. In regard to the provision of utilities, such as electricity, the dispute between the parties was as to whether or not certain figures, relating to the plaintiff's remuneration and prospective remuneration over the years, included or did not include an element for utilities. We do not consider that the plaintiff has proved that these figures did not include that element and the appeal under this head must there fore fail. 10. The remaining ground of appeal relates to the education allowance which it is said would have been payable in respect of the plaintiff's daughter for some eighteen months prior to her attaining the age of eighteen upon the 16th November 1973. The figures produced in this respect were somewhat ambiguous but counsel for the defendant concedes that the years to which they relate must refer to academic years. That being so it is apparent that the daughter's school fees at the Island School had been paid up to June 1972 which was the end of the academic year. The fees which would have remained to be paid by the plaintiff's employers had he remained in their employment, would have related to the 1972/73 academic year and to a small portion of the 1973/74 year. It is the contention of the defendant that in respect of the academic year 1972/73 the company paid the sum of $2,250 to the Island School in respect of the plaintiff's daughter. We can only say that if in fact they did so they were ill-advised since the girl had left Hong Kong in June 1972, that is before the beginning of the 1972/73 academic year. It follows that the plaintiff must have paid for her education in Australia and, in the absence of evidence as to the cost of that education it is reasonable to expect the defendant to pay what would otherwise have had to be paid - and may indeed have been wastefully paid - by the plaintiff's employer, that is $2,250. 11. In the result, therefore, we allow the appeal and award, in addition to the award made by the registrar, $2,250 in respect of the education allowance for the plaintiff's daughter, $27,164 in respect of accommodation lost to the plaintiff and $40,300 in respect of prospective loss of future earnings after his normal date of retirement. The plaintiff is entitled to the costs of his appeal. Representation: Mills-Owens (Deacons) for appellant. Ching, Q.C. & Y.C. Mok (F. Zimmern & Co.) for respondent. |