Tam Choi v. Ho Wai Hing and Another

CACV000019/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 19 OF 1974

(On appeal from O.J. 2997/73)

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 12th September 1974.

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JUDGMENT

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Huggins, J.:

1. This is an appeal against an award in the sum of $8,972 in an action for damages for personal injuries arising out of a traffic accident for which blame was apportioned as to 75% to the Plaintiff and 25% to the Defendant.

2. The Plaintiff now complains that the trial judge erred in his assessment of both the special and general damages by reason of his misdirecting himself as to her loss of earning capacity and that the general damages were in any event grossly inadequate. The Plaintiff was a married woman in her mid 40s. For the past eight years she had been making the greater part of her income as a hawker, but had supplemented this by work in a factory for about ten days each month. Her wages in the factory were accepted as being $180 a month. No finding was made as to her earnings as a hawker, for a reason which will appear. As a result of the accident the Plaintiff's right leg was cut and it was stripped of its skin cover from just above the knee down to almost the level of the ankle. She did not lose consciousness. She was detained in the Queen Elizabeth Hospital for ten days and thereafter in Kowloon Hospital for about two months. In the absence of an up-to-date medical report the trial judge had difficulty in coming to a just conclusion as to the permanent disability, but he found that the right leg was now half an inch shorter than the left and 1 ¼ inches thinner due to wasting and that the Plaintiff had difficulty in walking and squatting, which would "make difficulties both as a housewife within her home and when enjoying the company of her family out of doors". He was satisfied that she had had considerable pain and suffering. As to the permanent disability he observed that there was evidence that the Plaintiff had recovered further use of her leg since the permanent disability was assessed at 25% in April 1973.

3. The fact which was the foundation of the alleged misdirection was that the Plaintiff at no time had a licence to carry on business as a hawker. There was no evidence that she had applied or intended to apply or had contemplated the possibility of applying for a licence. As the learned judge pointed out, it is a criminal offence to hawk goods without a licence under the Hawker By-Laws made under the Public Health and Urban Services Ordinance. For that reason the judge took the view that it was wrong, as being against public policy, that a person engaged in unlicensed hawking should benefit from that activity and that the Plaintiff's income derived from her unlicensed hawking must be disregarded in assessing her damage. As I understand the contention advanced in support of the appeal it is that although that was right as far as it went the learned judge was wrong to infer or to assume that the Plaintiff would never do more than an average of ten days' legal work in a month and to base his assessment of the Plaintiff's loss of earning capacity upon that inference or assumption. Counsel submits that there was a possibility, and indeed a probability, that she would have turned from her illegal ways if not entirely at least to a large extent and would have worked full-time in a factory. He bases this submission on the assumptions that as her children grew up they would no longer require her constant supervision and that as she could supervise them when she was hawking but not when she was working in the factory she would not have the same incentive to continue her illegal activity. He further suggested that as she grew older the Plaintiff would find the uncertainties and tensions of life as an unlicensed hawker less and less attractive and that she would be likely to content herself with the steadier if less remunerative employment in a factory. For these reasons he sought to distinguish Burns v. Edman 1970 2 Q.B. 541 where a claim was made in respect of the death of a man who was a professional criminal and where it was held that since the possibility of his reform was entirely speculative and unproven to the point of improbability there could be no award of damages in respect of loss of potential support. It was implicit in counsel's argument in the case at bar that the Plaintiff would have no difficulty in obtaining full-time employment in a factory if she desired it, although there was no evidence that jobs were so readily available.

4. In my view the learned judge came to the right conclusion on this point. Such evidence as there was tended to show that the Plaintiff preferred hawking when she had the capital to buy stock. Indeed her evidence that her work in the factory was confined to times when she did not have enough capital is hardly consistent with her evidence of her higher earnings as a hawker and of the apparent regularity of her employment in the factory. It would not be justifiable to infer that the Plaintiff would change the habit of the past eight years, but rather was there a probability that she would continue it. It is true that if she did wish to make the change she would, on the findings of the learned judge, be unable by reason of her injuries to make it, but the possibility must be regarded as too remote for that loss of earning capacity to have a quantifiable value. The result may seem to some a harsh punishment for making a living in a manner regarded by society as criminal, but our task is to apply the law as we find it.

5. Were the general damages awarded manifestly inadequate? Counsel for the Plaintiff contends that the learned judge must have given insufficient weight in his assessment to his client's pain and suffering and loss of amenities. The learned judge did not sub-divide his award under separate headings but awarded a composite sum, which he was entitled to do: Watson v. Powles 1973 1 W.L.R. 1364. However, basing his calculation on the implicit finding that the Plaintiff has lost an earning capacity of $180 a month, counsel argues that out of a gross figure, before apportionment, of $30,400 the judge cannot have allowed more than $10,000 for pain and suffering and loss of amenities, which he submits could not be proper compensation. The calculation assumes a multiplier of approximately ten and no further discounting to allow for the fact that the Plaintiff would receive a lump sum and for the ordinary vicissitudes of life. It is submitted that for a case like the present ten was a low multiplier. That submission is based in part upon an assertion that the Plaintiff was aged 42, which was not the finding of the learned judge, but little would turn upon a difference of two to five years in her age. There was some reference on the hearing of the appeal to the Plaintiff's having discharged herself from hospital against the advice of the medical staff and to her having refused to undergo an operation for a skin graft, but there is nothing to show that the trial judge reduced his award by reason of these matters and I do not think it necessary to say any more about them. No cases were cited to show that the assessment was out of line with awards for comparable injuries. There is a report at (1974) 4 H.K.L.J. 207 of T'SING CHOW Ho-chun v. WONG Pui where $45,000 general damages were awarded to a woman of 54 for a comparable injury. This gives some slight support to my own view that the figure of $30,400 was ungenerous. On the other hand, in Riddell v. Lui Kwong Hong O.J. Action No. 2406 of 1972, where a leg injury resulted in greater permanent disability and a total of three surgical operations was likely to be required, a sum of $10,000 was awarded for pain and suffering and $15,000 for loss of amenities. The cases cited in Kemp and Kemp on The Quantum of Damages show that awards for pain and suffering in England have been generally modest, sometimes, in my view, even to the extent of being almost derisive of the tribulations of injured plaintiffs. However, I am not persuaded that this is a proper case in which to try to stem the tide of judicial opinion as to awards for pain and suffering, whilst, as to the award for loss of amenities, I have already said that the absence of full up-to-date medical reports makes a satisfactory assessment particularly difficult in the present case. The question which has troubled me is whether the award, ungenerous as it is, is so low that we ought to interfere. The onus is on the Appellant to show that the award was wrong and, although at one time I was inclined to the view that we ought to allow the appeal, on further reflection I have come to the conclusion that the onus has not been discharged.

6. I would therefore dismiss the appeal.

12th September 1974.

Representation: