CHAN AH KAU, next friend for CHAU TAI v. NG TIN TAI

CACV 556/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 556 OF 2001

(ON APPEAL FROM PERSONAL INJURIES ACTION NO. 33 OF 2000)

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REASONS  FOR  JUDGMENT

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Hon Rogers VP:

1. This is an appeal from a judgment of Suffiad J given on 1 February 2001. The claim brought by the plaintiff was as next friend on behalf of Mr Chau Tai. Mr Chau had suffered serious injuries whilst a passenger in a car driven by the defendant. The judge had little difficulty in finding that the defendant had been negligent. He assessed the total damages at $3,425,150 which he reduced by 20 per cent on account of Mr Chau's negligence. On this appeal the defendant challenges the assessment of the pre-trial loss of earnings and the future loss of earnings. The other elements of the award are not challenged, neither is the finding of contributory negligence challenged. At the conclusion of the hearing, this court dismissed the appeal with costs, indicating that the reasons would be handed down in writing, which we now do.

Background

2. The accident occurred in January 1998. Mr Chau was then 39. He suffered very severe head injuries which have left him in a state where he cannot work. Professor Lee, the Professor and Consultant Clinical Psychologist in the Department of Psychiatry at the University of Hong Kong, examined Mr Chau in January 2000 at Queen Mary Hospital. He summarised his opinion as follows:

"1. Mr. Chau sustained serious brain injury as a result of his traffic accident. Apart from his mobility difficulties, the accident and his injury have also left him with significant impairment in his psychological, personality, cognitive, and memory functioning.

2. Mr. Chau is estimated to have suffered about 20% loss of his previous cognitive functions. In particular, he is severely impaired in abstract conceptual thinking, and in cognitive processes involving sequential and logical analyses. He is slow in his motor and hand-eye co-ordination. Apart from a reasonably intact immediate memory of chains of digits to be learnt, together with a reasonably intact level of concentration, motivation, and numerical ability, Mr. Chau is moderately impaired in all his other cognitive functions.

3. Mr. Chau's learning and recall functions are also noted to be moderately impaired. He has particular difficulties coping with analysis, encoding, storage and recall of visual spatial information. His verbal learning and recall is also unreliable and lacking in fine details."

It is unnecessary to set out all the remaining parts of the conclusion, but Professor Lee also noted that Mr Chau tended to be "perseverative with relative poverty of contents in his speech."

3. At the trial, it was the plaintiff's case that Mr Chau had, until the accident, worked in the Aberdeen Fish Market buying and selling fish. In Mr Chau's witness statement, he explained that he had started life working as a fisherman with his father; later he worked with his uncle when his father stopped working. After a spell of two or three years working on a construction site, he started working in the Aberdeen Fish Market. The work comprised buying the fish in the market and selling it to buyers in other markets such as North Point, Wan Chai and Central.

4. At the trial, the defendant had challenged the assertion that Mr Chau had worked in the Aberdeen Fish Market. That challenge was rejected and the judge found that the plaintiff had worked there up until the time of the accident. There was ample evidence for the judge's finding in that respect. Not only had that been Mr Chau's evidence, but there was evidence from his mother to support the fact. She said that often when she rose early at 6 a.m. the plaintiff had already left for work which she understood to be at the market. He often bought fish home for dinner which he said came from his work. The brother, too, also gave evidence which went to confirm that Mr Chau had worked with a Mr Lai Chi Wah at the market.

5. The defendant's case that Mr Chau had not worked had been based to a substantial extent upon the fact that Mr Chau had made frequent visits to the Mainland. The travel records kept by the Immigration Department showed that the plaintiff had been in the Mainland 164 days in 1997. However, a more careful analysis of the dates shows that it was only in February and March 1997 that Mr Chau would have been unable to have worked at least 16 days in each month.

6. The working hours in the Fish Market were between 4 and 10 a.m. in the morning and 5 and 10 p.m. in the evening. Without exception, on each occasion when Mr Chau had left Hong Kong it had been in the afternoon. He would thus have been able to work in the mornings. Many of the occasions when he was outside Hong Kong for overnight periods were either weekends or during public holidays, such as Dragon Boat Festival, the 1st and 2nd of July, immediately after Christmas and over the Easter period. A perusal of the periods when Mr Chau was in Hong Kong and able to work and a comparison of the periods when he was outside Hong Kong thus indicates that perhaps a lengthy annual holiday was taken around the time of Chinese New Year and thereafter but in the main Mr Chau was able to work. His evidence was that most of the time when he was in Hong Kong he worked, it was on rare occasions that he did not work.

7. On this appeal, the defendant concedes that Mr Chau worked as he said at the Aberdeen Fish Market. The challenge on this appeal was as to the assessment of the loss of earnings both pre and post-trial on the basis that is to Chau earned $7,500 per month.

8. As has been said before, the assessment of damages in a personal injury case is an assessment by the judge in monetary terms as best he can of the loss which is envisaged that the claimant has suffered as a result of the accident. Breaking the amounts down into pre-trial losses and future loss of earnings is the useful tool which the court uses.

9. In this case, the judge was faced with evidence which was, as he said, unsatisfactory. He summarised it by saying that if Mr Chau's evidence had come from a normal person it would be looked upon with more than just a little suspicion. But, at page 15G to J, the judge took into account Mr Chau's injuries, which resulted in mental and intellectual impairment. He said that he had found Mr Chau was not an articulate person at the best of times and he took into account his low education standard when assessing his evidence.

10. Although Mr Lam, on behalf of the defendant, sought to question that approach, largely on the basis of extracts from Professor Lee's report, in my view, that challenge wholly failed. The judge saw the plaintiff in the witness box. He saw the way the plaintiff gave evidence. He made other observations in respect of Mr Chau's demeanor which support his assessment of Mr Chau's ability to be coherent. I see no basis for challenging the judge's approach in this regard.

11. There is one observation in the judgment relating to the evidence as to Mr Chau's earnings which appears to have been inaccurate. The judge said that Mr Chau's witness statement had put a figure of $7,500 as the monthly salary which has paid to him. That figure was, in fact, a figure which Mr Chau gave in evidence but was contained in the first statement by his mother, the plaintiff.

12. Having read the transcript of Mr Chau's evidence, I consider that the judge's approach is entirely fair and reasonable. No doubt, as the judge said, the evidence would be unacceptable if it had come from a professional person with a high educational background and in good health. Moreover, there was other evidence to support the receipt of wages or salary by Mr Chau which would make a figure of $7,500 per month reasonable. The mother's evidence as to payment of household expenses to her on a regular basis confirmed Mr Chau's own evidence. Mr Chau's brother, Mr Chow Chi Ming, had estimated Mr Chau's living expenses at approximately $7,500 per month. There is no reason to suppose that estimation was not entirely reasonable given the fact that he would have known of the payment of household expenses and also Mr Chau's propensity of visiting his girlfriend in the Mainland and going to restaurants and discos whilst there.

13. Indeed, it would be possible to go further. There was discussion during Mr Chau's evidence as to the fact that he received the salary plus a share in the profits made from selling the fish. Mr Chau was unable to give evidence as to how those profits were calculated. The business apparently belonged to a Madam Chung and not Mr Lai, who appears to have been also employed by Madam Chung. Mr Chau had been unable to give the judge any figures as to what he received in respect of his share of the profits and hence, the judge discounted that and took the figure of wages at $7,500.

14. In my view, the judge took a conservative figure. It is quite possible that Mr Chau might on average have taken home considerably more than $7,500 per month. I do not consider that in approaching the overall financial loss suffered by Mr Chau it can be said that by taking the figure of $7,500 per month, a starting figure was used which was in any way inflated.

Hon Le Pichon JA:

15. I agree.

Hon Cheung JA:

16. I agree.