CHAN YUK v. DRAGAGES ET TRAVAUX PUBLICS (H.K.) LTD.

CACV 89/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 89 OF 2000

(ON APPEAL FROM HCPI 1066/1998)

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J U D G M E N T

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Hon Rogers JA :

Introduction

1. This is an appeal from a judgment of Seagroatt J given on 2 February 2000 whereby he gave judgment in favour of the plaintiff for a sum $12,030,715.00.

The facts

2. The plaintiff was a construction worker working on the site of what is now the Conrad International Hotel. On 21 February 1989, he was severely injured when pipes carrying concrete burst. He was then 44 years old. Liability for the accident was admitted.

3. On the second page of his judgment, the judge set out, in outline, the injuries which the plaintiff had suffered as a result of the accident. He has organic brain damage which has resulted in gross impairment across all his cognitive functions. As a result of his accident, he has suffered dementia and he is a mentally disordered person. He has been left with a right hemiparesis. There is a moderate degree of cerebral atrophy. There is a change in his personality. He has exhibited a marked change in behaviour. As a result of this, his children became scared of him and they are virtually no longer on speaking terms with him. He has lost all his pre-injury social arrangements. The impairment to his cognitive functions also resulted in a number of day-to-day problems. In effect, he has become a danger to himself. It has been impossible to allow him to live on his own. He has been and will be unemployable. In addition to loss of libido and the loss of sense of smell and taste, he has suffered from double incontinence both in respect of leakage and urgency. He no longer has any pleasures in life including any pleasure of enjoying food. His brain damage as assessed by his doctor, which the judge accepted, was moderately severe. The doctor put it at 4 on a scale of 1 to 5. Perhaps more descriptively, the doctor regarded severe as being vegetative, bed bound and unable to communicate. Another, and important, aspect of his injuries is that he has been conscious of his deficiencies. This, perhaps, has exacerbated the seriousness of those injuries.

The award of damages

4. The award was made up of a number of figures including in particular a sum of $1,250,000 in respect of pain, suffering and loss of amenities, a sum of $1,440,991 in respect of the cost of pre-trial care and attention from the plaintiff's wife, a sum of $3,249,224 in respect of the post-trial cost of care and attention of the plaintiff, a sum of $35,000 in respect of the loss of society and a sum of $2,430,786 as the cost of alternative accommodation for the plaintiff.

5. The defendants appealed in respect of the quantum in relation to each of those awards. As regards the other amounts included in the total award, there was no appeal. In respect of the loss of society, the defendants abandoned their appeal and conceded that the point taken by the plaintiff on the cross-appeal is of substance. In respect of the post trial cost of care and attention, the defendants did not pursue their appeal in the argument. Each of the items will be dealt with separately.

Pain, suffering and loss of amenities

6. In assessing the amount awarded under this heading, the judge said :-

"There is not much amenity value in his life. It would be correct to describe his injuries in the category of gross disability. It is only an unfortunate label and there are of course degrees of gross disability. In my view, the proper figure is one of $1,250,000. He is overall in a worse condition than the plaintiff in Wong Hin Pui v. Mok Ying Kit HKPI 763 of 1997."

7. The thrust of the defendants' appeal in this respect is that whilst the judge categorised the plaintiff's injury as gross disability, he awarded damages which went beyond the scale laid down for gross disability which, on current figures, would be up to a maximum of HK$1,013,000 and awarded damages which were into what would be appropriate for injuries that fell within the disaster scale category.

8. Our attention was drawn by Mr Bleach, SC in a well focussed argument on behalf of the defendants, to the speech of Lord Diplock in the House of Lords in the case Wright v. British Railways Board [1983] 2 AC 773. In particular, at page 784, Lord Diplock stressed the importance of the adherence by courts to guidelines laid down by the Court of Appeal in respect of quantum of damages appropriate to compensate for various types of commonly occurring injuries. In that case, the immediate matter was in relation to guidelines in relation to interest, but the principle is the same. The observance of guidelines is important for the administration of the law since it enables, apart from anything else, litigants and would-be litigants to know in advance with some degree of certainty what damages are liable to be awarded. It was, for this reason, that it was urged upon us that the judge had erred in principle in a manner which was important because if the guidelines became diluted, it would be impossible for parties to prepare on an informed basis.

9. In his submissions, Mr Bleach also drew our attention to two cases of particular interest. In the case Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657, the Court of Appeal specified four categories of disablement into which they considered personal injuries could be divided. In doing so, they said at page 659 :-

"There is, of course, no rigid distinction. That cannot be, for severity of injury presents a sliding scale. Furthermore there may in a particular case be factors not in themselves disabling, which are sufficient to take that case from one category into another. Nor should these categories be confused with the 'Brackets' of awards which are used by the appellant [appellate] courts in deciding whether or not they ought to interfere with any particular award."

There were four categories labelled "serious injury", "substantial injury", "gross disability" and "disaster". As was submitted by counsel in argument, these can only be categories indicating general descriptions of what is likely to be included in any one bracket. It might be obvious that in some instances it would be difficult to distinguish what ought to come within the bracket of gross disability and what ought to come within the category of disaster.

10. Some eight years later in the case Lau Che-ping v. Hoi Kong Ironwares Godown Co. Ltd. [1988] 2 HKLR 650, the Court of Appeal made reference to these guidelines and at page 653, Cons VP, who was then the Acting Chief Justice said :-

"Counsel for the plaintiff in the court below opened her submission to the judge upon this aspect of damages by reminding the judge 'that the classic starting point in Hong Kong for awards under this head was the case of Lee Ting-lam.'

With the greatest respect, that is not right. The starting point is a comparison of the injuries in the case in question with injuries in similar cases in which awards have already been made by the court. Consideration must next be given to any special feature or features which might influence the award in the particular case and only then, when a tentative conclusion will already have been reached, should attention be turned to the established guidelines. If the tentative conclusion does not conform to the guidelines then serious consideration should be given to whether there is indeed sufficient justification for an award that is otherwise apparently out of line with the general pattern. This Court did not by Lee Ting-lam intend to confine damages in a straight jacket. If the sartorial analogy is to be pursued, this Court hoped rather to provide them with what in earlier days would have been referred to as a good foundation garment, a garment upon which all other dresses appropriate for particular occasions would sit comfortably."

11. The judge went on to say that the categories were not intended to be mutually exclusive. It is fair to say that as presented to the judge in the court below in opening, the plaintiff's case was that :-

"The plaintiff was at the top of the gross disability category, and with features of the disaster category in Lee Ting-lam so that the proper figure is $1.2 million. The court would also be justified in concluding that in reality the plaintiff is near the low end of the disaster category."

12. That submission that the plaintiff's injuries should be categorised at the upper end of the gross disability with some features of disaster level was repeated in the closing submission. In contrast, the defendants' case was that a figure of $825,000 was appropriate. Even in the notice of appeal, that figure was repeated. Without withdrawing it, at the beginning of the appeal, Mr Bleach gave an indication that the defendants would not be overly concerned if the award were $1 million or slightly above. The defendants regarded the matter as one of principle that the figure should be no higher than the maximum award appropriate for a gross disability.

13. We were informed by counsel for the appellants that although the judge below only referred to the case Wong Hin Pui v. Mok Ying Kit, there were a number of other cases which were cited to him in respect of the award for pain, suffering and loss of amenities.

14. In considering the passage in the judgment in which the judge made the award for general damages, it is clear that the judge came to the conclusion that the plaintiff was in a worse condition than Mr Wong, in the case of Wong Hin Pui. Counsel for the appellants did not try to dissuade us as to that.

15. In my view, the judge was correct in that assessment. In coming to his conclusion, the judge no doubt bore in mind that the outward physical injuries which the plaintiff in the present case had suffered were possibly similar to Mr Wong's physical injury. However, the result of the overall injury to the plaintiff including his mental ability, of which unfortunately he was all too aware, and the prognosis for the future made the case considerably worse. Hence, although the physical injuries might, on some aspects, have come within the category of gross disability, there are aspects of the case which clearly hark to disaster. I am not satisfied that in making the award, the judge below made any error in principle or came to a figure with which this court should interfere.

16. As a result, I do not consider that this court should disturb the award made by the judge as to general damages to which the plaintiff is entitled. It is however important that courts should, when awarding damages, adhere to the guidelines as they do provide a check directed to providing some consistency in the award of damages. Where judges consider it right to depart from the guidelines and in particular to categorise injuries in one category but find it appropriate to award damages higher than would be usual for that category, it would be appropriate for an indication to be given either that the case does not fall wholly within one category or another or otherwise to indicate the reasons. In so saying, I am conscious of the fact that it is often difficult to categorise injuries as being in one category or another. Counsel was at pains to say that the rules as to guidelines could not compel a particular case to be "shoe horned" into one category or another. In my view, the guidelines provide a cross-check as to the quantum of damages which are awarded. Their application leads to, or should at least assist in leading to, consistency.

Alternative accommodation

17. The judge's assessment of the damages in respect of alternative accommodation was HK$2,430,786. The assessment was based upon the premise that the plaintiff should have accommodation of approximately 750 sq. ft which would include both a bathroom and lavatory which would be for the plaintiff himself together with a separate bedroom for himself and his wife with separate accommodation for the children and for the medical and other personnel who would be assisting the plaintiff in the future. Criticism was levelled at the size of the area on the basis that separate rooms were allowed for the plaintiff's younger son and daughter. It was forcefully pointed out that the accommodation in which the plaintiff had been for approximately 30 years was basic in the extreme and the two children lived in bunk beds separated from their parents merely by a curtain.

18. The main thrust of the appeal in respect of the accommodation was that the award provided too much accommodation for the children and for far too long. The cost of the accommodation was calculated on the basis of a multiplier of 12 years. It was argued that it was a reasonable estimate, if not almost certain that the two younger children would have moved out within about six years. Hence, the plaintiff's need for space would be reduced to about 590 sq. ft. It was said that the judge had failed to make allowance for this as he had done in the case of Ta Xuong v. Incorporated Owners of Sun Hing Building [1997] 4 HKC 171.

19. The point taken in respect of the assessment of 750 sq. ft for the initial period of six years was based upon the premise that the judge's assessment had been calculated on the footing that the plaintiff would, had the accident not happened, have wished to provide his children with separate rooms. It was said that if that were so, the judge should have taken into account the fact that the plaintiff would have spent more upon accommodation and hence, instead of taking into account the sum of $300 per month which the plaintiff was currently spending on accommodation, the judge should have deducted a sum of $1,900 per month which was the defendants' estimate of what the plaintiff would have had to spend had he been working and able to provide his children with separate rooms.

20. The judge came to this part of the assessment of the damages on the basis of a standard 751 sq. ft flat in Laguna City. It is of interest to note that there was no indication of a 590 sq. ft in that location. As Mr Yu SC, on behalf of the plaintiff, demonstrated the evidence showed that the plaintiff required to have a separate lavatory/bathroom from others in the house. Not only that, but the lavatory/bathroom had to be of a sufficient size to cater for a commode and to enable whoever was assisting the plaintiff to be able to manoeuvre him and help him appropriately. If a flat with two bathrooms were to be found, it would inevitably have to be of a size greater than 500 sq. ft. Indeed, it would seem that in Laguna City, the size of flat of 751 sq. ft was the size of flat which would have two lavatory/bathrooms. In addition, the medical evidence was that the plaintiff required additional room in his bedroom because he would need assistance, particularly as time went by, to avoid him injuring himself through falls. As Mr Yu pointed out, once the bedroom, which would be the plaintiff's bedroom, and the associated bathroom were enlarged for him, far from the flat being a four-bedroom flat, it would be little more than a two-bedroom flat with, at the most, an additional box room.

21. Moreover, at the hearing, the defendants withdrew their appeal insofar as it related to the post-trial care and attention which the plaintiff would require. The judge had assessed that on the basis that for a period of six years following trial, the plaintiff would require the assistance of a Chinese Care Assistant which would be supplemented by the plaintiff's wife. After that six-year period, the plaintiff would probably require a China trained nurse and a domestic amah would also be required. Hence, even if the plaintiff's two children were to live with the plaintiff initially but then leave, in approximately six years, at least one extra room would be required for the future assistance needed by the plaintiff. In my view, therefore, the judge's assessment of the plaintiff's accommodation requirement was not excessive, either in the short term or in the long term.

22. I should add that there was considerable discussion as to the paragraph which appears on page 10 of the judge's judgment which, it was said, would lead to the conclusion that the judge had calculated the accommodation requirement on the basis that the plaintiff would, in the ordinary course, have wished to give his son and daughter separate rooms. As a result, he had factored into the accommodation which he said would be required, separate rooms for the son and daughter and had then failed to take into account the increased notional rent which the plaintiff would otherwise have had to pay, if the accident had not happened and he had decided to provide such accommodation. In my view, taking into account what the judge had said later and having considered the evidence to which our attention was drawn, it is clear that the judge had not calculated the space required for the plaintiff on the basis that the son and daughter would be given separate rooms.

Care and attention

23. The judge awarded the sums of $1,440,991 in respect of the pre-trial care and attention by the plaintiff's wife and a total of $2,889,224 in respect of future care and attention. As indicated above, the judge divided that on the basis that there would be an increasing need for care and attention requiring a progression from a Care Assistant to a trained nurse over the 12-year period. The judge divided it into two halves. In the first half, he considered that a China Care Assistant would be sufficient but he made no allowance for a domestic amah. Later, he considered that a China trained nurse would be necessary but there would be need for a domestic amah.

24. As I have already observed, when this appeal was launched, the findings in respect of post-trial future care and attention were challenged. However, before he came to address us on the point, Mr Bleach indicated that, on reflection, he considered that that part of the appeal should not be pursued. It should also be mentioned that at the trial a figure of $41,250 was agreed between the defendants and the plaintiff as an appropriate amount in respect of the 51/2 months in which the plaintiff's wife had provided supervision and care whilst the plaintiff was in hospital. This was based upon a figure of $7,500 per month. What is challenged on this appeal is the award in respect of the 10-year period from the time when the plaintiff left hospital until the date of trial. It is said that the figure of $11,482 per month was excessive.

25. It is said that the plaintiff's case had changed at trial and the plaintiff's wife, Madam Chu Yin Chun had given unexpected evidence that the plaintiff's condition had deteriorated in the six months before the trial. The court's attention was drawn to a substantial passage in the transcript where the judge had had considerable discussion with counsel for the defendants during the course of his cross-examination of Madam Chu. It was said that the judge had deflected the cross-examination of Madam Chu on this point and that the defendants' counsel had, in consequence, not cross-examined Madam Chu as to what had been her husband's condition in the 10-year period.

26. In reading the transcript, it does appear that there was a lengthy period of intervention during the course of cross-examination. No doubt it is disconcerting for counsel to argue a point during the middle of cross-examination. However, with the increasing need for case management and for judges to keep a control on the length of evidence, and in particular cross- examination, and to ensure that only relevant and pertinent matters are explored, it is no doubt, at times, inevitable for there to be discussion between the bench and Bar. If the discussion becomes lengthy, it may well be a counsel of prudence to ask the witness to retire whilst such matters are discussed. In my view, however, despite the criticisms which have been levelled in respect of this incident, I do not consider that the plaintiff's case was not presented to its full or its advisers were put to any disadvantage nor that there has been any injustice. It is clear, and it is conceded, that the judge had in mind that it was the plaintiff's wife's evidence that the plaintiff's condition had deteriorated substantially over the six months prior to the trial. There is no doubt, therefore, that the judge had well in mind what the condition of the plaintiff was at the time of trial and that his condition was substantially better in the large part of the period after the plaintiff had left hospital and before the trial took place.

27. Criticism was levelled at the finding on the basis that the judge had awarded what was approximately the value of two amahs or possibly more for that period. During that period, the plaintiff had been looked after by his wife. It is clear that she did not have to be, so to speak, at his bedside for 24 hours a day. On the other hand, the plaintiff was in a condition where he needed constant supervision. He needed assistance in almost everything he did. The plaintiff's wife could of course leave the home for short periods whilst she went to the market or shops but even then, it is clear that she had to make arrangements so that the plaintiff could not come to harm in the short times that she was away. Night times appear to have been troublesome periods as well. The judge used as one yardstick for his assessment the agreed figure for the period when the plaintiff's wife had provided services whilst he was in hospital. In doing so, in my view, his approach was entirely reasonable and I would not interfere with his award in respect of the 10-year period.

Loss of society

28. The judge awarded a sum of $35,000 in respect of loss of society. He did so under the impression that the maximum award was $40,000. The plaintiff's appeal in this respect was not resisted to the extent that the point taken on behalf of the plaintiff that the statutory limit should be taken as that prevailing at the date of trial and not at the date of the accident was conceded. We were invited, somewhat tentatively, to indicate guidelines for consideration in reaching an amount for an award in respect of loss of society. However, I do not consider that this would be an appropriate case for such guidelines and that would be better left to a case where matters had been explored in evidence and fully argued below. In this case, I consider that it would be reasonable to assess the damages at much the same sort of proportion to the statutory maximum as the judge assessed. In those circumstances, I would alter the damages under this head to $130,000.

Amendment of Notice of Appeal

29. During the course of the hearing, Mr Bleach applied for leave to amend the Notice of Appeal in relation to the orders sought on the appeal. Since, in my judgment, the appeal should be dismissed, I see little point in allowing an amendment in this respect.

30. In my view, therefore, the appeal should be dismissed and the cross-appeal allowed to the extent of increasing the damages by $95,000. There should, accordingly, be an order nisi that the plaintiff should have the costs of the appeal and cross-appeal.

Hon Keith JA :

31. For the reasons given by Rogers JA, I agree that the defendants' appeal should be dismissed, and that the plaintiff's cross-appeal should be allowed to the extent set out in the judgment of Rogers JA.

Hon Godfrey VP :

32. I agree.