HO YEE MUI v. LIU HON LOONG AND ANOTHER

CACV 507/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 507 OF 2000

(ON APPEAL FROM COURT OF FIRST INSTANCE
PERSONAL INJURIES NO. 649 OF 1999)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from the judgment of Mr Justice Seagroatt given on 20 July 2000. The action involved a claim arising out of a traffic accident. The plaintiff was a passenger sitting on the sideways facing seat in a bus when the bus braked sharply. As a result the plaintiff suffered certain comparatively minor physical injuries but the accident precipitated a psychiatric disorder which was perhaps insipient.

2. The judge held the 1st and 2nd defendants to be liable for the accident and proceeded to assess the damages. There was a considerable difficulty in making that assessment. The plaintiff had run some kind of a refreshment or food stall on a building site and the judge accepted that between 1993 and 1995 the plaintiff had done that. However, when it came to the figures for the business the judge was unconvinced by the plaintiff's figures. He said that for this sort of business, it would normally be acceptable for the plaintiff to give oral evidence as to figures, despite the absence of records. But he said that the figures suggested by the plaintiff were so high that he would have expected some supporting bank documents for the receipts and the outgoings, and since there was none he was left really in the dark as to what the plaintiff was earning at that time.

3. However, when it came to the period between 1995 and the date of the accident, the judge was driven to the conclusion that he did not accept what the plaintiff was saying. During the course of her evidence, she had changed her evidence to such an extent that he found it totally unconvincing. The judge was also unconvinced about the plaintiff's evidence that she was going to have an interview for another job at the time when the accident occurred. As a result of that, the judge said,

"I am also uncertain as to when she would have started such work, for how long she would have sustained it and what other factors, given her psychological vulnerability, would have intervened to make its duration uncertain."

4. To that extent it must also be noted that her psychiatric illness, although probably precipitated by the accident, was also to a certain extent exacerbated by difficulties with her son.

5. As a result of that, the judge then said that :

"In the light of all these factors I have decided that the proper approach to this question of loss of earnings is to assess it on the basis of the loss of an opportunity."

6. What the judge was saying was that on the facts which he found, the plaintiff had been out of work for at least two years before the date of the accident; he was not convinced that she was going to take employment immediately after the accident; he had no idea when she would have taken employment and he had got very little idea as to what the amount she would be earning once she did take employment.

7. He then concluded :

"There are too many unknown factors to proceed on any other basis."

8. As a result of that he came to the robust conclusion that it might be supposed that the plaintiff could at some stage earn about HK$9,000 per month and that would give her about HK$108,000 per year and he was prepared to give her a global figure of sum HK$300,000. To that extent, in my view, what the judge was doing was trying to assess in monetary terms as best as he could, the loss that he could envisage that the plaintiff had suffered as a result of the accident. That is, in effect, exactly what a court has to do when assessing damages for personal injuries. Very often the assessment is broken down into pre-trial loss of earnings, future loss of earnings and loss of earning capacity, but at the end of the day the court is assessing in monetary terms as best it can the loss which the plaintiff has sustained.

9. Mr Law on behalf of the plaintiff in this appeal has argued that the judge has not assessed the amount of pre-trial loss of earnings or the loss of earning capacity. That is not the way in which the judge assessed the damages in this case. In my view, he approached the assessment of damages on a sensible and realistic basis and probably in the only way he could have done. I see no grounds in this appeal whatsoever. In my view, this appeal must be dismissed.

Hon Le Pichon JA :

10. I agree with the judgment of the Vice-President. This case cannot be approached in the conventional way given the difficulty arising from the evidence. The judge plainly took a global view when assessing damages and that was really all that he could have done. I agree that this appeal should be dismissed.

Hon Burrell J :

11. I also agree and have nothing to add.