HUI YIU WING v. THE REGIONAL COUNCIL

CACV 542/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 542 OF 2001

(ON APPEAL FROM HCPI 31 OF 1998)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. This is an appeal from an assessment of damages undertaken by Chung J. The 1st defendant (defendant) has also served a notice pursuant to Order 59, rule 6(1)(b) putting forward further reasons to support the findings made by the Judge.

2. The plaintiff who was aged 12 at the time of the accident sustained very serious head injuries consequent upon the collapse of a basketball post on a public playground at Wo Hing, Fanling in the New Territories. The accident occurred on 29 June 1994.

3. Following the accident he was rushed to the Prince of Wales Hospital. He was managed in the intensive care unit on two occasions on account of complications which arose.

4. An emergency CT scan of the brain disclosed a fracture of the base of the skull, traumatic subarachnoid haemorrhage and intracranial air. It transpired that his speech and cortical function was impaired and consequent upon this he was rehabilitated at the Shatin Cheshire Home.

5. Although there has been some improvement in the plaintiff's condition it has to be accepted that he will suffer a considerable permanent incapacity. Dr Brian Choa who gave medical evidence for the plaintiff summarized his residual symptoms in this way:

"(1) his speech remained impaired with difficulty of expression and comprehension. He could converse with others but has difficulties putting ideas together. Things have to be said to him slowly and his reading was poor;

(2) he was irritable at home and at times exhibited threatening but not actually violent behaviour. He could only see things as being right or wrong, with no shades of gray in-between;

(3) formal psychiatric testing showed him to be functioning intellectually at primary 1 or 2 standard."

6. Mr Wong Chee-wing a registered psychologist who was also called by the plaintiff assessed his condition as follows:

"Mr Wong assessed in his 'Psychological Report' that:-

(a) the plaintiff was responsive to questions but tended to give very brief and curt answers;

(b) the plaintiff's speech was superficially normal and spontaneous but there were frequent word-finding difficulties;

(c) there were no discernible difficulties in the plaintiff's receptive language functioning although he was much slower in responding to verbal tasks than motor tasks;

(d) the plaintiff's reading was clumsy and his comprehension of the reading was also below average;

(e) the plaintiff achieved a verbal scale IQ of 66 (mild grade defective intelligence) and performance IQ of 112 (high average intelligence);

(f) the plaintiff's expressive difficulties and word-finding problems had disadvantaged him on the tests of abstract reasoning;

(g) there was a significant drop of over 40 IQ points in the plaintiff's verbal intelligence;

(h) there was a significant discrepancy between the plaintiff's verbal memory function and visual memory function."

7. Dr Yu Yuk-ling and Dr Wong Chung-kwong both gave medical evidence for the defendant. In general terms their evidence was largely in conformity with the plaintiff's medical evidence.

8. The most significant point of course was the marked disparity between the plaintiff's general intellectual profile and the results of his verbal intelligence and cognition. From this it was accepted by all concerned that prior to the accident the plaintiff was generally of above average intelligence in all spheres and that after the accident he suffered the difficulties described in the reports. It seems clear that these were attributable to the atrophy of the left hemisphere of his brain which had been caused by the accident.

9. The Judge awarded the plaintiff $800,000 in respect of his pain suffering and loss of amenities.

10. The Judge made no award for loss of pretrial earnings. Nor did he make any award for loss of future earnings. However he did make an award of $100,000 for loss of earning capacity.

11. The Judge did not make an award on the claim for loss of a pension or for providing for professional advice for investing the moneys awarded to him.

12. The five grounds of appeal relate to these awards or perhaps more accurately the Judge's decisions not to make awards under some heads.

13. At the beginning of the hearing Mr Pirie for the plaintiff informed us that he wished to move the court for an order that additional evidence be adduced pursuant to the principles outlined in Ladd v Marshall [1954] 1 WLR 1489. The evidence which it was sought to adduce was evidence of the plaintiff's father to the effect that subsequent to the trial but before the Judge handed down his judgment the plaintiff had discontinued his employment as a painter. The reason given for this was that the plaintiff had suffered headaches consequent upon his coming into contact with paint thinner. The plaintiff had sought medical advice on his condition and he had been advised to discontinue working as a painter.

14. Mr Pirie's instructing solicitor Mr Allen Wong had affirmed an affirmation which provided a brief background to the application. It was evident from Mr Wong's affirmation that he had advised the plaintiff's father that if there was any change in his son's circumstances he should immediately advise him of this. This advice was given before the Judge handed down his judgment.

15. Mr Pirie accepted that the burden lay upon him to satisfy us that the principles laid down in Ladd v Marshall had been met.

16. There were a number of highly unsatisfactory aspects of this new evidence which raised numerous questions. No explanation was forthcoming to explain the fact that the plaintiff had worked as a painter from May to October 2000 and had been able to overcome any discomfort he may suffer from the smell of paint.

17. There was also no explanation why the plaintiff had not seen fit to consult any of the doctors who had given evidence in the trial so as to enable them to consider the nature of the problem.

18. Perhaps most important of all there was the question of the timing of this application. According to the solicitor Mr Wong's affirmation he had in January emphasized to the plaintiff's father the importance of informing him of any change that may occur in the plaintiff's circumstances. Notwithstanding the fact that the solicitor had been in communication with the father on several occasions since the plaintiff had allegedly discontinued working as a painter he had not advised the solicitor of this crucially important fact.

19. We did not consider that the evidence which it was sought to adduce was likely to be credible evidence which would meet the criteria laid down in Ladd v Marshall. It was for these reasons that we refused the application.

20. The main point made by Mr Pirie in relation to the first ground of appeal was that the Judge had insufficient regard to other awards which had been made in other cases in relation to pain and suffering and loss of amenities.

21. It has to be said immediately that the task facing the Judge was not an easy one. No two cases are likely to be similar when one is considering injuries of the magnitude of those suffered by the plaintiff.

22. What the Judge did was to attempt to determine what category of seriousness the injuries in this case fell within. This is what he had to say at p. 8 of his judgment:

"In short, the plaintiff contends that his injuries fall within the lower end (see the plaintiff's written closing submissions) of the 'gross disability' category referred to in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657 (and also Chan Wai Tong v. Li Ping Sum [1985] HKLR 176; Lau Che Ping v. Hoi Kong Ironworks Godown Co. Ltd. [1988] 2 HKLR 650 and Leung On v. Chan Pui Ki [1996] 2 HKC 565). Courts have repeatedly been reminded that the categories were merely guidelines and should be flexibly applied. Bearing that in mind, the Court of Appeal in Lee Ting Lam described this category as:-

'This comprises injuries which leave the victim with very restricted mobility or cause serious mental disability or behavioural changes. This bracket includes paraplegics who, particularly if young, can expect to be placed at the upper end of the bracket' (at p. 660).

On that basis, the plaintiff submits that the appropriate award should be $1.25 million.

On the other hand, the defendant argues that the plaintiff's injuries fall within the top end of the 'serious injury' category. Alternatively (and at most), his injuries should fall within the middle range of the 'substantial injury' category. The 'serious injury' category is:-

'... the lowest category. It covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain'

(at p. 659).

The 'substantial injury' category:-

'... extends to injuries which require treatment in hospital for many months and leave the victim with a much reduced degree of mobility, for example, a leg amputated from the thigh, so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim's life'

(at p. 660). The defendant says that the appropriate award should be $650,000 (see the defendant's written closing submissions).

Litton VP (as he then was) said in Chan Pui Ki the Lee Ting Lam 'categories' are only guidelines and are intended to be flexibly applied. The effect of the injuries to the plaintiff in the present case is not only physical but also mental and psychological. Bearing this in mind and having considered the totality of evidence, in particular the medical and psychological findings, I agree with the defendant's argument and find that the plaintiff's injuries fall within the 'substantial injury' category. Other matters which ought to be taken into account include his activities before and after the accident (the plaintiff stayed at home most of the time after the injury and his social life is therefore affected) and the plaintiff's relatively young age (which will mean that the effect of the injuries will have a more profound, as well as a longer, effect on his enjoyment of life). I conclude that the award should be adjusted upwards and $800,000 would be appropriate under this head."

23. We do not think that the Judge's reasoning can be faulted. The award of $800,000 under this head was an appropriate award and this ground of appeal is without merit.

24. In the second ground of appeal complaint is made that the Judge failed to make any award in respect of pre-trial loss of earnings.

25. The reason for the Judge not making an award under this head was that he was not satisfied that the plaintiff had made any serious efforts to obtain employment after he left school at the age of 17. He did not make applications to prospective employers for employment. What he did was to help out in a friend's shop. For this he was given a free lunch each day. It appears that one of the main benefits he derived from this was to come into contact with other people and this assisted him in regaining to a limited extent some of his verbal skills.

26. He did eventually take up what amounted to being an apprenticeship with a master painter who was a friend of his father who works in the same field. This employment will be considered later in this judgment.

27. We accept that there was insufficient evidence of the plaintiff endeavouring to seek gainful employment to enable the Judge to make an award under this head.

28. The third ground relates to the claim for loss of future earnings and earning capacity.

29. The case which was run before the Judge was that it had always been the ambition of the plaintiff to become either a policeman or a fireman and that future earnings should be based upon achieving a career in one of these occupations.

30. Mr Pirie contended that notwithstanding the youth of the plaintiff at the date of the accident it was realistic on the balance of probabilities to find that he would have been able to achieve his ambition.

31. He largely based this contention on the favourable opinions expressed by the doctors and the psychologist that prior to the accident the plaintiff had an above average overall intelligence and would have been able to met the recruitment requirements of one of the disciplined services.

32. There is a basic fallacy in this logic. What Mr Pirie appears to have overlooked is that however high a person's intellectual capacity may be it is still necessary for them to have sufficient motivation to achieve their objectives.

33. In the present case there was good reason to have doubts concerning this. The plaintiff's scholastic achievements up to the date of the accident left much to be desired. He failed to achieve a pass mark in a number of subjects in the school examinations he had taken. It would appear that the only subject he was interested in was computer studies.

34. The plaintiff's mother gave evidence on this subject. She was invited to make a comparison between the mental abilities of the plaintiff and his elder brother. She expressed the opinion that there was not much difference in the abilities of the two boys. It has to be added that the elder son had not distinguished himself academically and had gone on to obtain employment as a clerk. He only earned $9,000 per month.

35. It is perhaps relevant to add that there does not appear to have been much in the way of scholastic achievement in the plaintiff's family. Neither of his parents successfully completed their secondary education. With this background taken in conjunction with his scholastic results prior to the accident it would seem to be unlikely that the plaintiff would have achieved good grades in public examinations taken at the conclusion of his secondary education.

36. A senior police officer gave evidence concerning the recruitment of police officers. 30% of entrants to the Force were university graduates. So far as the remainder were concerned they had to achieve respectable results in public examinations taken at the conclusion of their secondary education.

37. From this it can be appreciated that the entrance standards for those aspiring to become police officers are quite demanding.

38. It is apparent that during the trial the Judge indirectly asked Mr Pirie who also represented the plaintiff in the court below to consider making alternative submissions to him in the event that the court was not prepared to make a calculation for loss of future earnings based upon the earnings of members of the disciplinary services. Mr Pirie declined the indication given by the Judge and did not provide him with the assistance he sought.

39. What the Judge did was to consider all of the evidence which was before him. This included the evidence concerning the employment of the plaintiff's elder brother. He accordingly adopted the brother's salary of $9,000 per month as the measure to be used against the employment and employment prospects of the plaintiff.

40. So far as this was concerned the Judge did have helpful evidence before him. The plaintiff had called Mr Chin his employer as a witness.

41. Mr Chin who is a master painter gave evidence that the plaintiff was learning the trade of a master painter under his supervision. As an apprentice he was only earning $150 per day.

42. However he had been satisfied that if the plaintiff persevered he thought that in due course he could become a master painter. A master painter could command a daily rate of $750 which in practice worked out as remuneration somewhere in the region of $17,500 per month. The Judge accepted Mr Chin as a truthful and reliable witness.

43. On the basis of the plaintiff's employment prospects compared with his brother's prospects the Judge concluded that the plaintiff had not made out a case that in all the circumstances he had suffered any loss of future earnings.

44. A further point needs to be considered. Mr Pirie was critical of the fact that no allowance had been made for the discrepancy between $150 per day payable to the plaintiff during his apprenticeship and the salary of $9,000 per month payable to the brother.

45. The answer to this objection must be that when in effect one is undergoing an apprenticeship necessarily the salary payable is reduced. This is to reflect the fact that the apprentice will be receiving instruction during his employment and that during its earlier stages while the apprentice is still learning his skills he is likely to be of limited use to his employer. This would all appear to be part of the plaintiff's "employment package" and it was not unreasonable for the Judge to take cognizance of this.

46. This then leads to the more difficult question of the extent of the damages which should properly be payable in respect of the plaintiff's loss of earning capacity.

47. There is a definition of this head of damages at p. 62 of the Court of Appeal case King Light Industrial Ltd v Lo Wai Keung [1994] 3 HKC 54:

"The law on this type of award is helpfully referred to in the judgment of Browne LJ in Moeliker v Reyrolle [1977] 1 WLR 132 (CA), 139:

'This court made it clear in Roberts v Heavy Transport (ECC) Ltd (14 May 1975, Bar Library Transcript No. 253, unreported) and Herod v Bird's Eye Foods Ltd (27 November 1975, Bar Library Transcript No. 506, unreported) that Smith v Manchester Corp 17 KIR 1 laid down no new principle of law and I entirely agree. Smith's case is merely an example of an award of damages under a head which has long been recognized - a plaintiff's loss of earning capacity where, as a result of his injury, his chances in the future of getting in the labour market work (or work as well paid as before the accident) have been diminished by injury. This court made an award under this head in Ashcroft v Curtin [1971] 1 WLR 1731 three years before Smith's case. This head of damage generally only arises where a plaintiff is at the time of the trial, in employment, but there is a risk that he may lose this employment at some time in the future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job. It is a different head of damages from an actual loss of future earnings which can already be proved at the time of the trial. Lord Denning MR said in Fairley v. John Thompson (Design and Contracting Division) Ltd [1973] 2 Lloyd's Rep 40, 42:

"It is important to realise that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages." '

We accept that this formulation is correct and supports Mr Lai's submission."

48. The circumstances of the plaintiff would appear to fall well within what is contemplated in this definition.

49. There have to be question marks concerning the ability of the plaintiff to maintain his present apprenticeship and ultimately qualify as a master painter in the light of the difficulties he has and will encounter consequent upon the injury he sustained. Over and above this there was evidence before the Judge that Mr Chin is a friend of the plaintiff's father. It may be the case that he is a more indulgent employer than some others and were the plaintiff to be employed by someone else he may encounter more difficulty with his work.

50. We are satisfied that the Judge was justified in declining making an award for loss of future earnings for the reasons which have been outlined.

51. We consider however that there is scope for our intervention in relation to the award of $100,000 in respect of the loss of the plaintiff's earning capacity.

52. The Judge cannot be criticised for making the award which he did. The amount awarded was the amount requested by Mr Pirie in his opening address. It must though be appreciated that when Mr Pirie was addressing the court he was doing so on the assumption that an award would be made for loss of future earnings. No doubt if he had known that no such award would be made he would inevitably have sought a larger amount under this head.

53. Having given this matter careful consideration we are of the view that the award should be increased from $100,000 to $350,000 and we so order.

Pension and Provident Fund

54. In the light of the failure to establish that the plaintiff would on the evidence be likely to become a police officer this claim cannot be sustained in the absence of proof of a loss of pension rights.

Investment Adviser/Fund Management Fees

55. The Judge declined to make an order under this head. Having regard to the amount of damages which were awarded and the evidence to the effect that the plaintiff's mother could assist in these matters this determination can be justified.

56. The only award which we have seen fit to interfere with is the award for the loss of the plaintiff's earning capacity. We order that this be increased from $100,000 to $350,000. Otherwise the appeal is dismissed.

57. As the appeal has to the extent indicated been successful we consider that it is right that the plaintiff should have the costs of the appeal. We make an order nisi to this effect and order that the plaintiff's costs be taxed in accordance with the Legal Aid Regulations.