LIU CHUN KOW JOE v. LEE SAU WING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 304 OF 2007

(ON APPEAL FROM HCPI 399 OF 2001)

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J U D G M E N T

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Hon Cheung JA :

Assessment of damage

1. The plaintiff was injured in a traffic accident on 28 June 1998 as a result of the negligent driving of the defendant.  The plaintiff claimed damages for personal injuries against the defendant.  The defendant conceded liability and assessment of damage was made by Waung J.  After a hearing which lasted for 10 days the Judge assessed damages in the sum of $648,444.93.  The award is made up as follows :

Item	Nature of damage	Award
(1)	Pain Suffering and Loss of Amenities (PSLA)	$140,000.00
(2)	Past Loss of Earnings	$135,711.00
(3)	Loss of Days Off in Lieu	$41,466.00
(4)	Loss of Opportunity to earn vacation leave	$45,103.93
(5)	Loss of vacation leave	$53,392.00
(6A)	Loss of Overtime Work	$5,000.00
(11)	Loss of Congenial Employment	$30,000.00
(12)	Damage to Vehicle	$134,575.00
(13)	Future cost of maintenance	$10,000.00
(14)	Medical Expenses	$9,484.00
(15)	Travelling Expenses	$31,600.00
(16)	Nourishing Food	$8,000.00
(17)	Health Equipment	$4,113.00
Total		$648,444.93

The appeal

2. The defendant lodged an appeal against the following awards :

3. The defendant further appealed against the Judge’s failure to apply a 60% discount to the following items :

4. The defendant also appealed against the order that the plaintiff was entitled to 70% of the costs of the action. 

The cross appeal

5. The plaintiff also lodged a cross appeal in respect of the following  :

(1) the Judge’s discount of 60% of the award on PSLA by reason of the plaintiff’s existing disability before the accident.

(2) the Judge’s finding that the plaintiff had no prospect of a further promotion of one further grade.

(3) Costs.

Day-off-in-lieu

6. The plaintiff is an officer of the Correctional Services Department (‘CSD’).  The evidence showed that staff at the CSD are required to perform an additional shift of duty and will be compensated with one-day ‘Day-off-in-lieu’ (‘DOIL’) for that shift duty.  In monetary terms it means that the staff will be entitled to a day’s leave with pay.

7. The plaintiff’s claim on DOIL was for the sum of $82,932.00.  The plaintiff used his DOIL for the purpose of medical appointments.  The arrangement he made with CSD was that on the day he would attend a medical appointment, he was given half a shift and he himself took the other half day off from his DOIL for medical examination.  The Judge recognized that CSD would give the staff proper time off to attend medical examination and the staff do not need to take time off themselves for such a purpose.  He, however, held that :

‘ On the other hand, I cannot overlook the fact that the Plaintiff did take many half days off because of his medical appointments and this was probably because it was not always sensible to trouble his superiors constantly with arranging different shifts because of the large number of medical appointments the Plaintiff found himself having to attend.  This is an area where I believe I should not be too harsh on the Plaintiff.  In all the circumstances, I would allow half of the amount claimed.   I award to the Plaintiff under this Item 3, the sum of $41,466.’

The defendant’s case against this award

8. The defendant’s argument against this award is that on those occasions when the plaintiff took the half DOIL, he was in fact paid by the Government and he therefore had suffered no loss.  The defendant relied on Lord Reid’s speech in Parry v. Cleaver [1970] AC 1 at 13D that it is a universal rule that the plaintiff cannot recover more than he has lost.  It was argued that the distinction between pecuniary loss and non-pecuniary loss was overlooked.  The difference is set out in Heil v. Another [2002] 2 WLR 1173 where Lord Woolf MR held that

‘In the case of pecuniary loss, and issues such as that which engaged the House of Lords in Wells v. Wells, the Court is only required to make the correct calculation.  Economic consequences are then irrelevant.  When the question is the level of damages for non-pecuniary loss the Court is engaged in a different exercise.  As we have said, it is concerned with determining what is the fair, reasonable and just equivalent in monetary terms of an injury and the resultant PSLA.’

9. It was further argued that the award made by the Judge was in fact a compensation for the loss of amenities aspect of PSLA suffered by the plaintiff as a result of the injury and as the Judge had already given a generous award of $140,000.00 (based on $350,000.00 discounted by 60% due to pre-existing disability), it was wrong to make a further award under this head.  The defendant relied on McGregor on Damages 17^th Ed, Para 35-215 which gives a summary on the well known PSLA :

‘This head of damage concentrates on the curtailment of the claimant’s enjoy­ment of life not by the positive unpleasantness of pain and suffering but, in a more negative way, by his inability to pursue the activities he pursued beforehand.  Birkett L.J. put it thus in Manley v Rugby Portland Cement Co :

“There is a head of damage which is sometimes called loss of amenities; the man made blind by the accident will no longer be able to see the familiar things he has seen all his life; the man who has had both legs removed and will never again go upon his walking excursions─things of that kind─loss of amenities.”

Loss or impairment of any one or more of the five senses is compensated under this head and also loss resulting from interference with the claimant’s sexual life or with particularly a female claimant’s prospects of marriage, from the break-up of the claimant’s marriage or from inability to play with his children; even loss of enjoyment of the holiday upon which the claimant was embarking or had embarked at the time of the injury has been taken into account in the non-pecuniary award.  Nor is this element of loss confined to interference with leisure activities, so that damages may be awarded for deprivation of the ability to pursue an enjoyable occupation, or for having to contend with housekeeping in an injured state without domestic help.’

10. In Ichard v. Frangoulis [1977] 1 WLR 556 a driver was injured while on holiday.  He was able to continue with the holiday but suffered pain from the injuries he sustained and the discomfort of having to wear a leather harness.  It was held by Peter Pain J that there should not be a separate head of award but the loss should be considered under general damage (i.e. PSLA) and as a factor which will lead to a more generous award.

My view

11. I do not consider that the Judge has overlooked the distinction between pecuniary or non-pecuniary awards.  Nor do I regard the award under challenge should be considered as a ‘loss of amenities’ award.  Despite the expansion of the scope of PSLA since 1950 (see McGregor) the award is still in the nature of an award for the discomfort and inconvenience suffered by a tort victim.  Such discomfort and inconvenience are intangible in the sense that they are not easily quantifiable in monetary terms and as such the Court strives to determine what is the fair, reasonable and just equivalent in monetary terms. 

12. However, the claim by the plaintiff under this head is totally different from the discomfort and inconvenience situation.  DOIL was a benefit to him.  He was entitled to take a day off with pay.  But because he had to use the DOIL to attend the medical examination he could not in fact obtain the real benefit of the DOIL.  He suffered a loss and he quantified the loss by reference to the amount of wage for that day.  I just do not see why he was not entitled to recover this from the defendant who caused him the loss.  The loss of benefit is a well recognised head of damage.  In Liffen v Watson [1940] 1 KB 556 a worker was given a benefit of 25 shillings a week by her employer as board and lodgings in kind.  After the injury the worker was provided with lodging by her father.  The English Court of Appeal held that the worker was entitled to a claim for the loss of her benefit.  Slesser L.J. held that this is based on the general principle that :

‘ a wrongdoer must recompence a plaintiff for all the damage which naturally flows from the wrongdoing.’

13. Goddard LJ held that,

‘ The only consideration is what the plaintiff lost.  She lost the value of the board and lodging just as she lost her wages and she is entitled to be compensated for that loss.’

14. I agree with these observations.  The plaintiff here lost the value of the DOIL and he was entitled to be compensated by the defendant.  I will reject the defendant’s appeal of this item.

Loss of vacation leave

15. The plaintiff claimed $53,392.00 for loss of 32 days of vacation leave (from 22 February 2002 to 25 March 2002) because he had used up his sick leave with pay and used his vacation leave for the purpose of his sick leave.

16. This plaintiff as a civil servant was entitled to sick leave with pay.  However, he was only entitled to a specific period of such leave.  Thereafter if he applied for sick leave, he might be granted sick leave but without pay.  In this case he had used up his paid sick leave.  If he applied for days off during the period when he was granted sick leave it would mean that he had had to forgo his pay for that period.  Instead he used his vacation leave (when he was paid by the Government) for the purpose of taking those days off and he made a claim for the loss.

17. The defendant relied on the same argument in respect of the DOIL claim.  I would likewise reject this argument.  The plaintiff lost a benefit he otherwise would be entitled to by using the vacation leave for the purpose of his sick leave.  He was entitled to be compensated by the defendant.

Apportionment

18. In the written submission of Mr. Ronny Wong S.C. and Mr. Tony Ko, counsel for the plaintiff, it was submitted that both Items 3 and 5 should be subject to a 60% discount adopted by the Judge in respect of PSLA.  However, at the hearing, this was not pursued.  Instead it was argued that the Judge should have, as he had done in relation to Item 3, apportioned Item 5 because under Item 3 the plaintiff only used half days for medical examination.

19. The difference between the two claims is that the plaintiff was between 13 February 2002 and 19 February 2002 hospitalised.  He was granted sick leave by the government doctors between 13 February 2002 and 25 March 2002.  The relevant period of claim was between 22 February 2002 to 25 March 2002.  This being the case there was no question that he was still able to work for half a day as in his DOIL claim.  Plainly he was not able to do so.  Hence there should be no apportionment for Item 5.

Discount on other items

20. The defendant in the written submission had submitted that a 60% discount should be made on the other items but at the hearing, however, it only maintained that the 60% discount should be applied to the following items

(1)    Past loss of earnings : $135,711.00 (Item 2)

(2)    Loss of overtime work : $5,000.00 (Item 6A)

(3)    Future cost of maintenance : $10,000.00 (Item 13)

21. In respect of Item 2, although initially the defendant in its ‘Amended Answer to Revised Statement of Damages’ denied that the plaintiff was entitled to this claim because of his pre-existing condition, in the Scott Schedule the defendant agreed to this sum and in the written closing submission of the defendant’s counsel (not Mr. Wong and Mr. Ko who only appeared in this appeal) the past loss of earning was agreed at $135,711.00.

22. As this was an agreed sum, the defendant was not entitled to challenge it in the appeal.  I also refused leave to the defendant to reopen this issue as this would be unfair to the plaintiff when the question of apportionment was not raised below.

23. As to loss of overtime work, the plaintiff claimed $46,042.00 but the Judge only awarded $5,000.00.  This is a huge discount and I do not consider it to be right to make any further discount.

24. As to future costs of maintenance of $10,000.00 (Item 13), this was not specifically identified in the defendant’s written submission.  This was originally a claim of $15,000.00 for further psychiatric treatment.  The Judge allowed $10,000.00.  I am not prepared to order a further discount.

Was the Judge entitled to discount the plaintiff’s disability by 60%?

The physical injury

25. The plaintiff was injured on 28 June 1998 when the defendant’s car collided with his.  He lost consciousness and only regained consciousness after the arrival of the firemen.  He was then admitted to the Queen Mary Hospital (‘QMH’) where on examination it was found that

(1)    he could move both his upper and lower limbs;

(2)    local tenderness was elicited at the lower back region;

(3)    the abdomen was soft;

(4)    rectal examination was normal;

(5)    x-ray of his neck, chest and pelvis showed no obvious abnormality.

26. The Plaintiff’s symptoms of back and neck pain improved with physiotherapy and he was discharged from QMH on 1 July 1998, 4 days after the accident.  A follow-up appointment at Sai Ying Poon Clinic (‘SYP’) for 31 July was given to him.

27. The Judge then summarised the subsequent medical history of the plaintiff :

‘[10]  The Plaintiff was granted sick leave from 28 June 1998 to 12 July 1998 and from 28 July 1998 to 30 April 1999 [1203].

[11] The Plaintiff said a few days before his follow-up appointment at SYP on 31 July 1998, while bending forward brushing his teeth, he felt shooting pain radiating from his back down to the right leg.  His right leg gave way and he fell to the ground.  He did not however immediately go to SYP for treatment.  A few days later when he attended SYP, he mentioned this to the doctor and was offered admission by the attending doctor, but the Plaintiff did not accept the offer [1810].

[12]    The Plaintiff was again admitted (at his own initiative) to Hong Kong Central Hospital on 31 August 1998 [2063] because of alleged back pain during the previous night.  MRI Scan was done [1817].  Dr Sum Kai Hoi of Central Hospital, the orthopaedic specialist observed that “there was some voluntary resistance” when the Plaintiff was undergoing the straight leg raising test [1663].  On 2 September 1998 (2 days later) he was discharged from Hong Kong Central Hospital.  The Plaintiff did not go back for any follow-up.

[13]    Five days after discharge from Hong Kong Central Hospital, the Plaintiff was admitted to QMH on the 7 September 1998 and from that day until 12  October 1998 he was in QMH with physiotherapy treatment for his back.  On 16 September 1998, whilst at QMH he was referred to Clinical Psychologist for anxiety and fears and he was diagnosed with Depressive Disorder and Anxiety Disorder.  During that period in QMH, he went home on Home Leave for the period 12  September to 14  September, 19  September to 21  September, 26  to 28  September, 30 September to 7 October 1998 with a half day return to QMH on the 5 October 1998, 8 to 12 October 1998.  He was discharged from QMH on 12 October 1998 [1828 to 1878].

[14] He was transferred/admitted to Duchess of Kent Hospital (“DK”) on 12 October 1998 for further intensive physiotherapy and he was there until 4 November 1998 when he was discharged [2001-2].  The Plaintiff attended thereafter follow-up clinic in Orthopaedics and Psychiatry at a variety of different clinics, private and government.  He also had physiotherapy [853].

[15] The Plaintiff said he had nightmare of the traffic accident one night in February 1999 and when he felt like vomiting and rushed to the toilet, he fell to the ground because of shooting pain and weakness of the leg.  He however did not seek immediate medical treatment.  He mentioned the fall to the clinical psychologist in Western Psychiatric Centre when he attended the follow-up on 2 March 1999.

[16] During his stay at QMH, he was attended by a psychiatrist for psychological disorder and at Duchess of Kent Hospital, he was also attended by psychiatrist.  After discharge from these hospitals, he attended both Western Psychiatric Centre for medication and counselling as well as David Trench Rehabilitation Centre (Psychology) (see Chronology of Plaintiff’s Medical Attendances).

[17] The Plaintiff was off work from 28 June 1998 until 30 April 1999, a period of some 10 months with a notable gap of 15 days from 13 to 27 July when he was not on sick leave.  When he resumed work on 1 May 1999, he was recommended to do light duties and to be provided with chair support.

[18] He was at Violet Peel from 17 to 19 May 1999 and from 28 June to 1 July 1999 for Siatica (see paragraph 72 of Plaintiff’s 2nd Witness Statement).  On 28 July 1999, he was admitted into Canossa Hospital and was discharged two days later on 30 July 1998 [2085-2089].  MRI was taken.  Thereafter he was in and out of Violet Peel in September and November 1999.  He attended at Southorn Playground Centre and Duchess of Kent from 2 August 1999 to mid December 1999 [1096-1122].

[19] On 27 December 1999, he was admitted into PYNEH (Pamela Youde Nethersole Eastern Hospital) because of the alleged falling off chair (while reaching out for some documents) while he was working [149-68].  There he remained until he was discharged from PYNEH on 21 January 2000 [2014].  He was an out-patient at PYNEH from 24 January 2000 until 20 April 2000.

[20] On 31 March 2000, there was a second Medical Board (first Medical Board was on 22 January 1999) to assess whether the Plaintiff was able to resume his job as Officer in the Department.  He was certified to be fit.

[21] On 26 April 2000 (his birthday) the Plaintiff took a very important Promotional Board Examination.  Due to alleged Hyperventilation attack (alleged to be brought on by flashback of the traffic accident), he did not finish the Examination but left the Examination Hall and was admitted that day into PYNEH.  He was discharged the next day, 27 April 2000 [2013, 2018-2020, 2036] but apparently he took 6 days of sick leave from 26 April to 1 May 2000…..

[22] From 29 April 2000, the Plaintiff resumed his regular attendance for physiotherapy at PYNEH and Southorn until late April 2001, namely a year later.   There was the basket ball incident on 14 June 2000 when he was admitted to PYNEH for one night.  On 13 May 2003, he fell to the ground because of experience of shooting pain in the back and weakness of the leg.’

The psychiatric problem

28. The psychiatric problems of the plaintiff referred to in the summary was discussed in the Joint Psychiatric Report of Dr. K Singer and Dr. Chung See Yuen dated 23 August 2003 (page 23) :

‘Diagnosis

    Adjustment Disorder with Mixed Anxiety and Depressed Mood (see Appendix II), mild in degree.

   This is shown by symptoms such as anxiety, hyperventilation episodes, depressive mood, impaired sleep, lack of interest and drive.

    Initially he also had symptoms suggestive of Post-Traumatic Stress Disorder such as nightmares and recurrent recollections of the accident.  These have much improved.

    Adjustment Disorder occurs in response to identifiable stressor/s.  In Mr. Liu’s case the stressors would appear to be the accident of 28^th June 1998 and the consequent back pain and sciatica and impaired ambulation.’

Evidence on pre-existing disability

29. It is clear from the evidence that the plaintiff had, prior to the accident, problems with his back and also psychiatric problems.  Based on the following records of PYNEH, namely, the Attendance Records between 1995 and 1996, Discharge Summary as amended and the Medical Insurance Hospitalisation and Surgical Claim Form, the Judge found that the plaintiff had back pain and attended on multiple occasions at PYNEH for muscle spasm and hyperventilation from 1995 to 1996 and that he was referred by the Orthopaedic Department to the Psychiatry Department of PYNEH.  The plaintiff was seen by the Psychiatry Department on 11 April 1996 and was diagnosed to have anxiety disorder and panic disorder but he did not seek follow up treatment after 6 June 1996.

30. The plaintiff himself admitted that after swimming on 8 April 1998 he had lower back pain, difficulty in walking and was hospitalized for 8 days.  Then on 26 April 1998, he had a fall at home.

Apportionment of disability : physical

31. The Joint Orthopaedic Report of Dr. David Cheng and Dr. Danny Tsoi dated 16 September 2003 stated there should be apportionment between the disability suffered by the plaintiff by reason of his precondition and the accident.  They said that,

‘ We have the following comments:
(i)	This is little doubt, from a medical point, that Liu was suffering from degenerative disc disease of his back, (at L4/5 and L5/S1 level) at the time of the traffic accident.
	That is to say, the condition is pre-existing.
(ii)	We believe that this degenerative condition was already symptomatic prior to the accident, to the extent that there was right sciatica or leg pain, a limited straight leg test, and some neurological impairment.  The natural development of such a condition is that it is probably that there are some pains and aches every now and then, and the back is slightly impaired.
(iii)	The accident of 28.6.1998 did cause an aggravation to Liu’s back.  Liu’s attending doctors at QMH formed the diagnosis of degenerative disc with prolapse.  Liu was treated conservatively.  Liu sought treatment from a multiple of doctors.  Altogether, we counted three MRI scans done within six months.  But essentially, the diagnosis was pretty much confirmed, and the treatment was standard, adequate and satisfactory.
(iv)	Thereafter, Liu had a few episodes of “incidents” or “injuries”, causing him to seek treatment at PYNEH and creating more confusion.  We thought that these episodes were the sequale or outcome of the aggravation of the back condition, rather than injuries causing additional impairment, ie these episodes happened probably because Liu’s back was impaired in the first place.  These episodes are, in fact, part and partial of the impairments caused by the aggravation of the back. (v)    We thought that the present back condition of Liu is that there is some radiculopathy arising from a disc prolapse.  The assessment is a 10% whole person impairment. (vi)   These impairments were probably triggered by the accident that had aggravated a pre-existing degenerative disc disease.  However, we are aware that this degenerative condition was already symptomatic prior to the accident, and that in the course of time, is likely to deteriorate on its own right and to cause symptoms, (if even the accident had not happened).  We feel that there is medical ground for an apportionment.  We recommended an apportionment of 70% that is the accident is responsible for 30% of the whole body impairment. [The typing error on percentage in the report was corrected in this paragraph]. (vii)  We thought that Liu is able to continue his present duty as an officer in the Correction Service.  We understand that there is a need for light or sedentary duties.  We believe that Liu’s working capacity can be gradually increased, taking sensible and reasonable consideration. (viii)    We thought that Liu’s main problem at present is psychological.  Liu is nervous, and lacks confidence and self-esteem.  Once this is overcome, Liu’s working capability would be greatly increased.  We suggest a psychological or psychiatric evaluation.
(ix)	We agree that the sick leave granted to Liu is reasonable.’

Apportionment of disability : psychiatric

32. The two psychiatrists, however, differed on whether the plaintiff’s current anxiety problem was caused by pre-existing conditions prior to the accident.  Dr. Singer was of the view that there was such a causal connection.  He said at page 30 that,

‘ In short Mr. Liu’s psychiatric symptoms of anxiety and depression are caused partly by the accident, and partly by pre-existing illness─­certainly physical (back pain) and likely also psychiatric (anxiety) pre-accident.’

33. Dr. Chung, however, disagreed.  At page 30 he stated that

The Judge’s finding on pre-existing condition

34. The Judge found that the plaintiff prior to the accident had a pre-existing physical problem with his back and also pre-existing psychiatric problem.  As to the latter he relied on the diagnosis of ‘Anxiety Disorder and Panic Disorder’ by PYNEH in 1996.  He also preferred the evidence of Dr. Singer.  He held  

‘ I am not surprised of course that the Plaintiff does not wish to be known to have a psychiatric problem.  As an Officer involved with security of Prisons, it cannot possibly be of assistance to his career if there is any serious psychiatric problem.  I regret having to come to a finding against the Plaintiff on pre-accident psychiatric condition, but the Court is left with no choice, having regard to the way the case has been contested by the Plaintiff.’

35. Based on this finding the Judge made a discount of 60% based on pre-existing disability of the plaintiff when he assessed the award for PSLA.

Principles on pre-existing disability

36. There are three possible outcomes regarding pre-existing disability of a plaintiff :

1)   The plaintiff would probably go through life without being affected by the disability.  If this is the case the defendant would be liable for all damage caused by his wrongful act.

2)   There is a strong possibility that some other event or natural progression of the condition would have brought about the plaintiff’s present state.  The Court would then need to assess the degree of possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life.

3)   The pre-existing condition would certainly lead to disability and loss in the future.  In such case, an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.

See Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLR 958.  As Mortimer JA observed in that case,

‘ Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the Plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages.  The pre-trial loss of earnings may also be reduced if the risks during the years concerned are sufficiently high.’

The plaintiff’s case against apportionment

37. Mr. Sakhrani’s (counsel for the plaintiff) argument against the apportionment is that there was no evidence which could indicate when the preconditions would manifest themselves into disability and loss.  He referred to the evidence in Chan Kam Hoi which showed that the precondition would have affected the plaintiff’s working life from his mid-50’s and the medical evidence in Cheung Fat Tim v. Wong Siu Ming and Another (H. C. Action No. A5079 of 1991) which showed that the plaintiff could have been able, without the accident, used his diseased elbow relatively normally for another three to five years before the pain would become noticeable and drive him to seek treatment.

38. It is true that there was no such evidence in the present case.  However, I do not regard such evidence to be the pre-requisite for an apportionment.  Ultimately the issue has to be decided by the overall evidence that is available in a case.  In this case the two orthopaedic specialists had stated that the degenerative back of the plaintiff was already symptomatic prior to the accident and that in the course of time is likely to deteriorate on its own right to cause symptoms even if the accident did not take place.  By apportioning 70% of the plaintiff’s impairment to the pre-existing condition and 30% to the accident, the doctors clearly recognized the seriousness of the pre-accident condition.  Dr. Singer likewise observed that ‘at least without the pre-existing back pain the likelihood of triggering of the Adjustment Disorder would have been much reduced say by 70%’ and that ‘his pre-existing psychiatric condition also partly caused his Adjustment Disorder’.  In my view the Judge was clearly entitled to make an apportionment in this case in the light of such evidence.

39. Judges are not actuaries but their tasks frequently require them to make assessments of probabilities in quantitative terms based on available evidence.  This is not done by way of a clinical, mathematical approach nor by intuition but in a way which more or less reflects the condition of the plaintiff based on the available evidence.  In this case while a different judge may have given a different figure, I am not convinced that the Judge’s assessment that the plaintiff’s preconditions accounted for 60% of his impairment is so perverse that an appellate court should intervene.  This is in the realm of a finding of fact.  In any event it is to be noted that the discount was only applied by the Judge to the PSLA and not to loss of wage or other items.  Hence the question of when in the future the preconditions would begin to affect the plaintiff’s work and his earning would not arise.

Prospect of promotion

40. The plaintiff claimed that as a result of the accident, he lost his chance of promotion to one higher rank, namely, Principal Officer.

Principles in assessing chance

41. In Davies v Taylor [1974] A.C. 207 at 213, Lord Reid stated that

‘ ... You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can.  All that you can do is to evaluate the chance.  Sometimes it is virtually 100 per cent.: sometimes virtually nil.  But often it is somewhere in between.  And if it is somewhere in between I do not see much difference between a probability of 51 per cent and a probability of 49 per cent.’

42. Consistent with this approach, the English Court of Appeal in Allied Maples Group v Simmons & Simmons [1995] 1 WLR 1602 at 1610 per Stuart-Smith LJ held that

‘Questions of quantification of the plaintiff’s loss, however, may depend upon future uncertain events.  For example, whether and to what extent he will suffer osteoarthritis, whether he will continue to earn at the same rate until retirement, whether, but for the accident, he might have been promoted.  It is trite law that these questions are not decided on a balance of probability, but rather on the court’s assessment, often expressed in percentage terms, of the risk eventuating or the prospect of promotion, which it should be noted depends in part at least on the hypothetical acts of a third party, namely the plaintiff’s employer.’

43. This was expanded later in the judgment under the third category of situations which may arise where the plaintiff’s loss depends upon the action of an independent third party.

44. The three situations are best summarised by Otton LJ in Doyle v Wallace [1998] PIQR Q146 at Q149 as follows :

‘ (1) In his first category fell cases in which the defendant’s negligence consisted of some positive act or misfeasance and the question of causation was one of historical fact, in which event proof on the balance of probability prevailed.

(2) In the second category fell cases in which the defendant’s negligence consisted of an omission where caution depended not upon a question of historical fact but upon the answer to the hypothetical question “what would the plaintiff have done if there had been no negligence?”; here the answer is provided by the application of proof on the balance of probabilities.

(3) In the third category fell cases in which the plaintiff’s loss depended upon the hypothetical action of a third party, whether in addition to action by the plaintiff or independently of it; here the plaintiff need only show that he had a substantial chance of the third party acting in such a way as to benefit him.  The Court of Appeal held that the plaintiffs needed to show only that there was a significant chance, which could be less than likely, that the third party would have been prepared to offer them this protection and held that the loss of such a chance had been made out and it was assessed at 50 per cent.’

For ease of reading I have numbered the three situations.

The plaintiff’s hurdles on promotion

45. The plaintiff faced two hurdles on the issue of promotion.  First he has to pass a promotion examination before he would be considered for promotion.  This is a pre-requisite.  Second, after passing the examination, his supervisors would then decide whether he is suitable for promotion.

46. Mr. Wong submitted that even before the Court comes to assess the chance of promotion of the plaintiff under the third situation, the plaintiff has to show on a balance of probability that he would be able to pass his promotion examination, a matter that falls within the second situation.

47. The Judge considered both issues and found against the plaintiff on both of them.  This is what he said

‘ 79.   The Plaintiff himself admitted that he was only the middle of his class.  The many Appraisal Reports all indicate that he was considered no high flyer and with due respect, someone with at best a chance to go only one grade up.

80.  The repeated reluctance of the Plaintiff to take the Promotion Examination is an indication of both the difficulty of passing the Promotion Examination as well as the Plaintiff’s own assessment of his chances of passing the Promotion Examination.  I do not overlook the evidence of the Plaintiff as to why he was not quite ready to apply for Promotion or to take the Promotion Examination before 1998.  I do not believe he was being forthcoming.  He knew very well the difficulty of passing the Promotion Examination and that is the important reason for his holding back and also the real reason that he had never tried again after the disaster of 2000.  He could try in any of the years 2001, 2002, 2003, 2004, 2005, 2006.  But he chose not to.  I do not see how any one who aborted the 2000 Promotion Examination and never attempted any Promotion Examination thereafter could possibly say that he has a realistic chance of passing this difficult examination.  None of the doctors had ever said that his Accident injury would have any adverse impact of his ability to pass the Promotion Examination.

81.  Counsel for the Plaintiff tried not to face up to the harshness and difficulty of passing the Promotion Examination.  The evidence however gives the true picture.  The pass rate at the Promotion Examinations is notoriously low.  In the 1999 Promotion Examination, 2 out of 34 passed, a pass rate of 6%.  In the 2000 Promotion Examination, 4 out of 22 passed, a pass rate of 18%.  In the 2001 Promotion Examination, 5 out of 30 passed, a pass rate of 16%.  In the 2002 Promotion Examination, 6 out of 25 passed, a pass rate of 24%.  In the 2003 Promotion Examination, 4 out of 50 passed, a pass rate of 8%.  In the 2004 Promotion Examination, 1 out of 23 passed, a pass rate of 4.5%.  In the 2005 Promotion Examination, 1 out of 13 passed, a pass rate of 7.7%.  [1341-70].  It can thus be seen that with such a low pass rate, even the very best candidates, persons who are naturally highly able or high flyers might not be able to pass such Promotion Examination at least not until several attempts as indicated by Mr Mak in his evidence.

82.  But the hurdle of Promotion in the CSD is not limited to only passing the Promotion Examination.  There is further the selection process which is equally demanding.  Passing the Promotion Examination is only the first step to being considered for Promotion.  The data given by CSD under its letter dated 30 July 2004 [see 1651-56] suggest that appointments from eligible officers was notoriously small in number.  The number of appointees had gone down from 26 in 1998, to 11 in 2001, to 7 in 2002.  There were apparently no appointments in 1999, in 2000 and in 2003.  In terms of filling vacancies in the rank of Principal Officer, the downward trend is even more telling because in 1998 all 26 vacancies were filled, but in 2001, out of 24 vacancies only 11 were filled and in 2002 out of 19 vacancies only 7 were filled.

83. Having regard to all the evidence, including the submission of Mr Sahkrani as to the statistical figures (favourable to his client) he relied upon, I have no doubt that there was and is no realistic possibility of the Plaintiff being appointed to a higher rank, even without the Accident.  The Accident did not cause the Plaintiff to lose any prospect of Promotion.  With all due respect to the Plaintiff, I simply do not believe that he was ever the sort of material for higher promotion.’

48. In rejecting the plaintiff’s claim on promotion the Judge considered the following matters :

(1)   The plaintiff had not taken the promotion examination before the accident.  He rejected the plaintiff’s explanation that he did not take it earlier because he wanted to reach the highest possible rank first.

(2)   The plaintiff, after withdrawing from the 2000 examination, chose not to retake it again afterwards.

(3)   The low passing rate of the examination.

49. All this indicated the difficulty of passing the examination and the plaintiff’s own assessment of his chance of passing the examination.  The Judge further considered the low promotion rate of becoming a Principal Officer. 

50. In my view the Judge had properly considered the reasons when he rejected the plaintiff’s claim for loss of chance of promotion and I disagree with Mr. Sakhrani’s submission that the Judge had not given reasons for his decision.  This is again a finding of fact both in terms of primary facts and inference to be drawn from such facts.  I do not consider the Judge had erred in any way.

Costs of the trial

51. The defendant argued that the Judge was wrong to award 70% of the costs to the plaintiff because the defendant was the successful party.  It was argued that costs had to be decided by reference to the issues raised by the parties.  The plaintiff lost three major issues, namely, his pre-accident physical and mental state and his promotion prospect.  The plaintiff’s claim of $5.8 million was reduced to $648,444.93 after trial.

52. The plaintiff argued that he was entitled to the whole costs of the trial.

My view

53. I disagree with the defendant.  In my view the plaintiff was the successful party.  He recovered damages in the assessment.  In respect of the 17 heads of damages claimed he recovered judgment on 14 of them.  The three he had lost were loss of future earnings, loss of earning capacity and promotion related awards (grouped under one head of damage).

54. In my view in personal injury litigation where a plaintiff has recovered an award of damages it would be most unusual to deprive him of the costs on the ground that he has lost on the major issues that were raised at the hearing.  Ultimately payment into court by a defendant in a personal injury case is the means by which the defendant would protect his position on costs.  If there was no payment in or if the payment does not exceed the final award, it would be wrong to deprive the plaintiff of his costs even if the final award was a substantial reduction from the original claim.  Further to give the defendant costs of the whole action would be something it could not achieve even if it succeeds in its payment in because it would then only be entitled to the costs of action after payment in and not before.

55. In any event an award of costs is a matter of discretion.  Having regard to the circumstances of the case the Judge awarded 70% of the costs to the plaintiff.  I am not convinced that the discretion was wrongly exercised.

56. For the same reason I reject the plaintiff’s argument that he should be entitled to a full costs of the action.

Conclusion

57. Both the defendant’s appeal and the plaintiff’s cross appeal are dismissed.

Costs of appeal

58. I will make a provisional order that each party bears his own costs.

Hon Sakhrani J :

59. For the reasons given by Cheung JA I agree that the defendant’s appeal and the plaintiff’s cross-appeal be dismissed.  I also agree to the order for costs proposed by Cheung JA.

Hon Chu J :

60. I agree.