ATTORNEY GENERAL v. CHUN YAT NAM

IN THE COURT OF APPEAL

1994, No. 92
(Civil)

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J U D G M E N T

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Penlington, J.A.:

1. This is an appeal by the Attorney General on behalf of the Commissioner of Police (the Crown) against an assessment of damages for personal injury and loss of future earnings and benefits made by Master Jennings on 24th May 1994. The plaintiff appeals by way of a respondent's notice against the amount awarded for pain, suffering and loss of amenities (P.S.L.A.) and the finding in respect of the plaintiff's promotion prospects at the date of the injury.

2. Master Jennings awarded $330,000 for P.S.L.A. and found that the plaintiff would, but for his injury, have been promoted to Sergeant in the Royal Hong Kong Police Force, but no further. He was entitled to damages for loss of future earnings and benefit on that basis.

Background

3. The plaintiff was a police constable attached to the Special Duties Unit of the RHKPF. This is an elite section which is highly trained, inter alia, in counter-terrorist activities, including action where there has been the taking of hostages.

4. On 4th February 1987, the plaintiff, then aged 26, was playing the role of a terrorist in a training exercise. Firearms were used which were supposed to be loaded with blank cartridges but at least one plastic bullet was negligently issued to an officer who fired it at the plaintiff, hitting him in the chest. He was admitted to Queen Elizabeth Hospital in a comatose condition in which he remained for some 12 days. The plastic bullet had lodged in his left pulmonary artery and had to be surgically removed. The plaintiff was sustained by mechanical ventilation and remained in the intensive care unit until 2nd March and then in an open ward until 19th April.

5. There is no dispute that as a result of his injury the plaintiff suffered anoxic brain damage. There is also no dispute that the Crown is liable in negligence as a result of the plastic bullet being supplied and used instead of a blank round and, by consent, judgment was entered on 12th December 1990, pursuant to a writ issued on 3rd February 1990. Damages were to be assessed. Most regrettably in light of the clear evidence and findings as to the effect the litigation was having on the plaintiff, the matter did not come before the Master until almost four years later. It was then six and a half years since the tragic accident. During that time the plaintiff has been examined and tested by innumerable doctors, psychologists, therapists and other highly qualified experts, all no doubt wanting to assist him but also adding to his depressed state of mind.

6. There can be no doubt that the plaintiff on any view of the case is entitled to substantial damages and yet the formal judgment giving rise to the appeal in this case, dated 24 May 1994, is worded in these terms:

"The plaintiff having on the 12th day of December 1990 obtained interlocutory judgment herein against the defendant for damages to be assessed, and the amount found due to the plaintiff having been certified at $330,000 as appeared by the Master's certificate filed on 14 October 1994.

It is this day adjudged that the defendant do pay the plaintiff $330,000."

7. On the face of it, this is a final judgment, extinguishing all the plaintiff's claims for damages in the action and yet, we find that it is the Crown who has lodged the notice of appeal in this court, seeking to overturn the Master's findings. How has this come about?

8. The Master sat, on seven separate days, spanning the period 10 November 1993 to 15 March 1994, to assess the damages payable to the plaintiff. The damages claimed by the plaintiff fell within various heads, the whole constituting the compensation which it was the task of the Master to assess pursuant to Order 37rl of the Rules of the Supreme Court. Unfortunately, the assessment was only partially completed when the Attorney-General, quite erroneously, lodged his notice of appeal.

9. What appears to have happened in the proceedings before the Master was this. He was prevailed upon by counsel to give "decisions upon certain fundamental issues" so that the respective parties' actuaries could make calculations. The contemplation of everyone must have been, at that stage, that once the sums had been worked out, a final judgment would be arrived at: on the basis of those findings and on the further basis of facts which the parties had already agreed.

The "decision" made by the Master focused upon the following:

(1) Damages payable by the defendant for P.S.L.A.;

(2) the plaintiff's future employment prospects;

(3) whether the plaintiff had failed to mitigate his loss; and

(4) whether the plaintiff would have obtained promotion beyond the rank of Sergeant in the RHKPF.

10. Following the hearings which terminated in March 1994, the Master gave, on 24 May, his "decision" on the aspects of the assessment as set out above.

11. After the "decision", that which ought to have taken place did not in fact happen: namely the agreed computations, so that the resultant damages based upon the Master's decision, right or wrong, could have been worked out. Accordingly, no final judgment on the plaintiff's claim for damages (together with interest and costs) ever materialised.

12. When this matter first came before us, of our own motion we raised with counsel this question: There being no final judgment or order which could be the subject of an appeal in terms of section 13(2)(a) of the Supreme Court Ordinance, how can the appeal be entertained? The matter was then adjourned to enable counsel to discuss the position and, when the hearing was resumed, the appeal proceeded on the basis that, upon the Master's findings, supplemented by other facts which the parties had agreed between themselves, a final judgment for damages, including interest, can in fact be computed; in effect, the "decision on certain aspects of the assessment" is to be treated as a final judgment, on which a competent appeal can be mounted.

13. This is by no means a satisfactory proceeding and would normally have been rejected by this court. But having regard to the unconscionable and inordinate delay which has taken place in the assessment of damages we agreed exceptionally to the course proposed. The alternative would have been to send the matter back to the Master for a final judgment to be given, with inevitably a further delay.

14. No appeal court should ever have been put in the position as we have found ourselves in. We strongly deprecate the way this matter comes before us on appeal. No court - and this includes the Master in chambers - is constituted to give decisions in a vacuum. The notice of appeal lodged by the Attorney-General states that it is an appeal from "the decision" of Master Jennings whereby it was decided "inter alia that the plaintiff was unfit to perform the principal duties of his office and his decision to leave the Force was unreasonable". One look at the formulation of this notice of appeal should have made those acting for the Attorney-General realize that there was something radically wrong with the appeal.

15. The Master found that the plaintiff had suffered a very serious injury from which he almost died. There can be no doubt that that was correct. He went on however to find that he had "made a remarkably good recovery physically". There was evidence, which was accepted by the Master, that the plaintiff was what was called at the hearing a "Rambo" type in that he very much enjoyed intense physical activity but did not excel in or like paper work or anything involving administration. He was a very keen sportsman, playing football, basket-ball and golf for Police teams. However as a result of the accident he can no longer take part in such sports and on two occasions when he attempted to do some jogging he ended up in hospital.

16. Following the plaintiff leaving hospital he was eventually returned to the SDU on the 15th August 1987. He was assigned clerical work preparing rosters which, because he had a tremor in his hands, he found difficult. That evening he did not feel well and he was re-admitted to hospital where he remained until the 28th. On resumption of duty he was again required to prepare rosters, answer the telephone and deliver or collect papers from other parts of Fanling camp.

17. The plaintiff made inquiries at this time about his promotion prospects, having passed the Sergeants examination in 1983. He was told by a Superintendent Robbins and his successor, Superintendent Hill, that he could not expect promotion until he was able to carry out full duties. Naturally he found that very depressing. However he remained with the SDU until April 1989 when he was transferred out of the Unit, at his own request, to the "Junior Police Call". He also had a spell with the Frontier Police Community Relations Office. However he did not enjoy taking part in these activities for any length of time and on 8th October 1990 he wrote requesting to be assessed for fitness to remain a member of the RHKPF. This he was entitled to do pursuant to Reg. 940 of the Civil Service Regulations.

18. A medical board was convened to examine his physical (including ophthalmic) and physiological condition. As a result of the Board's findings that he was unable to carry out the principal duties of a police officer, he retired from the RHKPF and was granted an invalid pension. It is the Crown's contention that by having his condition assessed by a medical board and electing to retire as a consequence of its findings, the plaintiff has failed to mitigate his loss because he could have remained in the Police Force, albeit doing clerical work, until he reached normal retiring age at 50. This voluntary decision, it is contended by Mr. Davies, Senior Crown Counsel who appeared for the Crown before the Master and before us, was a novus actus interveniens disentitling the plaintiff from any claim for future loss of earnings. Accepting that there has been some loss of earning capacity, Mr. Davies concedes that the plaintiff is entitled to receive compensation for that estimated at about $70,000. His contention, however, is that there should be no award at all to compensate the plaintiff for loss of future earnings and other benefits as a police officer. Mr. Davies challenges the Master's finding that the plaintiff has acted reasonably in the circumstances.

19. The finding which is challenged on appeal is expressed in these terms :"the blunt fact is that the negligent shot in the heart robbed the plaintiff of his career as a police officer and he is entitled to be fully compensated for that loss. I suggest that one way the defendant could look at the situation is that all the plaintiff will be doing is being paid in advance the price of the salary and benefits he would otherwise have "earned" sitting round not realistically contributing to the Force for the rest of his service."

Pain, suffering and loss of amenities.

20. In Lee Ting Lam v. Leung Kam Ming (1980) HKLR 657, this court, while emphasising that there was a sliding scale for the assessment of damages for personal injury, set out four categories into which in such injuries fell and the level of damages which, at that time, should be awarded for each. These categories were:

(1) Serious injury:

21. This covers an injury which "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". $60-80,000.

(2) Substantial injury:

22. This 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 to the rest of the victim's life". $80-100,000.

(3) Gross disability:

23. This comprises injuries "which leave the victim with very restricted mobility or causes 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". $100-150,000.

(4) Disaster:

24. This is where the victim "requires constant care and attention and is incapable of ever leading or approaching an independent adult life". $150,000 upwards.

25. The level of damages for these categories was reconsidered in Lau Che Ping v. Hui Kong Ironwares Godown Co. Ltd. (1988) 2 HKLR 650 by a five-judge court. At 653, Cons A.C.J. said:

"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."

26. Cons, A.C.J. went on to emphasise that in Lee Ting Lam the Court had said that "there may well be in a particular case factors not in themselves disabling which are sufficient to take that case from one category to another."

27. The court then went on to consider the effect of inflation since the decision in Lee Ting Lam some eight years previously and decided that the amounts to be awarded for the four categories should be increased to $130,000 - $180,000, $180,000 - $225,000, $225,000 - $340,000 and $340,000 upwards respectively. The court had said in Lee Ting Lam that "as time passes guidelines should be updated" and Cons A.C.J. in Lau Che Ping went on to say "in time these too may have to be further revised but it must be remembered that too frequent alteration of guidelines lessens their value as a foundation upon which settlements may be negotiated."

28. We have been strongly urged by Mr. Nicholas Pirie, who appears here for the respondent as he did below, that since 1988 not only has there been very substantial inflation in Hong Kong, which should be fully reflected in the awards, but that the general standard of living and expectation of life has, as a result substantially of the public's own efforts, also increased and that the time has come for a fresh look at the level of awards for P.S.L.A. It is moreover argued that the categories in Lee Ting Lam were primarily based on loss of mobility. It is true that in the third category of "gross disability" there is reference to "serious mental disability or behavioural changes", which is what is relied on here, but the thrust of the decision is on the question of mobility. Here there are different considerations, in particular partial loss of sight, permanent brain damage and severe mental depression.

Effect of Injuries on the Plaintiff

29. The plaintiff was hospitalised in intensive care and subsequently in an open ward. In August 1990, it was found that his cardiac status was "stable". However an exercise stress test had to be halted because of the plaintiff's difficulty in breathing and it was the view of the examining doctor that his "exercise tolerance is limited". The Master said that it was his understanding that the plaintiff had given up completely any thought of strenuous physical activity since two efforts at jogging had put him in hospital. That conclusion seems to be fully supported by the evidence but it is contended by Mr. Pirie that sufficient weight has not been put on it in light of the fact that the personality of this particular plaintiff was such that a limitation on his physical activity is a particularly difficult burden for him and has reduced his enjoyment of life much more than would normally be the case.

30. The plaintiff was examined by Dr. Kan Yiu Ting in November 1989. Dr. Kan had read the reports of some six other doctors and carried out a full examination of the plaintiff. From an examination of those reports and the general history of this matter, he was of the view that a severe degree of cerebral anoxia had no doubt occurred and serious somatic and mental consequences are to be expected. He found there was mild weakness and ataxia (lack of co-ordination) of the upper limbs which however did not affect his normal everyday activities apart from those required to carry out the full duties of a policeman. He was no longer suitable for any job which required steady hands and fingers or good body balance and dexterity. He said he was assessed his somatic impairment to be 10% of the whole man.

31. So far as the plaintiff's mental impairment was concerned, Dr. Kan said that the tests conducted did not show gross deficiency in intelligence and memory but there was a mild degree of intellectual impairment which in turn led to irritability and depression. Dr. Kan found that while there had been one episode of epilepsy while the plaintiff was in hospital there was no high risk of further epileptic fits although there was no certainty they would not occur.

32. The plaintiff was interviewed by Mr. Peter Whyte, a consultant psychologist, in September 1990. He found that the plaintiff's memory range was on the lower border line of normal which represented a considerable reduction from a 1988 test in which it was above normal. He said that he thought this deterioration was largely functional i.e. a result of increasing depression and anxiety. Dr. Whyte said "it seems that Mr. Chun's mounting feelings of hopelessness at the situation his accident has created in relation to his career is bringing him to a dangerous level of neuroticism dominated by anxiety, tension and depression." He goes on to state his conclusions that the plaintiff is a young man whose abilities particularly his memory had been impaired. When he was informed that he would never be promoted that was the final blow to his confidence and his hopes for the future. His work in the Police Force he found boring and frustrating and his then current feeling was that he would not like to stay in the Police Force but will try to establish a new source of income outside. "The quality of his life generally has deteriorated. Quite apart from his boredom at work, his marriage is impaired and his leisure time activities curtailed. His temper is uneven and he frequently quarrels with his wife. He is inhibited in his sex life because of his heart condition and his wife is far less happy in the marriage. He does not feel the marriage is in danger because he is working at controlling his temper but its quality is seriously impaired." Mr. Whyte concludes that "there can be no doubt that he will remain a deeply disappointed man" due to the loss of his career.

33. Another major factor affecting the question of damages for P.S.L.A. is the impairment to the plaintiff's sight which, from the medical evidence, was not noticed by anybody, including the plaintiff until a considerable time after the accident, He was then examined by three leading ophthalmologists, Dr. Ho, Dr. MacRobert and Professor Goldschmidt. Dr. MacRobert examined the plaintiff in March 1991 and found that his eye sight had a very substantially reduced visual arc. It was only 15 to 20 degrees in both eyes. He concluded then that the overall impairment to the visual system was 67%. Apart from other defects such a serious visual defect meant that there was no way the plaintiff could return to active police life. He will be disqualified from holding a driving licence because of the field loss. However Dr. MacRobert examined the plaintiff again on 24th November 1993 and was startled to find that his visual acuity had dropped and his field of vision had reduced substantially to 10 to 15 degrees of arc. He regarded this as alarming and indicating that there was a high risk of further deterioration in the future. A loss of a further 5 degrees of arc would render him legally blind. Dr. MacRobert said that in his opinion the plaintiff's disability was then 85% in "whole man" terms.

34. The plaintiff was examined by Dr. Goldschmidt of the Hong Kong University in March 1994 and he reported that the plaintiff appeared to have no problems in getting around unaided and found that there had been no deterioration during the last two to three years. He said the determination of the visual field is a subjective examination and the results depend on concentration, co-operation and examination methods. He said "the present findings can be a result of cerebral anoxia in the posterior poles of both hemispheres of the brain but a psychogenic component cannot be excluded". He considered that the plaintiff is seriously disabled with a bilateral contraction of his visual field to the central 15 to 20 degrees. He was also of the view that the plaintiff should not drive a motor vehicle and his occupational prognosis was poor due to a mixture of psychogenic and organic factors. He said it was difficult to give a percentage of disability of the visual system as there were no clear rules for estimating that.

35. Both Dr. MacRobert and Professor Goldschimdt gave evidence before Master Jennings. Dr. MacRobert said that he had used one small target in carrying out his examination. The plaintiff's general vision had deteriorated since March 1991 when he carried out the first examination and his visual field had also reduced. He did not change his conclusion from the second examination that the plaintiff had 85% impairment of the whole man using guidelines on visual impairment from authorities in the United States of America. He said that these were commonly used. He said the plaintiff could watch television but in reading a book or newspaper he would have to move his head across the page. He would experience great difficulty in crossing roads and have to be generally very careful while on the street. He agreed however that there was always some subjectivity when examining patients especially in testing the field of vision as it depended to some extent on the individual examiner and on the patient himself. There could be variation from day to day in field of vision even with the same examiner. There was a psychogenic component in vision loss which might be important but he was satisfied the problem came basically from the accident which the plaintiff had had. He said that he did not think the psychogenic element would improve and that on a balance of probabilities the plaintiff's eyesight would remain roughly the same. There was however a small chance it would deteriorate further.

36. Dr. MacRobert said that he did not consider that the plaintiff was an employment prospect now. He could not negotiate Hong Kong traffic on his own and while a desk job was possible he would find reading across a page difficult. He also thought that because the plaintiff had a hand tremor this would make his retraining difficult for such skills as typing or possibly learning braille.

37. Professor Goldschmidt said that when the plaintiff had attended for examination he came with his wife. They went from the third floor to the first floor of the building by stairs and then took a lift to the fourth floor. The plaintiff seemed to have no problems and he did not require support. He said that his examination showed that the plaintiff's visual acuity had deteriorated but this could be normal deterioration with age. His vision was still quite good. It could be corrected by wearing spectacles. So far as the plaintiff's visual field was concerned, he had used two target objects but his final conclusion which was that the plaintiff's field of vision was 15 to 20 degrees was not greatly different from Dr. MacRobert's of 10 to 15. He emphasised that while he felt that the plaintiff was giving him 100% co-operation in carrying out the tests they were subjective tests in that the patient tells the examining doctor if he is able to see certain letters or test objects or not. There was a strong psychogenic component. Professor Goldschmidt thought that there was little possibility that the plaintiff's sight would get any better and thought his situation was stable. The plaintiff had learned to compensate for his handicap by, for instance, turning his head before crossing the street. He did agree with Dr. MacRobert that the plaintiff's condition was very disabling.

38. The plaintiff was also examined in January 1991 and December 1991 by Mrs. Shelley Chow, a highly qualified occupational therapist. On the first occasion, she found that he was pleasant and co-operative but complained that his co-ordination was not very good and he had a hand tremor. The plaintiff was bitter because he was not eligible for promotion and felt he had not had much support from the RHKPF. He also complained of his present colleagues' attitude towards him which was that he was useless as a policeman. He liked his job very much and considered that he had had good prospects. He was looking forward to promotion. However since his injury he had been carrying out light duties which he found boring and he was very upset with the drastic change in his career.

39. Shelley Chow found that the plaintiff's fine co-ordination was visibly impaired and slow and his hand-grip was about half the power of a normal person. He was well below the norm for fine manipulative work and can only work at a slow pace, hampered as he is by his hand tremor and diminished co-ordination. He also complained that his memory was considerably worse than he had been before the accident. Mrs. Chow concluded that in January 1991 the plaintiff could possibly get a job as a security guard or watchman but he would be restricted to raising an alarm as he would not be able to deal with an intruder himself. She thought that he might be able to run a poultry farm on which he seemed quite keen at the time.

40. When the plaintiff was examined again in December 1991 by Mrs. Chow there was not much change in his condition. Mrs. Chow said that she then thought he would have difficulty running a poultry farm or a restaurant but it seemed to be totally lacking in initiative and motivation at present. She said he is "relying on the settlement of his legal case to assist him in planning his future. At present, he is incapable of thinking beyond this event". It is sad to consider that those words were written almost four years ago.

41. The plaintiff was finally seen by Mrs. Chow on 28th January 1993. She found that his power grip had diminished and was considerably less than average. He had lost weight and was very depressed, tense and empathetic. He clearly was worried about his future. He thought he has to put his life "on hold" until his legal case is settled and finds it difficult to think beyond this. His relationship with his wife had improved. Mrs. Chow said that while the plaintiff appears superficially as a fit young man he is far from so. She thought that he may have fared better had he received adequate psychiatric counselling earlier than 1989. She considered that he had to a great extent been neglected. She said "Mr. Chun has suffered an enormous loss as a result of his injuries. Not only has he had to watch his promising career crumple slowly before his eyes and suffer the indignities of being misunderstood by his former colleagues, he has also suffered in addition to multiple physical insults, a great loss of self-esteem, self-confidence and security. A formerly very fit and athletic man he is now cautious about physical exertion due to his heart's condition. He is now a shadow of his former self, physically and psychologically and has had to work through the grief process for his own loss of "self". I have previously in this report and previous reports commented on the effects of having to remain in the Police Force on Mr. Chun. To have delayed his leaving any longer would have been even more detrimental to his health and destructive to his self image." (my emphasis). She goes on. "Mr. Chun will probably find it difficult to enter the work force directly without preparation and vocational training. After such training he would still require a sympathetic employer to support his return to work. He is unlikely in his present condition to be capable of earning much more than a very low basic salary (e.g. $3,500 to $5,000 per month). He is also unlikely to secure a well paying job even after a training period as he is only capable of some simple light work and may not be able to be employed for long periods at the time. He also faces the uncertainly of unpredictable health."

42. Mrs. Chow went on to comment in strong terms on the way in which the plaintiff had been treated following his accident and the paucity of documentation as to the help that been given to him.

43. Mrs. Chow had interviewed and reported on the plaintiff at the request of his solicitors and he was seen in October 1993 by the Hong Kong Society for Rehabilitation at the request of the Attorney General's Chambers. Ms. Debra Sudano, an occupational therapist there, found much the same as Mrs. Shelley Chow and said "since his injury, Mr. Chun has been forced to do work that to him has been unstimulating, unchallenging and humiliating as prior to his injury he was capable of work far more challenging. This in itself poses a problem as to Mr. Chun's motivation to attain a similar job which he finds boring and unchallenging even though he may be capable of doing it. Mr. Chun has limited skills in other vocational areas and due to lack of work experience and training in vocational areas in which he may be able to function is likely at the present time to only be able to obtain simple jobs at junior ranks." She concludes that Mr. Chun's plans for the future were only short-term and he has really not made such future plans. He is waiting for the settlement of his case before he does so. He is very anxious that his case be settled soon as he feels that only after this time will he be able to "get on with his life". That was written over a year ago.

The Master's Findings

44. Master Jennings found that there had been a personality change in the plaintiff who was described by his wife as becoming forgetful and irritable. The marriage had gone through some difficulties but his wife had been extremely supportive. He considered the point, now advanced as a ground of appeal for the Crown that the plaintiff had failed to mitigate the damage he had suffered by not continuing physiotherapy and having further counselling, seeking more vigorously another job and, above all, staying on in the RHKPF. He considered however that "the plaintiff has not chosen his frame of mind since the accident and that he had simply been mentally incapable of adjusting to his post-accident situation." He went on "I am sure that the fundamental problem which has led to the plaintiff's state of mind was the failure to recognise the true effects of the accident upon the plaintiff both physical and mental. When he returned to duty he appeared to be a man who had made an astonishingly good recovery from a near death accident but what no one realised at that time, including the plaintiff, was the narrowing of his field of vision. This was not diagnosed until much later no doubt because the plaintiff's mind was much too taken up with the obvious physical effects of the gun-shot wound. I am sure that the Force's decision to put the plaintiff back in his old Unit, the SDU, was done with the best of motives in the belief that all he needed was more time among his colleagues to become well again. In fact with hindsight we now know he was never going to be the same man as he was before because the sight defect alone would make it impossible to carry out normal police duties. He should have been given intensive counselling but was in fact put back in his Unit still with hopes of resuming his career and being promoted. Once it became apparent to him that he could not continue in the SDU and was not going to get promoted, his mental condition, however bad it was because of organic reasons, i.e. as a direct result of the accident, went sharply downhill as a result of functional reasons i.e. due to the plaintiff's attitude and behaviour. The reports speak of loss of self esteem and anxiety, tension and depression arising from the destruction of a career to which he was deeply devoted."

45. While the plaintiff clearly has put his life "on hold" until the case is concluded and has made little effort to adapt to his new situation it was the view of Master Jennings that the combination of the brain damage and the depressed state into which the plaintiff has progressively sunk has made him mentally incapable of helping his own recovery. He did not consider that any failure to mitigate his loss was due to any choice on his part and his state of mind is a direct result of the accident. He referred to the Crown's own written submissions before him that "it may be that the brain injury has brought about a personality or character change: the plaintiff has a duty to mitigate his loss by making the best of his changed circumstances but it may be that the brain injury is such that he no longer has the ability to make that adjustment." As to whether given that state of mind the plaintiff's general condition can still be improved by further physiotherapy and exercise together with counselling to get him to come to terms with his situation Master Jennings could make no firm estimate but considered it doubtful. It must be borne in mind that the plaintiff, in fact, has undergone very many sessions of physiotherapy.

46. Master Jennings reached the conclusion that the plaintiff came into the upper end of the "serious injury category of Lee Ting Lam". He then went on to say "in an assessment of damages I did about a year ago both counsel agreed that the appropriate P.S.L.A. award for a person within that description was $300,000. I shall adopt that figure and update it to take account of inflation of 10% and an award under this head the sum of $330,000". There was no reference to the name of the case and apparently the counsel were not advised at the time of the hearing that Master Jennings was considering it as an appropriate level.

47. During the course of argument before us, we referred Mr. Davies to the leading decision as to interference by this court with findings of fact: Hong Kong & Shanghai Banking Corporation v. Chan Yiu Wah and another (1988) 1 HKLR 457. There, Fuad, J.A. reviewed all the authorities at length and cited with approval the question suggested by Lord Shaw in Clarke v. Edinburgh Tramways Co. [1919] SC (HL), 37 "Am I - who sit here without those advantages sometimes broad and sometimes subtle which are the privilege of the judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong." That places a heavy burden on the party endeavouring to persuade a Court of Appeal to upset a finding of fact by the court below which Mr. Davies acknowledged he would have to overcome in relation to his appeal against the master's findings concerning the claim for loss of future earnings. However here the situation is somewhat different in that most of the evidence given below by the various experts is not seriously challenged except for the cause of the mental state into which the plaintiff clearly has come. He is extremely depressed and is not motivated due, he says, to the accident and to the subsequent loss of career and ability to take part in physical activities, whereas the Crown say it is substantially due to his own decision to leave the RHKPF and his refusal to take as much counselling as was offered and to his failure to generally get on with his life as best he could. It was contended by Mr. Davies that the Master has put too much weight on the evidence of the plaintiff's wife, that he has become irritable and very depressed. Her evidence, however, was not challenged; it was consistent with the other expert evidence and I do not see how this court could accede to Mr. Davies's submission even if there was a basis for it. I am satisfied there is not.

48. I would agree with Master Jennings' conclusion that the plaintiff has not failed to mitigate the damage to his life through any choice on his part. It is, I think, true that another person in the same situation may well have done more to assist his recovery, but each person's personality is different and we must consider the personality of the plaintiff here. Clearly he greatly enjoyed strenuous physical activity and several forms of sport. That he can no longer do. He very much enjoyed his job in the SDU. That again he could no longer do and it must have been extremely frustrating for him to be in the Unit but unable to be a real part of it. His desire to get away from it is very understandable as is his frustration with the subsequent posts offered to him in the Junior Police Call Unit and in the Frontier Division doing clerical work.

49. The great majority of cases involving personal injury concern physical damage and in particular, as is shown by the way the various categories of injury are set out by Cons A.C.J. in Lee Ting Lam, the degree of loss of mobility. However loss of mental ability and, as here, personality change is without doubt a loss of an amenity just as much as the loss of a limb. (Morris v. Johnson Mathey and Co. (1967) 112 L.J. 32.

50. Mrs. Shelley Chow has referred to the lack of effort to detect this particular officer's problems consequent on his injury. There can however be no doubt that he was examined, interviewed, treated and counselled by a great many different persons on many occasions. It is perhaps not surprising that eventually he did become totally frustrated and depressed that little of that seemed to help him or to achieve a prompt settlement of his legal claims.

51. I do not agree that the plaintiff comes within the first category of "serious injury" in Lee Ting Lam. I consider that this is a case of gross disability, notwithstanding that the plaintiff has a high degree of mobility. Here the accident has, apart from loss of motor control, clearly caused serious mental disability and a marked behavioural change. His vision is very much restricted and while I do not think there is a grave risk of it deteriorating further, that clearly is a possibility. To a man such as the plaintiff, the loss of a substantial part of his sight together with the cardiac damage is indeed a very grave blow. I am also satisfied that the loss of a meaningful career with the RHKPF is, as regards this plaintiff in particular, a very substantial loss of the enjoyment of life which is what the category of "loss of amenities" is to cover. It would seem he will never be able to engage in the physical activities he so much enjoyed both at work and at leisure; he is now effectively unemployable.

52. We have been presented with statistics by Mr. Pirie which show that the level of awards for P.S.L.A., as upgraded in 1988 in Lau Che Ping, for "gross disability", $225,000 to $340,000 should now be substantially increased purely due to inflation compounded from year to year. Mr. Pirie has referred us to the Government Annual Report on the consumer price index of 1993 which sets out at page 4 the annual increases from 1984 to 1993. Taking the figures from 1988, the date of Lau Che Ping, to 1993 the average annual increase is 9.7% and the figures published for the first part of 1994 seemed to indicate that that general trend is continuing i.e. approximately a 10% per annum increase. On that basis, Mr. Pirie suggests that the level of damages for P.S.L.A. should be now increased from the Lau Che Ping guidelines by 85%. There is, it seems to me, ample authority that the levels of awards for P.S.L.A. awards should reflect inflation levels and I am satisfied that since mid-1988 there has been in Hong Kong a level of inflation, calculated on a compounding basis, of approximately the figures suggested by Mr. Pirie.

53. It has however been further urged on us that the general standard of living and expectation of life of the people of Hong Kong has increased substantially since 1980 and that we should take this opportunity to increase the guideline amounts by something more than just annual inflation. He cites the judgment of Nazareth J. (as he then was) in Lakhan v. Wu Wing Tak HCA 3641 of 1983 (unreported). That was a case involving very serious injuries suffered in a motor car accident by a model who, as a result of the accident, lost part of her right foot and her right leg was shortened. She had suffered partial loss of vision of one eye, scaring on the forehead and legs. She had a marked limp, some minor intellectual deficiencies, severe depression and the high likelihood of arthritis in future life. Nazareth J. placed her in the middle of the substantial injury category and awarded $200,000 for P.S.L.A.. He felt he was restricted in the amount he awarded by the Lee Ting Lam ruling. He did however say that he associated himself with the plea made by Hunter J. in Chim Kwan Tai v. Li Fung Electronic Factory (1987) HKLR I that the general level of awards for P.S.L.A. should be reviewed. It is I think clear from reading the Hong Kong decisions, and in particular Lee Ting Lam that the courts considered that as the level of income in Hong Kong were considerably less than that earned by persons in similar occupations in England, that was a main reason why amounts awarded in the United Kingdom should not be a guide for Hong Kong. The social and economic conditions generally were very different. That situation has clearly changed and while we do not have any relevant evidence it may well be that the level of wages in Hong Kong for certain categories of employment is now, if anything, above that in England. There can be no doubt that compared with conditions some fifteen years ago, the expectation of enjoyment of life in Hong Kong is now very much higher than it was. I notice, for instance, that the plaintiff here was a member of the RHKPF golf team and played that game regularly. That I imagine would have been virtually impossible for a police constable in the 1970s or even early 90s.

54. In Lau Che-ping at 654 Cons A.C.J. said:

'The figures outlined in Lee Ting-lam were not intended to be immutable for all time, at p. 659:

'The figures at which we have arrived paint the picture as it is today. As time passes they too will have to be updated.'

Updating is principally required because of the fall in the purchasing power of money. This can be, and regularly is, taken care of in each individual judgment by reference to the rate of inflation. There is no need for general interference by this Court except that we would remark that it is dangerous to adopt a standard rate of inflation of 10% for each year. That may have been a convenient rule of thumb at one time, but is no longer appropriate in view of the wide variations that have occurred in the last few years.

However, apart from such automatic adjustment for inflation, a general adjustment of the guidelines may be necessary on account of change in social and economic conditions. With every respect to the judge below, we have not ourselves observed, in the last 8 years alone, the dramatic developments that he has found. But we are conscious that during that period Hong Kong has not stood still. Changes inevitably take place in the everyday life of any growing society and the expectations of the average person and family tend to increase as each year goes by. Hong Kong is no exception, and those changes must be reflected in the general standards of awards, otherwise the awards will cease to be regarded as fair and reasonable compensation.

While that principle is readily identifiable, the proper quantum of any change is not so easily found. It is not something that can be observed as a single feature in itself, nor can it be measured with mathematical exactitude. Nevertheless we have been referred to a great number of statistics which are found in publications such as the Hong Kong Monthly Digest of Statistics and the Hong Kong Social and Economic Trends. In particular we have been referred to various tables and comparisons of wages and wage and payroll indices. These indicate that there has been, since 1980, a general increase in the level of wages over and above the rate of inflation. That a variation in the level of wages is one of the factors to be considered is apparent from more than one judicial dictum: see also Wright v. British Railways Board [1983] 2 AC 773 at p. 777F."

55. I have no doubt that, on the authorities I have referred to, the level of awards generally should be increased by 85% to reflect inflation since 1988 and that in this particular instance there should be an additional award to reflect the raised expectation of life. However I am also conscious of the fact that this aspect of the cross-appeal was not argued by the Crown which was really only concerned with the question of the plaintiff's entitlement to an award for loss of future earnings and benefits.

56. Before laying down fresh guidelines to reflect generally the increased expectation of life in Hong Kong, I feel we should hear full argument which has not been the case here.

57. Taking into account therefore an increase due to inflation only, the level of awards for P.S.L.A. would now be:

Serious injury:$250,000 - $335,000

Substantial injury:$335,000 - $415,000

Gross disability:$415,000 - $630,000

Disaster:$630,000 upwards

58. As I have said I regard the plaintiff as falling within the gross disability category and, would allow the cross-appeal in respect of the award for P.S.L.A. and allowing in this particular instance for an increased expectation of life, substitute the sum of $650,000.

59. I have rounded these figures off as they are of course only guidelines and all cases must be looked at on their own facts.

Future Earnings

60. I turn now to the question of loss of future earnings. It was the case for the plaintiff before Master Jennings that but for the accident he would have continued as a police officer until reaching the age of 50. That was not in dispute. What was not agreed was whether he would have been promoted beyond the rank of sergeant. It had been agreed that he would have reached that rank on 1st January 1991 if it had not been for the accident. After making that concession, the Crown received further information relative to the plaintiff's promotion prospects and sought to withdraw it. The Crown was not allowed to do so and we think that was perfectly proper. What was however very much in issue was whether the plaintiff would have achieved the rank of station sergeant or inspector. Master Jennings concluded from the evidence before him that he would not have reached either rank. We agreed with him that on the evidence of the plaintiff's abilities and general attitude it was unlikely that he would have been promoted to the rank of inspector. Clearly one factor in relation to that was that his English, which is not at all good, and he seems to have made no real effort to improve it. While he said he would have done so if promotion to inspector, for which a good standard of English is a requirement, became a real possibility, I consider the Master's doubts on that were perfectly justified. An Inspector must do a great deal of administrative work and the plaintiff had shown no liking or ability for that. However as regards promotion to station sergeant, while the evidence was that this was not a probability it seems to me that it was a possibility and should have been taken into account. The plaintiff's confidential annual reports were before the Master, as was evidence from the plaintiff's superior officers. There is no need to go into those in detail except to say that until shortly before the accident they were all very good. In 1981 he was found to be "cheerful and intelligent" and required little supervision. In 1984 "a mature young man who shows keen interest in his work, a very capable young officer". In 1987 though he failed to secure a recommendation for promotion he was commended as contributing to the success of an anti-terrorist course. He was advised to maintain his "high level of duty performance" and clearly he had no reason to doubt that promotion to Sergeant would come if he did so having passed the promotion examination in September 1983.

61. Evidence as to the plaintiff's police career and his prospects was given by Chief Inspector Lam Chi-ming. He said that the plaintiff was considered a good prospect for promotion in 1985 but he would have needed to show more willingness to accept responsibility - to "push himself more". He said 50% of constables in fact never get any higher in the RHKPF. C.I. Lam did not consider the plaintiff could hope to be promoted to Inspector because his English was not good. He said that, if very good, a Sergeant could be promoted to Station Sergeant within four years.

62. There was evidence, some of it conflicting, regarding the plaintiff's attitude to his work immediately prior to the accident. Inspector Ng Kwok-wing, who was in charge of the plaintiff's Unit, said he had previously done well but then "lacked motivation and drive" and was to be replaced. That had been agreed in discussions with his superior, Inspector A.M. Young, who is now retired and living in England. Former Inspector Young did not give evidence but in a letter incorporated into the record pursuant to a hearsay notice he said that the plaintiff "could realistically have expected to be promoted in 1988 and no later than 1989".

63. The Master was clearly wrong, in my judgment, in the conclusion that the plaintiff had no chance of becoming a station sergeant. That factor should be taken into account in assessing the plaintiff's claim for future loss of earnings, if he is entitled to so claim.

64. Was the plaintiff's decision to retire a novus actus?

65. It is the case for the Crown on its appeal that the plaintiff's decision to leave the Police Force on the basis of the medical board's finding that he was unable to carry out the principal duties of a police officer was unreasonable. The argument runs thus: The Force employs a substantial number of disabled officers and would have continued to employ the plaintiff albeit in carrying out duties which he did not enjoy but which he was capable of doing. That being so, the plaintiff had failed to mitigate his loss and his decision to retire from the Police Force was a novus actus interveniens and his future loss of earnings was due not to the accident but to his own decision to retire. The plaintiff had elected himself to, in effect, cut short his claim for loss by retiring and receiving a disability pension. He was only entitled on top of that to a capital amount representing his impaired capacity to earn wages outside the RHKPF which Mr. Davies considered, on the authorities, would be a sum of about $70,000.

66. I am satisfied that the conclusion reached by the Master that the only prospect for employment that the plaintiff now has is working in some sort of sheltered employment for nominal remuneration is right. He thought that the plaintiff's plans of chicken farming or operating a restaurant were vague ideas without any serious thought having been put into them, neither of which seemed to offer a realistic business future.

67. The Master then went on to consider the question of failure to mitigate the plaintiff's loss by remaining in the RHKPF. He referred to the Civil Service Regulation 940 which provide that a medical board can be convened at the instigation of either the RHKPF or of an individual officer to assess his ability to carry out the duties of a police officer. In October 1990 the plaintiff elected to do so and as a result Medical Boards were convened on 27th November 1990, the 6th and 29th April 1991. The Board's findings were that the plaintiff was not fit to carry firearms and not able to carry out full constabulary duties. The plaintiff accepted that finding and elected to retire from the RHKPF on a disability pension. The Master was satisfied that at that stage the plaintiff was angry, frustrated, depressed and unhappy with life in the Force. "He faced many years before retiring age in menial jobs which would hold no satisfaction for him with a constant reminder around him of what he had been before the accident."

68. Mr. Davies points to undisputed evidence that the RHKPF does employ a large number of policemen who have become disabled. He also submits that the Master was not entitled to come to the view that due to his unsatisfactory performance of clerical duties the plaintiff might have been retired before he reached normal retirement age. He says there is no evidence of that. I would not agree. Even though no doubt the senior members of the RHKPF responsible for such decisions would look on the plaintiff's position with sympathy, they would have to consider the effect on his colleagues, who were apparently not so sympathetic. I think the Master was correct to hold that the plaintiff may well have become such a square peg that he would have been retired prematurely.

69. Reliance is placed by Mr. Davies on several authorities beginning with Carter v. British India Steam Navigation Co. Ltd. and anr. [1974] 1 LLR 419, a decision at first instance. There a tally clerk who suffered severe injury to his left leg as a result of negligence by his employer. He was off work for a long time and was then re-employed as an office clerk for 14 months. However when the National Voluntary Severance Scheme came into force he decided to leave the docks and accepted a severance payment and left the defendant's employment. He agreed that he could have continued to do office work if he had so chosen. There seems to have been no evidence that Mr. Carter found the office job unpleasant but it did call for him to occasionally work as a tally-clerk which he considered dangerous due to his lack of mobility. It was held that he was not entitled to claim for loss of future earnings as he had voluntarily retired.

70. In Barnett and anr. v. Chan Ting-chung 1975 HKLR 482. Cons J., as he then was, considered the case of a golf club manager who was injured in a car accident. He suffered from dizzy spells as a result and found he could not cope with the pressure of his job and he resigned. Cons J., in awarding damages for loss of future earnings held that the test was whether or not it was reasonable for Mr. Barnett to resign under all the circumstances then existing. He held it was, as the position of heavy responsibility aggravated the plaintiff's mental condition. Luker v. Chapman Oct. 1970 L.J. 788 is a very brief report of a decision by Browne J. where he held that a telephone engineer who lost a leg in an accident should have accepted a clerical job and not resigned to train as a teacher. He held that he should have done so but the question of whether it was a reasonable decision is not referred to in the judgment. Finally in Adams v. Ascot Iron Foundry Ltd (1968) 72 SR (NSW) 120 C.A., Walsh J.A. said at 139 that if an injured person refuses to take a position which has been offered to him and which he had the capacity to do "it will only be in the rare cases that a question of whether nevertheless it was reasonable for him to refuse will arise. But if it does arise in my opinion, the onus of proof on that question lies upon the defendant". Asprey J.A. agreed with that and I am satisfied the onus is on the defendant here to show that it was not reasonable for the plaintiff to have requested a Medical Board and to have elected for early retirement when he might have continued with clerical duties in the RHKPF possibly until normal retirement age.

71. I am satisfied that the test of reasonableness is not what a reasonable man, unimpaired mentally by an accident, would have done. Such a person may well have decided that in view of his uncertain prospects in the private sector, he should knuckle down and do whatever job he was able to do in the RHKPF until retirement. I think the evidence here is clear that this was making the plaintiff very depressed and was seriously affecting his mental state. Mrs. Shelley Chow, who carried out very detailed tests indeed, is firmly of that view for the reasons I have quoted. That evidence was supported and the Master was perfectly entitled to accept it and indeed it seems to me he would have been wrong not to have done so. A tortfeasor must take his victim as he finds him and the effect of the injury to this plaintiff was very different to another person of a different personality.

72. I am satisfied from the evidence that the manner in which the plaintiff was treated by the RHKPF following his recovery from the accident left a great deal to be desired. There does not seem to have been any real effort to decide what was the best posting for him or to provide counselling and help tailored to his particular personality and requirements. As the Master has found, going back to the SDU and seeing his colleagues there carrying out the duties that he used to enjoy so much must have been extremely frustrating. The postings he was then given in the Junior Police Call and in the Public Relations Office of the Frontier Division also called on him to perform functions which he either found totally boring and unrewarding or which he thought were beyond him. In particular he found the task of supervising young persons which was part of his job with Junior Police Call one which he did not think he could properly carry out and caused him anxiety. This involved on some occasions carrying out duties on a Sunday and something was made of that here as being an indication that he simply did not like to work on weekends. He certainly agreed when that was put to him in cross-examination that he did not like working on Sundays but he also said that he found the responsibility of looking after large groups of children who were difficult to control worrying and he found the pressure was very great.

73. Evidence was given before the Master by Mr. Peter Whyte and he said in relation to the problems of re-employing the plaintiff in the Force that he had experience of a large organisation trying to place impaired officers. He said "to assess a person as suitable for further employment, one must concern oneself not just with remaining physical potential but psychological state of the individual. It is simplistic to say because a man can lift a pen it is O.K. to make him a clerk. If this represents failure or loss of face it is a bad thing. It is enormously difficult job to place impaired people. My impression is that there is a high rate of failure in placing impaired officers successfully and happily. In Hong Kong, my experience is that people who are physically impaired are easier to place than mentally impaired. One has to consider the psychological background of a person - what was their expectation and of their potential." The plaintiff had told him, and he accepted, that there was a gradual increase in his awareness of relative failure of doing something he was not good at - for instance he could not write figures well. His daily feeling of inadequacy caused him to become more depressed and anxious. Mr. Whyte said that he thought the plaintiff showed an unusually deep devotion to police work which was his first job and one which he thought he could do very well. His ego became tied up with his police career and he thought he would get promotion if he did the job well. He was very content with that and wanted nothing else. Inevitable that a man who had developed such an ambition over the years would be extremely disappointed. Mr. Whyte concluded that from what he knew from reading the reports no sufficient thought had been given to whether the plaintiff's condition would be helped or hindered by the postings that he had received.

74. The Master rejected totally the argument that the plaintiff's retirement consequent on the medical board's finding that he was unfit to carry out the principal duties of a police officer was a novus actus and meant that the plaintiff was entitled not to the earnings and benefits which he would have received in future by remaining in the Force but only to a sum for loss of earning capacity. Such an award is made where a person is injured in some way and although re-employed on equal terms to those before the injury, there is a possibility that in future that situation will change and their earnings will be reduced due to the accident. I agree with the Master for the reasons I have already given. I consider that, on the evidence it was not only reasonable for the plaintiff to leave the RHKPF it was important for his mental health that he did so. There was a finding by the Master, entirely supported by the evidence, that the plaintiff's earning capacity is now nil. On that basis, he is entitled to damages reflecting his future loss of earnings.

Conclusion

75. It is agreed between the parties that if this court should uphold the Master's decision, the proper yardstick for the measure of damages is the loss of future earnings as a police officer, using the multiplier of 15. The figures for salary, benefits and allowances, and deductions for tax, have also been agreed - subject to the determination of the questions (i) whether there was a real prospect of promotion to station sergeant and (ii) if so, when that might eventuate. The conclusion I have reached is that the plaintiff had such a prospect, but the time when it might have happened was uncertain : it would not have been within four years of his promotion to sergeant. How, then, to give effect to this finding? It seems to me that the most practical way is to adopt "alternative B" to Mr. Pirie's schedule of damages, under the heading "future loss of earnings", but to discount the resultant figure by 80%. That is to say, assuming that the capitalised present value of the loss be $120,000 (representing the difference between sergeant and station sergeant) the award under this head would be $24,000.

76. The result of all this is that the Crown's appeal against the award of damages for loss of future earnings is dismissed and the plaintiff's cross-appeal on the award of damages for pain suffering and loss of amenities is allowed. A minute of judgment will be drawn up and agreed, and put before us for endorsement; for this purpose we appoint 27th January, 1995, at 9:30 a.m.

Litton, J.A.:

77. I agree.

Nazareth, V.-P.:

78. I also agree and would only add this. Although Mr Pirie quite properly sought an increase in the PSLA level over and above that in respect of inflation, he was unable to afford us the sort of statistical and other data apparently provided to the court in Lau Che-ping v Hui Kong Ironwares Godown Co. Ltd [1988] 2 HKLR 651; see p. 654H. Furthermore, the appellant's case was concerned essentially with the claim for loss of future earnings and not with Mr Pirie's submissions on PSLA compensation levels.

79. For myself, I also have no doubt from personal observation and Mr Pirie's submissions and data, that since Lau Che-ping in 1988 there has been a significant change in social and economic conditions, that the expectations of the average person and family have markedly increased and that there has been a substantial general increase in the level of wages over and above the rate of inflation. With reference to the plaintiff's claim and the submissions and data referred to, I am satisfied that placing him as I do in the gross disability category, and doing the best I can, he is entitled at the very least to an increase that will give him, after allowing inflation of 85% since Lau Chi-ping, the $650,000 PSLA award proposed by Penlington J.A., with which, as I have indicated I agree.

80. Having regard to the limited data presented, and the absence of argument by the appellant, I also agree it would not be appropriate to attempt to update the levels set in Lau Che-ping in respect of considerations other than inflation. I would accordingly reserve that matter for future argument.