Wong Kam-to v. The Kowloon Motor Bus Co (1933) Ltd and Another

CACV000044/1979

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Coram: Huggins and McMullin, JJ.A. and Cons, J.

Date of Judgment: 12 March 1980

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JUDGMENT

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Huggins, J.A. :

1. The Appellant was injured when alighting from a bus owned by the 1st Respondents and driven by the 2nd Respondent. At the trial liability was eventually admitted and the case turned upon the quantum of damages. The learned judge awarded the sum of $21,620 in all, being as to $21,520 general damages and $100 special damages, with interest on $11,520 at the rate of 4% per annum. There is before us an appeal against that assessment by the Appellant and there is also a cross-appeal by the Respondents.

2. There are two questions which fall to be decided. The first relates to the quantum of the earnings upon which the loss of earnings should be based and the second is as to the length of the period of incapacity resulting from the accident. The learned judge took an average of the earnings for two years preceding the accident as the basis for his calculation. He gave no reason for so doing and it is submitted that it was illogical. However before I consider that further it is objected by the Respondents that the assessment of the earnings for the years 1976 and 1977 was too unreliable, whilst the Appellant contends not only that it was reliable but that it should have formed the sole basis for the calculation.

3. The Respondents' objection arises from the source of the figures contained in the assessment. A chartered accountant was employed to prepare from such information as was available statements of receipts and disbursements for three periods, first from 1st April 1976 to 14th March 1977 (the date of the accident), then from 15th March 1977 to 31st March 1978, and, finally, from 1st April 1978 to 24th October 1978. The accountant produced three sets of figures. The first he took from what can be broadly described as vouchers: these were figures for which there was some concrete evidence. The second statement consisted of figures which were obtained from cheque book stubs and the like and included sums for which there were no vouchers of any kind and, third, he produced a statement which incorporated both of these sets of figures. What is suggested is that by taking as he did the second of these two statements as the basis of calculation the judge was taking figures which were so unreliable as to be totally misleading. It is indicated amongst other things that there are items for which no disbursements have been shown, although they were shown in the previous calculation. It must be said that the evidence as a whole in this case was thoroughly unsatisfactory and the responsibility to a large extent must fall upon the Plaintiff, since it was his duty to prove his loss. The judge accepted that the information and the documents were, to use his own language, "meagre and incomplete", but he said that the figures showed "a trend" and he explained what he meant by that when he said

"The trend which can be ascertained from the statements for the third period shows that although there has been a reduction in the sales made by the firm the net receipts or profits were almost up to the 1975/76 levels."

The 1975/76 levels are ascertained from a statement of account which was presented to the Inland Revenue. This was prepared by an unqualified accountant but was accepted by the Appellant as the basis for his return. By averaging the earnings for the two years based on the 1975/76 return and the second of the three statements for the following year the judge assessed the profit as approximately $1,920 a month.

4. For my part, I think that the Respondents have some justification for their complaint that the figures upon which the statements by the chartered accountant have been prepared are not a sound guide as to the true position of this company and I think that the Appellant has no just ground for complaint if the return for profits tax purposes is taken as being an accurate record of the business for the year 1975/76. Working on those figures I think it must be appreciated that the business would probably have increased in the subsequent two years and I would allow a 20% increase over the figure which is in that return. On that basis I arrived at a monthly profit of $1,141.35, that is to say, one takes 20% on $11,413.50, which is $2,282.70 and, reducing that to a monthly profit, we get $1,141.35.

5. We then turn to the question For what period should that be allowed? Here again the evidence is highly unsatisfactory. There is clear evidence that by 10th August 1977 - that is five months after the date of the accident - the wound on the Appellant's foot had healed. He told one of the doctors that he then returned to work and there is no evidence before us that he was unable, at that date, not only to go back to work but to do the full work that he had been doing. Although it is true that to the doctor whom he told that he did return to work in August 1977 he said that he had to employ a coolie to do some of the work. Unfortunately he does not say how much he was required to pay that coolie and I do not think it is possible for us to say that the Appellant ought to be granted any more than the six months which the judge allowed and which the Respondents do not contest. That would allow for about a month after the wound had first closed for him to go back to work and to resume his full activity. It is clear that by the February of the following year the wound was open. However, there is evidence, and an admission by the Appellant, that in the mean time he had been applying some herbal concoction which he had obtained from a herbalist and the obvious conclusion, and a conclusion which was drawn by the learned judge, was that this had been the cause of the reopening of the wound. That was a justifiable conclusion. The fact that there was a document from the Kwong Wah Hospital which said that the wound was healed in December 1977 does not seem to me necessarily to conflict with the statement that the wound had closed by August. In December the Appellant went back to the hospital solely for the purpose of obtaining some kind of certificate from the authorities.

6. There was evidence that the Appellant had applied mercurochrome to this wound before August 1977. The position is that he left hospital after about two weeks there and was given an appointment in the Out-patients Department. He failed to keep that appointment at the proper time. It is not clear how late he arrived - whether he was, as he said, an hour late or whether, as appears possible, he did not go until the afternoon although he had been required to appear at 8 o'clock in the morning - but, be that as it may, he was not able to obtain attendance. He was given a second appointment and he failed to keep that appointment. By 24th May, when he was at last seen by a doctor, the wound was grossly infected. In the mean time the medicine which he had been given had been finished and it was then that he applied the mercurochrome. We have no clear evidence as to why this wound became infected: there is a number of possible reasons. Fortunately it is not necessary for us to say any more about it, because it is accepted that, although the doctors were of opinion that had things gone normally this wound should have healed in a few weeks, the judge found that six months was a reasonable period upon which to base his assessment, and that is no longer contested.

7. What remains is a suggestion that because of his being away from work the Appellant permanently lost some of his customers. He was engaged in the retailing of prawns. He would buy boxes of prawns wholesale and deliver them in person to various customers. He said that when he eventually was able to return to business - although he does not say whether that was when he started again part time or whether when he fully returned to business - that he had lost customers. He produced no details of this and the judge made no finding. I think it is reasonable to conclude that he probably did lose something and, for my part, I would be inclined to be generous and to take roughly 10% of the figure which I think should be awarded. That comes to $1,000, so that the damages which I would award would be six months at $1,141.35 plus $1,000 for loss of customers. That would result in a reduction of the damages and means that the appeal would be dismissed and the cross-appeal allowed to the extent that I have indicated.

McMullin, J.A. :

8. I concur.

Cons, J. :

9. I agree with the views expressed by my Lord President and the order that he proposes.

12th March 1980.

Representation:

F. Eddis (Rowdget W. Young & Co.) for Appellant

W.Lane (Deacons) for both Respondents