Ho Kwai-loy v. Leung Tin-hong and Ho Yuk Another

CACV000062/1977

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 3rd March 1978.

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JUDGMENT

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Huggins, J.A.:

1. This is an appeal against a judgment of Judge Hopkinson in an action for damages in respect of personal injuries. The action was brought by the father of an infant as the infant's next friend against the driver of a vehicle and the owner of the vehicle. Although the Notice of Appeal purperts to include the owner as Respondent it is common ground that the appeal concerns only the driver.

2. The small boy was knocked down as he was crossing the Tin Hau Temple Road. The Respondent was driving a car when he came to a part of that road which was under repair. There was a one way traffic system in operation governed by lights. As he approached, the lights were in his favour and he went through. A short distance beyond that there were cars, apparently facing in the opposite direction on his right hand side. Whether they were parked or were waiting for the lights is not clear, but as the Respondent went along that line of cars the Appellant ran out from behind one of the cars and was knocked down.

3. There is no cross appeal on the question of negligence. I mention this because, reading the judgment of the learned judge, I confess that I find some difficulty in understanding some of his reasons for holding that there was negligence on the part of the driver. However, that is not in issue in this court.

4. The question which has been raised for our consideration is whether a child of six is capable of contributory negligence. In my view he is so capable and so to hold is not inconsistent with Gardner v Grace [1858] 1 F. & F. 359 and Latham v R. Johnson & Nephew, Ltd. 1913 1 K.B. 398, where the children were under the age of four years. Andrews v Freeborough 1967 1 Q.B. 1 is obiter upon this point but it is not inconsistent with the principle of Gough v Thorne 1966 1 W.L.R. 1387 that a child must be of such age that he can be expected to take precautions in the circumstances and I adopt a statement of the Canadian Supreme Court in McEllistrum v Elches [1957] 6 D.L.R. 2nd ed. 1 at 6:

"It should now be laid down that where the age is not such as to make a discussion of contributory negligence absurd, it is a question for the jury in each case whether the infant exercised the care to be expected from a child of like age, intelligence and experience."

Was the judge entitled to find here that the Appellant did not take such precautions as a child of six should have taken in the circumstances? The judge does not appear to have considered this question in relation to the finding that the sister, aged ten, who was with the small boy, who had crossed the road and who called him across, may herself have been guilty of negligence. She said that she did not see any traffic coming. The judge made no definite, clear finding on this matter but clearly, in my view, on the evidence the little girl was negligent: either she looked and did not look properly or she did not look and ought not to have called the small boy across. Now does the negligence of the sister affect the Appellant? This is a question which has never been argued before us and, in my view, it would not be right for us, therefore, to deal with it at all. I think the learned judge was wrong in his finding that the boy was contributorily negligent because in all the circumstances it was natural for a small boy aged six to accept the call of an elder sister as an indication that the road was clear. That being so I would hold that the boy was not contributorily negligent and I would leave open the question whether it could have been argued that the sister's negligence was fixed on him.

5. We then come to issues on the question of damages. The learned judge fixed a sum of $3,000. The only finding as to the general damage is contained in the words "I accept the medical report as to petitioner's injuries". The learned judge made no reference to the evidence, which was admitted without objection and which was not challenged in cross-examination, to the effect that the boy lost some teeth and that the damage to the jaw made such damage permanent. The only medical report was that of the Casualty Officer at the Tang Shiu Kin Hospital, who ordered his transfer to the Queen Mary Hospital, and it seems not to be in dispute that the boy's jaw was found to be broken. Such a fracture was alleged in the Particulars of Claim but there was no express reference in the particulars to the teeth. There also was some question whether the judge had found that the hospital visits described by the father of the Appellant included some attendances at the Sai Ying Pun Clinic, but for my part I take his finding to include those. The matter certainly was not investigated with the clarity which one might have hoped, but on the whole I incline to think that the estimate of damage was unduly low and I would assess the general damages at $5,000.

6. I agree with the learned judge in disallowing the claim to the bone-setter's fees: he was not satisfied that those were reasonable or necessary - or possibly even that they had been paid. The judge does seem to have been satisfied that expense on extra food was reasonable and he gives no reason for disallowing two-thirds of the $600 for which receipts were produced. There was no evidence in my view justifying a finding that only part of this sum was reasonable and I would allow the appeal to include the remaining $400.

7. There is then question of the claim on behalf of the father for his loss of wages in visiting his son. The learned judge took the view that it was proper for the family, if I may so put it, to mitigate its loss by making the mother attend to visit the hospital - not the father, who was earning a higher rate of salary. The view I take on this is that it was for the family to decide who ought to visit. It is arguable, of course, that the mother is the natural person to visit a very young child but I can conceive of cases where the family would prefer that the father should be the visitor and in the absence of any indication that this was unreasonable I think that the judge was wrong in saying that the father should not be allowed to be the visitor and I would allow the wages which he has lost, in lieu of the mother's wages. Allowance of the wages seems to be justified by the case of Donnelly v Joyce 1973 3 W.L.R. 514 where a woman was allowed her loss of wages when she gave up her job in order to act as a nurse. I accept that this case takes the principle a little further, but I do not think that it is improper to go thus far. Therefore, I would allow the father's loss of wages for the eleven days.

8. The only other figure which was questioned was the amount on fares for out-patient treatment. This was not properly proved and I would not allow any more than was allowed by the judge.

9. I would allow the appeal to the extent that I have indicated.

3rd March 1978.

Representation: