Chan Wing-kuen v. Ho Shui-gun and Another

HCA001189/1977

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Coram: Zimmern, J.

Date of Judgment: 22 February 1978

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JUDGMENT

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1. In this case the plaintiff claims damages against the first and second defendants as the owner and driver respectively of motor vehicle registration No. AS 9438 for the negligent driving of the second defendant whereby the plaintiff suffered injuries, loss and damage.

2. The facts are that on the night of the 29th November 1975 the plaintiff with one Chow Wai-fong driver of motor vehicle No. BH 4194 and others were minded to go to the Peak Towers for coffee and having arrived at the adjacent car park found it full. They waited inside the parking area and after some fifteen minutes Chow saw a car moving out from a space in the vicinity and started moving towards it when the second defendant driving AS 9438 overtook Chow's car with the same objective in mind namely the empty space. The inevitable happened, neither had sufficient room to win the space. They blocked one another. The plaintiff and Chow got out of their car went over to the second defendant in AS 9438 and an argument ensued, and no doubt some heat was engendered in that November evening. After a few minutes the second defendant, accepting that equity was on the side of Chow for having waited so long, agreed to drive off. At that time the rear of AS 9438 was about two feet in front of BH 4194. Chow re-entered his car but the plaintiff did not and he told me he stayed out as he wanted to direct Chow into the parking space. Actually he moved to the narrow space between the two cars. The plaintiff said as he stood there AS 9438 moved forward four to five feet then suddenly without any warning reversed and collided on to him. He did not fall as he was supporting himself against BH 4194. Chow said AS 9438 did not move forward at all but just reversed on to the plaintiff. The second defendant was not called. I accept Chow's version of the accident. The second defendant was convicted of careless driving. Counsel for the defendants adopted the proper course of admitting that the driving of the second defendant was negligent. The defence alleges contributory negligence. In my view the plaintiff ought not to have stood where he did before AS 9438 had moved off. No prudent man would stand immediately behind a car even knowing that the driver intended to move forward. The possibility of the driver being careless cannot be completely discounted. He in fact stood between two cars restricting his own mobility. I find that he was a part author of his own injuries to the extent of 15%.

3. I now come to the matter of damages. The plaintiff was admitted to Queen Mary Hospital where examination showed bruising over the right knee region and X-ray showed a comminuted fracture of the upper end of the right tibia. He was given a plaster cast and discharged on crutches on 5th December 1975. After discharge he developed blisters in his right leg and consulted his own specialist Dr. Y.Y. Kwok who gave evidence. The plaintiff was admitted to the Hong Kong Sanatorium for four days where the blisters were treated and the cast redone. During the month of January 1976 he attended at the surgery of Dr. Kwok fortnightly and thereafter once a month till 6th May 1976. The plaster cast was removed on 6th March 1976 but his leg was then not fully load bearing. The upshot of all this was from about mid December 1975 to 5th May 1976 he could only move about on crutches and from the last mentioned date when his right leg was fully load bearing he used a stick for a time. The fractures have united and there is no evidence of permanent disability.

4. The parties agreed general damages at $10,000 and under special damages $2,146.70 being medical expenses and $200 being travelling expenses. The parties left in issue the plaintiff's claim under special damages for loss of earnings for which I have given leave to amend to read thus :

5. The plaintiff said at the time of the accident he was and had been for over seven years employed by U M & M Hong Kong Ltd. a wholly owned subsidiary of an American corporation as an assistant manager in charge of merchandising at a salary of $4,128.50 per month. His work involved visiting factories in Hong Kong and all over South East Asia to inspect merchandise suitable for his employers' business. By reason of his accident and consequent immobility he was unable to do his work and by a letter dated 30th January 1976 his employers dismissed him by giving him two months' salary in lieu of notice. He first attempted to apply for another job in February 1976 and thereafter wrote six or seven letters for jobs. He only succeeded in October/November 1976 when he was employed by a company called Deanna at a salary of $5,000 per month. He was therefore unemployed from February to October. U M & M Hong Kong Ltd. went into voluntary liquidation in October 1976 and all members of the staff then in their employ with over three years' service were given six months' severance pay. Mr. Herbert Wang former manager of U M & M Hong Kong Ltd. gave evidence and said he dismissed the plaintiff who was a good man because in his opinion he would not have been able to work for another two or three months. It was an important time - the spring buying season. When asked whether the plaintiff's job was replaced he said no. The voluntary liquidation was ordered when he visited New York in September 1976 and came as a complete surprise. He said all employees with over three years' service totalling five in number received six months' severance pay. If the plaintiff had not been dismissed for his immobility he would have received six months' severance pay.

6. Counsel for the plaintiff argued that the dismissal flowed directly from the injury. The plaintiff had done everything he could to mitigate his loss and could not get new employment till November 1976. Further if he had not been injured he would have got the six months' severance pay, therefore the court should award the special damages in issue as claimed. These arguments are completely misconceived. They are based on the false premise that the plaintiff's dismissal by his employers was a damage caused by the defendants. First the dismissal was the independent act of a third party namely the plaintiff's employers, whatever reason the third party attributed for that act. Second if the plaintiff had suffered damage by reason of the dismissal and the third party's act was wrongful e.g. insufficient notice then the plaintiff will have a cause of action against his former employers, but vis-a-vis the defendants that head of damage is too remote and not foreseeable. By the time of the hearing the plaintiff was not under any disability by reason of the injuries caused by the defendants and there had been none since at the latest June 1976. The defendants are only liable for the plaintiff's loss of earning capacity by reason of that disability. On the facts of this, on balance finding the plaintiff was still disabled during the month of May 1976 in that he was limping and walking with a stick I award under loss of earnings the sum of $8,257.

7. There will be judgment for the plaintiff in the sum of $8,257 plus the agreed sums of $2,146.70 and $200 under special damages and $10,000 under general damages both total sums less 15%. The total sum under special damages to carry interests at 4% per annum from 29th November 1975 to today.

Representation:

Patrick Woo (Johnny T.K. Cheng & Co.) for the plaintiff.

R.J. Faulkner (John Ip & Co.) for the defendants.