Lo Mui King v. Lee Kwong Wing and Another

Case No.DCCJ 1337/1975

Court

District Court

Date—

Judge—

Case Document

100%Judiciary

DCCJ001337/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1337 OF 1975

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BETWEEN
	LO MUI KING an infant suing by her next friend HUNG YUEP LAN	Plaintiff
	and
	LEE KWONG WING	1st Defendant
	LEE KAM FAI	2nd Defendant

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Coram: Jones, D.J. in Court.

Date of Judgment: 26th March 1975

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JUDGMENT

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1. The Plaintiff claims damages on the grounds of negligent driving for personal injuries and loss that she sustained in a road traffic accident that occured on the 28th March 1971.

2. On that date at about 4.00 p.m. the Plaintiff who was then aged 15 was crossing Tai Po Road on an uncontrolled studded crossing oposite the North Kowloon Magistracy when she was knocked down by a motor cycle driven by the first Defendant and owned by the second Defendant.

3. Interlocutory judgment was entered against the first Defendant in default of defence on the 2nd August 1974 for damages to be assessed.

4. The second Defendant denies liability on the grounds that the first Defendant was driving the motor cycle without his authority.

5. At the place where the accident occurred, Tai Po Road is a dual carriageway with a safety island in the middle. There are therefore two separate crossings. A sketch plan that was produced shows that the width of the road where the Plaintiff was crossing to the safety island is 32'10". Before she crossed the Plaintiff said that she looked in both directions and saw a motor cycle in the distance to her right coming towards her in the outer lane nearest to the centre of the road. This was the only vehicle that she saw. She crossed at a speed a little faster than walking pace. The Plaintiff had almost reached the safety island when she was knocked down. She said that she neither heard the sound of a horn nor the sound of braking. In cross-examination she agreed that as she was actually crossing the road she looked straight ahead without looking to her right. Mr. Chung Chung Kong an independent witness called on behalf of the Plaintiff said that the Plaintiff had nearly reached the safety island when the motor cycle braked swayed from side to side and hit the Plaintiff's back. He did not hear the sound of a horn. The driver of the motor cycle did not stop after the accident.

6. A pedestrain is entitled to precedence on an uncontrolled crossing over any vehicle by virtue of Regulation 4 of the Road Traffic (Road Crossing) Regulations cap. 220. I accept the Plaintiff's evidence and that of Mr. Chung that the Plaintiff had almost reached the safety island when she was knocked down by the motor cycle. I find that the first Defendant was wholly to blame for the accident by reason of his negligent driving. In particular the first Defendant did not sound his horn, failed to brake in time, failed to take any evasive action, and was in breach of the aforementioned regulation in not according precedence to the Plaintiff on the crossing.

7. The second Defendant is the proprietor of a garage where he carries on business in second hand motor cars and motor cycles. He said that he did not give permission to the first Defendant to use the motor cycle on the date of the accident, as he went on a trip to the new Territories. However, the burden is upon the owner to prove that he had relinquished his right of control over the vehicle for this defence to succeed.

8. It was revealed in cross-examination that the first Defendant was a neighbour of the second Defendant, and had with a view to purchasing a 100 c.c. model, driven the second Defendant's motor cycles about once a week before the accident occurred. On the date of the accident the motor cycle was parked outside the garage and the keys were easily accessible inside the premises on a black board.

9. It is clear that the second Defendant had an interest in the first Defendant driving the vehicle as he wanted to effect a sale in the course of his business. His evidence that his permission was withheld when he was physically absent from the garage was not convincing.

10. I am quite satisfied that having previously driven motor cycles with the express permission of the second Defendant, the first Defendant even if he had not been expressly authorised on the date of the accident had implied authority to do so. The onus placed upon the second Defendant has not therefore been transferred.

11. Accordingly I find that the first Defendant was driving as the agent of the second Defendant with the result that the second Defendant is vicariously liable in damages for his negligent driving.

Two medical reports relating to the injuries suffered by the Plaintiff were agreed. Following the accident the Plaintiff was admitted to Kwong Wah Hospital. Upon examination she was found to have sustained a fracture of the right tibia and fibula 2 ½ above the ankle joint, and a minor abrasion and bruising over the right loin. The Plaintiff was discharged from hospital after thirteen days. Subsequently she attended hospital as an out patient until the 8th July 1971 when she was described in the medical report of Dr. Mehal to be walking well without the aid of crutches. Dr. Nedderburn in his report dated the 4th May 1972 said that the lower fragment of the right tibia was displaced laterally by ½", and there is
3	" shortening of the tibia compared to the tibia of the left leg. Dr. Nedderburn expressed the opinion that the Plaintiff's permanent disability is
6
less than 1%.

12. At the time of the accident the Plaintiff was a sewing worker earning $200 per month. She did not resume work until the 28th April 1972. The Plaintiff in evidence complained that she cannot walk for long distances which I accept, and has convulsions when she swims. However, there was no medical opinion to support the latter complaint with the result that I disregard this evidence as being attributable to the accident. Apart from the treatment received at the hospital the Plaintiff also consulted a bone setter who preseribed certain medicine. However, having regard to the agreed medical evidence I find that there was no justification for the Plaintiff to receive this treatment.

13. As a result the claims under the heads of special damage for Chinese medicine, and consultation fee to a Chinese doctor will be disallowed.

14. Two items of special damage were agreed viz hospital fees $84 and damaged clothing $15.

15. The claim for loss of wages from the date of the accident to the 28th April 1972 was challenged on the grounds that the Plaintiff should have been fit to return in July 1971. Upon the medical evidence I consider that the Plaintiff was in a position to resume work by the end of July 1971 so that the award for loss of wages will be limited to a period of four months i.e. $800. Taxi fares for visits to the hospital will be allowed at the sum of $150.

16. A claim has been made for the cost of nourishing food which was taken by the Plaintiff upon the suggestion of her mother. Upon the authority of Mui Ling Kwan & another v. Wong Yin Wah and others (1973) H.K.L.R. 465 such a claim should be very narrowly regarded in the absence of evidence from some qualified person upon whose judgment the Court can rely. There was no medical evidence to support this claim. Although it is within the discretion of the Court to make a nominal or small award I am of the opinion that no allowance should be made in this case. The special damages are therefore assessed at $1049.

17. In respect of general damages the Plaintiff undoubtedly suffered severe pain after the accident and was semi-conscious for a short period, but fortunately she has made an excellent recovery with only a minimal permanent disability. There was a degree of loss of amenity, in that she was unable to swim or go on picnics, but these pursuits are no longer affected. I am of the opinion that the Plaintiff has somewhat exaggerated her symptoms bearing in mind the agreed medical reports, and I have taken this into account when making my assessment of the general damages.

18. Taking all matters into consideration I shall award the sum of $6000 as general damages.

19. Accordingly with the special damages of $1049 the total award is $7049.

20. On the principles enunciated in Jefford v. Gee (C.A.) 1970 2 Q.B.D. at page 146 I shall award interest upon the special damages of $1049 at the rate of 4% from the date of the accident 28th March 1971 until today and at 8% on the general damages of $6000 from the date of service of the writ which was the 11th February 1974.

21. There will be an order for the special damages of $1049 to be paid to the Plaintiff's next friend. The general damages will be paid into Court within seven days to be invested on behalf of the Plaintiff until she attains her majority.

22. The Plaintiff is entitled to costs which will be taxed on the upper scale. I certify fit for Counsel. There will also be the usual taxation in accordance with the Legal Aid (Scale of Fees) Regulations.

	(B.L. Jones)
	District Judge
	26th March 1975

Representation:

Mr. Kenneth Kwok of Gordon, Hampton &Winter for Plaintiff

Mr. Rose of Deacons for 2nd Defendent.