Wong Yin Wah and Another v. Hung Ping Kwan and Others

HCA001400/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1400 OF 1971

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Coram: Li, J. in Court

Date of Judgment: 16th January 1973

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JUDGMENT

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1. This is an action for damages for negligence arising from a motor accident which happened on the 6th July, 1969. The plaintiffs were two of the passengers in a 9-seater van registered number AN6819 travelling along Cheung Sha Wan Road at the material time. At the junction of Tonkin Street and Cheung Sha Wan Road, the said 9-seater van had a collision with a goods vehicle, namely, a lorry registered number AE6627. As a result of the collision the van ran out of control, somersaulted and overturned. Both of the plaintiffs were injured. The injury to the 1st plaintiff was not so serious. The injury to the 2nd plaintiff can be described as very serious. At the time of the accident, the 1st defendant was the driver of the van, the 2nd defendant was the registered owner of the van, the 3rd defendant was the driver of the lorry, and the 4th defendant was the registered owner of the lorry. Both plaintiffs were hospitalized. The 1st plaintiff suffered a bruise on the buttock and laceration of the prepuce of clitoris of the vulva. She was in hospital for about nine days. She has since made a full recovery. The 2nd plaintiff suffered the injuries set out in the statement of claim which I shall not repeat. Generally he suffered a severe injury of fracture of the skull leading from the right temporal region over to the left. He had abrasions all over his body and he had also a fractured nasal bone. He was kept in hospital for some three weeks. He would have stayed longer but for the fact that he discharged himself by the end of the third week. He was rendered unconscious for one full week in hospital.

2. These facts are not seriously challenged. The defence is not one of challenging the allegations of the plaintiffs, though there is no admission on the part of the 1st and 2nd defendants. They rely on the pleadings in the statement of claim and put the blame on the 3rd and 4th defendants. Similarly the 3rd and 4th defendants rely on the facts alleged in the statement of claim and put the blame on the 1st and 2nd defendants. Thus, as far as the question of liability is concerned, it is entirely a matter between the 1st defendant and the 3rd defendant, unless one can, by some long stretch of imagination say that the two plaintiffs caused the accident. Of course there is no evidence as to that. The 2nd defendant, if liable at all, is vicariously liable because the 1st defendant drove his car and therefore his servant. Similarly, the 4th defendant.

3. The second issue is one of quantum of damages. That, of course, is a matter between the plaintiffs and the defendants who may be found liable or responsible for such an accident causing the injuries. I shall first consider the question of liability. There is no independent eye-witness to this accident which happened some three years ago. The 1st defendant despite efforts to locate him, failed to be traced. Therefore I have only the evidence of the 3rd defendant concerning the cause of the accident and some slight evidence from the plaintiffs who didn't see anything anyway. There is, of course, the additional evidence that after the accident occurred, the 3rd defendant was summonsed for careless driving to which offence he pleaded guilty and was convicted on his own plea and fined.

4. The 3rd defendant gave evidence of the account of this accident. He said at the material time he was driving a 8-ton lorry coming out from Tonkin Street entering Cheung Sha Wan Road with the intention of turning to the right, namely, to the southerly direction of Cheung Sha Wan Road. Before he reached this junction his lorry was in third gear, travelling at about 12 to 13 m.p.h. There was only a half load on his lorry. Pausing at this stage, I have to observe that if the lorry was in half load and in third gear, I would expect the engine to stall if he were travelling - dawdling at 12 to 13 miles an hour. He should be either in second gear or in first gear. But there is no evidence as to that. Commonsense would tell us that a lorry of that weight going in third gear at half load, it would be extremely difficult for him to manoeuvre the lorry. This is neither here nor there. As he approached the junction, there was another vehicle or goods vehicle ahead of him crossing Cheung Sha Wan Road from the west to the east and that lorry was already on the eastern side of Tonkin Street. He merely followed. As he reached the junction, another big goods vehicle was turning from Cheung Sha Wan Road - the southern side of Cheung Sha Wan Road - into the western portion of Tonkin Street - that portion of the street from where he was emerging into Cheung Sha Wan Road. As a result, his view to the traffic of the west of Cheung Sha Wan Road was completely blocked. He changed down to second gear, drove out into Cheung Sha Wan Road in order to gain a better view. As soon as he did that, he saw the 1st defendant's van coming along at fast speed, well over 30 m.p.h. He at once stopped his lorry but the van hit the front of his lorry, bounced off, hit a safety island and then the railings in the centre of Cheung Sha Wan Road, somersaulted and overturned. Hence the accident. He said that he pleaded guilty to the charge of careless driving solely because he felt that, as he moved out slowly to Cheung Sha Wan Road without having a clear view of the traffic coming from the southern side of Cheung Sha Wan Road, he felt somehow responsible for this accident. But he said that the main cause of this collision was due to the fact that the van driver was travelling far too fast, failed to see him, and hit his vehicle before it overturned. Therefore his evidence is one that he put part of the blame on the van driver, claiming contributory negligence on the part of the van driver. It is also in evidence that there was no traffic light. It was not a controlled crossing. There was no traffic sign indicating that Tonkin Street was a minor road. I also take into consideration that the plea of guilty to careless driving, although material, is not the determining factor. However, I also observe that when it happened, the van bounced off to some considerable distance of at least ten to twenty feet across to the safety island, hitting a boulevard lamp and then went out of control and eventually overturned. Had it been the van which hit the lorry first and therefore caused the accident, I would have expected, however fast this van travelled, the van would have somehow scratched the lorry and come to a standstill rather than bouncing off unless there is some pushing force pushing the van not forward but towards the eastern portion of Cheung Sha Wan Road which caused this accident - the overturning. It is the 3rd defendant's own evidence that the goods lorry which turned into Tonkin Street had pulled out to the centre lane so as to do the left turn into Tonkin Street. Therefore, of the 33 1/2 feet wide of that portion of Cheung Sha Wan Road, this turning lorry must have blocked at least half the road. Immediately after the accident, it was put down in Exhibit (1), a plan signed by the 3rd defendant. All that remained of his car in Tonkin Street was five feet so that his vehicle was well into the middle of Cheung Sha Wan Road at the time when he couldn't possibly have seen anything coming from the southern portion of Cheung Sha Wan Road. He said the van, was travelling on the centre lane. But the goods vehicle which turned into Tonkin Street and had pulled out into the centre lane in order to do a left turn. I am of the opinion that the van driver could not have speeded up very fast just before the accident unless the van driver was on a suicidal attempt. For these reasons I find as a fact that the accident occurred solely because the 3rd defendant drove his vehicle, be it fast or slow, into the middle of the road at a time when he had no view at all of the oncoming traffic. His lorry ran right into the path of the van and had hit the van, no matter how slightly, causing the van to be out of control and overturned, and as a result the plaintiffs were injured. In travelling on a 3-lane traffic, even if the van were travelling at 30 m.p.h. or slightly exceeding 30 m.p.h., I do not find that speed as excessive. There is no evidence as to the traffic being heavy at the time. However, I do not find the van was travelling exceeding 30 m.p.h. despite the evidence of the 3rd defendant whose evidence I do not accept because the van obviously would have to slow down in view of the other lorry that was pulling out to the centre lane to go into Tonkin Street. As a result I find that the 3rd defendant was hundred per cent to blame and there was no contributory negligence on the part of the 1st defendant. Similarly on the principle of vicarious liability the 4th defendant is also a hundred per cent to blame. That leads to the question of the quantum of damages.

5. In the statement of claim, the 1st plaintiff claimed for special damages of $75 for loss of tips and earnings, $20 for damage to her skirt, $15 for damage to her shoes, medical expenses of seven injections $63, special food necessitated by injuries $400. There hasn't been any challenge to the loss of earnings, damage to skirt and damage to shoes and medical, expenses of $63. There has been evidence that she had to receive injections after her discharge from hospital. In addition, the 1st plaintiff also claimed general damages for pain and suffering and discomfort. The item that has been contested is the item of $400 for special food. It is correctly contended that special foods are never necessitated by the injuries. Mr. Donnelley contends that, although it is not strictly necessary for the 1st plaintiff's recovery, yet it is a foreseeable damage because local residents in this part of the world always have special food when they are hospitalized. But I would go one step further in that, whether it is foreseeable or not, whether it is necessitated or not, the special food may help to speed up the recovery of the patient. A normal person without any injury is expected to lead a normal life. An injured person would perhaps require a little bit of pampering or some special food to keep him or her on a happier frame of mind which is very essential to the morale and to the road to recovery. This, as a matter of practice, is foreseeable by anyone as it is common experience that hospital food in a third class ward is not always palatable. It may be very nourishing and nutritious and sufficient to keep the body and soul together. Nonetheless people would like to have their own food at a time when they have to be pampered to keep a happy frame of mind. In the case of the 1st plaintiff, $400 for nine days of hospitalization is perhaps inordinately high. This is particularly so when no bill or no account has been produced to show the purchase of such food. However, her evidence on this score has not been seriously challenged. For this reason, I would cut the sum down to the sum of $200. The plaintiff was kept in hospital for nine days and subsequently had to receive treatment as out-patient or receive other treatment from other doctors with the occasion of seven injections. The form of injury she suffered was a rather embarrassing one for a young girl - she is a young girl. Fortunately for all concerned, and particularly for her, no serious damage has been done and she has since made a complete recovery. Taking into consideration her age at the time when she was injured and her nine days discomfort, and embarrassment I feel that a general damages for pain and suffering and shock received as a result of the accident that the sum of a thousand dollars is not excessive. Accordingly, I shall award to the 1st plaintiff a sum of one thousand dollars of general damages and $373 in total of special damages, making a total of $1,373 - damages to the 1st plaintiff.

6. The 2nd plaintiff is very different. He is 39 years old now, and he suffered very serious injuries. As a result of that accident, he was rendered unconscious for one whole week. He said that when he recovered he stayed in the hospital for about two more weeks, after which he discharged himself. He said that he did not experience any pain. I can, with a little bit of imagination, realize that he must have been put under heavy sedative at the time. Obviously he did not feel much pain. Why I say this was that immediately after he was admitted to hospital, he was examined by a neurosurgeon and a general surgeon and an emergency operation was necessitated which took some three hours to operate. Dr. Hunter who gives evidence says that he had a miraculous escape and it is very fortunate for him to be alive. As a result of this operation he now has three deep indentations on his forehead, one on each side on the temporal region and one right in the centre of his forehead. In these indentations there is no protection for his brain except his skin and a layer of, I suppose, very thin flesh. As a result, Dr. Hunter says that he would strongly advise a second operation to give him some protection to his brain by slipping some pieces of plastic or bone or some material to protect his brain. The 2nd plaintiff says that he still feels pain on a windy day because that affects the nerves of his brain. He has to put on a hat at all times. As a result of a fracture of his nasal bone, he has completely lost his sense of smell. The evidence that is put in Exhibit 13, Exhibit 14, and the report by Dr. Hunter has not been seriously challenged. I accept it. Dr. Hunter also gives the opinion that, although the defects of the 2nd plaintiff's eyes are not directly attributable to the accident, yet, having regard to the condition of hiseye defects, the accident certainly accelerates the defects in the future. He had suffered a loss of memory for some time. In the evidence of Mr. MOK Fook-wing, the 2nd plaintiff had, for some time, a complete change of personality, in that he was irritable and he was scolding people and very hard on his family. He is a married man. It may well be asked when a person is irritable or inclined to scold people, whether it is the person who scolds or the persons who are scolded suffer more. I can imagine that both parties suffer. It is just as distasteful for a person having to scold others as those who are being scolded, particularly if the scolding has no justification or cause at all and just because the person scolding is being difficult and suffers a change of personality. Fortunately I must say that in the course of evidence it appears to me the 2nd plaintiff in this respect has recovered quite remarkably because he obviously exercises self-restraint and he has some fairly good memory now - three years afterwards - when he is in the witness-box yesterday. However, it does not detract from the fact that during the year that followed, the accident he must have had a very difficult time with his change of personality. This must be taken into consideration as part of his pain and sufferings.

7. There is also the element of risk of the 2nd plaintiff suffering epilepsy as a result of the accident. Dr. Hunter says that no firm medical opinion can be put until five years elapsed after the accident. In any event he says that come what may, the 5 per cent risk is always permanent. At the moment he can only put it at the rate of about 25 per cent risk. That is because he had not had epilepsy since the accident and this is just over three years after the accident. It must also be borne in mind that in order to prevent epilepsy, he has been treated with anti-convulsion drugs from time to time. It may well be that he will never suffer this epilepsy. If it does happen in, say, in another year or two years' time, it means that the 2nd plaintiff is going to lose his job and that he will not be able to earn his living as such. Therefore, I must also take this into consideration. Counsel for the defendants suggests to me that I should adjourn this question of damages on the risk of elipelsy for another fifteen to eighteen months. But if I itemize the 5 per cent which will be permanent anyway now and adjourn the question of damages for epilepsy as a separate item for the future, I don't think I am doing any party any injustice.

8. The 2nd plaintiff claimed for special food necessitated by injuries as $2,000. He says that he took a lot of nourishing food and in particular ginseng. Ginseng is a form of herb which is certain quarters believe. Some would feel that it is very essential for a person's weak health. The 2nd plaintiff says that he now feels that he is short of breath and he is weak and that is apparently still a permanent feature. Looking at him I can see that he is still a rather frail person. Normally $2,000 in the course of over a year is not too excessive, but I can't help feeling that ginseng is different from nourishing food or some food that would make a person a happier frame of mind, and it is a very expensive herb. This would have to be cut down. I would give him again half of what he claims, namely, a thousand dollars for special food on the same principle as I have just given regarding the claim by the 1st plaintiff. He also claims a loss of wages for five months and twenty-six days at $620 a month amounting to $3,500. What has not been challenged are damages for clothing $50 and the fountain-pen and spectacles $30. Thus, taking off a thousand dollars from the item of special food he receives a total of $4,630 for special damages. When I come to the question of general damages, I have to take into consideration the following factors:

9. I shall now come to the item which I would normally have included within the general damages - that is, the risk of epilepsy. But for the 5% risk I would have adjourned the general question of risk of epilepsy to two years hence to be decided later. If he should have it, he would not be able to carry on his earnings to support his family. He is at the moment 39 years old and as a printer I reckon that he would have at least twenty to twenty-five years working life from to-day. This will give a multiple of twenty to twenty-five. I understand as a lump sum is awarded, no court will give a multiple of twenty or twenty-five. At the rate of $620 per month, the yearly figure of earnings would be $7,440. I give it a multiple of fifteen which will give the sum of $111,600. 10 per cent will be $11,160 and 5 per cent of this will be $5,580. Thus, having itemized this 5 per cent now I can lump it together with the general damages and that gives a total sum of $75,580. This, together with the special damages of wages of $4,630, gives a total of $80,210. That will be the damages for the 2nd plaintiff.

10. Interest to be payable by 3rd and 4th defendants in respect of following damages payable: regarding the 1st plaintiff 8 per cent per annum on $1,000 from the 12th July, 1971 to date; 4 per cent per annum on the $373 from the 6th July, 1969 to date.

11. In respect of the 2nd plaintiff 8 per cent per annum on the $62,000 from the 12th July, 1971 to date; 4 per cent per annum on the $4,630 from the 6th July, 1969 to date. Costs to both plaintiffs and 1st and 2nd defendants against the 3rd and 4th defendants to be taxed and as far as plaintiffs are concerned according to the Legal Aid scheme.

12. The 1st plaintiff's receipt shall be sufficient discharge to the Registrar.

Representation:

J.D. Donnelly (K.C. Yung & Co.) for plaintiffs.

Denis Chang (H.A. Hoosenally & Co.) for 1st and 2nd defendants

K.H. Woo (H.H. Lau & W.S. Lo) for 3rd and 4th defendants

Oral judgment reduced into writing.