Balasing Gurung v. Ng Lay

HCA004587/1985

1985, No. A4587

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Clough, J.

Dates of hearing: 2, 3, 4, 7 and 8 July 1986

Date of handing down of judgment: 5 August 1986

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JUDGMENT

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1. On the 28th January 1983, early in the morning, the Plaintiff, a Gurkha soldier, was about to execute a right turn on his bicycle From the Sha Tau Kok road near Fanling in the New Territories, in order to enter an army camp called the Burma Lines, when he was knocked off his bicycle by the Defendant's following van and sustained serious injuries.

2. The Plaintiff now brings this action for damages for negligence against the Defendant, contending that the Defendant's negligence was the sole cause of the accident and relying on the fact that the Defendant was convicted of careless driving on the 13th February 1984 by the Tsuen Wan Magistrate in respect of his part in the accident.

3. The Defendant has denied negligence in his Defence and pleaded that the accident was caused or contributed to by the Plaintiff. He admits his conviction of careless driving but denies that it is relevant to the issue in this action. Damages are in issue.

LIABILITY

Negligence

4. The Defendant's conviction of careless driving is manifestly relevant to the issue of negligence and the effect of section 62 of the Evidence Ordinance (Cap. 8) is to place the onus of disproving negligence upon the Defendant. The accident occurred on a straight road about 15 to 20 minutes before sunrise. The Defendant admitted under cross-examination that he did not see the Plaintiff's bicycle before he was only 8 to 10 feet away from it because he was not paying attention at the time and Mr. Mayne, his counsel, accepted that there was an element of liability on the part of the Defendant in respect of the action. The Defendant's admission amounted to an admission of negligence and the only effective factual issue was whether and, if so, to what extent, contributory  negligence on the part of the Plaintiff could be established by the Defendant.

Contributory negligence

5. It was common ground between the Plaintiff and his witnesses and the Defendant that the accident had occurred at some time between 6:30 and 7:00 a.m. On the day of the accident sunrise was at 7:04 a.m. According to the weather statistics published in the South China Morning Post on the following day, 2.7 mm of rainfall were recorded on the day of the accident.

6. The Plaintiff gave evidence and his witnesses on this issue were P.C. CHOW Chi-yung No.12657 (PW2) and Lance Carporals Hembahadur Thapa (PW4) and Balbahadur Thapa (PW5) of the 10th Gurkha Rifles. The Defendant gave evidence but called no witnesses.

7. An agreed set of photographs were produced by the defence and the plan produced by PW2 in the Magistrate's Court proceedings was included in the agreed bundle of documents. The Plan and the photographs make it clear that the scene of the accident was on a straight and flat stretch of road on which, according to the unchallenged evidence of PW2 he could see for more than half a mile when he arrived at the scene at 7:30 a.m. According to him it was drizzling at the time when he had this range of vision. It was, he said, almost completely light at that time and the drizz1e would have cut down the range of vision. He said the road surface was wet and he could see no tyre marks on the read.

8. The evidence of the Plaintiff and PW4 and PW5 was that it was light at the time of the accident. The Plaintiff said he did not need a light on his bicycle. According to PW5 the street lights were still on. The Plaintiff said it was not raining slightly. PW4 and PW5 said the weather was fine. PW4 said there was nothing to obstruct visibility in the area, but under cross-examination, he said he could not remember if it was drizzling. PW5 said it was not raining when PW2 arrived.  The Defendant's evidence was that it was very dark and drizzling and that the street lamps were on.

9. I concluded that, on the balance of probabilities, whilst it may have begun to drizzle at the time of the accident and the street lights were still on, it must have been light, as the Plaintiff and his witnesses claimed. I preferred their evidence to that of the Defendant on this issue on which I considered he was exaggerating the alleged degree of darkness. In particular I accepted the evidence of PW4 and PW5 that, contrary to the Defendant's evidence, none of the lights of the van were on at the time of the accident. PW4 and PW5 gave me the impression of being credible witnesses who were doing their best to recollect events which had happened two and a half years ago. The Defendant, on the other hand, did not give me the same impression.

10. In chief, he claimed that his main beam lights were on and that he could see 40 to 50 yards, but under cross examination he said that his dipped headlights only carried 47 feet (the length of the court room). His introduction of a reference to fog when under cross-examination was another matter militating against his credibility.

11. Having considered all the evidence regarding the condition of the light at the time of the accident I concluded that on the balance of probabilities, although it was before sunrise and it may have been beginning to drizzle, the light was already good enough at the time of the accident to permit a substantial range of vision on a flat straight road on which PW2 was able to see for more than half a mile when he subsequently arrived at the scene at 7:30 a.m. after sunrise when it was drizzling.

12. Before the accident the Plaintiff had been cycling along the Sha Tau Kok Road in a northwesterly direction for about 175 meters. He was on his way to work in the Burma Lines which are on the northeasterly side of the road. He had come from the access to the road from his married quarters situated on the southwesterly side of the road and passed another military camp on the same side of the road known as Gallipoli Lines.

13. The Plaintiff, who had suffered a serious head injury, was not an articulate witness and he appeared to be having trouble in communicating with and through the interpreter. He was therefore permitted to give most of his evidence in English. The substance of his evidence was that as he approached the entrance to the Burma Lines (which were on his right) he stopped short of it by about 20 feet, put his left foot on the kerb, and looked back and front, seeing the rear clear for more than 250 yards. He said that he then gave a signal with his arm indicating he was going to turn right and moved slowly to the middle of the road where he again gave a signal for a right turn. He could not remember what happened after that.

14. PW4 and PW5 were witnesses of the accident. They were walking to work on the northeasterly side of the road and were about 16 meters from the entrance to the Burma Lines when the impact occurred. They gave an account of the accident which was consistent with that of the Plaintiff.  However, PW5 said that the distance between the point at which the Plaintiff had stopped and the point of impact was a little longer than 47 feet (the length of the court room).

15. They both described the impact in the middle of the road. PW4 said the Defendant's van hit the middle side of the Plaintiff's bicycle and he saw cart of the bicycle on the right side, the van being a little bit on the right side of the road.  He described how the Plaintiff rotated two to three times and fell with his head on the kerb and part of his body on the left side of the road, the bicycle being on the grass. PW5 said the van was in the middle of the road when it hit the bicycle on its front side. The van was, he said, nearly on the white line and he thought it was moving a little to the right.

16. Both PW4 and PW5 said they heard the loud noise of the van's engine as it came up but they heard no sound of braking. PW4 with the false confidence of a man who has no driving licence and cannot drive asserted that the van was travelling at 75 m.p.h. at the time of the accident. PW5 said it was travelling at a high speed, the same speed as other vehicles travelled at on that road.

17. The bicycle was not produced at the trial. The Plaintiff said there was a reflector on the back of his bicycle. PW2 (PC No. 12657) said there was no reflector on the bicycle when he examined it and he could not find one at the scene.

18. The Defendant blamed the very dark conditions, the green colour of the Plaintiff's clothing and the trees alongside the road, the drizzle, which necessitated the use of wind screen wipers, and the absence of a reflector on the bicycle for his not seeing the Plaintiff until he was about 8 to 10 feet from him. He said he was travelling at a little over 30 m.p.h. in fourth gear and there was no other traffic at the time. According to him, when first seen, the bicycle was in motion and it seemed that it was about to cross the road. Under cross-examination he acknowledged that he was giving a different version from his evidence in the Magistrate's Court where he had said the bicycle was stationary when he first saw it. He added that the bicycle had suddenly swerved out without any hand signal and he therefore could not help hitting it. He claimed that he had blown his horn, stepped on his brake and swerved a bit to the right to avoid the bicycle. He had, he said, heard a "little" sound of tyres. The nearside of his van had hit the bicycle.

19. He went on to say that he had then swerved the other way to avoid another vehicle coming towards him. He explained that the reason why he had stooped his van as far as 50 meters beyond the scene of impact was due to this manoeuvre and not due to excessive speed.

20. He admitted that he knew the area of the army camps on opposite sides of the road and that he knew that vehicles turned in and out there, but he asserted that at such an early hour there would only be people doing exercises or jogging in red clothes and no risk of vehicles being about. He said there were no signs in the area indicating that vehicles should slow down and he admitted that he had not slowed down when he reached Gallipoli Lines.

21. I did not believe the Defendant's version of the accident. I accepted the submission of Mr. Pirie, for the Plaintiff, that if the Plaintiff had suddenly swerved across into the path of the Defendant's van, when the van was only 8 to 10 feet away from it, as the Defendant alleged, there would have been no time for the Defendant's van to swerve to the middle of the road and the van would not have struck the front of the Plaintiff's bicycle in the way PW4 and PW5 described.

22. Furthermore the Defendant's vehicle was the following vehicle. But for the Defendant's admitted failure to keep a proper look out before the accident as he approached the entrance to Gallipoli Lines and Burma Lines he would undoubtedly have seen the Plaintiff on the kerb side giving his signal indicating that he was going to turn right. He would also have seen him pulling across from the kerb towards the middle of the road to execute his turn into the Burma Lines. The overwhelming inference to be drawn from the evidence of the Plaintiff and PW4 and PW5, which I accept in preference to that of the Defendant, is that for the purposes of section 21 of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) the damage sustained by the Plaintiff was predominantly if not wholly the result of the fault of the Defendant who, when driving at a fast speed (which does not of itself constitute negligence) failed to keep a proper look out or to slow down in an area where he knew there were twin accesses to army camps on the opposite side of the road. I am satisfied that if he had kept a proper look out he could not have avoided seeing the Plaintiff on his bicycle in time to avoid him by slowing down or stopping.

23. The Plaintiff was himself to some degree at fault. In assessing his share in the responsibility for the damage he sustained there are two matters for consideration. One matter arises from his failure to see or alternatively to assess the speed of the Defendant's on-coming van when he looked back after stooping at the kerb side. Bearing in mind the initial stopping of the bicycle in order to give a correct turning signal and its slow speed thereafter relative to the speed of the Defendant's following vehicle on a flat straight road, I do not consider that the Plaintiff's responsibility for the accident is to be assessed at anything like the same degree of fault as that of the Defendant.

24. The other matter for consideration is the absence of a rear light on the Plaintiff's bicycle. The combined effect of the definition of "hours of darkness" in regulation 2, and of the provisions of regulation 153(b) of the Road Traffic (Construction and Use) Regulations (G.N.A. 87/59), in force at the date of the accident, was that the Plaintiff was in breach of his obligation to carry a red lamp on the back of his bicycle until sunrise on the day of the accident. However I accept Mr. Pirie's contention that this fault on the part of the Plaintiff could not have contributed substantially to the Plaintiff's responsibility for the damage he sustained in view of the fact that it was light at the time and that the Defendant has admitted that he was not keeping a proper look out.

25. In all the circumstances I apportion the Plaintiff's share in the responsibility for the damage sustained by him in the accident at 15 per cent and the damages recoverable by him will be reduced to that extent.

GENERAL DAMAGES

Pain and suffering and loss of amenities of life

26. Both parties produced medical reports relating to the injuries sustained by the Plaintiff. In the course of the trial the Defendant accepted the report of the Plaintiff's neurologist who had expressed the opinion that she Plaintiff had sustained a loss of his earning capacity to the extent of 52 per cent of the whole man.

27. The most serious of the Plaintiff's injuries was a severe closed head injury which caused permanent left sided Homonymous Hemianopia, cognitive impairment and left sided inco-ordination. These were the impairments which caused the Plaintiff's neurologist to assess his loss of earning capacity at 52 per cent. He also received injuries to his rips and ankle.

28. I do not dilate upon the nature of his serious injuries because the parties were able to agree this head of damages during the trial at a figure of $180,000 which included interest.

SPECIAL DAMAGES

29. As regards pre-trial pecuniary loss and loss of future earnings the Plaintiff relied on the evidence of Captain Hughes, Major Fraser and Corporal Rai. There was also an agreed bundle of documents which included the medical and service reports of the Plaintiff and a letter about the Plaintiff dated the 16th December, 1985 from a Captain Forman written on behalf of Lt. Col. Brewer, the Plaintiff's former commanding officer, who had written an annex to the letter concerning the Plaintiff's promotion prospects.

30. Captain Hughes is the Adjutant of the 10th Princess Mary's Gurkha Rifles to which the Plaintiff became attached for light duties when his unit, the 2nd Battalion of the 2nd K.E.O. Gurkha Rifles was posted to the United Kingdom in April 1985 and he remained in Hong Kong pending these proceedings. Captain Hughes then became the Plaintiff's senior officer. Major Fraser was the Brigade Major at the headquarters of the Brigade of Gurkhas in Hong Kong. He had been the second in command of the 2nd K.E.O. Gurkha Rifles at the time of the accident and had known the Plaintiff. Corporal Rai was responsible for pay in the 10th Gurkha Rifles. He had prepared the data contained in the Schedule in which calculations of the alternative claims of the Plaintiff were set out.

31. I was satisfied that the evidence adduced by these witnesses and contained in the agreed bundle of documents established the following facts. To earn a pension a Gurkha soldier must normally serve a minimum of 15 years He does this by a succession of engagements until he has served for 12 years. To be permitted to re-enlist for a further 3 years and qualify for a pension he must be of the required medical standard, efficient and of good character and he must have obtained the recommendation of his commanding officer. If he has reached the rank of sergeant before the end of his 15 years service he is eligible for re-enlistment for a further 3 years, making a total period of service of 18 years.

32. If he has not reached the rank of sergeant before the end of his 15 years service he is discharged on pension and returns to Nepal. When a soldier is discharged on pension he also receives a resettlement grant. If he is not eligible for a pension he will be eligible for a re-settlement grant provided he has served not less than 4 years. The amount of the resettlement grant varies according to the length of service completed by the soldier.

33. Although a Gurkha soldier must return to Nepal when he is discharged from service with the Brigade of Gurkhas he does not necessarily remain there, particularly if he has attained the rank of non-commissioned officer ("n.c.o."). There are possible openings, Particularly for n.c.o.s in Brunei where the Sultan of Brunei recruits former Gurkha soldiers for his reserve battalion, and he is currently raising a second 1,000 strong reserve Battalion of Gurkhas. Pay is attractive and there are prospects of two 3 year terms of engagement. All recruits are engaged initially at the same rank. An applicant has more prospects of enlistment if he is a specialist.

34. Other possible opportunities are available to former Gufkha soldiers in the Middle East where according to Captain Hughes, they can earn over £30,000 per year in security appointments. In Nepal itself, Captain Hughes said, there are two organisations which employ former n.c.o.s. His evidence was that a Gurkha soldier leaving the army as a sergeant could expect 5 to 6 years of service in Nepal, either as an assistant welfare officer receiving pay of £70 per month in addition to his pension, or as a recruit conductor receiving £33 to £40 per month plus bounty referable to his recruiting rate, in addition to his pension.

35. The plaintiff was born in 1956. He enlisted in the Brigade of Gurkhas on the 12th November 1974. He is married and has a surviving infant daughter. On the 11th November 1986 he will have completed 12 years of service. His records showed that he received consistently good average reports as a soldier. His report dated the 13th October 1982 for the previous year shows that he was employed as a storeman in the Quartermaster's platoon and given the grade "B+". The report concludes "I recommend he be promoted to Lcpl in his turn, he should make a very good NCO". In December 1982 his turn came and he was promoted to acting lance corporal. In December 1983 he was promoted to substantive lance corporal. When he gave evidence and was asked what his plans had been before the accident, he put the army first as might be expected of a Gurkha soldier. He replied that he planned possibly going up in salary on promotion to sergeant and possibly warrant officer. When, later on, he left the army, he had hoped to go to the Sultan of Brunei's reserve unit or to an Arab country or to the British Service Centre in Pokhara (the small town near his village) or to Katmandu.

36. As a result of the accident all these plans have been shattered. His career prospects have been destroyed. He has not been discharged by the army pending these proceedings but it is certain that he will be medically downgraded by reason of the permanent injury he sustained in the accident. He will not be re-enlisted when his current engagement expires at the end of 12 years of service. He will not therefore qualify for a pension. He will only receive the re-settlement grant appropriate to 12 years of service. His prospects of further promotion and a promising career in the army have gone, as have his prospects of further employment in Brunei, the Middle cast or Nepal. He plans to return to his hill village in Nepal. He will live there with his father and his brother and his family on the family land which provides only a subsistence livelihood which will be insufficient for them all. He will not be fit enough to work efficiently on the land himself.

37. So far I have outlined the facts which I have found to be established by the evidence adduced on behalf of the Plaintiff. The Plaintiff's principal claim for special damages relates to pre-trial loss of earnings and future loss of earnings on the footing that the Plaintiff would have continued his successful career in the army, attaining the rank of corporal on the 1st November 1983 and sergeant on the 1st February 1986. It is contended that he would therefore have served for 18 years and then obtained a 3 year engagement in Brunei. Alternatively it is claimed that if he had not reached the rank of sergeant before serving for 15 years he would have gone to Brunei for two 3 year terms.

38. The Plaintiff also claims in respect of the loss of his pension and resettlement rights. He further claims per day for 15 years in respect of the wages of a labourer on the Plaintiff's family land in lieu of the Plaintiff's own labour. He has evidently been paying the wages of such a labourer while he has been away serving in the army. It was further contended by Mr. Pirie that this was a case where a 16 year multiplier would normally be appropriate and that after allowing 12 years for the Plaintiff's lost army and subsequent years of service, there remained a further 4 years loss of earning capacity in respect of which a lump sum award should be made.

39. For the Defendant, Mr. Mayne conceded that the Plaintiff would have reached the rank of corporal by December 1984. He made no concessions regarding the attainment of the rank of sergeant by the Plaintiff and contended that damages should be assessed on the footing that the evidence on this issue was too speculative, so that damages would have to be assessed on the basis that the Plaintiff would serve only 15 years and be discharged as a corporal. He conceded that the Plaintiff's claim in respect of his pension rights could co-exist with the claim in respect of the Plaintiff's loss of future earnings and that such co-existence did not involve duplication of damages. This seemed to me to be a proper concession in the light of the treatment of pension rights in cases such as Lim v. Camden Health Authority⁽¹⁾ and Wong Wai-han v. Kowloon Motor Bus Co. (1933) Ltd. ⁽²⁾.

40. On the issue of promotion to corporal there was strong evidence on behalf of the Plaintiff that he would have reached this rank as soon as a vacancy occurred in his platoon but, as Mr. Mayne rightly pointed out, there was no evidence regarding the specified dates on which vacancies would have occurred for corporals (or sergeants) in the Plaintiff's platoon. The commanding officer of the Plaintiff's former unit had stated, in the annex to Captain Forman's letter dated the 16th December 1983, that before the accident the Plaintiff was guaranteed promotion from lance corporal to full corporal. Captain Hughes, who had spoken with his former commanding officer about him and examined his records, said that the Plaintiff was due to be promoted to corporal during the year May 1983 to May 1984 and that he was next in line for promotion in the Quartermaster's platoon. Major Fraser said that the Plaintiff had been promoted at about the eighth year of his service, which was about average, and that promotion to lance corporal normally indicated fitness to be a corporal.

41. According to Captain Hughes' evidence under cross-examination, the promotion of the Plaintiff to substantive lance corporal in December 1983, after the accident, was in accordance with army policy, which was to carry on as normal when a soldier was under treatment. The effect of his evidence was that the Plaintiff would have taken not more than another five to six months before being promoted to acting corporal and drawing the pay appropriate to the rank of corporal. On the other hand, in the case of Sergeant Jaiparsad Limbu, who had enlisted at the same time as the Plaintiff and whom both Captain Hughes and Major Fraser held out as a suitable comparable to the Plaintiff, promotion to the rank of acting lance corporal had been made as early as the 20th February 1980, to substantive lance corporal on the 25th December 1981 and the promotion to acting corporal had not taken place until the 10th May 1983. The period between the last two promotions was thus about 17 months.

42. The difficulty about the evidence of the army witnesses was that it lacked particularity relating to the timing of vacancies for corporals or sergeants in the particular Quartermaster's platoon in which the Plaintiff was serving and their evidence was that service and seniority and the rate of inflow and outflow determined the timing of a soldier's promotion in turn after he had been recommended for it. Under all the circumstances I concluded that the evidence adduced on the Plaintiff's behalf was not sufficient to establish on the balance of probabilities that the Plaintiff would have been promoted to acting corporal before the 1st December 1984 by which date Mr. Mayne conceded that the promotion would have been made. Accordingly,  I assessed damages on the footing that the Plaintiff would have been promoted to acting corporal and drawing a corporal's pay by the 1st December 1984 and not the 1st November 1983 as claimed in the Plaintiff's schedule of damages.

43. As regards the issue of the Plaintiff's promotion to sergeant, Lt. Colonel Brewer had written on the 16th December 1985 that, having reached the rank of full corporal the Plaintiff's potential for further promotion would have been assessed. He added that he believed the Plaintiff had the potential to go further. Captain Hughes, who had studied the Plaintiff's records and spoken about him to his former commanding officer, said that he would have expected him to be promoted sergeant in the year between December 1985 and December 1986. He emphasized that the Quartermaster's platoon was rank heavy and that it was not a pyramid platoon.

44. On the other hand Major Fraser said that, provided all went correctly with the Plaintiff's career, he would have expected him to be made a sergeant by the 12 to 15 years service mark. That would be between 1986 and 1989. The so called comparable, sergeant Jaiparsad Limbu had been promoted to acting sergeant on the 13th December 1985, this was 2 years and 7 months after he had been promoted acting corporal on the 10th May 1983. If the Plaintiff had taken the same tine to rise from acting corporal to acting sergeant then, on the footing that I have held that he would have been promoted to acting. Corpora1 by the 1st December 1984, he would have been an acting sergeant, by Jane 1957.

45. In the light of all the evidence on this issue, I agree with Mr. Mayne that it is not possib1e to be precise about the date when the Plaintiff would have been made an acting sergeant and substantive sergeant but I was satisfied by the evidence of two experienced Gurkha officers, who seemed to me to be reliable witnesses, that, subject to good behaviour and misadventure, the Plaintiff would have become an acting sergeant and begun to draw a sergeant's pay by some indeterminate time between the end of the twelfth and the end of the fifteenth year of his service, but probably during the first year of that period. That would be after the trial date, between the 12th November 1986 and the 11th November 1989, and probably during the year between the 12th Nov. 1986 and the 11th Nov. 1987.

46. I do not consider that the evidence permits a more precise conclusion and I did not accept the contention in the Plaintiff's schedule of damages that the Plaintiff would have been promoted to sergeant by the 1st February 1986. Accordingly I assessed damages on the abovementioned footing on the issue of the Plaintiff's promotion to sergeant. Having concluded that he would probably have been promoted to sergeant in the first year of the 1986-9 period, I assessed damages for that period by calculating the loss of future earnings he had sustained by reference to a corporal's pay and adding to that loss 70 per cent of the additional loss referable to a sergeant's pay.

47. Having accepted the evidence of the Plaintiff that his first plan would have been to stay in the army if he was promoted, it followed from my conclusions on the promotion issues that, on the balance of probabilities, the Plaintiff would have remained in the army for at least 18 years. He would thus have served two more engagements respectively between the 12th November 1986 and the 11th November 1989 and between the 12th November 1989 and the llth November 1992.

48. I assessed damages in the light of the above findings of fact and the additional matters mentioned below.

(A)    The Plaintiff's pre-trial pecuniary loss

49. Accordngly I assessed the Plaintiff's pre-trial pecuniary loss in the sums of $375 and £3,893.83 or the Hong Kong dollar equivalent of the latter sum at the date of payment. This assessment was subject to reduction by 15 per cent in respect of the Plaintiff's contributory negligence.

(B)    Loss of future earnings

SUMMARY OF AWARD

GENERAL DAMAGES

Pain and suffering and loss of amenities of life

50. There will accordingly be judgment for the recoverable losses in the appropriate currencies indicated above after deduction of the appropriate amount for contributory negligence. Adopting the formula applied by Bristow J. in Lim v. Camden Health Authority (4), there will be judgment for interest of the appropriate amount on the appropriate elements and there will be liberty to apply if the amount of interest cannot be agreed. To save further costs in case there has not been payment in or sufficient payment in, I also make an order nisi pursuant to Order 42 rule 5B(6) requiring the Defendant to pay the Plaintiff's costs of the action and giving the usual direction for a legal aid taxation of the Plaintiff's costs.

(1)    [1980] A.C. 174 (M.L.)

(2)    H.C.A. No. 8272 of 1983

(3)    [1979] A.C. 658 (H.L.)

(4)    [1979] 1 Q.B. 196 at p. 205 D-E

Representation:

Mr. N. Pirie (Munro & Claypole) for Plaintiff.

Mr. R. Mayne (Y. T. Chan & Co.) for Defendant.