Liu Siu-fun and Others v. Ho Wing-cheong

HCA004713/1978

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Coram: Mr. Commissioner Swaine, Q.C.

Date of Judgment: 31 October 1979

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JUDGMENT

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1. The 1st Plaintiff was a woman aged 27 at the time of the accident and is a spinster. The accident occurred on 30th October, 1977. She was the owner of a Ford Capri motor-car No. BK 8728 which was driven by the 3rd Plaintiff, a friend. She herself was a passenger in the front seat. The 2nd Plaintiff, also a friend of hers, was a passenger in the back seat along with two others. The time was about 9 p.m. The weather was fine. The road was dry and the street lights were on. The car was travelling along Wongneichong Road which was one-way and consisted of three lanes, the middle of which was for tram tracks, and the car was travelling in the right-hand lane. There is a car parking space along Wongneichong Road opposite the junction of Wongneichong Road with Broadwood Road. The 3rd Plaintiff while driving saw a car suddenly emerge from this car parking space. It was a Datsun No. AV 738 owned and driven by the Defendant. The 3rd Plaintiff braked but he was unable to stop in time. The photographs, Exhibit D3, show damage to the left side of the Datsun where the bonnet meets the front door of that car. The Datsun was a sports model with a very long bonnet. From the police sketch, Exhibit P1, which is to scale the Ford was travelling at a distance of 1 metre or approximately 3.3 feet from the curb at the time of the accident. Adding the additional number of feet for where the Datsun was hit it follows that the Datsun was well on to the road itself when the collision occurred. Both the 1st and 3rd Plaintiffs were rendered unconscious by the collision. There is no doubt that the Defendant was negligent. He was convicted on 20th April, 1978 on a charge of careless driving. Under section 62(2) of the Evidence Ordinance, Chapter 8, the burden is on the Defendant to prove that he was not driving carelessly and he discharges this burden on the balance of probabilities. The Defendant gave no evidence before me and there is no question in this case of his having discharged the burden. I therefore find that the Defendant was negligent.

2. I turn now to the issues raised in this case of contributory negligence and I must first consider whether the 3rd Plaintiff was himself negligent in the driving of the Ford. The Defendant pleads contributory negligence on the part of the 3rd Plaintiff and also counter-claims against him. He has also claimed against the 3rd Plaintiff as 3rd Party in these proceedings. By the consent of counsel all the evidence in this case was placed before me and my determination in this matter is a determination in both the substantive proceedings and the third party proceedings. The chief questions in this context are whether the 3rd Plaintiff was driving too fast and whether his failure to swerve amounted to negligence. As to the speed the 3rd Plaintiff says he was travelling between 28 and 30 miles per hour. It is probable that he was travelling at a faster speed than this. From Exhibit P1 the Ford left brake marks 14 metres and 15 metres long respectively or 45.5 feet and 48.75 feet respectively. These are almost exactly the braking distance of a car travelling at 30 miles per hour under ideal conditions. Of course in this case the Ford did not stop. Instead it collided with the Datsun and this must have been with some force. I am unable to say, however, at what speed over 30 miles per hour the Ford was travelling. It is probable that the 3rd Plaintiff stopped at a pedestrian crossing some 350 feet from the collision, but there was undoubtedly time for him to accelerate, if he were so minded, to a speed in excess of 30 miles per hour. The burden is on the Defendant to show that the 3rd Plaintiff was negligent. On the evidence before me I am unable to say that he was. I am able to infer that there was here a speed limit of 30 miles per hour, this being agreed by counsel to be a restricted road within the meaning of section 15 of the Road Traffic Ordinance, Chapter 220. But merely travelling in excess of a speed limit is not negligence, for which see the case of Barna v. Hudes Merchandising Corporation ⁽¹⁾, also noted at 7th Bingham's Motor Claims Cases, page 103. Then the question is whether the 3rd Plaintiff should have swerved. This is debatable. Swerving presents its own dangers, and I am not prepared to say that the 3rd Plaintiff's failure to swerve in the agony of the moment amounted to negligence. In the event I am not prepared to find that the 3rd Plaintiff was negligent or guilty of contributory negligence in his handling of the Ford.

3. I turn now to the more difficult aspect of contributory negligence raised in this case. This is pleaded as against both the 1st Plaintiff and 3rd Plaintiff, and the plea was raised by an amendment on the morning of the hearing charging that they were negligent in failing to wear seat-belts. It is not in dispute that the Ford was equipped with seat-belts. It was first registered on 25th June, 1976. Under Regulation 19A of the Road Traffic (Construction and Use) Regulations, Chapter 220, it is obligatory for cars registered on and after 1st August, 1976 to be equipped with seat-belts, so the Ford fell outside this provision, but I do not consider this important as seat-belts were in fact provided. There is no dispute in this case that the seat-belts were not worn. This is apparently the first time that the question has come before the Hong Kong courts.

4. In England there was no definitive statement of the rule until 1976 in the case of Froom v. Butcher ⁽²⁾. It is relevant to note that until then judicial opinion was evenly divided on the question, although the provision of seat-belts was made compulsory in England for cars registered on and after 1st January, 1965. So for a period of some eleven years the question was uncertain in England, even though, as appears from page 294C of Froom, the sum of two and a half million pounds was spent by the U.K. Government in advertising during the period 1972 to 1974. A substantial part of the cost of such advertising must have been incurred before November 1972 when the Froom accident occurred. By November, 1972 the provision of seat-belts had been compulsory in England for about eight years. In our case their provision was compulsory for a period of one year and three months up to the time of the accident on 30th October 1977. There has been no evidence before me of what, if any, publicity the Hong Kong Government has given to the advisability of wearing seat-belts. It is true that the Highway Code bearing Code No. 9/76, indicating probably its date of issue, at page 7 advises that seat-belts should be worn. I am aware that section 7(4) of Chapter 220 provides for the admissibility of the provisions of the Highway Code in both civil and criminal cases. These are arguments in favour of finding contributory negligence, but I think that the nub of the matter is the state of public awareness in October, 1977 when this accident occurred. I am not satisfied that the public had by then been sufficiently educated in the use of seat-belts, so that the omission on the part of the two plaintiffs to wear a seat-belt on the occasion in question amounted to carelessness in looking after their own safety. The test, as described at page 291 G of Froom, is whether the plaintiffs ought reasonably to have foreseen that if they did not act as reasonably prudent people they might be hurt themselves.

5. If I am wrong on this aspect the question then arises whether the wearing of seat-belts on this occasion would have prevented some or all of the injuries sustained by the 1st and 3rd Plaintiffs. The case of the 3rd Plaintiff is easy to dispose of. Damages in his case have been agreed at $1,700 subject to liability. The question of his injuries was not gone into. I am unable to say whether seat-belts would have helped in his case. The question is of critical importance, however, in the case of the 1st Plaintiff. She received extensive facial injuries which I will deal with more fully later in this judgment. I would refer at this point to the evidence of Dr. Nicolson called for the Defendant which was that her injuries were typical of a windscreen type accident. This witness thought it was probable that she had gone through the windscreen as her photographs, Exhibit P3, taken by Dr. Franklin Li before plastic surgery showed, in Dr. Nicolson's words, a series of slices upwards. In his view it was probable that the wearing of a seat-belt would have reduced her injuries, although she would still have suffered some injury from flying glass. If I were to adopt the tariff proposed by Lord Denning at page 296 of Froom and take the view that the injuries to her face could have been avoided altogether had she worn a seat-belt, then the damages in her case should be reduced by 25 per cent. Allowing, however, for injury from flying glass it would probably be correct to make the reduction 20 per cent. Mr. Bokhary for the 1st Plaintiff had suggested that there might be a progression in the table of contributory negligence reflecting the state of public awareness in Hong Kong as to the desirability of wearing seat-belts at the material time. On reflection I agree that there is logic in this because the 25 per cent reduction is itself an arbitrary figure. Under section 21 of the Law Amendment and Reform (Consolidation) Ordinance, Chapter 23, which founds the court's jurisdiction to apportion liability in case of contributory negligence, damages are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage. In all the circumstances I would not have reduced the award of damages in favour of the 1st Plaintiff by more than 10 per cent, but I do not find her guilty of contributory negligence.

6. I would not myself have exempted the 1st Plaintiff on account of her personal idiosyncrasies. She had complained of a swelling of the stomach and also thought it a bad omen to wear a seat-belt. These are not the type of exceptions envisaged at page 295F of Froom, nor in the case of Condon v. Condon⁽³⁾, where the plaintiff suffered from a phobia which was backed by medical evidence.

7. In the event therefore I find that the 1st and 3rd Plaintiffs were not guilty of contributory negligence in failing to wear seat-belts on the occasion in question. I have already found that the 3rd Plaintiff was not guilty of negligence or contributory negligence in his handling of the Ford.

8. I turn now to the difficult question of quantum. I am grateful to counsel for agreeing such items of damage as were within their power to do. The total damages, as I have said, agreed for the 3rd Plaintiff stand at $1,700; those for the 2nd Plaintiff have been agreed at $1,000. All this is, of course, subject to liability but includes interest. There has been a measure of agreement as to the 1st Plaintiff's special damages. This is as follows:

The three items which are unresolved are Item 3 plastic surgery fee, Item 9 loss of earnings, and Item 10 salary of amah. General damages, of course, are at large.

9. It is appropriate now that I deal with the 1st Plaintiff's injuries. She suffered multiple lacerations of the face and damage to her two lower incisor teeth. The accident, as I have said, occurred on 30th October, 1977. Emergency work was done to her face. Later she was examined by a plastic surgeon Dr. Franklin Li on 7th December, 1977. He operated on her on 8th December, 1977 at the Hong Kong Sanatorium. He treated her subsequently no fewer than eleven times, the last treatment being as recent as 9th October, 1979. He estimates he will need four more sessions with her. He listed the following major lacerations to her face. The largest started from the outer corner of her right eye across the eyelid over the bridge of the nose to the left eyebrow measuring up to 5 inches long. She had two long lacerations below the lower lip of 1½  inch and 1¼ inch length. She had a laceration on the right cheek about 1 inch long. She had one across the tip of the nose about 1 inch long. She had lacerations on the forehead ranging from tiny to 1 inch. She had three lacerations under the chin of ¾ inch each.

10. In the first operation Dr. Li resutured most of her scars. He excised or cut the scars below the lower lip, on the tip of the nose and the bridge of the nose, resutured them and dermabraded them, that is polishing with diamond chips in order to remove the roughness of the scars. In most of the subsequent sessions he repeated these procedures of excision and dermabrasion and he also injected the hypertrophic or overgrown scars with a cortisone preparation called "kenacort" in order to dissolve the overgrowth. All but one of the sessions required general anaesthetic, that on 10th January, 1978 being just a change of dressing. The 1st Plaintiff was particularly sensitive to pain, a fact which was also attested to by the dental surgeon.

11. Dr. Li estimates that he has achieved 70 to 80 per cent success so far. He considers that further improvement will be very limited, perhaps 5 or 10 per cent. Taking the averages of these figures, although I appreciate it is impossible to be scientifically accurate, the Plaintiff will still suffer about 17.5 per cent disability. Dr. Nicolson for the Defendant examined the 1st Plaintiff on 20th April, 1979 and his report, Exhibit D1, was before the court. He there expressed the opinion that the 1st Plaintiff had a permanent cosmetic disability and that her scars would not alter to a significant degree. Dr. Li described the worst scars as those over the right upper eyelid which were very difficult to improve further because of irregularity of the double eyelids; over the bridge of the nose, the scar being depressed and conspicuous; on the tip of the nose, that scar being likewise depressed and conspicuous; and below the lower lip. Further in two places over her eyebrows, one over the right eyebrow and the other over the left eyebrow, the hair would not grow again.

12. In addition to facial scars the 1st Plaintiff suffered a broken left lower incisor tooth and her lower right incisor tooth was damaged. She was treated in nine separate visits for her lower left tooth and in five separate visits for her lower right from December, 1977 to July, 1978. The lower left tooth has been crowned. The lower right has not been completed as the 1st Plaintiff has apparently wanted respite from further treatment. Needless to say the dental treatment occasioned her considerable pain, discomfort and inconvenience. The nerves of both teeth have been removed and they are now without sensation. There is also some looseness in both.

13. Having dealt with her injuries I now consider the claim for the reimbursement of Dr. Li's fees at $60,000. This was an inclusive fee and was paid by the 1st Plaintiff in three instalments. This fee, according to Dr. Li, was for two years' treatment following the first operation on 8th December, 1977, by the end of which time he thought nothing further could be done. As I have said, there are still four operations to go. Dr. Nicolson thought these fees were high and perhaps even excessive. These fees may be high but I am not prepared to say that they are excessive and I would need more cogent evidence before coming to this conclusion. I am not able to say that the 1st Plaintiff acted unreasonably in incurring these fees. I consider them to come within the principle described at McGregor on Damages, 13th edition, para. 1128 as being recoverable as medical expenses reasonably incurred, and I allow them in full. I have already said that the fees of the dental surgeon Dr. Shum Chi-wang have been agreed at $4,050. Her treatment is not complete but I must not take account of that because that would be outside the scope of counsel's agreement.

14. The 1st Plaintiff is also entitled to damages for pain and suffering plus loss of amenities. She was 27 at the time of the accident being born on 30th December 1949. She was by all accounts a very attractive young woman before the accident. Even now she is still physically attractive although she does not think so, and although, according to P.W. 5 YU Ka-hing who knew her before the accident, she does not compare with her former self. She was educated up to Form 3 standard only. She is described as having been a singer but that must have been principally a lever for the making of the substantial part of her earnings, namely as a hostess. As such she was able to earn apparently twenty thousand to thirty thousand dollars a month, about half of such earnings being in the form of gifts of jewellery. As a nightclub singer she was earning only $800 a month and later $1,000 a month. She had stopped work some months before the accident as she was keeping company with a suitor. The 1st Plaintiff has taken her injuries very seriously. It would be no exaggeration to say that her life has been shattered by the experience. She has become a recluse, afraid of life and of meeting people. Twice she attempted suicide and she remains suicidal. She has no plans whatever for the future.

15. In 5th Munkman on Damages for Personal Injuries and Death, pages 138-139, the view is expressed that disfigurement has always been regarded as an important element in assessing damages, especially when a young woman is disfigured and her prospects of marriage are impaired. Disfigurement is said to be more serious when it leads to loss of career or when the plaintiff is very conscious of the disfigurement and avoids social occasions. A striking example of facial disfigurement attracting a high measure of damages is the case of Tavlor v. R.V. Chuck (Transport) Ltd. and Another⁽⁴⁾. In that case Sachs J. awarded £6,250 to a married woman of 27. That case was decided in 1963. In the 1975 edition of Kemp and Kemp on the Quantum of Damages, Vol. 2, page 3651, the editors emphasize the importance of the subjective element in facial disfigurement, and the point is made that it is relevant in this context how the Plaintiff herself feels about her scars. I have been referred to various other previous awards involving facial disfigurement. The one I find most helpful and which accords with the opinion I have formed myself is Skelton v. State⁽⁵⁾ where the trial judge awarded £5,000 damages, as to £3,000 for the direct physical result and as to £2,000 for the psychological aspects. He made this award with the comment that the damage to facial appearance in an attractive young woman is devastating. So it is in this case. I allow for the 1st Plaintiff being older than the plaintiff Skelton, but as against that Skelton's case was determined about one and a half years ago. In the result I award the 1st Plaintiff $50,000 under the general head of pain and suffering plus loss of amenities.

16. It is convenient now that I consider her claim for reimbursement for the servant's wages. This has been claimed as follows: $1,800 per month from 30th October 1977 to 28th February 1979, $1,000 per month from 1st March 1979 to the present and continuing. The 1st Plaintiff had not employed any servant before the accident. She did some of the household chores herself. She said that she ate out six days a week, and this would be consistent with her former mode of life. She is now very dependent and is afraid to meet people. The servant cooks for her, cleans, shops, opens the door and runs errands. She also accompanied the 1st Plaintiff on her visits to Dr. Li and Dr. Shum, these totalling, as I have said, eleven and fourteen respectively. She employed a new servant as from this Lunar Year who is not paid as much but does not do as much. The claim for reimbursement of the servant's wages falls, I consider, within the principle at para. 1129 of McGregor as being expenses reasonably incurred which result from the accident. I therefore propose to allow the whole of that claim up to the date of this judgment, but I take the view that the 1st Plaintiff cannot go on indefinitely being a recluse and afraid to meet life. Physically there is nothing wrong with her. I therefore make no award in respect of the future. Allowing the expenses for the servant up to the present would conveniently coincide with Dr. Li's assessment that his treatment has been phased to cover the two years following the first operation in December 1977 and that no further improvement can be expected after this time. I therefore award under this head the sum of $36,800.

17. I turn now to the final head of damages, namely the 1st Plaintiff's claim for loss of earnings. This has been claimed as follows: $5,000 per month salary, $2,000 per month tips, $4,000 per month bonus, all from 30th October, 1977 to the present and continuing. This claim comes about as follows. The 1st Plaintiff used to sing at the club premises of the Sum Sum Association Ltd. at 338 Hennessy Road. In late October 1977 she had a meeting with the directors of this company including YU Ka-hing, its chairman. She was invited to subscribe the sum of $50,000 in return for shares. She would be employed as a singer and manageress by the association, her duties being largely in the nature of public relations. She herself had many clients and was well suited to this job. She was promised a salary of $5,000 a month plus a share in the tips averaging $2,000 per month and a bonus of $4,000 per month payable quarterly. It appears from the 1st Plaintiff's evidence that the $4,000 was a quarterly sum but YU Ka-hing was emphatic that it was a monthly sum payable quarterly. I accept his evidence on this as his recollection was clearly better. It goes without saying that the 1st Plaintiff suffered severe trauma as a result of her accident. According to Yu, he signed a document in Chinese for the benefit of the 1st Plaintiff being his undertaking on behalf of Sum Sum that she would be entitled to these terms. They intended that a formal document would be signed subsequently at a solicitor's office, but the 1st Plaintiff's accident supervened and nothing came of this arrangement. I am satisfied that this was a genuine business arrangement and that the 1st Plaintiff was capable of earning about $11,000 per month and would have proceeded to do so had it not been for the accident. I should strictly make a deduction for the $50,000 capital she was to invest. This ought to be by way of interest, say, at 10 per cent a year or $5,000 a year or, say, $400 a month leaving possible net earnings of $10,600 a month. However, no evidence was called before me as to how long these arrangements would last. It must be self-evident that the 1st Plaintiff's profession and the goodwill on which it depends are shortlived. This is a volatile profession. She is herself at an age when, leaving aside the precarious nature of the business itself, she might not have been able to go on for long. She had not been working for some months before the accident because she was courting. Might not the same have occurred after she had started working? Allowing for all these uncertainties and contingencies I award to the 1st Plaintiff the equivalent of six months' earnings, namely $10,600 times six, or a total of $63,600 in respect of the loss of past earnings.

18. Should I make an award for loss of future earnings? Mr. Bokhary invites me to do so on the basis of the same figures. My initial view was that I would not as there were too many uncertainties in her case. However, I have ended by awarding six months' instead of two years' past loss. It is undoubtedly the case that the 1st Plaintiff's earning capacity has been impaired. I ought to allow for that. Clearly some part of the $50,000 general damages already awarded is intended to compensate for such impairment under loss of amenities, but I consider that that would be insufficient recognition of the impairment to her earning capacity. This is one of the recognised heads of pecuniary loss; see Vol.1 of Kemp and Kemp, page 97. The award would not be anywhere close to the figures placed before me. I have dealt with the precarious nature of her profession and her own changeability. I will therefore award the equivalent of three months' earnings in respect of her loss of earning capacity, namely the sum of $31,800.

19. To conclude my awards are therefore as follows:

1st Plaintiff

2nd Plaintiff

20. Agreed Damages $1,000 including interest

3rd Plaintiff

21. Agreed Damages $1,700 including interest

Special damages in favour of the 1st Plaintiff will carry interest at 4% per annum from the date of the accident until judgment. The general damages will carry interest at 8% per annum from the date of the writ to judgment following the decision of the Court of Appeal in LEUNG Chat-nui v. CHAU King-wai and Another⁽⁶⁾.

22. I therefore give judgment for the Plaintiffs in the above amounts. The Defendant's counterclaim against the 3rd Plaintiff is dismissed. The Defendant's claim against the 3rd Party is dismissed. Costs in each case are to follow the event.

Rider to Judgment

23. At the invitation of the Court, counsel addressed submissions to the Court on whether deductions should be made to the awards for loss of past earnings and loss of future earning capacity pursuant to the rule in British Transport Commission v. Gourlev⁽⁷⁾ so as to reflect the first Plaintiff's tax liability. The Court determined that the appropriate deductions should be made except in respect of the bonus element of $4,000 p.m., and therefore reduced the awards by the figures agreed by counsel of $3,000 and $500 respectively, leaving net figures of:

24. $60,600 : loss of past earnings

25. $31,300 : loss of future earning capacity

Representation:

K. Bokhary & W. Yeung (P.H. Sin & Co.) for Plaintiffs.

W. Lane (Deacons) for Defendant.

K. Bokhary & W. Yeung (P.H. Sin & Co.) for Third Party.

(1) Vol. 106, Solicitors' Journal 194

(2) (1976) 1 Q.B. 286

(3) Times, 8th December, 1977

(4) Vol. 107, Solicitors' Journal 910.

(5) (1978) Current Law Year Book para. 728

(6) (1979) H.K.L.R. 73.

(7) (1956) A.C. 185.