Ng Mui Kwai v. Simco Ltd. and Another

HCA000563/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 563 OF 1969.

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Coram: McMullin J. in Court.

Date of Judgment: 30th October, 1970.

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JUDGMENT

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1. In this case, the plaintiff an infant, sues by her next friend and father for damages for personal injuries caused in a motor accident on the 20th August 1968 at about half-past twelve on the Kwun Tong Road. The second defendant was the driver of the car involved in the accident. He is a director of the first defendant company which owns the motor car. Mr. Donnelly, who appeared for both defendants, commenced his closing address with a submission that the first defendant had been improperly joined. The basis of this submission, insofar as I understood it, was that the liability of owners and driver, in relation to such claims as this where vicarious liability is being relied on by the plaintiff, is to be regarded as alternative and not joint and several. I understood that this proposition was being advanced in a perfectly general way and that it implies that this form of pleading has been erroneously adopted as a matter of practice by litigants in Hong Kong. It is, of course, quite true that in certain circumstances the owner would not be a joint tort-feasor with his driver in respect of the latter's negligence. But this did not appear to Mr. Donnelly's point. I do not wish to misrepresent what was said to me, and the fault may be mine in not fully understanding the proposition which counsel put, but I certainly understood him to suggest that in no such circumstances would a master and his servant be in the position of joint tort-feasors and that it would be necessary for a litigant in every case to choose between two possible defendants to his claim. Mr. Donnelly did mention certain authorities as supporting this proposition but he did not direct my attention to the specific passages relied upon with the exception of a certain passage in the White Book which did not seem to support his being referable to the case of a plaintiff who is not alleging vicarious liability but is in doubt as to which of two persons was the actual wrongdoer. It seems clear that if the proposition is as widely stated as I thought it to be it cannot be sustained and I feel that Mr. Donnelly may have been led perincuriam to make an assertion based upon his memory of the practice in other jurisdiction with which he is familiar. At all events the matter was not pursued but was left in the rather unsatisfactory position that, although Mr. Donnelly was not prepared to admit that judgment could be entered against both defendants should the Court find negligence in the driver, he was unwilling to pursue the legal point further on the basis that, in any event in view of the close identification of the two defendants the point would be of little practical significance. I am satisfied that there is nothing in this point and that both defendants have been properly joint on the basis of joint and several liability.

2. The plaintiff received her injuries when the defendant's car came into collision with her a stud crossing which traverses the Kwun Tong Road near the junction of that road with How Ming Lane, The road on either side of the crossing is straight for a very considerable distance. Conditions of weather and visibility were excellent at and around the time of the accident. The issue of negligence in the defendant was not very vigorously contested and perhaps this is not surprising in view of the fact that he admitted, albeit reluctantly, that he had pleaded guilty to a charge of careless driving before magistrate in connection with the same accident. It was however strongly maintained that there was some degree of contributory negligence in the behaviour of the plaintiff. The opposing stories are as follows: the plaintiff says that she was going for her mid-day meal with two friends. They stopped, together with some other pedestrians, on the pavement at the entrance to the stud crossing to allow some vehicles to pass. The road is a wide dual carriageway divided down the centre by what amounts to an elongated traffic island on which some form of shruberry is grown within the protection of parallel metal fences. This island is transected by the stud crossing which spans the entire width of the dual carriageway. The whole group of people including the plaintiff and her two friends moved out upon the crossing and she told the court that there were some persons in front of her and some behind her. Among those in front was one of her friends who, on the way across, dropped one of her plastic slippers. Before stepping out on the crossing the plaintiff had seen a car to her right but very far away and she anticipated no danger from it. When she got to where the slipper was lying, which was about three quarters of the way across she stooped to pick it up. As she stooped she looked to the right and saw the car still approaching. She then turned her attention to the slipper and, as she was picking it up, the car struck her. She told the court that before picking up the slipper when she glanced to her right she thought the car was still about three times the length of the courtroom from her. This would be, very approximately, 35 yards. The purport of this evidence must therefore be that the car was travelling at an altogether higher speed than she judged from the glance which she gave it.

3. The second defendant said that he was travelling along the road in the lane close to the central island. There are three traffic lanes on that side of the carriageway. He was going at about 30 miles per hour. As he approached the stud crossing he saw a group of pedestrians move into the roadway travelling from his left towards the island on his right. There were eight or ten people and they were divided into little groups. According to his recollection the plaintiff was in the last of these groups. He denied counsel's suggestion that what he had tried to do was to head for the stud crossing without reducing speed in the expectation of being able to pass between the plaintiff and a group of people who were following her on the crossing. He said that he had estimated that if he slowed down a little, which he proceeded to do, he would reach the crossing after the last of the pedestrians had made the safety of the central island. What happened next was, according to the defendant, that the plaintiff very suddenly turned and stepped out again onto the crossing and bent down to pick up the slipper which he had observed lying there as he approached. He was by then too close to avoid her and although he swerved to his left he struck her with his right mudguard and headlamp and knocked her some distance beyond the farther boundary of the crossing. He pulled up at once and then, because the traffic was piling up behind him he maneuvered his car into the kerb and went to call the police.

4. I have no doubt that the plaintiff told me what was substantially the truth about this matter. The injuries to her body, which involved her right arm and shoulder principally, are altogether more consonant with her version of the affair. Again, it seems most unlikely that she would have passed by the slipper if she had seen it or that having made the refuge at the centre of the road, she would have turned back once more to venture upon the road to pick it up without further checking upon the position of the car which she had previously seen. Mr. Donnelly stressed the fact that the girl herself had admitted that when she stooped she had some anticipation that there might be some danger from the car coming from her right. The point is not without substance but it is clear on the authorities that the major responsibility for avoiding danger rests upon the drivers of motor vehicles approaching such crossings. In this regard I adopt the words of Megaw J. in Kozimor v. Adey & anor. which is reported in the Solicitors Journal for 1962 at page 431. In that case, the plaintiff who was a woman aged 40 and of good health and eye-sight, ran out on to an uncontrolled pedestrian crossing after glancing to her right. When she did this the car which eventually struck her was less than 15 yards away from the crossing and was moving at about 25 miles an hour. The driver braked and swerved as soon as he saw her but was unable to avoid her. The judge said he was unable to find that the driver was guilty of any negligence but he went on to point out that under Regulation 4 of the Pedestrian Crossings Regulations, 1954, it was the absolute duty of a driver approaching an uncontrolled pedestrian crossing to drive at such a speed and to keep such a lookout that be might be able to allow uninterrupted passage to any pedestrian who had set foot on the crossing, intending to cross before the vehicle actually reached the corssing. He went on to say that the driver was in breach of the regulation if he, in fact, collided with or interfered with the free passage of any pedestrian. With the possible exception of a case in which a pedestrian had walked in front of the vehicle with a positive intention of suicide, a driver, he said, could only be certain of avoiding a breach of the regulation by approaching the crossing at such a low speed that he could stop in time to avoid any conceivable use of it by any conceivable pedestrian, however unexpected and however foolish. These words and the circumstances in respect of which they were uttered provide a useful guide in respect of the present case. So far as the breach of the penal provisions of the traffic legislation is concerned they state a principle and they put it very far. That does not, of course, dispose of the matter from the angle of civil liability. It merely underlines the fact that anybody who is in breach of such regulations will save in the most exceptional circumstances find himself saddled with some responsibility for what transpired thereafter. It does not dispose of the question of assessing relative responsibilities. In Kozimor's case the learned judge assessed the plaintiff's responsibility at 75% and that of the driver at 25%.

5. In the present case, what clearly happened was that the second defendant, observing from a distance a group of persons crossing the road did, as many people in like circumstances have done, that is to say he gouged from his speed and from the manner in which the pedestrians were moving that it would be safe for him to maintain his line of approach to the crossing without noticeably decreasing his speed and still find passage over the crossing with all the pedestrians comfortably in the clear upon his right. In the event the girl's unexpected manoeuvre in stooping to retrieve the slipper upset his calculations. I believe that he was maintaining a speed and driving in a manner which in 99 cases out of a hundred would has been justified in the lease that the average motorist motorist expect that person traversing a crossing will not pause for any purpose whatsoever. It is confidence in this regularity of human performance which encourages drivers on the roads every day to work out thousands of such subconscious equations involving known quantities, such as their own speed and capabilities, and unknowns such as the behaviour of pedestrians or vehicles in their vicinity. Confidence in the general reliability of such calculations may tend to lessen a drivers allowance for margins of safety and lead him to adept speed and manner of driving which, when a critical moment arrives shows the equation to have been, in that singular instance wrong. In Hong Kong there are many such stud crossing and I think it is a matter of common knowledge that the pattern of pedestrians' behaviour is not wholly predictable. Drivers therefore cut down upon what I have called their safety margins very much at their own peril. In the Kozimor case what the plaintiff did must, to any bystander, have appeared not very far removed from a suicidal act. Yet a quarter of the blame was left to rest with the driver who had done everything he could to avoid an emergency precipated wholly by the act of the pedestrian. In our case the circumstances are very different. Having regard to everything that has been said to me on both sides upon this matter, I come to the conclusion that I must assign some degree of blame to the plaintiff herself but I find it impossible to put it higher than 10%.

6. I turn now to the question of damages. The plaintiff is a girl of 17 years of age. She was 16 at the time of the accident. The major effect of the accident is that she has lost the use of her right arm completely. According to the medical evidence, which is not controverted, she will never recover the use of this arm to any extent whatsoever. In addition she will from henceforth carry her right shoulder lower than her left as a result of the severe fracturing of the collar bone and this affects not merely her appearance but her stance and her manner of walking rendering it somewhat unbalanced. The results of this to her general appearance are obvious. She was knocked unconscious at the time of the accident and when she recovered consciousness two days later in hospital. She had a brief period of considerable pain in hospital when she was conscious just before surgical operation but following upon the operation the pain in her arm and shoulder ceased. There is now no feeling in the arm or hand and she cannot move even her fingers. In addition she received a slight injury to her right eyelid resulting in a scar which is, however, by no means apparent upon a superficial glance. She maintains that she suffers some watering of the eye and that it aches when she goes to the cinema. There was however no medical evidence relating to this particular injury and it is in my view too slight and ill-substantiated to warrant my making any allowance in respect of it. Before the accident she was a keen swimmer and also did a lot of cooking and knitting. All these activities are now denied to her. I have no doubt that she tells me the truth when she says that she was a very good swimmer and that she so misses her favourite pastime that she nowadays does not care to go near the beach because, as she puts it "I cannot bear to see a beach without being able to swim there". Before this accident she was earning approximately $195 per month. Since the accident she has been unable to find any employment whatsoever. The plaintiff attended hospital as an out-patient for some time after she was released. On the 23rd of April 1969 she was examined by a medical board consisting of Dr. S.F. Lam, (P.W. 7) and two other doctors. The board on that occasion came to the conclusion that she had suffered a permanent 60% of loss of earning capacity. On the 13th of March, 1970, Dr. Lam again examined her and confirmed his opinion as to the permanency and degree of her injury.

7. Special damages are claimed under two heads: (a) loss of wages from the 20th of August up to the present and (b) a sum of $650 for special food and the cost of transportation to and from the hospital. There is little doubt about the first figure. The plaintiff has undoubtedly been off work ever since the accident and as a result thereof. 25 months have elapsed since the accident and on this head therefore I award a sum of $195 X 25 which is $3,875. As to the second head, whether by oversight or intention no evidence was offered to support this figure and I therefore make no award in relation thereto.

8. The major difficulty in this, as in all such cases arises, in the estimation of general damage. The plaintiff has not particularised any heads of general damage but I think it would be fair to say that counsel are agreed upon three major heads under which I should consider the matter. These are, (a) loss of further earnings; (b) pain and suffering; (c) loss of amenities. To this the counsel for the plaintiff however adds one further head, i.e. loss of prospects of marriage and in respect of this Mr. Liu has suggested the very substantial sum of $32,000. Mr. Liu did not deny that this was a highly speculative head of damage and he was not able to assist me by referring me to any authority in which a particularised award had been made for such loss. He did refer me to cases in which awards had been made for the loss, as the result of injury, of happy subsisting marriages but that is a very different matter. There seems to me to be a good reason why I should not make any attempt to estimate the value of such possible loss in coming to a global award of damages. I see no reason to assume that the plaintiff would not have married had she not been disabled and disfigured in this way. But the implications of such a marriage do not all necessarily redound in favour of the plaintiff's present claim. For one thing one cannot discount the possibility that the marriage might have been unsuccessful and unhappy. Secondly, and more importantly, even if one assumes that she would have made perfectly adequate marriage, the probability is that the earning capacity of the plaintiff would have been sharply reduced thereby. One must assume that she would have married a man who would have been able to support her at least as well as she now supports herself; but, in that event, regular and increasingly lucrative employment in factories, in addition to such pecuniary support, would not have been likely in view of the commitments of domestic duty and family life. The plaintiff although apparently of reasonable health and intelligence for a girl of her class is nevertheless the offspring of a very poor family of no high standard of education. The possibility that she, a busy housewife with several children, would have been able to do anything to augment her husband's earnings other than by taking in occasional piecework to her home seems remote. It is true of course that in the fulness of time she might, as a married woman, have expected that her children would contribute some meansure of support to her. The task of offsetting these several prospects and others which may similarly be relevant against each other seems to me to be altogether too difficult to be likely to yield a fruitful result in view not only of the many contingencies involved but also of the way that counsel for the plaintiff has chosen to advance her claim. That claim is based upon a simple calculation of a loss of future earnings for the rest of her life. It seems to me that the plaintiff cannot ask one to assign a value to lost marriage prospects without offsetting against it due reduction for wages lost through marriage so that if I attempt to assess the value of diminished prospects of marriage I may have to make a very severe as well as very speculative discount to the figure suggested by counsel in respect of earnings thus foregone. The best I can do therefore in respect of this head is to treat it as merged for consideration with the more general head of loss of amenities.

9. Of the three more familiar heads the largest is of course that concerning loss of future earnings. The plaintiff's injury is permanent, that is to say she will be in the category of a one-armed person for the rest of her life. Although the medical board assessed her loss of earning capacity as 60% I think this, in respect of a young girl in her particular labour sector of the market in Hong Kong, is unrealistic. The evidence is that she has looked for work and has been unable to find it. It is very difficult to see what job she could find in any of the various manufacturing proccesses with which that sector of the labour force in Hong Kong is busied. It seems clear that sedentary secretarial work is beyond her capacity. Indeed the only kind of work for which she would seem not to be a wholly incapacitated is work of a domestic kind. I see no reason to believe that a determined young woman could not make a fair adjustment to the role of one-armed housewife far more readily than she could to the role of one-armed plastics worker. This in itself is an additional reason why I think it would be wrong to try to assess the value of any reduction in her marriage prospects. Clearly they are not diminished to the same degree as her prospects of further employment on the ordinary labour market. In this connection I do not think it unduly cynical to suggest, as Mr. Donnelly suggested, that the prospects of marriage of a young woman though greatly reduced in one sense by this kind of disability may to some extent be restored by her achieving an assured competency.

10. The figures suggested by both sides are based upon the prospect of her total incapacity to earn a wage in any kind of employment to which she is accustomed for the remainder of her working life. I think this is not an unreasonable approach to the problem and certainly it makes my task much simpler. It is the duty of a court however, as Lord Pearce observed in Mallett v. McMonagle (1969) 2 All E.R. at page 189, to strike a fair balance between the advantageous and disadvantageous possibilities of the situation. I think therefore that some discount must ultimately be made to any figure awarded in respect of the possibility that the plaintiff may contrive to adapt herself to some form of lucrative employment at a very greatly reduced earning rate. To my mind a fair figure to ascribe to her loss of earning capacity now and for the future would be 90%. To this should be added a more nebulous form of discount in respect of the uncertainties and vicissitudes of life involving such contingencies as the possibility that the plaintiff might in any event have died from disease or accident or suffered a diminishment earning capacity from other causes. I am not, however, considering this factor because, as I understand it, it is something which has been taken in account by the calculations proposed by the parties on both sides and which, in each case, are based upon the average life expectency in Hong Kong of a person of the plaintiff's description. Thus Mr. Liu's method was the familiar one of taking the multiplier 15 to produce figures calculated upon the annual earnings of the plaintiff. That figure has some claim to be regarded as a conventional maximum (see Leung Tai Ah v. Chan Tak Wan & anor. 1968 H.K.L.R. 224). The multiplier is described by Munkman as an arithmetical factor selected by good judgment, usually with a help of annuity tables, as being about right to achieve an overall figure of likely loss of earnings. It takes into account various contingencies. The alternative proposal was that made from the defendant's side in the calculations of Mr. Claridge, who is an actuary practising in Hong Kong. His approach was the alternative method which is described by Munkman as the modern approach which regards earning capacity as a capital asset destroyed or diminished by the accident and which determines the amount of compensation by reference to the capitalization of an annuity sufficient to yield an annual income for the rest of her life to the injured ...(illegible) equivalent to that she lost as a result of the accident. Both methods are calculated upon the basis of life expectency, and for this purpose, I understand, both sides in this case have relied upon the Life Expectency Table 1963-1978 published by the Government of Hong Kong. I do not propose to go into the details of both these methods. Suffice it to say that both seem to me to yield results which offer to the court a reasonable basis for the calculation of an award. Mr. Claridge's efforts were aimed at finding the capitalized value of an annuity which, i.e. a sum which invested at 7% interest, would yield for the plaintiff a sum of $2,400 per annum. The figure thus arrived at was $34,579. Mr. Liu on the other hand commenced with a monthly payrate of $400 and using the multiplier 15 this became $72,000. The figure of $400 was chosen, he said, to allow for increase in wages over the period of the girl's life. Mr. Claridge's calculations do not make an allowance for such increase. He was asked to recalculate his figures on the basis, firstly, of a wage of $300 a month and then upon a wage of $400 per month. It is interesting to note that the latter calculation gave a figure not greatly below that urged by the plaintiff i.e. $69,158.

11. Now it seems likely that the girl's wage would have increased over the years had she continued to work. On the other hand the figure of $72,000 is based on her continuing to do that until the extreme limit of her life expectency. In view of the fact that that is about the age of 75 years it does not seem a very reasonable calculation. Her highest earning capacity would necessarily be restricted to her vigorous middle years which would have ended long before that. One must have regard to the possibility that she would have ceased to earn altogether for the reason already stated i.e. because she was married, or for some other reason. I think to make allowance for these contingencies it is therefore more reasonable to take the intermediate figure of $300 per month as a basic monthly wage for the purposes of the calculation. This will make allowance not only for increased earning capacity out also for the inflationary tondency of the money market. Mr. Claridge's calculation for the present capitalized value of an annuity sufficient to secure a monthly income of $300 to this girl for the rest of her life is $51,868 and that appears to me to be approximately correct.

12. On the girl's own evidence there was in fact competively little pain and suffering resulting from this very grave injury. A figure in the region of $1,000 appears to me appropriate on this head.

13. As to loss of amenities: while it is clear that there has been a considerable loss in this regard, I do not think it has been quite severe as the girl herself suggested. She will in due course, I hope, learn how to swim with one arm, a skill which very many people similarly afflicted have been able to develop. She should also be able to develop a certain talent for cookery and other household tasks although it is clear that some of her preferred pastimes such as knitting will be forever beyond her. There is no doubt that her marring prospects regarded from the purely physical angle are sharply reduced. It is unlikely that she will enjoy as fully as other girls the opportunity of meeting and forming associations with young men. In all the circumstances it seems to me that the figure of $10,000 suggested by Mr. Liu is not unreasonable for loss of amenities. From the total of all these figures there must be deductions in respect of contributory negligence and the capacity to earn wages in alternative employment. In my view, these combined should amount to 20% of the total awarded. With all these factors taken into account and all due deductions made in respect of them, I make the following awards: (a) as to special damage $3,875, (b) as to general damages $48,000. Judgment is therefore entered against the defendants, in the sum of $51,875.00.

14. Costs against both Defendants to be taxed in accordance with the provision of the Legal Aid (Scale of Fees) Regulations, Cap.91. Sum awarded to be paid into Court within two weeks from today and to be held in Court pending further application to be made in Chambers on behalf of successful plaintiff in respect of payment out. Liberty to plaintiff to apply.

Representation:

B. Liu (Lo & Lo) assigned for plaintiff.

Donnelly (Hastings & Co.) for both defendants.

Judgment read.