Law Yu Chow v. Tse Chung Kwan and Another

HCA000704/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 704 OF 1969

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Coram: Briggs J. in Court.

Date of Judgment: 9th May, 1970.

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JUDGMENT

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1. During the course of this case it transpired that the plaintiff is an infant. In consequence counsel for the plaintiff applied to amend the heading of the writ and all subsequent pleadings etc. by adding the words "by his father and next friend, Law King Sum". Counsel for the defendant raised no objection and I allowed the amendment, reservice being dispensed with.

2. These proceedings arise out of a road accident which occurred at mile 9 1/2, Castle Peak Road, Kowloon at 2.45 a.m. on the morning of 5th July 1968. The first defendant was the driver of the car at the time of the accident, the plaintiff was a passenger in the car. The second defendant is the owner of the car. As a result of the accident both the plaintiff and the defendant suffered injuries. This is an action brought by the plaintiff to recover damages for the injuries he suffered and which he maintains were caused by the negligence of the first defendant.

3. It is not in dispute that the parties were proceeding along Castle Peak Road towards Kowloon. It was raining heavily. It is not disputed either that the car left the road and hit part of the hillside and somehow ended up right across the road. The left front side of the car was damaged, and the windscreen was broken.

4. The first defendant said he was driving at thirty odd miles per hour. The road was free from traffic. However, a car approached him from behind going very fast. It passed him and cut in front of him. This caused him to apply his brakes. In consequence the car skidded and zigzagged and crashed into the hillside. It then bounced into the road finishing up right across the centre of the road. He does not remember much as he received injuries to his head and was rendered unconscious, only regaining consciousness in an ambulance. However, he remembers the car passing him and cutting in. It was whitish in colour but he did not note its number.

5. The plaintiff says he was sitting beside the driver in the front seat. About a minute before the accident he closed his eyes. He was not asleep. He was merely resting his eyes. Suddenly he heard the noise of the application of brakes and opened his eyes. He had just time to brace his legs and to cover his face with his hands before the car crashed into the hillside. His face was badly cut by flying glass and his left wrist was also cut. It is almost certain also that his head hit that part of the inside of the car which was in front of him for he lost a tooth and damaged another. He did not lose consciousness and was taken off to hospital.

6. The plaintiff is certain that he did not see the other car mentioned by the first defendant. In particular he did not see any rear lights of a car as it travelling away from the scene. The plaintiff said there was no other car.

7. Shortly after the accident the police drew a sketch map of the scene. This shows that at that point the road is designed to take two lines of traffic. To the left of the road facing Kowloon there is a strip of ground alongside the road for some little way. It is about 2 feet wide. This peters out into a cut away portion of the hillside which comes down to the edge of the road itself. The car appears to have crossed the piece of ground at an angle of 45^o to the road and to have struck the hillside. This dislodged earth on to the road. The car then proceeded onwards for some 13 feet and ended up right across the middle of the road. The front left part of the car was damaged. The plan shows that there is a bend in the road just before the scene of the accident is reached coming from Kowloon. The police corporal who sketched the plan said that the road towards Kowloon was straight for some little way. He also said that there was a speed limit in force at that point at the time of the accident.

8. Both the plaintiff and the first defendant made good witnesses. And I am sure that they told the truth as they saw it. Before the accident they were friends, indeed I hope they still are now. There was nothing recriminatory in their evidence.

9. I will accept the story of the first defendant that there was another car which overtook him. He was the driver and he would notice this. The plaintiff does not hold a driving licence and was not driving; momentarily his eyes were closed. When he opened them he was facing the hillside, then the crash occurred. It was all a matter of seconds. He admits naturally enough, that he was a bit frightened and he certainly received a shock. I do not think that it is at all extraordinary that he did not see the other's rear lights disappearing down the road. It was, according to the first defendant going fast. And the plaintiff would be preoccupied with his own injuries and the condition of his friend. By the time the first shock had worn off, the other car would have been out of sight.

10. The point is whether the first defendant drove this car negligently in all the circumstances. In his evidence he said that when the car cut in in front of him it was only eight feet from him. Later in his evidence he said that visibility that morning was only 10 feet. Upon a query from the bench he immediately changed this to a distance of thirty three feet. I do not think that his evidence as to distance can be relied upon. Further he said he was going at something over 30 miles per hour. Yet the impact of the car with the hillside must have been extremely severe - the evidence of the fall of earth into the road which measured some 7 feet by 5 and of the damage to the car show this.

11. I think that on the balance of probabilities the first defendant did drive negligently. In addition to the circumstances of the accident itself, the first defendant was a man of little experience of driving, it was very late and the weather was very bad. I think he was travelling too fast and I also think that he applied his brake too hard, namely that he misjudged the distance the other car was from him when it passed in front of him.

12. I now come to the question of damages. First of all, special damages. This sum as a result of an amendment made during the trial amounts to $3,178.50 for hospital and other medical expenses which includes the cost of an operation by a plastic surgeon on the plaintiff's face. The operation cost $2,500 of which only $300 has been paid. I was not told who paid this nor who paid the hospital bills. Since the plaintiff is 20 and was earning his own living at the time I will presume that he and not his next friend paid. Also that he will pay the balance of Dr. Au's fees himself.

13. The plaintiff also claimed $316 for extra medical expenses as part of the special damages. Certain receipts were produced to show that this was for three doses of Chinese herbalist medicine. The plaintiff said he took this because he feared that the accident might have had some consequences in his insides. The plaintiff was in the hands of doctors at the time and these doses were not prescribed by them. I do not think that this is a proper sum to be recovered. There will be judgment for the plaintiff for $2,862.50 as special damages.

14. I now come to the question of general damages. The plaintiff is a salesman working in one of the shops in the Hong Kong Hotel. As a result of the accident the plaintiff suffered severe laceration of the left side of his face and a lacerated left wrist and the loss of two teeth from his upper jaw. He spent some time in hospital and after the laceration to his face had healed he again entered hospital and after the laceration to his face had healed he again entered hospital and underwent plastic surgery. Evidence was given that he intends to have at least one further operation which it is hoped will reduce both the extent and the noticeability of the scar on his face. The cost of such an operation will be $2,500 and it may be necessary to follow it up with a further but minor operation which I was told will cost about $1,000. Operations of this nature will of course not leave the plaintiff with an unscarred face. He will always have a scar. At present it is very noticeable. And in addition the left corner of his lip droops. His mouth is not symmetrical. Dr. Au, a plastic surgeon, did not think that surgery would correct this. But he appeared confident that plastic surgery would improve the scar.

15. I was also told that the plaintiff will have dental surgery. The two teeth which were knocked or taken out as a result of the accident will be replaced. The plaintiff himself said that the cost would be about $1,000. The dental surgeon called by the plaintiff was unable to give the court an accurate estimate. Apparently in Hong Kong the charge for new dentures varies enormously. However, it will not be a minor operation. And even if dentures are fitted the plaintiff will still have some residual discomfort in not having his own teeth.

16. It is not proposed that there shall be an operation to lessen or disguise the scar on the left wrist.

17. The permanent damage therefore is the disfigurement, the drooping lip and the scars on the face and wrist; and the loss of the teeth.

18. This would be more serious were the plaintiff a member of the opposite sex. But the plaintiff is a young man and his disfigurement is very noticeable. He is entitled to damages for this. In addition there is the matter of pain and suffering which in fact was hardly mentioned in evidence.

19. It is of course no part of my function to decide whether or not the plaintiff should undergo surgery either to his teeth or to the scar. If an allowance is made for such operation in the sum awarded for general damages the amount awarded for disfigurement would be reduced in proportion. The same point arose in the case of Chow Siu Yin v. Sin Kuen (1966 HKLR 432). In all the circumstances I think the correct sum to award as general damages is $8,000.

20. This will be judged for the plaintiff for $10,862.50 with costs, against both of the defendants.

21. Costs of plaintiff to be taxed in accordance with Legal Aid Regulations.

Representation:

Asome (Hastings & Co.) for Plaintiff.

C. Ching (Zimmern & Co.) for both Defendants.