Pang Yun Cheung v. Ng Kwok Ping and Another

HCA000388/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 388 OF 1971

-----------------

Coram: Briggs J.

Date of Judgment: 22th November, 1971.

-----------------

JUDGMENT

-----------------

1. On April 14, 1970 at about 3.45 in the afternoon a truck driven by the first Defendant collided with a minibus driven by the Plaintiff. The Plaintiff was injured and claims damages from the first Defendant. The second Defendant was the owner of the truck driven by the first Defendant.

2. The accident occurred on the Castle Peak Road at a point where the road slopes down as one goes towards Kowloon from the New Territories. There are two lanes for traffic in each direction, separated by a traffic island which runs down the centre of the road. This traffic island is 5'9'' wide at the scene of the accident. It is surrounded by a kerb which is about 10' in height.

3. The Plaintiff was travelling towards Kowloon and was using the traffic lane nearer to the traffic island, i.e. his outer lane.

4. The first Defendant was travelling in the opposite direction, the other side of the traffic island. The first Defendant drove his vehicle over the traffic island to his right and came in contact with the front part of the Plaintiff's minibus. The minibus seems to have been knocked across the road and to have come to rest partially on the pavement facing towards the hillside diagonally to the road. The first Defendant's truck came to rest across the traffic island with half of its length in the traffic lane in which the Plaintiff was travelling, i.e. the first Defendant's truck was partially on its wrong side of the road.

5. Both drivers were travelling at about 30 miles per hour or just under that speed. Both drivers saw the approach of the other vehicle. The Plaintiff said that he had no warning that the first Defendant's truck would cross the traffic island into his path. The Defendant said that his truck was bumped by a private car which caused his truck to go off the road as it did. However he was prosecuted and pleaded guilty to careless driving.

6. He was fined and his licence was endorsed.

7. An excellent sketch map was exhibited showing the relative positions of the vehicles after the accident. This and indeed the evidence of the parties clearly shows that the cause of the accident was the negligent driving of the first Defendant. In my view there is ample evidence to hold the first Defendant liable for negligence. There is no evidence that the conduct of the Plaintiff contributed to the accident at all, and indeed the defence of contributory negligence was not relied upon. The defence of inevitable accident was pleaded but that defence was not made out. The first Defendant at the time was an inexperienced driver and lost control of his vehicle with the results I have indicated.

8. The Plaintiff was rendered unconscious and received three lacerations to his head. He also received bruises to his left knee and right hip. I will say at once that I think the Plaintiff has exaggerated his injuries and their effect. This is shown on the pleading itself. For example he complains of a scar on his right eyebrow which is stated to be "reddish and very noticeable". It is not. It is brown and barely apparent. Again he said he did not regain consciousness until noon on the following day: while there is a medical report stating in effect that he was conscious when he was admitted on the afternoon of the accident. Finally the amount of special damages has been inflated.

9. I will deal with the special damages as claimed first and then with general damages: I shall allow the first four items which cover damage to clothes spectacles and a wrist watch together with Hospital expenses. These items come to $340. The next three items, Nos. 5, 6 and 7 are more properly to be regarded as disbursements by the Plaintiff's solicitors and should be part of a bill of costs rather than items of special damage. They represent fees for consulting a doctor who gave evidence, an x-ray and a medical report.

10. The Plaintiff was in hospital for 6 days only. He was discharged on April 19, 1970. He attended as an outpatient on six separate occasions thereafter spread out over the following month.

11. On each of the 6 days he was in hospital the wife of the Plaintiff visited him twice a day. The sum of $240 is claimed under this head. The sum was spent by the wife. There was no evidence that the Plaintiff provided her with the money. However it is reasonable to presume that she did use money which came from the Plaintiff. In order to claim for the expenses of visiting a sick person in hospital as a result of the accident it must be shown that the visits were necessary in the light of the patient's medical condition at the time. See Cook v. Wright.⁽¹⁾

12. The Plaintiff received head injuries described by Dr. Da Roza in his evidence as being "serious". I think I can reasonably infer that some visits were "necessary" within the meaning of that adjective as used in the above mentioned New Zealand case. The cost of each visit and the number of visits must each be reasonable. Two visits a day is not reasonable. Nor is the exorbitant rate per visit - 20 dollars - which is claimed reasonable. In my view $100 is the correct sum to award under this item, which is item 8.

13. Item 9 is a claim for travelling expenses for the six occasions in which the Plaintiff attended as an out patient. He was not fully recovered and used a privately hired car. $120 is claimed. Again this is unreasonably high. I will allow $75 against this item.

14. As I have said, the Plaintiff was discharged from Hospital on April 19. On April 21 he consulted a Chinese Herbalist and received treatment from him for some forty odd days. Items 10 and 11 is a claim for the fees and expenses of the consultation and treatment and for travelling expenses connected therewith. The sum involved is $5,700. There is no doubt that these sums were paid and the Herbalist was called as a witness to testify to this effect. At the time the Plaintiff was still attending the Hospital as an out patient. It was his own idea to consult the Chinese Herbalist. The Plaintiff said that he did not even tell the Hospital Authorities that he was receiving treatment from the Herbalist. I fail to see why the Defendant should be saddled with this expense. He must pay the reasonable Hospital expenses of the cure of any injury caused by his negligence. But the expenses incurred by the Plaintiff choosing to be treated by the Herbalist at the same time as he was receiving treatment from the Hospital cannot be said to be reasonable. If the Plaintiff chooses to go to a Chinese Herbalist in such circumstances he must pay for that himself.

15. From his evidence it appears that the Herbalist was not told that the Plaintiff was attending Hospital as an outpatient. And he told the Court that he did not think from his injuries that the Plaintiff had come from a Hospital. The Herbalist said he gave the Plaintiff such exotic substances as Pearls, Ging Seng, Deer's Horn, Tin Chat, Shea Heung, Chuen Woo and Ngau Wong. However he also said that he thought the Plaintiff had a small fracture of the skull - something not diagnosed by the other doctor nor shown in the x-ray. In my view these items cannot be validly claimed by the Plaintiff from the Defendant. They are not part of the recognised Hospital and medical treatment and are unreasonable.

16. For the same reason I do not think that the sums claimed in item 12 are recoverable from the Defendant. The Plaintiff claims the very large sum of $2,200 for extra nourishment. This covers a period of nearly eleven weeks during which he was fed on certain luxury fish soup. The period covers the six days he spent in Hospital and the period he spent being treated by the Herbalist and as an out patient.

17. I do not doubt that the Plaintiff consumed this food. It was not taken as a result of orders or suggestions of the medical authorities. It was, he said, his wife's idea. I do not see why the Defendant should have to pay for such extravagance. There is a well known folk belief that such soup is beneficial to injured persons. But I do not think that that carries the matter any further. I do not think that if the Plaintiff had chosen to have half a bottle of Champagne each day as a pick me up that that would be recoverable as against the Defendant.

18. Item 13 is a claim for $700. This is for the wages for an amah for two months. She was hired to look after the Plaintiff's two young children for the first two months of the convalescene of the Plaintiff. The Plaintiff had to rely on his wife for being able to move about in his home to begin with. I do not think that this item is extravagant or unreasonable. And I will allow it.

19. We now come to the loss of earnings. The Plaintiff puts these and the rather high figure of $60 per day. I say rather high because according to him his 14 seater minibus grossed $105 per shift. The shift being half a day, from 2.30 p.m. onwards, he himself deciding when to stop.

20. The Plaintiff did not try to get employment until some time in September 1970 and was actually employed only as from October 1st 1970.

21. This is a very long period of time for which to remain idle after what cannot be said to have been very serious injuries. His period of being an out patient finished in about June 1970 and I think that it would have been possible for him to have secured a job before he did. He stated that he was not sufficiently well to be able to work until October 1st but his evidence as to his disabilities was not very convincing and I do not think he tried to get work. Item 14 of the Special Damages claimed refers to the loss of earnings up to 31 January 1971. It is in three separate paragraphs:-

This should now read $1,350 per month from August 1st - January 31st 1971 which comes to $8,100.

22. The total amount of special damages is therefore $15,705 and there will be judgment for that sum. I will now come to general damages. The Plaintiff suffered from headaches and considerable pain. I will sward $2,500 for pain and suffering past and future including loss of amenities.

23. The Plaintiff says that he thinks he will not be fit enough to drive a minibus for another year from today. The gravamen of his evidence is that he has had occasional dizzy spells. There was no up to date medical report as to his present state of health. But Dr. Da Roza reported in June 1970 that his symptoms would disappear in a few months. There is incidentally no mention in that report as to any dizziness. I think the Plaintiff is taking much too gloomy a view of his prospects. And I intend to take as the correct period ten months - as from January 31st 1971. This comes to $13,500. The Plaintiff will receive a lump sum payment so this must be scaled down by the conventional 1/5th which comes to $10,800.

24. There will be judgment for the Plaintiff for $29,005 with costs.

Representation:

B. Liu (H.M.So & Co.) for Plf.

Miss Leung (H.A Hoosenally & Co & Co.) for Deft.

(1) 1967 N.Z.L.R. 1034