Wong Ting and Another v. Yuen Hing Kwan and Another

HCA000727/1977

Subject matter:

Personal injuries - Latent defect (brake failure) - Res Ipsa loquitur - Loss of earnings (illegal activity) - Special foods - Loss of consortium.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Garcia, J.

Date of Judgment: 12 July 1979

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JUDGMENT

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1. The 2nd defendant, Chan Yiu-hing, lives in Yuen Long Estate, New Territories. He works as a driver of tourist buses owned by the 1st defendant, Yuen Hing-kwan. On 8th November 1975 the 2nd defendant had finished his assigments by 9.00 a.m. and was required to drive some hikers in a bus at that time from Tuen Mun Estate. However, he had received a message then that his sister was ill at home and as he wished to see whether she required hospitalization he declined the assignment so that he could return home. He was given the use of a Nissan Cedric Diesel car with the registration no. AZ1390 for the latter purpose. This was the first time that he had used the said vehicle.

2. To go home from Tuen Mun Estate to Yuen Long Estate, the 2nd defendant had to go by way of Castle Peak Road. In order to go out to Castle Peak Road he had to stop at the junction of the road near Cheung Chun Wai. In his evidence, he says that he had to stop for about 6 to 7 minutes at the junction. During the whole of that time, he had his foot on the brake pedal of the car and up to then, nothing in the braking system had caused him to be apprehensive. He was able to stop at the junction without any difficulty.

3. Seeing that the way was clear on the main road, he pulled out of the junction into Castle Peak Road and travelled forward in the direction of Yuen Long. After having gone for a distance of about two miles at a speed of about 30 m.p.h. and having travelled in all for a period of about 15 minutes from the commencement of the journey, he had to apply his brakes hard in order to avoid a collision with another car which had suddenly made a U-turn into his side of the road from the opposite direction. Castle Peak Road is divided into two carriageways, one going to Kowloon and the other going towards Yuen Long. The road is separated in the centre by a central reservation of 7 to 8 inches high all along the length of the road at that point, that is, at the 22 milestone. At certain intervals of the central reservation are gaps through which vehicles could turn into the opposite carriageway in either direction and it was at one of such gaps that the 2nd defendant found himself faced with a collision with the other car which had turned out suddenly from the opposite carriageway. There are two lanes of traffic along the carriageway going towards Yuen Long and before the indident he describes above, the 2nd defendant was travelling in the outer lane. He says that throughout the 2 miles that he had travelled from the junction to that point, he was maintaining a constant speed of 30 m.p.h. and in order to do that, he had to press lightly on the foot-brake from time to time, in all 3 to 4 times. On the occasions he had applied light pressure on the brakes he found that they were operating normally.

4. In order to avoid the other car, he applied heavy pressure on his foot brakes, at the same time swerving to the left. However at that moment, he found that the brakes were not working at all and his vehicle continued to swerve to the left towards the pavement. The two lanes of traffic along Castle Peak Road are separated from the pavement by an island which is about 5" high near that point, and on the left of the island is a cycle track. The defendant testifies that the car in continuing its course towards the pavement came into contact with the island first and this was only effective in reducing the car's speed by about 13 m.p.h. The car continued on its journey and climbed over the island and then landed onto the cycle track. Unfortunately at that moment the 1st plaintiff who was pushing a wooden cart along the track (the 2nd defendant says that she had just come from the pavement onto the track), was hit from behind by the car. She fell on the ground and became unconscious. The car continued on its way sweeping the wooden cart under it and finally came to rest about 83 metres from the point of impact.

5. The 1st plaintiff suffered serious injuries to her abdomen and lower limbs and was admitted to Queen Elizabeth Hospital for treatment.

6. Following the collision, the 2nd defendant was seen by PC 10754 Ho Kin-kwok of the Traffic Accident Investigation Section, Yuen Long, and when asked how the accident happened, the 2nd defendant replied that it was due to a defective foot-brake. On 10th November 1975 the car was examined by the Motor Vehicle Inspector Ng Ho-cheung and he reports:

7. The oral evidence given by Mr. Ng is that the loose bleeding valve which caused the leak to the brake fluid reservoir, and which eventually emptied so that the brakes became entirely inoperative, was not the result of the accident.

8. The 2nd defendant was later summonsed for careless driving and for using a motor vehicle when the steering gear fitted to the said vehicle was not maintained in good and efficient working order. No summons was however issued for the brakes not being in good and efficient working order.

9. He pleaded guilty by letter to the offence of not maintaining the steering gear in good and efficient working order on 3rd March 1976 and was fined $100 for that offence. However, with regard to the summons for careless driving the subsequent events which attended it has a chequered history. On 13th April 1976 the 2nd defendant appeared in Fanling Magistracy, pleaded guilty to the offence of careless driving, and also admitted the brief facts constituting the said offence. Upon his submitting in mitigation of the offence that the 'Brake pipe suddenly failed', a plea of not guilty was recorded and his case was adjourned to 26th June 1976 for re-hearing. On the appointed date he appeared at the Fanling Magistracy again and pleaded guilty to the same offence with the reservation "guilty but I had a brake failure". Another plea of not guilty was recorded and the defendant was then asked to attend at the same Court on 20th September 1976. On the latter date, he pleaded guilty to the offence once again, admitted the brief facts of the offence and saying at the end that he agreed that the incident arose as a result of his careless driving and that he no longer suggested that he had a brake failure. He was therefore convicted and fined $380 for the offence. The facts which he admitted on that occasion are as follows:

10. At the trial of this action, the 2nd defendant says that the plea of guilty to that summons was made because firstly he had no time to go to Court, secondly he was not paid his wages for the days that he went to Court on the previous occasions, and lastly, he had been told by a police officer to plead guilty to the offence otherwise it would be troublesome. It appears from the facts which he admitted above that there is no indication as to how the accident occurred nor the manner of his driving which caused the accident, and was only explainable by the evidence of the Motor Vehicle Inspector that the brake fluid reservoir was empty when he examined the vehicle and that the emptying of that reservoir was due to a leak from a loose bleeding valve. This explanation is consistent with the defendant's reply almost immediately after the accident that the brakes had suddenly failed. On the other hand, the Inspector's evidence regarding the steering gear was that the defect was due to normal wear and tear and that such defect would not cause any danger to the driving of the vehicle and that normally the driver would not know of that defect.

11. Moreover the Inspector agreed that the leakage from the brake fluid reservoir could have occurred just before the accident depending on the number of times and the degree of the pressure on the foot brake pedal during the course of the journey of 2 miles. His further opinion is that it would take 4 to 5 downward pressure strokes on the brake pedal to empty the brake fluid reservoir so that there would be a complete loss of braking effect. He tested the brakes after refilling the reservoir but a test which was not carried out was to ascertain before tightening or replacing the loose bleeding valve how fast or how slow the fluid leaked out from the brake fluid reservoir in the course of the short journey such as the one which the 2nd defendant made before the accident, nor was any test made to ascertain how long it would take under the conditions described by the 2nd defendant for the brake fluid reservoir to empty completely so as to render the brakes ineffective.

12. The Motor Vehicle Inspector states further that the motor vehicle in question had not been serviced for half a year although the normal servicing period for brakes of that type of vehicle would be once every 3 months. There are no indications in the evidence as to what level the brake fluid in the reservoir was immediately after the accident and this could have been ascertained when the 2nd defendant himself said at the scene that the brakes had failed. This would have indicated whether at the time the 2nd defendant took over the car, which he says was the first time he had ever driven that particular car, the brakes were already less than efficient to stop the car in an emergency such as the one the 2nd defendant says he was faced with on 8th November 1975.

13. On the evidence of the motor vehicle inspector and the 2nd defendant, I come to the conclusion that the principal cause of the accident was the failure of the brakes just before the accident and the 2nd defendant could not, his evidence not being capable of being challenged, have known the condition of the braking system of the vehicle when he started his journey from Tuen Mun Estate that day.

14. The 2nd defendant says that in a panic he had driven his car against the island separating the traffic lanes on the Yuen Long bound carriageway and the cycle track, instead of swerving towards his right, that is, towards the central reservation, which was higher. He says that he could not do so as there was a huge lorry carrying timber ahead of him so that in fact the only course open to him was to swerve to his left. It has been submitted that the 2nd defendant should have slowed down at each intersection of the central reservation because the gaps were provided for vehicles to change from one carriageway to the other. The question is whether it would have been reasonable to do so in view of the fact that there is no law requiring this and moreover the Highway Code provides that the person making the U-turn should keep a look-out to see that traffic was clear before the turn is made. In the result, it would appear that the pleas made by the 2nd defendant to the summons for careless driving and of driving a motor vehicle without good and efficient steering gear were to my mind ill-conceived and that the explanation given by the defendant that he had so pleaded in order to save time, money and inconvenience must be accepted.

15. The plaintiffs base their case on the doctrine of res ipsa loquitur. I think the evidence so far of the brake failure and the emergence of the private car in his path when he was driving along Castle Peak Road and the manner in which he drove since the failure of the braking system of the car he was driving, rebut the application of that doctrine so far as the 2nd defendant is concerned. In the absence of any proof even on a balance of probabilities that the 2nd defendant was so negligent in his driving skill as to be the primary cause of the collision, I would hold that he is not liable for the accident which was caused to the 1st plaintiff.

16. On the other hand, the position of the 1st defendant is in my view quite different. The car in question is owned by the 1st defendant. He has not given any evidence regarding its condition prior to the accident and at the time when it was handed to the 2nd defendant to drive. Instead, his wife states in evidence that the car was usually driven by her and that she was in a better position to give an account of its condition. The car was purchased in January 1975, but it could not have been very satisfactory so far as its operation was concerned since in March 1975, just about two months after it passed into the hands of the 1st defendant, the starter of the car had to be repaired, albeit a minor repair. On l4th May 1975 the diesel fuel pump had to be repaired and adjusted, the carburettor jet had to be replaced, the clutch plate, oil filters and diesel filters had to be replaced as well. On 13th June 1975, the oil and air filters were replaced and on 21st July 1975, the fuel pump handle had to be repaired. All these repairs emerged from the invoices submitted by the 1st defendant but such repairs and replacements only refer to the defects in the engine and transmission system of the car. There is no reference in any of the invoices to the braking system nor was any evidence given that the car itself had been serviced and maintained except that the 1st defendant's wife said in evidence that the car was serviced once a month without any details or other evidence to support that statement, having regard to what was stated in evidence by the motor vehicle inspector when he examined the car after the accident. The latter states that the fault in the braking system which caused the brakes to fail as they did on the day of the collision could have been easily discovered if the car had been properly and regularly maintained in accordance with the maintenance schedules provided for that particular car. He has given as his opinion based on the discovery of dust and dirt which had accumulated on the engine surfaces that the vehicle had not been serviced for at least six months prior to the accident and his further opinion is that the braking system should have been maintained once every three months. Moreover, the position in which the brake fluid reservoir was placed beneath the bonnet of the car would easily have led the 1st defendant, his wife, or any person servicing the vehicle, to have noticed on visual inspection, if the vehicle had been regularly maintained, that there was a leakage somewhere in the braking system. In my view, the onus is on the 1st defendant to rebut the doctrine by evidence that he has not acted negligently.

17. In Henderson v. Henry E. Jenkins (H.L.E.)(1970) A.C. 301, the appellant, who was the widow of a van driver killed by a lorry owned by the respondents, in claiming damages, alleged inter alia that the respondents had been negligent in failing to keep the braking system of the lorry in efficient repair. The accident had been due to a sudden escape of brake fluid from a hole in the hydraulic braking system resulting from corrosion of the pipe, which was fitted under the lorry's chassis. Only 60% of the pipe could be seen on visual inspection with the pipe in situ and only the unseen part of the pipe had been affected by corrosion. The respondents pleaded that the accident was caused by a latent defect which had occurred without any fault on their part and the existence of which was not discoverable by the exercise of reasonable care. At first instance, it was held by Nield, J., that as proper care had been taken to maintain the vehicle; that the inspection of the pipes in situ was all that was required; and that, as the corrosion was at the back of the pipe, the respondents were not to blame for not seeing it; and that negligence had not been established. The Court of Appeal, by a majority, upheld his decision. On appeal to the House of Lords, it was held (Lord Guest and Viscount Dilhorne dissenting) that the respondents could not rely on the defence of a latent defect not discoverable by the exercise of reasonable care unless they had taken all reasonable care in the circumstances, and to do so they had to show that there were no special circumstances in the past use of the vehicle to indicate that the lorry might have been subjected to a corrosive agent resulting in the corrosion of the pipe. Accordingly, since the respondents had not adduced evidence of the past history of the vehicle, they could not rely on the defence of a latent defect and therefore, they had not discharged the inference that they had been negligent.

18. In his judgment, Lord Pearson said: "My Lords, in my opinion, the decision in this appeal turns on what is sometimes called "the evidential burden of proof" which is to be distinguished from the formal (or legal or technical) burden of proof. Passages which bear upon this distinction will be found in Esso Petroleum Co. Ltd. v. Southport Corporation (1956) A.C. 218, 230-1 per Devlin, J., and at pp. 242-3 per Lord Radcliffe, and in Barkway v. South Wales Transport Co. Ltd. (1950) 1 All E.R. 392, 394-5 per Lord Porter and at p. 400 per Lord Normand. For the purposes of the present case the distinction can be simply stated this way. In an action for negligence the plaintiff must allege, and has the burden of proving, that the accident was caused by the negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgment at the end of the trial the judge has to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants, and if he is not so satisfied the plaintiff's action fails. The formal burden of proof does not shift. But if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the plaintiff's favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference. In this situation there is said to be an evidential burden of proof resting on the defendants".

19. Unlike the pipe of the braking system in the cited case, the loose bleeding valve of the braking system in the instant case could have been easily discovered upon visual inspection (and, in this respect, the motor vehicle inspector's evidence must be accepted), if adequate maintenance or servicing of the braking system of the car in particular, and of the car itself in general, had been regularly carried out by persons qualified to perform that task. Adopting with respect the principles set out in the above quoted judgment of Lord Pearson, it is for the 1st defendant to provide some answer which is adequate to displace the prima facie inference of his negligence brought out by the evidence adduced on behalf of the plaintiffs. This neither he nor his witnesses have done, and in the circumstances, I hold that he is liable to the plaintiffs for damages claimed as a result of the accident caused to the 1st plaintiff.

1st Plaintiff (Wong Ting)

20. Madam Wong Ting was admitted to the Neurosurgical Unit of Queen Elizabeth Hospital after the accident on 8th November 1975, and the medical report on her condition shows that although she was conscious at the time of admission, she was in shock and there were injuries to:

21. She later complained of a pain in the abdomen and after referral to the Surgical Unit "A" of the same hospital, an emergency operation was carried out. The results of the operation were:

22. Dr. Chan Yun-lam, a surgeon of Unit "A" who performed the operation states that the resection of 2 feet of the gut would cause a certain degree of impairment to the 1st plaintiff so far as food absorption was concerned but this should not present much of a problem, and that her complaint of having loose stools at present would disappear after a while. Dr. Wedderburn who examined her almost 2 years later is further of the opinion that the loss of 2 feet of the gut would not leave her with any disability and such loss is easily compensated for. He is also of the opinion that the complaint of loose stools was unusual and that it was not a serious matter.

23. So far as the orthopaedic injuries were concerned, she was given a further medical examination by Dr. Tsang Siu-wah on 8th November 1975, and the following injuries were noted:

Surgical toilet and suturing of the lacerations were carried out and closed reduction of all the fractures and plastic slabs were given. In all she spent a total of 8 months and 5 days in hospital, but after that, she still had to go to the hospital for follow-up treatment for about 18 months after discharge. When she came out of hospital after the abovementioned period she had to use crutches for support for a period of at least 2 months. On 25th July 1977 she was examined further by Dr. Wedderburn and his findings are:

24. Dr. Wedderburn's assessment is that the degree of impairment of the right leg is slightly more than that of the left leg, although as far as she herself is concerned, she finds that she still has some difficulty in walking and in standing on tiptoe and this is borne out by the oral evidence given by Dr. Wedderburn in the course of the trial. He states as his opinion that the 1st plaintiff would feel discomfort in the affected area whenever there is a change in the degree of humidity and she would have aches and pains in those areas. Moreover the injuries to her legs would affect her walking ability, so far as distance and speed were involved and there would be difficulty in going up and downstairs, especially downstairs. However, the most significant of his findings is that she would be incapable of performing any kind of manual labour and even though she would be able to do some work like making plastic flowers, or trimming garments or assembling watch straps, at home, she would not be able to do any of these things effiiciently because of a loss of manual dexterity due to the accident and that her work output would be one half of that of a normal person. Taking the sum total of her injuries and the results of the treatment she had undergone, Dr. Wedderburn is of the opinion that her total impairment is 31%.

25. Dealing first of all with general damages, I have been referred to the cases of: (1) Ng Cheung-wai v. Lau Che-ming (OJA No. 2117 of 1974) reported in HKLJ (1977) 149, where an award of $25,000 was made for pain and suffering and loss of amenities; (2) Fuk Nui v. Lai Man-wai and anr. (OJA No. 2661 of 1977) reported in 8 HKLJ (1978) 256, where the sum of $40,000 for the same claims would have been awarded; (3) Kwok Mei-tai v. Tang Yu-hand and anr. (HCA No. 3707 of 1977) reported in 9 HKLJ (1979) 100, where an award of $15,000 was made; (4) Cho Suk-chun v. Chung Kai-yan and anr. (OJA No. 493 of 1976) 7 HKLJ (1977) 282, where an award of $75,000 was made for pain and suffering and loss of amenities.

26. It has been submitted on behalf of the defendants that the injuries suffered by the 1st plaintiff are less severe than those in the Fuk Nui case, and consequently a lesser amount should be awarded to the 1st plaintiff. I disagree not only on the ground that the extent of the injuries sustained by the 1st plaintiff and the permanent results thereof are substantially more serious than those in the Fuk Nui case but also the assessment of 31% impairment of the whole person is substantially more than that indicated for Fuk Nui, whose impairment was assessed as at 15% so far as employment was concerned. However account has also to be taken of the injury to her abdomen which Dr. Wedderburn has described as the most serious one of all and one which necessitated an operation. In Cho Suk-chun's case, the final impairment assessment was considered to be 30%, and the amount awarded was $75,000. There is no reason why this latter amount should not be similarly awarded to the 1st plaintiff in respect of pain and suffering and loss of amenities.

27. The 1st plaintiff is primarily a housewife, and although she is stated to be 53 years of age, and there is some dispute over this, she does appear a little older. Prior to the accident, besides being a housewife, she was engaged in growing vegetables for the market and assisting her husband in making noodles, which is his main occupation, and in raising chickens for market. The vegetables she cultivated were cut and brought to the Lam Tei Market every morning together with some noodles, and she would hawk these goods there till they were all sold before returning home. It was on one of the return journeys from the market that she met with the present accident. She says she could earn some $40 per day, every day of the week, from the sale of such vegetables, and because of the injuries she received which caused her present impairment, she is no longer able to cultivate any more vegetables, with a consequent loss of all that income. She has however admitted that she had hawked without a licence in the Lam Tei Market and Mr. Faulkner on behalf of the defendants, has submitted that on the authority of Tam Choi v. Ho Wai-hing (1974) C.A. No. 19/74, that no award ought to be made for loss of income, whether past or future on the ground that an unlicensed hawker is a person carrying on an illegal trade and that it was against public policy for such a person to benefit from such unlawful activity.

28. There is no evidence that she would have altered her mode of marketing the vegetables she cultivated except hawking them in the Lam Tei Market without a licence and there is no evidence that she would have applied for a licence either. Even if she wants to, the impairment which she now suffers from as a result of the injuries she received in the accident would preclude her from carrying on further with cultivating vegetables, as she says, and there is therefore no likelihood that she would be engaging in another occupation in the near future as a substitute for her erstwhile occupation of hawking vegetables without a licence. Mr. Yeung seeks to distinguish the Tam Choi case from that of the 1st plaintiff on the ground that, as paragraph 4(2)(a) of the Hawker (New Territories) Regulations, Cap. 132 states;

the onus is on the defendants to prove that Lam Tei Market was not within the excepted areas set aside by the Director of Urban Services so as to enable the 1st plaintiff to hawk her vegetables without a licence. This argument is in my view untenable: the claim is made by the 1st plaintiff against the defendants on the ground that she is entitled to a loss of income arising out of an occupation which she herself admits (by stating that she had been hawking vegetables without a licence), is contrary to paragraph 4(1) of the said Regulations, and therefore illegal. In asserting this claim, having regard to Tam Choi's case, the onus, in my view, is on her to prove a fact essential to her claim, that is, that she comes under the exception provided in paragraph 4(2)(a) of the said Regulations, and that Lam Tei Market, which she says was where she plied her trade, was a place set aside under the said Regulations where a person may hawk without a licence.

29. It has also been submitted by Mr. Yeung that the income which the 1st plaintiff received from the sale of vegetables cultivated by her is not entirely as a result of hawking and that the income arises out of her labour in cultivating the vegetables for market. In my opinion, there were other outlets which she could have exploited to sell her vegetables other than hawking without a licence - one of which would have been to obtain a licence under the said Regulations, or to sell her vegetables to the wholesale market, without resorting to the illegal activity of the type condemmed in Tam Choi's case. If I am correct in my understanding of the argument put forward on her behalf that the income which she obtained was the direct result of the labour expended in the cultivation of vegetables for the market, such an argument still lacks the connecting factor which is that without a market for the vegetables through sale, no income could be derived from such labour. In my view Tam Choi's case applies to the present claim for loss of income arising from farming business in paragraph (2) of the particulars of special damages of the statement of claim, and accordingly no award is made in respect of this item.

30. It has been submitted by the defendants that the claim of $500 for the damage to the wooden cart, beam balance and stock carried in the wooden cart, is too high as on the evidence of the 1st plaintiff herself, the wooden cart was valued at $120, the beam balance cost $40, the basket $20, and the stock carried in the basket was 2 cartons of noodles of 20 catties each, one type costing $4 per catty and the other costing $3. 50 per catty. The total amount for all these articles is $330, and an award of this amount is accordingly made in respect of item (1) of special damages.

31. The 1st plaintiff, as noted previously, spent a total of 8 months and 5 days in hospital and the maintenance charge therefor is $3 per day. The defendants contend that the amount to be awarded under this head should only be $531.50 since this is the amount covered by receipts produced in evidence. The amount claimed in respect of this item is $762 representing only the maintenance charge of $3 per day for the whole of the period the 1st plaintiff was in hospital, without taking into account the cost of two crutches which she was supplied with when she left hospital. There is no evidence to indicate that there was any remission of any of the medical fees nor is there any evidence that she did not spend all of that time in hospital. Accordingly in respect of item (3) of special damage I award the sum of 247 x $3 + $5.5 for cost of crutches and this totals $747.50.

32. Following her discharge from hospital the 1st plaintiff was required to undergo follow-up treatment and in the condition which she was, having to go in and out of Lee Ka Yuen to Kowloon Hospital, she had to have the assistance of her husband. The travelling expenses incurred for the purpose of having her transported to and from the hospital is estimated to be $16 per visit and the claim of $192 for this item is in my view reasonable and it is allowed.

33. The cost of special foods, for which receipts have been submitted in respect of only $2,535.40, is claimed in the sum of $4500. It has been submitted that no award should be made with regard to this item since no evidence has been given as to the use to which these special foods had been put nor was there any medical evidence to support the healing effects of such foods. Dr. Wedderburn's evidence on the value of special foods in this case is: "As long as she had adequate diet, special food is not necessary. Most Chinese of her class think special food is necessary, and if they do not do it it is tantamount that they are not looking after themselves. I do not think special food has any real value aside from pyschological effect".

34. In the Fuk Nui case, Cons, J. referred to the criteria laid down by the Full Court in Mui Ling Kwan v. Wong Yin Wan (1973) H.K.L.R. 465 and said that he preferred the wide view of the Chief Justice as opposed to the narrow view of McMullin, J. in that decision. The Chief Justice's view in that case is expressed as follows: "At least, since Shearman v. Folland it has been customary to claim as special damages a sum for extra nourishment. And the Courts have almost invariably allowed a reasonable sum for such a claim, whether such a sum is reasonable must depend on the circumstances of each case. If the figure is challenged it must be proved that there was expenditure on nourishment suitable to assist the recovery of the injured person. And it must be a reasonable sum. Obviously if a special diet is ordered by the physician or herbalist in charge of the case it should be allowed as an item of special damages, provided the amount is not unreasonable. What is not allowed is to saddle the defendant with the expenses of articles of luxury food and drink which cannot be said to be appropriate and necessary (in the widest sense) in assisting in the cure of the injured person". In the same case, McMullin, J. said: "I had relied upon certain observations which appear in the 4th edition of Munkman at page 77 when citing the case of Shearman v. Folland, the author subscribes to the view that extra nourishment may be made a subject of a claim provided it is money spent on recognised invalid food such as chicken broth, Bovril etc. I do not think there is any open collision between these decisions, although each approaches the problem from a somewhat different direction. I think however there should always be evidence to show that a special diet was adopted not wholly as a self-prescription of favourite delicacies but on the advice of some qualified person on whose judgment the Court can rely, it being left to the Court to decide in each given case, having regard to the nature of the advice and the efficacy of the prescription whether it was in all the circumstances justifiable. When no such evidence is adduced the claim should be very narrowly regarded especially if it is substantial although no doubt even then it would be open to a judge to make a nominal or small award provided he was satisfied that the diet included food stuffs of noted nutritional worth". Further on in his judgment he says "What is important in every case is that there should be some evidence put before the Court where a special food is the subject of a claim to support the advisability of that form of treatment".

35. So far as the requirement of evidence showing the reasonableness, use, need and suitablity of a special food on the healing process is concerned, there seems to be no conflict between these 2 judgments.

36. No evidence has been given by either of the plaintiffs that special foods, the cost of which is claimed at the rate of $300 per month, had been prescribed by any physician or bone-setter nor is there any evidence that such foods had been efficacious in the healing of the 1st plaintiff's injuries or that such foods had ameliorated the subsequent condition which was the result of such injuries, after her discharge from hospital, although the 2nd plaintiff did say that while the 1st plaintiff was still in hospital he did bring some food to her everyday which he states was good for getting rid of bruises. In connection with claims for extra nourishment while a plaintiff is a patient in hospital, I would refer to the following paragraph from the judgment of the learned Chief Justice in O.J. Action No. 1582 of 1972 (unreported):

"He claims $700 for travelling expenses and extra nourishment. There is no evidence as to how that sum should be divided. A claim for extra nourishment whilst in hospital unless it was ordered by the doctor cannot succeed. It is wrong that the defendant should have to pay for the plaintiff's luxurious foods unless it is so ordered".

37. In the absence of any evidence from a qualified person that the special foods mentioned in the receipts submitted in evidence by the 2nd plaintiff have any nutritional or healing value so far as the 1st plaintiff is concerned, I would disallow this item in the claim for special damages.

38. Two items of special damage were added with leave to the statement of claim on the first day of the trial, namely, (6) Home help for 2 years at $500 per month - $12,000; and (7) Dental expenses - $1,000.

39. Prior to the accident, the 1st plaintiff did the bulk of the household work for her family, laundry, marketing, cooking and general cleaning, assisted by her mother, mother-in-law, and some of her children after school hours. When she returned home from the hospital, she says, and this is accepted, that she was unable to dress herself or do her own toilet, much less carry out any of the abovementioned tasks. She says that she had to employ a servant at a salary of $500 solely to look after her own needs as well as cooking and washing for her alone. According to her own evidence and that of the person she had engaged to help her, a madam Tang Ng, the services of the latter were not secured until two months after she had returned home from hospital. Besides her husband, the 1st plaintiff lived in the house with her mother, mother-in-law and three children, and with the mother and mother-in-law staying at home most of the time, and her husband as well, since he manufactures noodles in the same premises, there seems little reason for her to employ Tang Ng solely for the purposes she states. Surely it would have been more appropriate, if at that time she did not receive any assistance from her own family, to have employed someone as soon as she returned home, to look after her own needs. The evidence of Tang Ng as to the purpose and period for which she was employed by the 1st plaintiff is not altogether clear or straightforward and it has been conceded by counsel for the plaintiffs that the period should be 18 months. This latter period is based on the evidence of Dr. Wedderburn regarding the final period in which no further or very little improvement can be expected in the 1st plaintiff's condition, that is, 2 to 2½ years after the date of the accident. One of the reasons which the 1st plaintiff has advanced for employing Tang Ng is that the 2nd plaintiff was busily occupied in making and marketing noodles and that he had therefore very little time to look after her minor needs. On the other hand, she states that whenever she went to Kowloon Hospital for follow-up treatment during the 1½ year period after her discharge from hospital, she was invariably accompanied by her husband, the 2nd plaintiff. If she had employed Tang Ng solely to look after her for 8 hours a day, it would have been more appropriate and convenient, in my view, granted that the 2nd plaintiff was so busy that he could not even spare a few minutes at certain times of the day to do the minor chores for her, for Tang Ng to have accompanied her to the hospital for follow-up treatment instead. Dr. Wedderburn has suggested that the 1st plaintiff would have been able to dress and look after herself about 13 months after the accident, that is, about 5 months after her discharge from hospital. In the result I find that Tang Ng was employed not solely for the purpose of looking after the 1st plaintiff but also to work for the rest of the household and it is not unreasonable in my opinion having regard to Dr. Wedderburn's evidence stated above and her having to attend for follow-up treatment for a period of 1½ years after her discharge from hospital for the claim on this item to be based on a period of 18 months. It is also not unreasonable for a salary of $500 per month to be paid to Tang Ng in view of the nature of the work involved and the general level of salaries for domestic help in Hong Kong during the years 1976 and 1977. I would therefore award the sum of $9,000 in respect of this item.

40. The 1st plaintiff seems to have been rather confused about her claim for $1,000 in respect of the cost of replacing some of the teeth which she says were lost as a result of the accident. The loss of 3 of her teeth is mentioned in Dr. Wedderburn's report as follows: "She also lost 3 teeth in the lower jaw but she only has 3 on the left side so she only had 6 teeth in the lower jaw at the time of the accident". In giving oral evidence on this matter in Court, Dr. Wedderburn added that he could not tell from looking at her teeth the disappearance of the 3 teeth, that is, whether there was such a loss as a result of the accident or through other causes. The 1st plaintiff has produced in evidence a receipt from a dentist, Dr. Tao Sun Man, for the sum of $1,000 being the cost of 7 units of K-gold teeth and tooth supports for the lower 11 units. In answer to a question asked of her in cross-examination, she states that all the 7 units of K-gold teeth were for the upper jaw and her claim referred only to 3 teeth which she had lost from the lower jaw. The confusion she says was caused by the dentist including in the same receipt other dental work unconnected with the accident, although she had asked him specifically to make out separate receipts. According to the said receipt, the dental work was carried out on 23rd May 1978 approximately 2½ years after the accident, and the explanations given by her for the long delay in attending to her teeth were that she had no will-power to go out of her house at all before then and there was no urgency so far as her teeth were concerned. Yet she had all along been able to go to Kowloon Hospital for follow-up treatment. These so-called explanations are not acceptable because if there had been a loss of 3 teeth out of a total of 6 teeth in the lower jaw, such loss would have caused her great difficulty in eating, and particularly because of some loss of food absorption in the small intestine due to a resection of that organ brought about by injuries sustained by her in the accident. Moreover, from the receipt itself, there were more than 6 teeth in the lower jaw in May 1978 because of the reference therein to "11 units of the lower jaw". In my view the receipt submitted in evidence is for dental work entirely unconnected with the accident and the claim for $1,000 on this item is therefore disallowed.

The 2nd Plaintiff (Chow Kam Pui)

41. The 2nd plaintiff, Chow Kam Pui, manufactures noodles at home for sale in shops and restaurants, and through his wife's hawking in Lam Tei Market. He estimates his pre-accident income from this source at $2,000 per month. Besides this, he was also engaged in rearing chickens for the market and he estimates his income from this source at $200 to $300 per month on average. No claim has been made by him in the statement of claim with regard to this latter income and in any event, the extent of the assistance provided by the 1st plaintiff in the latter exterprise appears to be rather insignificant. No further consideration will be given to the alleged loss of this income as a result of the accident.

42. In the 2nd plaintiff's noodle manufacturing business, three persons, including himself, were engaged. He himself performed the more important task of preparing the dough and placing it in the various machines, four in all, used in manufacturing noodles. In the final machine process, the noodles are extruded in the form of strands and these latter are collected in pans or baskets by their son who then cut the strands into uniform lengths. These lengths of noodles were then formed into cakes by the 1st plaintiff, which are then placed in a steamer. After the noodle cakes are steamed, they are then taken out and dried in the open. From the descriptions given by the 1st plaintiff and from a demonstration given by her in Court, it would appear that a certain amount of manual dexterity is required in forming the cakes from the noodle strands. The 2nd plaintiff states that egg noodles and noodles flavoured with shrimp roe are formed into cakes and these comprised the bulk of the products which he manufactured and sold in the market. He says that since his wife's accident, he has not been able to carry on with the production of these types of noodles having lost the assistance of his wife, and he estimates the reduction of his income from the business at $700 per month, down from $1,200 per month which he had claimed at para. 4(1) of the statement of claim. Even if I accept his estimate of loss of $700 per month, it cannot be said that such a loss can be entirely attributable to the non-availability of the 1st plaintiff's services to his business. Part of the loss could also have been due to their son's emigration from Hong Kong, albeit his reason for leaving Hong Kong was that there was insufficient business for the family after the 1st plaintiff met with the accident. It has been suggested that the loss of income should be borne proportionately among the 3 members of the family engaged in the manufacture of noodles. This is a simplistic method to adopt and is one which commends itself because no records were kept of the business and it is difficult to say which of the 3 had the most important function in the business although the 2nd plaintiff did say that he did the most important work of all of them. It has been urged on behalf of the plaintiffs that the 1st plaintiff's services went far beyond that of an ordinary housewife and that therefore a multiplier, based on the age of the 1st plaintiff as being 53, should be adopted in calculating the amount of the award under this head. No authority has however been cited for this proposition.

43. On the other hand, this claim is challenged by the defendants on the ground that it is bad in law and no liability arises for purely an economic loss unless it follows upon a physical loss of property in which the plaintiff has an interest.

44. In support of the 2nd plaintiff's claim, the case of Behrens v. Bertram Mills Circus Ltd. (1957) 2 Q.B. 29 was cited. In that case, the plaintiffs were midgets, and were husband and wife, exhibited together at a fun fair run in conjunction with a circus. Both sustained personal injury by a frightened elephant. The husband was fit for work in a week but the wife was unfit for 8 months. The parties were exceptionally dependent on each other because they were dwarfs. The husband was particularly dependent on his wife, increased by the fact that they lived in a caravan near their place of work and in which they had to spend most of their time, as he was the main attraction as the supposedly smallest man on earth and could not mingle with the public when he was being exhibited or was appearing in shows. He claimed loss of earnings for the whole of the 8 months his wife was unfit.

45. It was held that it would not be reasonable to expect the husband to go touring or to go round fair grounds and exhibitions by himself and without the company of his wife. The plaintiffs lived in a strange world and the bond between them must be stronger even than the ordinary tie of matrimony. It was a most exceptional case turning on the exceptional need which the husband had for the support of his wife as a wife. He was entitled to recover his loss of earnings as damages.

46. The ratio decidendi of that case was examined in Kirkham v. Boughey (1957) 3 All E.R. 153, where the plaintiff claimed loss of earnings in respect of injuries sustained by his wife and himself in a traffic accident. His claim was not based on a loss of consortium, but on a contention that if he had acted reasonably he was entitled to any money loss as if the wrong had not been done to him, and he relied on the judgment of Devlin, J. in the abovementioned case. It was held that the plaintiff was not entitled to damages for loss of earnings, because the loss did not flow from the injuries that he sustained and his right to recover damages in respect of the injuries that his wife sustained was limited to damages for loss of consortium, together with the cost of her medical treatment, etc., and damages for loss of consortium did not extend (as was admitted) to the plaintiff's loss of earnings; his loss of earnings was, therefore, damnum absque injuria. In the course of his judgment, Diplock, J. said of the Behrens case: "It is not quite clear to me that the ratio decidendi is not based on loss of consortium. The sum claimed was a small one and it may well have been that if the husband had gone out on tour the cost of paying domestic assistance, plus the damages for loss of consortium, would have exceeded his loss of earnings by staying at home. If so, it was a proper step to take in mitigation of damages and the loss of earnings would be recoverable. Counsel for the plaintiffs argues that the ratio decidendi is to be found at (1957) 1 All E.R. p. 597, where Devlin, J. says: "In fact, however, he did not go on tour. He preferred to stay at home and accept the loss of earnings; and in the very peculiar circumstances of this case I have held that his choice was a reasonable one. Can he then recover his loss of earnings as damages? To hold that he can may be breaking new ground in this type of action, but I can see no reason in principle why he should not be thus compensated". Then come the words on which counsel for the plaintiffs particularly relies: "The assessment of damages must be governed by those principles which apply generally in the law of tort and, provided he acts reasonably, he must be put in as good a position, so far as money can do it, as if the wrong had not been done to him. I repeat that on the facts this is a most exceptional case, turning on the exceptional need which the husband had for the support of his wife as a wife. Because of that I think that he is entitled to recover". I, of course, accept the principle that "the assessment of damages must be governed by those principles which apply generally in the law of tort and, provided he acts reasonably, he must be put in as good a position, so far as money can do it, as if the wrong had not been done to him." It depends, however, on which is the "wrong done". I have already given reasons for holding that the only wrong done is the injury to the husband's quasi-proprietary rights in the consortium, and if this judgment is to be read as extending the rights of the husband of an injured wife, it is, I think, out of harmony with the speeches of their Lordships in Best v. Samuel Fox & Co. Ltd. I therefore hold, as a matter of law, that the wages are not recoverable."

47. The Behrens case came up for discussion again in McNeil and anor. v. Johnstone (1958) 3 All E.R. 16, where in an action for damages against the defendant for negligent driving, the husband claimed as special damage (among other items) the month's salary which he had lost and some expenses of going to and from between Swindon and Margate, hotel bills and travelling expenses in connection with the wife's treatment or final visits to the hospital. In his judgment, Devlin, J. said: "If one investigates the law on the subject and seeks to relate the recovery of this sum to some legal principle, it can only be that it is recoverable as damages for loss of consortium.... The real ground of recovery would have to be loss of consortium. It would have to be said that the husband was entitled to have the consortium of his wife - taking the consortium in the very widest sense of the companionship of his wife. He could, therefore, very easily because of the loss of companionship of his wife have had her treated in some hospital nearby in Margate. It could not have been objected, if he had done that, that he could have taken the cheapest possible way of treating his wife and sent her to Swindon - that he ought to have left her alone for months and not gone near her. The answer to that as a matter of law must, I think, be that his visits were necessary for her health or that he was entitled to have her companionship, or that if he had sent her to Swindon he would possibly have had a claim for general damages, but a claim nevertheless for loss of consortium during that period of one month. If he had a claim for that loss of consortium, it appears to me that he must have a claim for the alternative. Thus, if the husband could claim damages of £100 for loss of consortium during a month - I take £100 as a notional figure - and if, in order to preserve his consortium and therefore save the defendant paying him £100 the husband gave up his earnings during that month so as to be free to see his wife, he must be entitled to the earnings as an alternative. That is in substance what I was trying to say (though I cannot have said it very clearly) in a passage which Diplock, J. quoted in Kirkham v. Boughey (1957) 2 All E.R. 153 at p. 157), which in turn has been cited to me in this case. Perhaps I would be wiser not to say anything more about it because it may be that, speaking extemporare, I may make matters worse; but that, as I say, is what I was seeking to say and I do not think that there is anything in what, in fact, Diplock, J. decided which is inconsistent with that. Diplock, J. decided the case before him on the basis he refers to expressly (id., at p. 156), that the claim for damages in that case was not based on loss of consortium. On that basis I should, if I may say so respectfully, have reached the same conclusion as Diplock, J. reached on the facts of Kirkham v. Boughey. Whether consortium can extend to companionship in the broadest sense of the word is, of course, a difficult point to decide. I considered in Behrens v. Bertram Mills Circus, Ltd that in the very exceptional circumstances of that case it did. Whether I should have considered it in this case to be equally applicable, I do not know".

48. The stress in the Behrens case has been on the "very exceptional circumstances" of the case itself and the decision was based on a loss of consortium which was extended to a loss of companionship. Similarly, in McNeil and anor. v. Johnstone, the decision was based also on a loss of consortium and on the special circumstances of the case itself. So far as para. 4(1) of the statement of claim is concerned, I am of the opinion that no support can be gained from these two cases and I would prefer to follow the reasoning in the judgment in Kirkham v. Boughey, and hold that the claim for loss of profits is damnum absque injuria and make no award under that head. Similarly, I would apply the same reasoning to the claim made under para. 4(2) of the statement of claim, and also make no award under that head. I would add with regard to this claim that the 2nd plaintiff could have kept up contacts with his customers, who were mostly in Kowloon, at those times when he was not visiting his wife in hospital and thus minimise the loss which he says he sustained as a result.

49. The 2nd plaintiff's claim for travelling expenses at $2,000 is challenged on the ground that they are excessive and that $6.30 for a round trip from Yuen Long to Kowloon would be reasonable, this figure having been provided by the plaintiff himself in evidence. I think this figure reasonable and accordingly an award is made based on the period of 247 days which the 1st plaintiff spent in hospital, the total sum coming to $1,556.10.

50. With regard to the 2nd plaintiff's claim for loss of consortium I would refer to the case of Lawrence v. Biddle (1966) 1 All E.R. 575 where it was held that damages for loss of consortium are based in the main on loss of servitium - the fact that the wife cannot or will not or does not perform the usual household services. It is not necessary, for such a claim to succeed that there should be a period of total loss of consortium. Although the household work was shared among the various members of the family, nevertheless the 1st plaintiff did a large share of it, and I agree that prior to the accident that her services to the 2nd plaintiff extended far beyond those of an ordinary housewife. She was in fact a vital economic unit of the family whilst there has not been a total loss of consortium, the partial loss so far as servitium is concerned is not insubstantial from her evidence and that of the husband. In Cutts v. Chumley (1967) 1 W.L.R. 742 it has been held that a claim could lie both for loss of services (which was total) and loss of society, and following Lawrence v. Biddle it was not necessary that the loss of society should be total. A substantial award was made for loss of services in that case although in Hare v. British Transport Commission it was said by Lord Goddard, C.J. that "loss of consortium still survives as a cause of action, but it is not one, I think, for which the Courts should give generous compensation in addition to such legitimate expenses as a husband has had to incur on account of his wife's absence". In the circumstances, I would depart from the suggested ceiling of $1,500 usually awarded in Hong Kong for loss of consortium, and award the sum of $2,000 in respect of this claim. In doing so, I take into account the sum of $9,000 awarded to the 1st plaintiff for home help in respect of her claim.

51. There will therefore be judgment for the 1st plaintiff against the 1st defendant as follows:

52. Special damages:

53. There will also be judgment for the 2nd plaintiff against the 1st defendant as follows:

with costs to both plaintiffs, and interest on the general damages for the 1st plaintiff at the rate of 7% per annum from the date of the service: of the writ until trial, 4% per annum on items (1) and (3) of special damages from the date of the accident until judgment, 4% per annum from 12th July 1976 on items (4) and(6) until judgment, and 4% on the sum of $1,556.10 awarded to the 2nd plaintiff from the date of the accident until judgment.

Representation:

Mr. Wally Yeung (Ho & Wong) for plaintiffs

Mr. Raymond Faulkner (Deacons) for defendants