Ng Loy Yau v. Wong Tin Sang and Others

HCA000524/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION No. 524 of 1978

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Coram: Hon. Liu, J. in Court

Date of Judgment: 18th April 1980

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JUDGMENT

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1. At about 1.30 p.m., on the 5th May 1975, the plaintiff met with an accident in a traffic mishap involving a vehicle driven by the 1st defendant. At the material time, the plaintiff was a licensed hawker minding her bean curd jelly stall on the pavement. There can be no doubt that the plaintiff was entirely free from any blame in the causation of the accident and the injuries thereby sustained. In addition to the prima facie evidence of negligence by the mounting of his car upon the pavement, on the 8th October 1975 the 1st defendant driver pleaded guilty to careless driving and forfeited a fine of $150 under threat of 14 days' imprisonment in default. After the accident at about 1.30 p.m., the plaintiff was attended to by a medical officer on duty at the Taipo Jockey Club Clinic. The plaintiff maintained that she sustained inter alia a fractured right humerus, a major bone of the upper arm. Principally, on this alleged fractured right humerus was based the plaintiff's claims for pain and suffering, 4% permanent disability and future loss of income at $2,000 per month.

2. On the 13th June, 1979, judgments were signed against the 1st defendant and the 3rd defendant. These proceedings are being prosecuted against the 2nd defendant alone as the owner of the vehicle involved. It is conceded that there has at no time been any relationship of master and servant between the 1st defendant and the 2nd defendant, and the question of control has little bearing save insofar as it may be relevant to agency.

3. There is no evidence that at the time of the accident the 1st defendant was agent or servant of the 3rd defendant or was driving the car with the permission of or for any purpose connected with the garage. However, in the absence of any explanation, an inference may be drawn from ownership that the driver was the servant or agent of the owner. See Rambarran v. Gurrucharran⁽¹⁾. But in this case, the 2nd defendant owner readily offered us his version.

4. I will first deal with the question of liability. The 2nd defendant recounted for the benefit of the court the events on the 5th May 1975. He testified that on discovering a hole in the rear of his car early that morning, as he was then a labour officer stationed at Taipo in the vicinity of the Ying Wah Garage of the 3rd defendant's, he left his vehicle for repair with the garage proprietor, Mr. Hui. The 2nd defendant was daily driving his car from Tsimshatsui to Taipo. He noticed nothing unusual with his car engine that morning, and instructions were given only for the hold to be patched up and resprayed as well as greasing which was due. The nature of the work so entrusted would require no test drive which therefore did not arise in the brief conversation between the 2nd defendant owner and the garage proprietor. The vehicle was then being parked outside the garage, and the ignition key which opened also the doors and the boot was left by the 2nd defendant with the 3rd defendant for the apparent purpose of putting the car into the garage. There was no necessity nor instructions for a test drive, and the 2nd defendant elaborated as to why he would have taken exception to his car being driven away to another site for the body or paint work. The main theme, therefore, was that test drive was not contemplated and that the 2nd defendant never authorized such service.

5. There was admittedly no master/servant relationship between the driver and the owner. The law on vicarious liability for the negligence of an agent must now be considered as settled. In Launchbury v. Morgans⁽²⁾, a case in their Lordships' house, the thitherto oft-canvassed "interest or concern" test was discarded as being too vague, but naturally in the absence of other evidence it may be inferred from ownership alone that the driver was the agent of the owner and the vehicle was used for the owner's purposes. Interest, concern or even control may still be relevant matters for deciding the capacity of the driver and nature of the journey. At page 135B, Lord Wilberforce considered the principle as beyond argument:

"I regard it as clear that in order to fix vicarious liability upon the owner of a car ....... it must be shown that the driver was using it for the owner's purposes, under delegation of task or duty."

6. A little further down in D/E, the learned Law Lord summarized:

"The owner ought to pay, ........ because he has authorised the act, or requested it, or because the actor is carrying out a task or duty delegated, or because he is in control of the actor's conduct. He ought not to pay (on accepted rules) if he has no control over the actor, has not authorised or requested the act, or if actor is acting wholly for his own purposes. These rules have stood the test of time remarkably well."

7. At page 138D, Viscount Dilhorne cited a statement of Mackinnon L.J. in Hewitt v. Bonvin⁽³⁾ with approval:

"If A suffers damage by the wrongful act of B, and seeks to say that C is liable for that damage he must establish that in doing the act B acted as agent or servant of C. If he says that he was C's agent he must further show that C authorised the act. If he can establish that B was a servant of C the question of authority need not arise."

8. The position of a garage repairman is equally not debatable Viscount Dilhorne commented at pages 139H and 140A:

"A person permitted to drive another's car does not become the latter's agent if, on his own volition, he uses it for the owner's benefit ......... Whatever or not the driver is acting as agent of the owner is a question of fact."

9. Thatemere permission to a repairman is not, in law, sufficient basis of liability has never been doubted. At page 148F/G, Lord Salmon said this of an independent contractor:

"Thus, mere permission to drive is not enough to createvicarious responsibility for negligence. Nor are you responsible for the negligent driving of an independent contractor (or his servant), who for example, hires a car to you or delivers goods you have bought from him."

10. Suffice it for me to mention in passing that the principles of vicarious liability affirmed in Launchbury v. Morgans were made reference to without further ado in Saif Ali & another v. Sydney Mitchell & Co.⁽⁴⁾

11. The position of a repairer came under direct consideration in McManus v. Weinbert as reported in the issue of the Post Magazine dated the 11th May 1940. It was cited with approval in Nottingham v. Aldrige⁽⁵⁾

"Would I be liable for the carelessness of my friend who takes my bicycle to the shop for repair but not when it is collected or pushed there by the repairer? On what basis would there be a distinction? It may be said that, vis-a-vis the paid independent contractor, I surrender my right of control: See McManus v. Weinbert, Post Magazine May 11, 1940, p. 621; Bingham's Motor Claims Cases 6th ed. (1968), p. 139, where the defendant's car was collected by the repairer."

12. I accept the evidence of Mr. Tong, the 2nd Defendant owner. The vehicle suffered from no apparent defect, and no instructions other than for body work and greasing were given. A test drive was uncalled for. Even if the 1st defendant had been test-driving with the permission, express or implied, of the owner (none of which is supported by the evidence), he would have been merely seeking to isolate mal-functions for the purposes of the garage in its execution of mechanical repairs, but it would never have, per se, converted the 1st defendant driver into an agent of the 2nd defendant despite the fact that any such undertaking was truly for the ultimate benefit of the owner. I find that the 1st defendant was not, at the time of the accident, an agent of the 2nd defendant. This is sufficient to dispose of the claims of the plaintiff's, but for the sake of completeness I would proceed to make further findings of fact for all eventualities.

13. The plaintiff was examined by Dr. Lee at the Taipo Jockey Club Clinic at 1.45 p.m., about 15 minutes after the accident. According to Dr. Lee, her examination took about 5 minutes, and she was given antiseptic, dressing, analgesic and an anti-tetanus injection for the treatment of bruises over her right thigh and a cut over her left ankle. Refreshing his memory from the records, Dr. Lee recalled no other complaints from the patient. Dr. Lee also informed the Court that there were no X-ray facilities then available in the Taipo Jockey Club Clinic but that any case of suspected fractures would be sent to the Queen Elizabeth Hospital for attention. The doctor described the general conditions of the plaintiff as good and her injuries minor in the sense of superficial injuries. The plaintiff was visibly in pain, but the doctor maintained that any fractured humerus would have been instantly diagnosed.

14. The Plaintiff consulted one Dr. Tong in March 1977, and on her information, the doctor, a general practitioner, opined that as a result of mal-alignment of the fracture due to a less than perfect union, the plaintiff lost 20% in full flexion of her elbow and experienced some weakness in pushing movement of the same arm.

15. On the 20th March 1980, almost a fortnight before the hearing of this action, the plaintiff was examined by Mr. Wedderburn, a surgeon. The plaintiff told Mr. Wedderburn that she suffered an equal degree of pain in her right arm and on the right side of her thigh and that she was sent away by the Government Clinic at Taipo to seek medical treatment in private. Mr. Wedderburn described a fracture of the humerus, a major bone in the arm, as a severe fracture which would cause acute and great pain, and he would not expect a doctor in a Government clinic to be able to miss such an injury with no small measure of discomfort. Mr. Wedderburn's view was that the fracture in the plaintiff's right arm is more than 3 years' old but that no precise date can be pinpointed. The surgeon concluded that whilst he could not refute the possibility of the plaintiff's fracture as one caused in the 1975 accident, he described the clinical background as related by the plaintiff as unusual and bizarre. In all fairness, Mr. Wedderburn hastened to add that his patient might well be truthful but mistaken due to passage of time which blurred details, although her account was difficult to accept.

16. In her evidence, the plaintiff explained:

"I complained that I was in pain all over my body. On the first day, at first it could not be seen where I had pain. It was only a few days afterwards, it became dark all over."

17. Later, the plaintiff disclosed that next day on her own volition she exposed her thigh for the examination by a man at the Jockey Club Clinic, but at no time did she show the examiner her right arm. Mr. Wedderburn further testified that acute pain would begin to set in two or three minutes after fracture even without immediate displacement of the fragments. On the balance of probabilities, I find that the plaintiff did not in fact suffer any fracture in her right arm in the traffic accident. She fell on her right side and complained of aches and pain. She herself was at a loss to specify the precise locations of pain before the appearance of the bruises. If indeed she had been left with a fractured humerus in agony, it would have been incredibly remarkable that such injury could escape detection or was never drawn to the attention of the medical staff on the day of the accident or on her return on the following day.

18. If the alleged fracture were established, I would feel disposed to fall in line with the suggested range of $10,000, though slightly over-generous, for pain and suffering and the deformity. There is, of course, no evidence as to whether a satisfactory union of the humerus could have been achieved with proper medical attention. I would also allow 6 months' loss at $2,000.00 per month yielding a total of $12,000.00. There was insufficient justification for the operation of the plaintiff's husband grinding to a complete halt in the course of her convalescence.

19. Even if the plaintiff succeeded in establishing the alleged fractured right humerus, I would not grant any compensation for loss of future earning power. It is alleged that before the accident the joint family income from two stalls, one run by her husband and another by herself, was approximately $4,000 per month, $2,000 from each. It was claimed that she is incapable of doing anything more than merely rendering assistance to her husband in his single stall today, which currently earns $4,000 odd dollars per month and that with an additional stall, the family could gain an extra $2,000. But the plaintiff also told the court that on the resumption of her husband's stall six months after the accident with her assistance, it made a profit of $4,000 odd dollars per month. That must have been the end of 1975 or early 1976. It is plain that for over four years this single stall of her husband's has not managed to net a more lucrative return. The husband's stall made $2,000 odd dollars before the accident. After a stoppage of six months as a result of the accident and with the assistance of his wife, its monthly profit advanced to $4,000 odd dollars. As to why there was no further increase for four years from 1976 to 1980, it remains a mystery. The plaintiff's evidence on loss of her earning capacity as reflected in the family income is highly unsatisfactory. Furthermore, the plaintiff and her husband were and still are engaged in the same trade of bean curd jelly in the summer and fried sweet potatoes with white carrots in the winter seasons. Merchandise and equipments are to be carried downhill from their home and there carted to their hawker's stall. There is no conceivable reason why the plaintiff is, to-day, handicapped in making her journey down the hill, and there has been no explanation as to why her husband cannot come to her assistance in the downhill journey as well as in the carting of the paraphernalia to her own stall. I find the future loss claim as no more than an obvious endeavour to inflate her damages.

20. The 1st defendant was not, at the time of the accident, driving for the purposes of the 2nd defendant or with his permission. He was plainly no agent of the owner. The plaintiff's claims must therefore be dismissed with costs.

Representation:

Ms H.C. Wong instructed by Messrs. H.H. LAU & Co. for Plaintiff.

Mr. Peter Cheung instructed by Messrs. Ip, Ku & Stoppa for 2nd Defendant.

(1) (1970) 1 A.E.R. 749

(2) 1973 A.C. 127

(3) (1940) 1 K.B. 188 at p. 191

(4) (1978) 3 W.L.R. 849 at p. 866G per Lord Salmon

(5) (1971) 3 W.L.R. 1 at p. 8B per Eveleigh J.