Chan Fung v. Mak Hoi Ming and Others

HCA004880/1981

_______________________

______________________

_______________________

Coram: The Honourable Mr. Justice Penlington it Court

Dates of hearing: 25 - 27 March 1985

Date of delivery of judgment: 27 March 1985

___________

JUDGMENT

___________

Preliminary

1. This is an action which three writs have been consolidated because each arose traffic accident from which occurred on the Tai Po Road on the 16th September 1979. A long time has now passed.

Negligence

2. The first point is the question of negligence which has been pleaded against the 2nd defendant, the driver of the 1st defendant's Public Light Bus (the P.L.B.). I am satisfied that the 2nd defendant was entirely responsible for this accident. I have no doubt that it was caused by him overtaking a goods vehicle with insufficient room in which to do so and this resulted in the P.L.B. which he was driving and in which the plaintiffs were passengers overturning and then colliding with an on-coming goods vehicle. The 2nd defendant was charged in the Magistracy Court with careless driving to which he pleaded guilty and he was fined a sum of $300.00 and disqualified to a period of 6 months. I have no doubt that the very low fine was because he himself had suffered substantial injuries in the accident and was in hospital himself for quite some time.

3. The 2nd defendant gave evidence that he said that in fact the accident had been caused by defective steering and that was why he had lost control of the vehicle. This is rebutted by the survey do he by a motor vehicle examiner shortly after the accident. He found the steering and brakes to be in good order and condition. At the hearing before the Magistrate the 2nd defendant did not dispute the statement of facts which was tendered by the Crown and which quite clearly put him as being responsible for the accident.

Liability

4. The plaintiffs claim against the 1st defendant as being the owner of the vehicle and that the 2nd defendant was driving as his servant or agent. It is the defence of the 1st defendant that that was not so, that the vehicle had been hired out to the 2nd defendant at $80.00 a day and that the 1st defendant shared nothing from the operation of the public light bus apart from that $80.00. That was the sum payable notwithstanding what was received on any day and that the 1st defendant had no control whatever of the manner in which the public light bus was operated either as to the route taken, time was operated or any other factor.

The evidence

5. Evidence was given by Mr. Ho Yuk-cheung who said he was the regular day time hirer of the P.L.B. and that the relationship between him and the 1st defendant was purely that of a regular hirer. If he was not going to drive the bus himself, which he did not do or a Sunday and occasionally on other days, he would then bring in the 2nd defendant as a substitute driver. The relationship between the 1st defendant and the 2nd defendant was the same. The 2nd defendant himself did not in anyway dispute that that the relationship that existed between himself and the 1st defendant was as stated by Ho Yuk-cheung.

6. The plaintiffs have endeavoured to dispute that by saying firstly that this was an illegal hiring also that the 1st defendant had comprehensive insurance of the vehicle. I must admit that I was unable to follow a great deal of that argument, but I am satisfied that there is nothing in it and that the 1st defendant was clearly hiring out this vehicle and that was indeed the relationship between him and the 2nd defendant. They could certainly not be master and servant and I am satisfied it was neither that of principal and agent. There is a presumption raised by Barnard and Sully (1931) 47 T.L.R. 557 that where a vehicle is owned by one defendant and operated or driven by another that there is a master and servant or principal and agent relationship, but that is a presumption which can be rebutted. I am satisfied that it has been fully rebutted here in that the 1st defendant had no control over the operation of the P.L.B. or an interest in its use.

7. The solicitors acting for the plaintiffs received a request from the 1st defendant's solicitors on the 14th September 1983 asking for further and better particulars of the alleged relationship between the 1st and 2nd defendants, and not unnaturally they replied pointing out that this was a matter peculiarly within the knowledge of the 1st and 2nd defendants, and that the plaintiffs merely being passengers in the P.L.B. could have no knowledge whatever what their relationship was. Eventually the 1st defendant's solicitors replied on the 11th February 1984 saying that they simply denied the relationship as pleaded and the plaintiffs had no right to particulars. That they were no dobnt entitled to do, however does, I think, affect the question of costs.

8. I find that the 1st defendant is not liable for any of these claims and that the 2nd defendant is totally liable.

Damages

9. In action No. 4880 the plaintiff is an elderly lady. The sums of special damages are not in dispute, i.e. hospital charges $495.00, bone-setter's fees. I am prepared to award $1,700.00 and $800.00 for travelling expenses. Special food is a category which, unless there is medical evidence that special food is required, only a nominal amount is allowed. I am prepared to grant in this case $1,500.00 for special food. There is no evidence at all about the cost of the denture. It was not claimed in the writ or in the amended particulars and I am not prepared to allow anything for that. There is a late claim for indirect loss of earnings by the plaintiff's daughter, Lau Yau-lin on the basis that the plaintiff, Chan Fung, looked after her young daughter and due to the accident she could no longer do so and Lau Yau-lin could not go to work. The evidence on this was by no means satisfactory and all that has been fully proved by way of loss of earnings is for a period of six months following the accident. The plaintiff is an elderly lady and she no dount would have had difficulty looking after two children because her daughter became pregnant again and had another baby in September of 1981. I am prepared however to allow a period of 9 months at $1,300.00 per month, a total of $11,700,00. That makes a total for special damages of $16,195.00.

10. So far as damage for pain suffering and loss of amenities are concerned Dr. Wedderburn has given evidence in relation to this claim and, as usual, his report and evidence is comprehensive, competent and helpful. He assesses the disability at 8% This will increase to 11% by the time she will be 75, which is about now, and 15% by age 80. On that basis, I think we are very close to the damages awarded in Lau Choi v. Szeto Wai-hung (1984) H.K.L.J. 265 where $20,000.00 was awarded. There was some scarring but I think the facts are sufficiently close and I propose to award the same amount here.

11. In action No. 4881, the passenger, Mr. Cheung Yuk-king unfortunately is now dead and the claim is brought by the administratrix of his estate, his mother. Mr. Cheung lost an eye in this accident and quite clearly and understandably this had some considerable effect on his ability to carry on his small business whereby he was employing some 5 workers in a small factory. There was evidence that very shortly after the accident the factory had to close. Unfortunately there is a great lack of evidence about what the factory was earning and certainly no evidence at all from his mother and no evidence showing what really the loss of earnings was as a result of this accident. As in so many of these cases the court must, I think, simply take as good a guess as it can. There are allowed doctor's fees $130.00, travelling expenses $85.00. I take the first 2 months loss of earnings at $2,000.00 per month, a total of $4,000.00. After that, $500.00 per month from the 16th November 1979 to the date of his death which was 23rd July 1981. I think that's a total of 18 months, a total of $9,000.00. The medical evidence does impress me that while he did lose the entire sight of one eye there seemed to be no real reason why he could not carry on running his business, although perhaps he could not have done as well as he did previously. General damages, pain suffering, loss of amenities, There are two helpful cases Tsang Kei-lung and Lee Wing-shun (1980) H.K.L.R. 715 where $60,000.00 was awarded for a total loss of an eye, and in Chan Chi-lun v. Cheung Wai-chung (1984) H.K.L.J. 259 where there was 90% loss of the sight of one eye but also other injuries. $65,000.00 was awarded. Taking into account inflation since 1980, I will award $75,000.00 for pain suffering and loss of amenities. I think that makes a total of $88,215.00.

12. In action No. 4882, the plaintiff is a woman who was not seriously injured in this accident. She does however say that she was away from work for a while and she now gets headaches and has to take some sick leave. However, I do not think that these are grounds for a substantial claim in her case. There will be special damages as agreed, hospital expenses $55.00, herbalist $236.00, travelling expenses $85.00, special food $600.00. I was not by any means convinced by her evidence about loss of earnings but am prepared to allow 4 months loss of, earnings at $1,250.00 per month, a total of $5,000.00. The medical evidence in respect of pain suffering, loss of amenities was by no means satisfactory. In my view there was by no means sufficient examination by Dr. Cheung to justify the finding of a 15% disability to the whole person. There is no noticeable scarring and I am satisfied that the plaintiff has not suffered greatly although quite clearly she must have had some pain and general inconvenience and I make an award of $15,000.00, a total of $20,976.00.

Interest

13. The general damages will carry interest at 2% from the date of the issue of the writ and the special damages 5½% from the date of the accident.

Third Party

14. The 2nd defendant is entitled to be fully indemnified by the third party, who took no part in these proceedings, in respect of all awards of damages and costs. I would hope that steps are being taken to see that that is not an empty award.

Costs

15. The plaintiff is entitled to his costs against the 2nd defendant. While the 1st defendant is concerned I am satisfied that particulars should have been supplied as to this hiring and it may well be that armed with those particulars the plaintiff would have re-considered his position and may well have not proceeded any further against the 1st defendant. It seems to me that, in the light of the evidence given by Mr. Ho in particular, it was a claim which had no prospect of success. The 1st defendant is to have half his costs against the plaintiff. The plaintiff's costs are to be taxed in accordance with the Legal Aid Regulations.

Representation:

N. Persaud (Fairbairn & Kwok) for the Plaintiffs.

Miss Bina Chainrai (Hoosenally & Neo) for the 1st Defendant.

2nd Defendant, HUI Chung Shan in person.