Yiu Kwok Ching v. Kong Shui Wah and Another
Read the full judgment text of HCA 2844/1980 on BabelCite. This High Court CFI judgment.
1. This is a running down action. The plaintiff, at the time of the accident, was 13 years of age. The accident occurred on the 21st November, 1978 at about 7.10 a.m. when the plaintiff was riding his bicycle along the north bound carriageway of Ping Che Road in the direction of Takuling in the New Territories. He was struck by a goods vehicle bearing the registration number AX4730 coming from the opposite direction. The said vehicle was driven at the material time by the 1st defendant and it be
|
HCA002844/1980
IN THE SUPREME COURT OF HONG KONG HIGH COURT ACTION NO. 2844 OF 1980 -----------------
Coram: Mr. Commissioner Hooper in Court Date of Judgment: 3rd November, 1980 ----------------- JUDGMENT ----------------- 1. This is a running down action. The plaintiff, at the time of the accident, was 13 years of age. The accident occurred on the 21st November, 1978 at about 7.10 a.m. when the plaintiff was riding his bicycle along the north bound carriageway of Ping Che Road in the direction of Takuling in the New Territories. He was struck by a goods vehicle bearing the registration number AX4730 coming from the opposite direction. The said vehicle was driven at the material time by the 1st defendant and it belonged to the 2nd defendant. 2. In the particulars of negligence the plaintiff set out all the usual allegations and in particular he alleged that the 1st defendant drove round a bend at too fast a speed so as to cause the said goods vehicle to go over to the north bound carriageway of the Ping Che Road. He also alleged, inter alia, that the 1st defendant drove on the road a vehicle with defective braking system. He also alleged that the 1st defendant failed to inspect or test his goods vehicle regularly or at all and that he failed to maintain in good and efficient working order and adjust properly every part of the braking system and of the means of operation thereof fitted to the said goods vehicle. 3. In paragraph 4 of the Statement of Claim the plaintiff indicated that he intended to adduce evidence that as a result of the aforesaid accident, the defendants were charged at the Fan Ling Magistracy under case no. 4824-5/79 for (i) using a vehicle with defective handbrake and (ii) using a vehicle with defective footbrake, contrary to regulation 101 of Road Traffic (Construction and Use) Regulation, Cap. 220 and section 8 of the Road Traffic Ordinance, Cap. 220 and that on the 27th of June 1979 the defendants pleaded guilty by letter to the two charges aforesaid. 4. It was also part of the plaintiff's case that the 1st defendant was at all material times driving the vehicle as the servant or agent of its owner, the 2nd defendant. 5. Although it was admitted by the defendants that the accident occurred at the time, date and place in question, and although it was admitted that the vehicle was driven by the 1st defendant and owned by the 2nd defendant, it was denied that the 1st defendant was driving the vehicle as servant or agent for the 2nd defendant. It was further denied that the accident was caused by the negligence of the 1st defendant. In paragraph 4 of the Statement of Defence the defendants alleged that if the 1st defendant was negligent in the said accident, the plaintiff was responsible for contributory negligence. In paragraph 5 the defendants admitted the conviction as referred to in paragraph 4 of the Statement of Claim but denied that the said convictions were relevant to any issue in the present action. 6. Although in their pleadings the defendants alleged contributory negligence, they did not attempt at the hearing to substantiate this claim. Instead they amended their Defence with the consent of the plaintiff to include a plea that the said accident occurred without negligence on the part of the defendants but was due to an inevitable accident, in that while the 1st defendant was driving the said goods vehicle properly along the said Ping Che Road, the off-side rear tyre of the said goods vehicle was suddenly punctured by a piece of metal, whereby the said goods vehicle went out of control and not withstanding the exercise of all reasonable care and skill in the emergency thereby created the 1st defendant was unable to avoid the said accident. LIABILITY 7. It is common ground that the defendants' vehicle crossed into the opposite lane and struck the plaintiff's bicycle. The plaintiff testified that the vehicle struck the front wheel of his bicycle but the 1st defendant testified that his vehicle struck the rear wheel of the bicycle. The plaintiff testified that the vehicle crossed into the opposite lane when it was a distance of some sixty feet away from the plaintiff whereas the 1st defendant testified that the vehicle suddenly swerved into the other lane, when it was a distance of six to seven feet away from the plaintiff. The 1st defendant also testified that he did not know why the vehicle swerved to the right at the time, but he discovered afterwards that the rear off-side wheel of the vehicle was flat, and some three days later he discovered that it had been punctured by a piece of metal. Effect of the previous conviction 8. The fact that a person has been convicted of an offence by or before any court in the colony is admissible before the court in any civil proceedings for the purpose of proving, where to do so is relevant to any issue in those proceedings that he committed that offence. It makes no difference whether he was convicted upon a plea of guilty or otherwise, or whether or not he was a party to the civil proceedings. (See section 62(1) of the Evidence Ordinance). 9. It is also provided in sub-section (2) of section 62 of the Evidence Ordinance that the effect of a person proved to have been convicted of an offence is that - ((a) he shall be taken to have committed that offence, unless the contrary is proved ..........) 10. Although the plaintiff did not specifically in his Statement of Claim alleged that the defendants were convicted, but only that they were summoned and that they pleaded guilty in writing, it is clear from the Defence that the defendants were admitting the conviction. Furthermore, although the plaintiff did not specifically set out in the Statement of Claim the relevancy of the convictions, in my view they are obviously relevant to the issues before me because the specific time to which the summonses related was the time of the accident. Although the information or informations to which the defendants pleaded guilty did not specifically refer to the accident, it is very clear from the pleas in mitigation submitted in writing by the defendants that the time to which the summons related was the time immediately prior to the accident. 11. In view of the convictions of the 1st and 2nd defendants in respect of using a motor vehicle on a road with defective footbraking and handbraking systems, a presumption arises under section 62(2) of the Evidence Ordinance referred to above, that the defendants did commit the offences as alleged unless the contrary is proved. The burden of proving the contrary lies upon the defendants. It is necessary for each of the defendants to prove on a balance of probabilities that he did not commit this offence at that time. Of course, in deciding whether the contrary is shown, I must not confine myself to the defendants' evidence or that of his witnesses, I must consider the evidence as a whole and ask myself if the contrary has been shown anywhere in the evidence which I have heard. 12. Although the 1st defendant testified in the witness box that the brakes were working properly at that time, it is clear that he wrote to the court pleading guilty to the summons and alleging at that time that the accident was not caused entirely by the 'fault of the control system'. He attempted to deflect the force of that particular statement by saying in the witness box that the accident was not caused at all by the control system and he explained by the control system he had meant the braking system. I was not impressed by the evidence of the 1st defendant on this point, neither was I impressed with his explanation as to why he wrote in these terms. I agree with Mr. Wong that this evidence has a bearing upon his credibility. He is clearly a man who will say what he wants to suit the purpose at the particular time. 13. I was satisfied that he had not proved the contrary and that immediately before the accident he was using a motor vehicle with a defective braking system. Defence of inevitable accident 14. The burden rests on the defendants to show inevitable accident. So said Lord Justice Fry in the Merchant Prince [1892] P.179. To sustain that, the defendants must do one or two things. They must either show what was the cause of the accident and show that the result of that cause was inevitable; or they must show all the possible causes, one or other of which produce the effect, and must further show with regard to everyone of these possible causes that the result could not have been avoided. Unless they do one or other of these two things, Lord Justice Fry said that it did not appear to him that they have shown inevitable accident. 15. As between the plaintiff and the 1st defendant, I favour the evidence of the plaintiff. His version that the motor vehicle moved into the opposite lane when it was a distance of some sixty feet away from him is credible. On the other hand I found the 1st defendant's explanation that the car swerved into the opposite lane when it was six to seven feet away from the plaintiff to be incredible. The plaintiff was not shaken at all in cross-examination and have me the impression that he was a truthful witness. The 1st defendant on the other hand was not an impressive witness as I have indicated above with regard to his evidence on the matter of the convictions. Furthermore he could offer no reasonable explanation as to why it was that his counsel had put it to the plaintiff that his vehicle had swerved into the opposite lane when it was ten feet away from the plaintiff. The burden was of course upon the defendants to prove that the collision fell into the category of an inevitable accident. However, no evidence was produced before this court by anyone who examined the wheel and of the finding of a metal sheet which allegedly pierced the off-side rear tyre. There was no evidence to the effect that the 1st defendant himself examined the tyre. The only evidence which was led to prove the inevitable accident came from the 1st defendant himself and his evidence was certainly doubtful. At the time when he was pleading guilty to the summonses he was certainly admitting that the accident was caused partly by the defective braking system. He was however at that time attempting to minimise his culpability by pointing out that the off-side rear tyre was pierced by a piece of rugged iron sheet. 16. Taking all things into consideration I am not satisfied that the 1st defendant or the 2nd defendant discharged the burden upon them of proving on a balance of probabilities that the accident was caused entirely by the off-side rear tyre being pierced by a piece of rugged iron sheet. 17. I am satisfied that the probability is that the 1st defendant was driving, as the plaintiff has described, at a fast speed round a corner and could not control his vehicle properly. I am satisfied that the probability is that the 1st defendant was guilty of negligence as particularised in the plaintiff's Statement of Claim. I am satisfied that the 1st defendant was driving as agent for the 2nd defendant at the material time. I therefore hold that both defendants are liable to the plaintiff. QUANTUM 18. In his particulars of special damage the plaintiff alleged that nourishing food came to $3,350, bone-setter's fee $500 and loss of earnings by father in visiting the plaintiff in hospital $1,960.00 making a total of $5,810.00. 19. Unfortunately, although the plaintiff's father did claim that he purchased nourishing food for the plaintiff he did not itemize the costs thereof. In the absence of any specific evidence on this I would allow only $100.00. So far as the bonesetter's fee is concerned, there was evidence that the plaintiff's father took the plaintiff to the bonesetter about ten times and that it costs about $40-$60 a time. Unfortunately there was no evidence before this court to prove the necessity for a bonesetter's treatment particularly in view of the fact that it was proved that the plaintiff was taken to the Queen Elizabeth Hospital as an out-patient. The bonesetter himself did not give evidence and there was no evidence on which I can assess the reasonableness of such a charge. I disallow this item. The figure for the loss of earnings by the plaintiff's father in visiting the plaintiff in hospital would appear to be based upon the cost of a replacement worker. It was not made clear to me as to why it should be necessary for the plaintiff to employ a replacement worker. Neither was there any evidence to the effect that this was a recognized custom in his type of employment. I consider that it was reasonable for the plaintiff's father to visit him 28 times in hospital and that a half day visit would be reasonable. I therefore award 28 x $55 x ½ = $770 in respect of loss of father's earnings. During the hearing the Statement of Claim was amended to include four more items under the heading of special damage -
20. Evidence was led with regard to these three items and the evidence was not challenged at all in cross-examination. I allow all three items. That means that the plaintiff is awarded the following special damages-
GENERAL DAMAGES Pain, Suffering & Loss of Amenities 21. The plaintiff was struck at about 7 a.m. in the morning and was rendered unconscious. He remained so until he woke from an anaesthetic at around 1400 hours on the same day. He suffered no retrograde amnesia. After the accident he was taken initially to the Fanling Hospital from where he was transferred to the Queen Elizabeth Hospital. His neck was explored and his right brachial plexus found to be disrupted. A fractured first rib was fixed with steel wire. On the 9th of December 1978 he had a closed fracture of his right tibia plated. Seven days later, he was transferred to the Kowloon Hospital and underwent physiotherapeutic rehabilitation of his right leg. On the 12th of February 1980 the tibia plate was removed. 22. He was examined by a military doctor Lieutenant Colonel Robert Peter Craig (PW3) on the 29th of February 1980 who, after examination prepared a report in the following terms:
23. This report was confirmed by the doctor himself while in the witness box. 24. Before the accident, the plaintiff was a boy whose favourite sports were football, swimming and riding his bicycle. He used to play football every two to three days. He can no longer play football nor can he swim nor can he walk long distances anymore. His only hobby now is watching television. 25. There can be no doubt that the injuries which the plaintiff suffered were very serious, and that he is left with a disability which mars general activities and the enjoyment of life, but still allows reasonable mobility. I consider that he falls within the first category set out in the judgment of Mr. Justice Cons, J.A. in Lee Ting-Lam and Leung Kam-Ming, an infant in civil appeal no. 11 of 1980. The general range of awards for this category is stated to be from $60,000 to $80,000. I consider that the injuries of the plaintiff in this case, placed him at the top of that scale. I therefore award $80,000 for pain, suffering and loss of amenities. Loss of Future Earnings 26. The plaintiff was only 13 at the time of the accident and had not yet started earning his living. It would appear from the evidence that he was not a particularly academic boy and I think the probabilities are that he would have worked, like his father, as a casual worker or coolie. It seems unlikely that he will ever be able to earn his living as a manual worker. 27. The diminution of future earning capacity was dealt with by the Court of Appeal in the abovementioned case. I can do no better than quote from the judgment of Mr. Justice Cons at page 5 of his judgment.
28. The Court of Appeal were not prepared to disturb the trial Judge's assessment of $156,000 for diminution of future earning capacity. I consider that sum appropriate for the present case and I will therefore award $156,000 under this head. INTEREST On General Damages 29. I award interest on the general damages from the service of the writ until the date of judgment at 10% per annum. On Special Damages 30. It was held in Jefford v. Gee(1), that in principle, interest should be calculated on the loss of the earnings from the date that they would have been paid to the date of the trial and in the case of medical expenses from the date they were paid to the date of the trial. The decision in that case that interest on special damages should be dealt with by putting all these amounts into one pool and awarding interest thereon from the date of the accident until the date of the trial at half the rate allowed on other damages appears to be based upon the convience of making the calculation on broad lines. However, it was clear that the plaintiff in that case had been deprived of her earnings from the time of the accident until the date of the trial. It was felt that to award interest over a period of more than two years from each week that it would have been paid up to the date of the trial would mean too much detail. It was mainly on this ground that the more rough and ready formula was adopted which would reach practically the same result. So far as the medical expenses were concerned it was felt in that case that they were not usually so large as to justify separate calculation. In that case the court of appeal was only laying down guidelines. The decision of Jefford v. Gee(1), so far as it relates to special damages has not been criticised in the recent decisions of the House of Lords in Cookson v. Knowles(2), or Pickett v. British Rail Engineering Limited, The Times 4th November 1978. In the present case, all the losses suffered by the plaintiff and claimed as special damages were incurred shortly after the accident. Therefore, an award of interest for special damages at half the rate of interest allowed on general damages would therefore be unfair in the present case. Adopting a rough and ready approach, I will award interest on the special damages at the rate of 9% per annum from the date of the accident until the date of judgment.
Representation: Mr. H.L. Wong instructed by Liu, Chan Lam for the Plaintiff Mr. Herman Poon instructed by Cheng Lam for the Defendant (1) [1970] 2 QB 130 at 146 (2) [1978] 2 WLR 978 |