Cheung Yuk Lin v. Sun Tak Ming and Others

HCA003007/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 3007 OF 1979

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Coram: Hon. Mr. Justice Macdougall in Court

Date of Judgment: 15th August, 1980.

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JUDGMENT

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1. This is an action for damages for personal injuries sustained as a result of a traffic accident. The plaintiff, a young woman aged 20 at the time of the accident, gave evidence that on 17th March 1979 at about 4.30 a.m. she was a passenger in the front seat of a private car driven by 1st defendant. She testified that she and 1st defendant had boarded the vehicle in Kimberley Road outside the Miramar Hotel, that the 1st defendant had driven off very fast along Nathan Road towards the Star Ferry and that about 30 seconds later at the junction of Nathan and Granville Roads she felt herself being thrust forward. The plaintiff said that she did not see what was in front of the car in which she was travelling but she was aware that it had collided with something. After impact she discovered that her face was bleeding and that she had struck and shattered the windscreen. She further testified that she didn't know how the accident happened or that the junction where it occurred was controlled by traffic lights.

2. Under cross-examination by 1st defendant she admitted that she had not used the safety belt provided nor had she done so on each of the few occasions on which she had previously travelled as passenger in the same car. She denied that the 1st defendant had earlier drawn her attention to the need for wearing a seat belt. In cross examination by Miss Remedios, counsel for the 2nd and 3rd defendants, the plaintiff conceded that even if the vehicle had not been driven off so quickly she might not have worn the seat belt. She could not remember whether just prior to the collision other vehicles had come to a halt in the southbound carriageway of Nathan Road at the junction with Granville Road or that she had heard the sound of screeching tyres due to the 1st defendant applying his brakes immediately prior to the collision. She also was unable to say whether the 1st defendant slowed down before the junction. It was clear from her evidence that apart from knowing that she was the passenger in 1st defendant's car, that it was being driven very fast along Nathan Road from Kimberley Road towards the Star Ferry and that her head had suddenly struck and broken the windscreen thereby sustaining injury, she knew little about the circumstances of the collision.

3. The 1st defendant testified that he and the plaintiff had boarded his vehicle in Kimberley Road, that he had secured his seat belt and driven to Nathan Road where he stopped due to the fact that the traffic lights were against him. After the lights changed in his favour he drove along Nathan Road towards Granville Road where the light facing him was showing green. When he was about 2½ car lengths from Granville Road and was travelling at about 25 m.p.h. the light turned to amber. He said that when he saw the amber light he began to brake but at that moment a taxi driven by 3rd defendant emerged quite fast from Granville Road into Nathan Road and, as a consequence, the 1st defendant's vehicle collided with the offside mid section of the taxi. The 1st defendant also testified that he had been travelling in the offside lane of Nathan Road and that the point of impact was approximately 15 feet beyond the first set of lights facing him at the junction.

4. The 1st defendant maintained that he had worn a seat belt and had suffered no injuries. He said that he had previously warned the plaintiff to use her seat belt but that she had declined to do so saying that it was too troublesome. He also, testified that the only part of the windscreen that was shattered was that portion where the plaintiff's head had struck it. This was not disputed.

5. Under cross examination the 1st defendant said that he was sure that the light facing him had not changed to red as he was passing through it. Indeed he maintained that it did not change to red until after the collision. He denied that there were other vehicles in the southbound lane that had stopped at the lights at the junction.

6. The 3rd defendant testified that he had picked up three passengers in Humphies Avenue and had driven along Granville Road with the intention of turning into the northbound carriageway in Nathan Road. In examination in chief he said that he was about forty feet from the lights facing him at the junction of Nathan and Granville Roads when they changed to green. He then entered the junction and suddenly became aware of the 1st defendant's car bearing down on him at high speed in the offside lane of the southbound carriageway of Nathan Road. He said that he first became aware of the presence of 1st defendant's vehicle when it was about 10 feet away and that he tried to avoid the collision but because of the high speed at which the 1st defendant was travelling he was unable to do so. In-stead, he applied his brake. The 3rd defendant estimated that as he was turning right in Nathan Road he was travelling at about 20 m.p.h. Later he reduced this estimate to 17 m.p.h. He said that he hadn't noticed the approach of the 1st defendant's vehicle because his view was obscured by stationary vehicles in the rearside and middle lanes of Nathan Road at the junction. When asked why he didn't accelerate to avoid the collision he said that he thought that he wouldn't have been able to drive clear and that in any event the 1st defendant would have struck the rear of his car. Furthermore he maintained that had he accelerated his vehicle would have capsized on impact.

7. Under cross examination by Mr. Poon, Counsel for the plaintiff, the 3rd defendant said that when he was in Granville Road he was the length of the courtroom, which counsel agreed was about 40 feet, from the traffic lights at the junction when they changed from red to red and amber and that he was travelling at about 20 m.p.h. He said however that the red and amber lights changed in a flash to green.

8. The third defendant had served a subpoena on a woman passenger in his taxi to give evidence on his behalf. As she failed to appear in court in response thereto and, despite all efforts by the 3rd defendant's legal advisors, could not be traced during a fairly lengthy adjournment of the case brought about for another reason, I gave leave to the 3rd defendant to put in evidence the statement that the passenger had made to a police officer concerning the collision. In that statement the passenger stated that she was seated in the middle of the rear seat of the taxi and had noticed that the traffic lights facing the 3rd defendant at the junction had turned green before he entered Nathan Road. She further stated that although she did not look to her right in Nathan Road she felt that there was a vehicle bearing towards her vehicle from her right. She also stated that she was unwilling to give evidence.

9. A police officer who attended the scene was unable to say whether the position in which he found the vehicles was the position in which they had come to rest immediately after impact. He testified however that the rearside lane in the southbound carriageway of Nathan Road was 3.3 metres wide and that the adjacent two lanes were both 3.4 metres wide. Furthermore he said that the lights were operating on a computerised system and that the minimum time that the lights would display red and amber before turning to green would be two seconds but that he thought that at the hour at which the collision occurred the period would have been longer.

10. I found the 1st defendant to be a more impressive witness than 3rd defendant. He quite frankly conceded that he had entered the junction against the red and amber lights but he was emphatic that 3rd defendant had done likewise.

11. The table at page 106 of Bingham 7th Edition indicates that at a speed of 20 m.p.h. the distance covered in one second is 29.33 feet. Thus the 3rd defendant on his own evidence would have travelled almost sixty feet in the minimum time that elapsed between the lights changing from red to greed. Even allowing for him slowing down to about 17 m.p.h. at the junction he would have passed through the red and amber lights and have been well into the junction when the lights finally changed to green in his favour.

12. His evidence that the lights changed from red and amber in a flash is quite unacceptable. Furthermore, if the 1st defendant's vehicle was approaching at high speed and the 3rd defendant first noticed it when it was only ten feet from him he would not have been able to lift his foot to the brake pedal let alone apply the brake as he alleged.

13. The statement of the woman passenger supports the 3rd defendant's claim that the green light was in his favour. However the woman was unavailable for cross examination and since she was a rear seat passenger I am sceptical of her claim that she saw the lights turn green before the taxi entered the junction. The evidence of 3rd defendant and the facts elicited in cross examination of the 3rd defendant by Mr. Poon satisfy me that the lights did not favour him at the time of his entry into Nathan Road.

14. I am in no doubt but that both the 1st and 3rd defendants took the risk that there would be no traffic coming against them at that hour of the morning and decided to drive through the amber and red lights. In my view they are equally responsible for the collision. The second defendant, a limited company, admitted in its amended statement of defence that at all material times it was the owner of the taxi and that the 2nd defendant was it's employee, agent or servant and the driver of the taxi. Its liability is therefore established.

15. I turn now to the question of quantum of damages. I am satisfied that the plaintiff knew of the existence of the seat belt but chose not to wear it and that she would almost certainly not have sustained injury but for her failure to do so. I therefore find that she was contributorily negligent and I therefore reduce by 25% any award to which she may otherwise be entitled.

General Damages

16. On admission to hospital immediately after the accident the plaintiff was found to have sustained 9 lacerations to her face. These were cleansed and sutured and after six days of hospitalisation she was released and thereafter attended an outpatient clinic.

17. The doctor who sutured the plaintiff's injuries said that the operation lasted about 1½ hours and that she complained of pain due to the suturing which was performed under local anaesthesia. He said that though she would not have felt much pain she would have experienced some. He added that the injuries would have kept her out of work for two months because of pain from the scars, headaches and withdrawal due to cosmetic reasons. Dr. Peter Wu testified that the plaintiff consulted him in August 1979 complaining of persistent headaches and dizziness, insomnia, phobia and frequent lapses of memory. He was of the view that she was suffering from anxiety - depression as a result of psychological and physical trauna sustained in the accident. His prognosis at that time was that because of the prominent disfiguring scars over her face and the fact that she had not responded to medical treatment, she would require cosmetic surgery. Dr. Wu examined the plaintiff's face in court and announced that the scaring showed a marked degree of improvement but that her mental state would depend on the outcome of proposed plastic surgery. He said that during the months of August to October when she attended at his surgery she was so disturbed that he did not think she was fit for work. I accept this.

18. Dr. Leung Kwok-on gave evidence of the nature of the plaintiff's injuries. He said her facial scars are as follows:

He said the above scars were disfiguring and involved a significant portion of the face. He was of the opinion that they could all be improved by plastic surgery, but that several sessions would be required. He said that these included multiple Z-plasties, blepharoplasties, revisions and two dermabrasions. Furthermore she would need repeated hospitalisation and anaesthetics at intervals of approximately four months. Dr. Leung said that his present quote for carrying out the necessary cosmetic surgery, including hospitalisation and anaesthetics, would be about $32,000 on a 3rd class patient basis. He said that treatment on a 1st class patient basis would cost double that amount and that treatment on a 2nd class patient basis would cost about 50% more than that on a 3rd class patient basis. 1st class patient treatment involves a single room, 2nd class treatment a 2 to 3 patient room with better treatment than that given in 3rd class. 3rd class treatment is given in an open ward involving a higher chance of infection post surgery. He said that the risk of infection was not high but most patients have second class treatment.

19. The proposed cosmetic surgery would consist of a course of about five operations involving initial surgery, revisions to correct any contractions and then dermabrasion. The whole treatment would take about 1½ years and that on each occasion that the plaintiff received surgical treatment she would require 3 to 4 days hospitalisation. There would be moderate pain for a few days after surgery and a little pain for four to five weeks thereafter.

20. Dr. Leung agreed that a Government doctor could perform the necessary surgery and that with treatment in a general ward the total cost would be no more than $1,000. In fact he conceded that such treatment may even be given free of charge. He said that although he was not sure how many good plastic surgeons were in government service he was only aware of one. Finally, he testified that his present quotation for performing the necessary plastic surgery on a 2nd class patient basis would be about $40,000.

21. Dr. Kung Wing-ho a medical and health officer of Queen Elizabeth Hospital testified that cosmetic surgery treatment was available at Princess Margaret Hospital, that there would be a waiting period of between 1 to 3 months, and that a patient would not be required to pay for operative treatment but would pay $5 a day for hospitalisation. A 2nd class patient on the other hand would be required to pay for the operation. He was unable to quote any figure but was sure that the cost would be much cheaper than if a private surgeon was engaged. Dr. Kung said that the consultant surgeon at Princess Margaret Hospital was most competent and that he would be entirely happy to allow him to perform major plastic surgery on one of his relatives. Indeed he went on to say that if the consultant delegated the operation to one of his staff he was confident that the latter must be fully competent and that he would be happy to allow him to operate on one of his relatives. He added that although a patient cannot insist that the consultant perform the surgery personally, a request to that effect would normally be granted on the basis that the patient would wait, if necessary, to fit into the consultant's operating schedule.

Pain and suffering and loss of amenities

22. Mr. Poon referred me to the case of Liu Siu-fun v. Ho Wing-cheong (1978) No. 4713 in which Mr. Commissioner Swaine Q.C. awarded a young woman aged 27 the sum of $50,000 under this head of damages. However the facial injuries sustained by the plaintiff in that case were far more serious than those sustained by the plaintiff in this case. Also the mental anxiety suffered by the plaintiff in Liu's case seems to have been much more severe; she attempted suicide twice.

23. Miss Remedios cited the case of Chu Yuen-ling v. Kwok Chuen (1978) 8 HKLJ 109 where Mr. Registrar Stapp awarded a sum of $15,000 under this head of damages to a young married woman aged 18 at the time of the accident. The description of her injuries compares with the description given by Dr. Leung of the plaintiff's injuries. I have no doubt that the plaintiff in the present case has suffered a great deal of anxiety over her appearance. Although this is a subjective matter it is one which is readily understandable. Facial disfigurement is most distressing for a young woman particularly if, as in this case, she is unmarried. I am inclined to think that the award in Chu's case was unduly conservative and that the proper award for pain and suffering and loss of amenities in the present case is $25,000.

Loss of future earnings

24. The plaintiff testified that she had been employed as a dance hostess at the Oriental Ballroom for about two months prior to the accident and that she earned $10,000 a month. In her original statement of claim she claimed that the amount was $9,500 a month. Her explanation for the difference was that $9,500 was the lowest month's earning but that the normal earnings were $10,000 a month. This explanation is not very satisfactory in view of the fact that the plaintiff had only worked two complete months at the ballroom.

25. She was totally unable to support her claim with any corroborative evidence. She had no bank account but claimed that she kept her savings at home and that she intended to deposit them in a bank after she had accumulated 20 - 30 thousand dollars. Furthermore she was unable to produce a tax return. The 1st defendant testified that the plaintiff was anxious to give up working in the ballroom and had asked him to assist her in finding employment for her. The plaintiff denied that she had given any indication that she wanted to leave the ballroom but admitted that the 1st defendant had offered to help her obtain daytime employment and had arranged that she be interviewed for a job as a telephone operator. She also admitted that she attended the interview for that job.

26. The 1st defendant also told the court that the plaintiff had informed him that she was earning about $3,500 a month at the ballroom.

27. It is for the plaintiff to establish her claim and I am not satisfied that she has done so. I do not believe her unsupported evidence as to her income from the ballroom. I believe the evidence of the 1st defendant as to the plaintiff's disclosure to him that her salary was in the vicinity of $3,500 a month. I accept this sum as being her average monthly income.

28. The plaintiff is now able to work. Previously she was employed in a factory at a monthly salary of $1,000. Whilst seeking employment post accident she was informed that she would be able to secure a job at that salary.

29. The medical evidence as to the plaintiff's scarring suggested considerable disfigurement. In view of this I closely examined her face and was surprised to find that her appearance was not as seriously affected as the medical evidence appeared to suggest. In my view her scarring is not sufficiently noticeable to attract immediate attention from a casual observer.

30. Dr. Leung's report makes it clear that nowadays it is possible to improve the plaintiff's cosmetic appearance quite dramatically. Allowing therefore for a period of two years for the completion of operative treatment and recovery therefrom I consider that the plaintiff should be able to resume her employment in a ballroom.

31. I therefore assess her loss of future earnings on the basis of a multiplicand of $2,500 and a multiplier of two. The resulting figure is $60,000. In view of the low multiplier there does not seem to me to be any real justification for reducing this amount on account of the so called vicissitudes of life, including the possibility that the plaintiff may get married in the meantime, or because of the lump sum payment.

Loss of earning capacity

32. Mr. Poon submitted that an award should be made for loss of earning capacity after the period for which an award for loss of future earning is made has elapsed. He submitted that such an award would not constitute an overlap and cited Chow Keung-kwong (1980) 10 HKLJ 104 in support of his claim. In my view Chow's case has little in common with the present case. Chow was a construction worker who had lost his spleen and left kidney with a resultant 10½ inch scar running down almost the whole length of his abdomen. Silke J was of the opinion that the scar might deter employers from employing Chow if they noticed it. Although the brief report does not set out the learned judge's reasoning I have no doubt that what he had in mind is that a scar as serious as that described and at such a vital part of the plaintiff's body might well influence an employer looking for a man expected to perform hard manual labour.

33. In the present case having seen the plaintiff's facial scarring and having received medical evidence that cosmetic surgery is likely to improve the plaintiff's appearance tremendously, I do not consider that she can be said to run the same risk that the plaintiff in Chow's case was exposed to. Accordingly I make no award under this head.

Cost of proposed cosmetic surgical treatment

34. Although it is incumbent on the plaintiff to mitigate her damages as much as is reasonably possible I do not consider that it would be reasonable to expect her to undertake hospitalisation on a 3rd class patient basis. The medical evidence is that most people who undergo cosmetic surgery do so on a 2nd class patient basis. Although there was evidence that treatment on a second class basis at a government hospital would be much cheaper than treatment by a private surgeon, no real estimate was given of how much cheaper it would be.

35. Although the plaintiff was insistent that she wanted Dr. Franklin Li to perform the remedial surgery and there is no doubt that every patient is entitled to the doctor of his choice, the fee that Dr. Li quoted was $40,000 for 3rd class patient treatment as compared with the figure of $28,000 quoted by Dr. Leung at about the same time. Since Dr. Leung has now increased his fee to $32,000 for 3rd class patient treatment it is reasonable to assume that Dr. Li has now increased his fee proportionately.

36. There is no evidence before me to suggest that Dr. Leung is anything but a competent plastic surgeon who would perform the necessary cosmetic surgery with commendable results. I do not think that I would therefore be justified in making an award on the basis of the fee quoted by Dr. Li.

37. Since there is no evidence as to what fee would be charged for cosmetic surgery on the plaintiff in a government hospital on a 2nd class patient basis, I award the sum of $40,000 under this head.

Special Damages

38. The plaintiff's evidence was that she engaged taxis to transport her to and from medical treatment. Although she could have taken public transport she said that travelling by taxi was more convenient and saved time. On the one occasion she took a bus she arrived late at the clinic and had to wait. When asked why this could not be overcome by taking an earlier bus the plaintiff replied that it was a waste of time. No doubt travel by taxi is all that she claims but as she was unemployed at the time when she was attending the various clinics I do not consider that her reasons for travelling by taxi were very compelling. Since the plaintiff did not advance any medical reasons for adopting taxis as her mode of transportation I disallow her claim of $1,300 and award the sum of $220 in respect of the twenty two visits to various clinics. This sum is in excess of the total bus fares that she would have incurred but I have made allowance for the odd occasion when circumstances may have made it necessary for the plaintiff to travel by taxi.

39. The plaintiff testified that she lived alone away from her family and that as she found housework tiring she employed an amah to look after her and keep her company. After August 1979 she moved to a flat adjacent to her godmother who then took care of her.

40. When being cross examined in connexion with another matter the plaintiff stated that between 28th May and 16th August 1979 she felt well. In fact she said that nothing at all was wrong with her at that time.

41. The amah was not called to give evidence nor was there any other evidence to support the claim. Apart from the lack of independent evidence as to expenditure incurred in this connexion however, I am of the view that there was no reasonable justification apparent from the plaintiff's evidence for the employment of an amah. I disallow this claim.

42. The plaintiff's testimony as to this head of claim was that for some time after the accident she was not well enough to take up employment. Dr. Wu who treated the plaintiff post accident for insomnia, dizziness, phobia, lapse of memory and headaches testified that in his opinion the plaintiff was not fit for employment during the time he was treating her. He discharged her in October 1979 and she did not return to him for further treatment.

43. Under cross examination the plaintiff admitted that the 1st defendant had offered to find employment for her but that she declined his offer. She testified however that she first attempted to find employment in November 1979 by answering newspaper advertisements. Altogether she said she attended four or five interviews but was not engaged. In addition to answering these advertisements she said that she made two unsuccessful applications to the Labour Department for work. She produced a card relating to the second application. However she said that she had lost the first card.

44. I was not impressed with the plaintiff's evidence concerning her efforts to find employment. She had rejected the 1st defendant's offer to help her in this regard and generally she gave me the distinct impression that she was content to remain unemployed and had exercised little effort in actively seeking employment. According, in respect of the 17 months she has been unemployed since the accident I consider that I would be justified in awarding $3,500 a month for the first seven and a half months, that is from 17th March until the end of October 1979 when Dr. Wu discharged her, and $2,500 a month for the 9½ months from the end of October 1979 to the date of judgment. This makes a total of $50,000 in respect of this claim.

45. The plaintiff gave evidence that she took nutritious food on the advice of senior members of her family, a herbalist, Dr. Wu and other doctors at Queen Elizabeth and Queen Mary Hospitals. In fact Dr. Wu in court did not mention any such recommendation. However the nutritious food that the plaintiff said she took was food that is commonly regarded as nutritious and I accept the fact that she did take it and that it was reasonable for her to do so. I therefore allow the claim of $700.

46. The plaintiff said that as senior members of her family recommended that she seek treatment from a herbalist she followed their advice and over a period of two months she purchased herbal medicines to the value of $4,320. Documentary evidence was produced to support the plaintiff's claim.

47. Since there was a total absence of any evidence that these medicines were given on responsible medical advice or that they are commonly accepted as a conventional form of treatment I disallow this claim.

48. This charge of $1,000 was properly documented and was reasonably incurred. I therefore allow it.

49. These were also documented and I have no doubt that they were reasonably incurred. I therefore allow the amount claimed, namely $1,900.

50. This fee was not claimed in the amended statement of claim. In any event I am of the view that it related to treatment for an injury that had no relationship to the accident. I disallow it.

51. I therefore summarise my awards as follows:

52. Special Damages

53. General Damages

54. The overall total is $178,845

55. I therefore give judgment for the plaintiff against the defendants in the rounded off sum of $134,150 based on the sum of $178,845 reduced by 25% as a result of the plaintiff's contributory negligence.

56. The special damages will carry interest at 6% per annum from the date of the accident until judgment. The general damages awarded in respect of pain & suffering & loss of amenities will carry interest at 12% per annum from the date of the writ to judgment.

57. There will be an order for costs to the plaintiff.

Representation:

Mr. Herman Poon (Johnson, Stokes & Master) for Plaintiff.

1st Defendant in person, unrepresented.

Miss C. Remedios (Philip K.H. Wong & Co.) for 2nd and 3rd Defendants.