Luk Bik Yu and Another v. Fong Wing Fook

HCA002819/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 2819 OF 1976

-----------------

-----------------

Coram: Li, J.

Date of Judgment: 18th January, 1978 at 4.20 p.m.

-----------------

JUDGMENT

-----------------

1. This action arises from a traffic accident which occurred on the 28th December, 1975 in a place commonly known as the Central Government Offices Open Carpark. At about noon the defendant came out from church service at St. John's Cathedral to retrieve his car at the Central Government Offices Open Carpark at parking space No. 301 situated on the north side of the West Wing. That carpark is familiar to quite a lot of people and certainly to me. That carpark space is immediately adjacent on the western side to the top of Battery Path. Where the defendant's car was parked had a very low wall on its off side and beyond that low wall is the slope which is the top part of Battery Path. On its near side was another car No.8035 parked at space No. 302.

2. When the defendant started his car he had a look at the rear mirror and saw that the back was clear. He turned his ignition key, put the car in first gear to drive out. He found that the car was not moving or moving too slowly. He treaded on the accelerator a bit more to reversed his car. Then he found the car was moving too fast. He lifted his foot from the accelerator. By that time he had already started to turn his car towards the off side in order to do a reverse U-turn to go back to Lower Albert Road. He tried to step on the foot brake but the foot brake failed. In the meanwhile the accelerator was stuck and the car went on. He used the hand brake as well. Neither brake could stop the car. As a result it went a curve, practically a complete U-turn and the car was backing down the slope. At the top of the slope was a group of people including the plaintiff and her daughter. As a result of this the defendant's car crashed into the opposite low wall on the eastern side of Battery Path and knocked down the 1st plaintiff, and pinned the 2nd plaintiff's foot under one of the rear wheels of the car. Hence this action.

3. The 1st plaintiff suffered abrasions on the shoulders and the leg. She also had three of her front teeth dislodged. The little girl was less fortunate. She suffered apart from abrasions also a broken right femur. This necessitated the 1st plaintiff to have her three front teeth removed and to have a plate and false teeth fitted. The 2nd plaintiff had to stay in hospital from December, 1975 up to about middle of February 1976. From that time onwards she had to have an operation to put the broken leg right and was not allowed to go home until some time in early march 1976. In August 1976 she had to go back to hospital for a few days to have a pin removed from her leg. That was necessary after the first operation.

4. The plaintiffs' action against the defendant is based on negligence, on the ground that the defendant was either driving too fast or was not keeping a proper lookout or that the defendant could not manoeuvre his car in such a way as to avoid the collision.

5. The defence is that the defendant could not avoid the accident because the accelerator of the car was stuck and that there was no indication that the car's brake would not stop the car at all. Such is the issue between the plaintiff and the defendant.

6. At the time of the accident the defendant was covered by an insurance policy for third party risks. Notice was given to the insurance company. The defendant also served a third party notice to the third party claiming an indemnity and a declaration that the policy was valid and that the third party should indemnify the defendant for whatever damages and costs that could be recovered by the plaintiffs. Thus this is a tripartite action.

7. First of all I would like to decide on the question of liability between the plaintiff and the defendant. The 1st plaintiff said she could not see which car struck her or how she was struck. She was walking down the slope of Battery Path. Suddenly she heard something that sounded like a car from her back. Before she could do anything she was knocked down and her little girl, the 2nd plaintiff, was pinned down by the defendant's car.

8. The defendant gave evidence himself. He admitted that he was the driver of the car which was involved in the accident. He was the owner of the car at the time. He admitted that his car hit the plaintiff, the 1st and the 2nd plaintiffs. He said in his evidence that as the car was out of control at the time as I repeated earlier. He became desperate. When he could not stop his car he did not know what to do. In a moment of panic the car crashed into the wall. He realised that he had hit somebody. I do not know what precisely is his defence. I assume what he pleaded was one of inevitable accident, that he could not possibly foresee that the brake of his car would fail.

9. The defendant appeared to be an honest and straightforward witness. I have no reason to doubt his evidence. He lived in Pokfulam Road. Prior to the accident and prior to his parking his car at the parking space he drove from his home to the Central Government Offices Car Park at Lower Albert Road. Throughout the journey he did not notice anything wrong with the brake or the accelerator. This must have happened quite suddenly. That part of his evidence I accept.

10. However there is produced before me in Exhibit 3 a bundle of papers before the Magistrate in which the defendant was convicted of two offences, one of driving without a current valid licence and another of driving a car without a hand brake which is 100% efficient. Amongst the papers is a statement in which the defendant said that before he started the car he had a look at the rear mirror. He saw that the back was clear. Then he started to turn his car. It moved at the speed of about 15 miles per hour. There is also evidence in the bundle of papers that the defendant's car scraped the other car on its near side from front to back, the whole off side of the other car. In other words he was already negligent when he started to back out. He did not see to that his car would come out straight. He started to reverse his car in a curved direction to do the U-turn. In short he was trying to turn his car before the car was completely out of the car park.

11. He said that he had already turned his head towards the off side in order to reverse the car. Reversing out from that car parking space whether one reverses to the off side or to the near side or back out straight one can get out of that space to drive away just as easily. That is a matter of personal choice. The plaintiff said that she was among a group of ten persons who walked a line going down the slope of Battery Path. She said that her husband was ahead of her and she and her daughter, were just behind her husband. There were some other people also behind her and her daughter. By a general indication of that line of persons, of ten persons, walking past across the top of Battery Path, these people must be directly opposite the off side of the defendant's car as he backed out. He must and he could have seen them. He had no business to turn his head towards the off side when he was backing out. He should be able to see the pedestrians. If he did not observe them then there must have been a blind spot. Had he seen them he should not have moved his car. He should have made certain that he had a clear view of the back before he reversed his car in that manner. Furthermore, if he saw those people he should not back towards them. Had he not backed towards them he would not have come into collision with any one of them no matter how fast the car would travel while backing out. He might have hit the outer wall of the west side of the government building but he would not be in collision with the plaintiffs. As a prudent driver, he should not have reversed his car that way towards a slope. There is evidence that there were practically no cars at the car park. The car park was clear and he need not, as a prudent driver, adopt that course. For these reasons I have no hesitation to find that however slight there was negligence on the part of the defendant and there was no negligence whatsoever on the part of the plaintiff to contribute to this accident. The defendant must be held 100% to blame. That disposes of the question of liability.

12. Before I deal with the question of quantum of damages, I would like to deal with the third party notice. The defence to the third party claim relies solely on one clause that the defendant had been convicted with driving with out a currently valid licence. The third party relies on the proviso of the insurance policy which is in common form with a lot of other polices. It provides by limitation of liability that it must be driven by the policy holder or a driver for the purpose of the policy holder's business or profession or that the driver is driving the car at the time of the accident with the policy holder's order or permission. It reads:

"Driver: Any of the following persons or class of persons entitled to drive, that is-

It is contended that there is evidence that the defendant's driving licence expired some time in early December, and the traffic accident occurred on the 28th of December. The defendant, it is alleged, was not a driver within the meaning of the clause in the insurance policy I have just cited.

13. A lot of cases have been cited before me. I do not find any of them relevant except one. They are all in relation to magisterial appeals or whether a person is driving without a valid insurance policy. A lot of these cases concern learner drivers. I will just choose one of them at random. That is the case of LEE Shiu-ting v. The Queen in (1965) Hong Kong Law Reports, 1140, where a learner driver was convicted of driving without insurance policy because he failed to comply with the condition that was imposed on learner drivers, the learned Chief Justice had this to say:

"In other words, the permission cases when these conditions are transgressed, which is a very different matter. If this distinction is borne in mind then it does, I think, become clear that the permitted driving to which reference is made in the clause, means driving in accordance with the terms of the permission given; driving outside those terms of the permission given; driving outside those terms is not permitted, whereas, in the case of the ordinary unrestricted licence, driving is permitted even though the holder of the permit may, at the time, be infringing traffic regulations. This does not mean that he has a permit to infringe those regulations but he does have a permit to go on driving even whilst doing so. Failure to appreciate this distinction has, I think, led Mr. O'Connor to an erroneous conclusion. Sight must not be lost of the fact that what the insurance company is insuring is the use of the motor car, whilst it is being driven by a person who has or has had permission from the appropriate authority. One would not normally say that a person was driving a car with my permission if, in fact, he was driving it in a manner and at a time and place which I had expressly forbidden."

14. This dictum is quite irrelevant for the interpretation of this clause because a transgression of the condition laid down in a learner driver's licence is expressed in that unless such a condition is complied with, there has been no permission to drive. A learner driver is not permitted to drive unless he has complied with a series of other limitations and qualifications.

15. However the defendant was not a learner driver. He was a fully qualified driver. There was no condition imposed on his driving licence. All that had happened was that he forgot to renew his licence. It was not a disqualification by order of court or by any enactment. That right to drive had not been taken away from him. By merely paying a licence fee to renew his licence he would automatically have renewed his licence. When a driving licence is renewed even long after the date for renewal, the Transport Commission normally back-date the date of the licence as from the date of expiration.

16. What Mr. Poon has tried to contend and argue before me is that I should read the words, "So permitted to drive and is not disqualified by order of a court of law or by reason of any enactment" as saying that failure to renew tentamount to a disqualification. I must confess that I am unable to accede to this contention.

17. The case that is relevant and very near to this case is decided by my learned brother Morley-John in the case of CHEUNG Kwong-sui v. The Queen reported in (1976) Hong Kong Law Reports, in which a person who was charged and convicted - and

"..... pleaded guilty to driving a motor vehicle without a valid driving licence and driving without third party insurance. At the trial, the appellant who was not legally represented admitted that his driving licence had expired and agreed with the magistrate that as a consequence he had been driving without third party insurance. On the charge of driving without third party insurance the appellant was fined $150 and disqualified from driving a private car for twelve months. The appellant appealed."

On appeal my brother Morley-John after citing the clause and the proviso in the insurance policy which is practically in identical words with the present policy held by the defendant said:

Then he said:

I respectfully adopt those words and suggest that in this type of case, especially where a person is unrepresented that the magistrate hearing the case does attempt to ascertain whether there is a motor insurance policy in existence and, if there is, to ascertain the conditions contained therein."

18. As a result of examining the policy, he held that the insurance policy was not invalid, or the insurance company was not relieved from liability to indemnify solely because a driver's driving licence had expired and had not been renewed at the time of the accident. For this reason he allowed that appeal and referred the case back to the learned magistrate for retrial. I will observe he saw fit to take this course solely because the defendant had pleaded guilty to that charge.

19. Reading the proviso in the insurance policy I find that there has been an ambiguity. I resolve this ambiguity by holding that when a person has been permitted to drive he has been permitted by the "licensing or other laws or regulations" under the Road Traffic Ordinance. But he is not disqualified solely because his driving licence has expired. To disqualify him there must be a court order or by virtue of other enactments. An expired licence is not by itself a disqualification. I have no doubt that in order to relieve the insurance company from liability to indemnify, the driver who has been permitted to drive, must be a person who is disqualified by order of a court of law or by enactments or ordinances which disqualify him after certain events. An expiration of the licence is not a disqualification. Even if I am wrong in this, and I hold that where there is an ambiguity, the insurance company being the person who drafted the document and who issued the policy must have the interpretation of the document construed against the insurance company. For these reasons I am of the opinion that the defendant is entitled to be indemnified in all the damages he has to pay to the plaintiffs by the insurance company and the costs of this action.

20. Now I come to the quantum of damages. Firstly the special damages. The 1st plaintiff claims $1,786 for special food and nourishment, damages to clothing $150 and dentist's fee $880. A lot of criticism has been levied on the various items of special food and nourishment. I observe that the injury the plaintiff suffered was just three front teeth which she had to repair. She also shared some of the food prepared for her daughter. I observe that both plaintiffs would have to part take some type of ordinary food although not special food even if they suffered no injury. The special food may be a bit more expensive. The special food would take the place of normal food as well. So as far as the plaintiff is concerned, I am inclined to cut down the $1,786 to $1,000 by setting off the costs of ordinary food. I allow damages to clothing at $150 and the dentist's fee at $880. That makes a total of $2,030.

21. As to the special food and extra nourishment for the girl, the 2nd plaintiff, I observe that she suffered a much longer period of detention in hospital and she had to go through an operation. But items of special food and nourishment can also be offset by what was the normal intake of food, and some items like the Pearl Powder was not justified for a young child especially when it is not extra nourishment. It was a form of medicine or drug which was not ordered by the doctor at all. I grant the extra special food or extra nourishment not because it had any medical value but it had some theraputic value and would help the speedy recovery of the patient. The item for special food the 2nd plaintiff claimed is $3,614. I would cut it down to a round sum of $2,200. Damage to clothing now has been changed and claimed as $310. I would allow the private tuition fee of $1,250, Chinese medicine $100 which will compensate the overall expenditure of the medical expenses.

22. As a result of the injury the 1st plaintiff had to visit the 2nd plaintiff in hospital by taking taxi trips. It is argued that she could have taken a tunnel bus which would be very much cheaper than a taxi. A return trip to and from the hospital would cost something like $32 to $36 per day. I have taken into consideration that the plaintiff was a housewife who had household chores. She was pressed for time, and she was occasionally taking tunnel buses when she was not in a hurry. But I think one trip by taxi per day is quite fair when she could return home without too great inconvenience by tunnel bus. The hospital had visiting hours. She would be in a rush to see her daughter by taking a taxi. For this reason I will cut down the taxi fare to a lump sum of $1,800. This will give a total of $5,675.30.

23. Coming to the general damages, having gone through the authority of Kemp and Kemp and some authorities in the Hong Kong Law Journal, one can see the range is something between $3,000 to $2,000 up to $24,000. But those on the highest scale were cases where there were not only a fracture of a leg but also a permanent disability like shortening of the leg and some other serious injuries. As far as the 1st plaintiff is concerned, there is no permanent disability. There were certainly anxiety, discomfort and the inconvenience of losing her real teeth. This somewhat would probably affect the amenities of the tasting of food to 100% as eating with false teeth is not quite as convenient as eating food with her natural teeth. I would grant the 1st plaintiff in general damage a sum of $3,000 for the pain and suffering and lost of amenity.

24. As to the 2nd plaintiff she suffered a broken leg, was detained in hospital for over two months, had to go back for a further operation to remove the pin, and she is now left with a scar of 2-3/8" by 5/8" in size on her right leg on the thigh. This in due course might prove some form of embarrassment when she becomes a young lady and wears a bikini. Fortunately for her there is no permanent disability. She is quite a happy little girl. Although she still finds some weakness and some dull pain occasionally after a strenuous run or exercise, she has suffered no permanent defect in her leg. That in fact is fortunate for all concerned. For her pain and suffering and for that scar I would award her $8,000 as general damage.

25. In short I award to the 1st plaintiff $3,000 in general damage and $2,030 in special damages, a total of $5,030 damages. I award to the 2nd plaintiff $8,000 in general damage, $5,675.30 in special damages. The cost must follow the events, the plaintiff is going to have full costs of this action. The defendant must pay the plaintiff costs and will be indemnified by the third party as to costs and damages payable by the defendant. There will be interest on the special damage to run as from the date of the accident, and on the general damage to run from the date of the service of the writ, The rate shall be at 8% per annum.

Representation: