Kung Kit Shing v. Star Synthetic Flower Factory (A Firm) and Others

HCA008967/1981

HEADNOTE

Factors to be weighed and considered in determining whether the registered owner of a vehicle can be held liable vicariously for the acts of a driver of the vehicle.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: The Honourable Mr. Justice Mayo in Court

Date of Hearing: 24th-27th February, 2nd-6th March, 1987

Date of Delivery of Judgment: 24 March 1987

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JUDGMENT

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1. The Plaintiff was a passenger in a van which was involved in a collision shortly after twelve o'clock in the afternoon of the 8th of February 1979. The 2nd Defendant was the driver of the van and he was employed by the 1st Defendant. The accident occurred at the junction of Sun Yip Street and Chai Wan Road. The said van was turning from Chai Wan Road into Sun Yip Street when it came into collision with a motor bus owned by the 4th Defendant and driven by the 5th Defendant. The van was registered in the name of the 3rd Defendant.

2. Immediately after the accident had occurred the Plaintiff was taken to hospital where he was given medical treatment. He suffered some cuts on his face and for a short period of time was rendered unconscious. He was detained overnight at the Queen Mary Hospital and remained at the Tung Wah Hospital for a further period of seven days for convalescence. During this time he was kept under observation as a precaution to ascertain whether he developed any post concussion symptoms. As no such symptoms were observed, he was discharged at the end of the seven day period. He is now making a very substantial claim which is based upon his suffering a partial permanent disability. He is also claiming a permanent loss of part of his earning capacity.

3. Interlocutory judgment was entered against the 2nd Defendant in March 1982. At a fairly late stage in the proceedings before me Mr. Ramanathan, who is representing the Plaintiff, made an application to me for judgment to be entered against the 1st Defendant on the basis of their being vicariously liable for the negligent driving of the 2nd Defendant who was one of their employees at the time of the accident.

4. The 1st Defendants did not appear before me at the hearing. Shortly prior to the hearing, their solicitors Messrs. Shea & Co. made an application to Mr. Justice Hunter, the Judge in charge of the running list, for an order for them to discontinue acting as solicitors for the 1st Defendants under Order 67. Mr. Justice Hunter made an order discharging them. I was satisfied that the 1st Defendants, through two of its partners, the Mok Brothers were well aware of the present proceedings and had themselves chosen to take no part. I would also add that evidence was led before me that the 1st Defendants had ceased trading some years ago and this might provide some explanation for their reluntance to attend before me in Court. Nevertheless I considered having regard to all of the evidence that it was proper that I should enter judgment against the 1st Defendants which I did at the conclusion of the hearing.

5. A number of issues, however, remained between the other parties. Issues were drawn between the remaining parties as to the extent of the liability for negligence between the 2nd Defendant and the 5th Defendant. The Plaintiff and the 3rd Defendant both argued that the accident was partially caused by the negligent driving of the 5th Defendant. On the other hand the 4th and 5th Defendants both maintained that the 5th Defendant was in no way responsible for this accident which was entirely attributable to the negligent driving of the 2nd Defendant.

6. The second issue which arose was whether the 3rd Defendant as the registered owner of the van involved in the accident could be held to be vicariously liable for the 2nd Defendant's negligent driving.

7. The final issue between the parties was the extent of the personal injuries suffered by the Plaintiff. It was the contention of the 3rd Defendant and the 4th and 5th Defendants that he had greatly exaggerated the injuries he sustained and a considerable amount of time was spent on the medical evidence and on evidence relating to the Plaintiff's employment since the accident. I consider it to be desirable to consider each of these issues separately. I will first consider the question of liability.

8. Liability. There was a paucity of evidence concerning the circumstances of the accident. Beyond giving evidence that he was travelling from one of the 1st Defendants' factories to another of their factories, the Plaintiff was unable to recollect any of the detailed circumstances of the accident. He remembered being in the vehicle and then being taken to hospital. He could remember nothing of the accident itself.

9. The 5th Defendant was, however, able to give a detailed account of what had transpired. He was quite an experienced bus driver and had just commenced driving his route which was route 84.

10. He was proceeding down Sun Yip Street towards Chai Wan Road with the intention of turning right into that road. He had taken up a position towards the centre of the road and had reduced his speed to about three or four miles per hour in second gear. When he was a distance of slightly more than thirty feet from the mouth of the intersection, he saw a van travelling fast on Chai Wan Road. The vehicle was travelling in a westerly direction and was accordingly on his right. The 5th Defendant did not know whether it was the intention of the van to continue along Chai Wan Road or turn left into Sun Yip Street. He therefore immediately applied his brakes and came to a halt. The van then turned left and tried to negotiate the fairly tight corner into Sun Yip Street. It was unable to do so and came into collision with the front offside of his bus.

11. A police officer attended at the scene shortly after the accident and drew a sketch map which marked the position of the bus and the point where the impact had occurred. The police officer who prepared the sketch attended as a witness before me. He also marked on the sketch map, the brake marks on the road which he was satisfied had been caused by the van.

12. The 4th Defendants called as a witness, Mr. John Salmon who is an engineering consultant. Mr. Salmon gave evidence concerning the calculations he had made from the markings on the sketch map and related them to the official survey map of the area. From his calculations, Mr. Salmon was satisfied that the van must have been travelling at at least 34 miles per hour when the driver first applied his brakes prior to turning into Sun Yip Street. Perhaps even more importantly Mr. Salmon estimated that having regard to the angle of the corner into Sun Yip Street it would be extremely difficult, if not impossible, for the driver of the van to retain control of the vehicle having regard to the speed of the vehicle and the angle of the bend.

13. Mr. Ramanathan and Mr. Chaine for the 3rd Defendant both contended that the 5th Defendant was partially to blame for the accident on account of the incorrect positioning of the bus at the time of the accident. Both counsel maintained that the bus was too far over to the right.

14. On the basis of the police officer's sketch plan it appeared that the right front hand corner of the bus protruded for about three feet over the offside of the road. I would add that there was no white line on the road at the time of the accident and it was necessary for the parties to reconstruct the position of the bus from the positions marked by the police officer. In this connection, it was suggested that the road was fifty feet wide at the relevant point.

15. There is one immediate difficulty in attemtping any such reconstruction. It is evident from perusing the sketch map and comparing it with the official survey map that the shape or configuration of the sides of the road depicted by the police officer do not conform with those on the official survey map.

16. Indeed the police officer himself agreed in evidence that all that he had attempted to do was to show the approximate manner in which the turning developed on both sides. It is hardly surprising that the police officer adopted this approach as it is a highly skilled matter to reconstruct exactly the contours of a bend in a road unless numerous measurements are made.

17. On the basis that the approximate width of the road was fifty feet and that it was only alleged that the bus extended three feet over the centre notional line, I consider that it would be unrealistic to find as a fact that the 5th Defendant had incorrectly positioned the bus prior to coming to a halt in the manner he described. I have, of course, also borne in mind the duties which are referred to in Article 60 of the Highway Code which lays down informally the procedure to be adopted by a driver when it is his intention to make a right-hand turn. It would appear to be correct driving practice to proceed towards the centre of the road when attempting such a maneuver.

18. In the absence of a centre right line being marked on a road, it is obviously impracticable for a driver to attempt to ascertain with any degree of precision where exactly the central divide may be. Suffice it to say that in the present case there was ample space for a vehicle to pass on the right of the bus from Chai Wan Road into Sun Yip Street. That is always assuming that the vehicle was not proceeding at a greatly excessive speed. In considering the position of the bus I have also accepted the evidence of the 5th Defendant that cars were parked along the left side pavement.

19. I found the 5th Defendant to be an excellent witness. He gave his evidence in a precise and logical manner and was in no way shaken by cross-examination. I am satisfied that he was telling the truth and that he was driving in a sensible and reasonable fashion. I do not think that his driving could be faulted and I do not consider that either the plaintiffs or the 3rd Defendants have been able to establish any negligence on his part. I am satisfied that this accident occurred entirely as a result of the negligent driving of the 2nd Defendant and that the 5th Defendant was in no way to blame for the accident. There is accordingly no element of contributory negligence.

2. Does any liability attach to the 3rd Defendant?

This question must be considered under two heads. The first is whether vicarious liability can attach to the 3rd Defendant by virtue of his being the registered owner of the van which was negligently driven by the 2nd Defendant. The second is whether the 3rd Defendant can be held liable for breach of his statutory duty not to permit the vehicle to be used contrary to Section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance. I will deal with the question of vicarious liability first.

20. The 3rd Defendant gave evidence himself and also called as a witness, Mr. Yip Kok-Kong. It is convenient to consider the evidence of these two gentlemen together. The 3rd Defendant denied that he was an employee of the 1st Defendant at the time of the accident. He maintained this denial in the face of a letter being produced as evidence written on the 1st Defendant's note paper and signed by Mr. Stephen Lee, one of the partners referred to in the Business Registration Certificate which stated that he was an employee of the company. In this connection it is also pertinent to refer to paragraph 1 of the 3rd Defendant's defence. It reads:

"1.    At all material times the 3rd Defendant was working for the 1st Defendant as manager. Subject as aforesaid paragraph 1 of the Statement of Claim is admitted".

21. The 3rd Defendant gave evidence that he was an employee of Transworld Company which was an associated company of the 1st Defendant. The partners of the 1st Defendant, in particular the Mok Brothers, had interests in Transworld who were his employers. Amongst his duties he was required to supervise the affairs of the 1st Defendant. This involved attending at the 1st Defendant's premises once or twice a week and exercising a measure of supervision to ensure that the interests of the Mok Brothers were being looked after. The 3rd Defendant gave conflicting and unsatisfactory evidence on the question of the extent to which he could exert his authority. This unsatisfactory situation was compounded by the evidence of Mr. Yip who did at least admit that he was an employee of the 1st Defendant.

22. Mr. Yip gave evidence that he was in effect in charge of the day-to-day management of the 1st Defendant. He said that the 3rd Defendant did make periodic visits to the 1st Defendant but the purpose of his visits was merely to come and see how the business was progressing. He denied that the 3rd Defendant would have any power to do any anything more than merely make suggestions concerning the manner in which the business would be conducted. He even went on to make what I regarded as being the rather fatuous observation that all the 3rd Defendant did was to come and have a chat with him and that he had no power or authority to assert his views in any executive manner.

23. The 3rd Defendant's evidence concerning the registration of the van was equally unconvincing and unsatisfactory. He claimed that he was only the nominal owner of the van and that the 1st Defendant was in reality the true owner of the van. He gave three reasons for the vehicle being registered in his name. The first was that he claimed that he could obtain a larger discount on the purchase price of the van when it was bought. He claimed to be able to get a larger discount than the 1st Defendant could. The second reason was that registration of the vehicle in his name would obviate the necessity of inconveniencing the proprietors of the 1st Defendant when and if the vehicle or more accurately the driver of the vehicle committed any offences or traffic violations. The third reason was that if the vehicle was registered in his name it would not be necessary for the said proprietors or any of them to attend at the traffic office either for the registration of the van or the renewal of its annual licence. None of these reasons can withstand any serious scrutiny.

24. No evidence was led which would indicate that the dealer or vendor of the van would have raised any objection to the van being registered in the name of some person other than the 3rd Defendant. It would seem to me to he highly unlikely that anyone selling a motor vehicle would be unduly concerned whose name the vehicle was registered in. His concern would be that the vehicle was paid for.

25. The second reason is equally not very convincing. Many comparatively minor traffic violations can be dealt with in accordance with fixed penalty legislation. Such contraventions could be attended to by the 3rd Defendant without the necessity of troubling any of the proprietors of the 1st Defendant. If indeed, anyone driving the van was involved in a more serious traffic violation one would expect that the proprietors of the 1st Defendant would wish to be fully acquainted with what had transpired. Unless it was contemplated that there would be numerous traffic violations it is unlikely that the proprietors of the 1st Defendant would be in any way seriously inconvenienced if the vehicle was registered in their names.

26. The third reason given is even less convincing. I am not aware of any legislation or provisions which require the registered owner of a vehicle to attend personally at the traffic office in respect of either the registration or the renewal of a vehicle's licence. There is no reason whatever why any proprietor should physically attend. All they would need to do is to sign the appropriate form or forms and then require a messenger or clerk to attend at the traffic office. I find that the explanation given by the 3rd Defendant for the alleged nominal ownership of the van to be thoroughly unconvincing. I simply do not believe his evidence.

27. There is then the question of the vehicle's insurance. Amongst the documents produced as evidence was the Third Party Insurance Certificate which was operative when the accident occurred. This was in the name of the 3rd Defendant. The explanation given by the 3rd Defendant for this was that it had been intended that the 1st Defendant would arrange for the insurance of the van. It was the duty of clerical staff of the 1st Defendant to arrange for this. He suggested that the staff had been negligent in arranging for a policy to be made out in his name. When he had signed the relevant proposal form he had been under a misapprehension. He had not realised that he was himself the insurer of the vehicle. This is simply not good enough. On an important matter such. as the insurance of a motor vehicle I find it hard to believe that anyone would be so casual as to simply sign forms without first fully appreciating the nature of the commitment which was being entered into.

28. Over and above this there are other unsatisfactory features of the evidence which was adduced. Perhaps it would be more accurate to refer to the evidence which was not adduced. No evidence was led concerning the accounts and records of the 1st Defendant to prove that they had indeed paid the purchase price of the van or paid for its subsequent upkeep and maintenance. I was simply being asked to to accept the testimony of the 3rd Defendant and Mr. Yip.

29. I found both these witnesses to be thoroughly unreliable and unconvincing witnesses. It was strongly my impression that nearly all of their evidence was given with a view to what they regarded as being in the 3rd Defendant's best interests. That is not to say that I disbelieved all of their evidence.

30. I believed the 3rd Defendant's evidence that he did hand the van over to Mr. Yip and asked him to take good care of it. By this, I was satisfied that in effect he was delegating to Mr. Yip the responsibility to use the van for whatever purposes he liked. He was also conferring upon Mr. Yip a right to control who would be permitted to drive the van. Mr. Yip's evidence seemed to me to be consistent with this.

31. It was also clear to me from both of these gentlemen's evidence that neither of them appeared to attach any particular significance to the respective legal entities of the 1st Defendant and Transworld. In this connection I would observe that on repeated occasions both men said "we" would do this, that or the other. In all the circumstances I am satisfied that the reality of the situation was that neither the 3rd Defendant nor Mr. Yip concerned themselves unduly whether their acts were being undertaken for the 1st Defendant or for Transworld. The 3rd Defendant in particular was more concerned whether his actions were generally being conducted on behalf of the Mok Brothers who he essentially regarded as being his employers.

32. I also accepted the evidence of the 3rd Defendant and Mr. Yip when they said that they are both still employed by companies controlled by the Mok Brothers. Both of them indicated that the Mok Brothers were aware of the present court proceedings and it was on account of this that I decided that it was fair and equitable that I should proceed on an Ex-parte basis so far as 1st Defendant is concerned.

33. Mr. Chaine for the 3rd Defendant submitted that I should not find his client vicariously liable for the acts of the 2nd Defendant. He placed reliance upon Morgans v. Launchbury and Others ⁽¹⁾ as authority for the proposition that it was necessary to do very much more than simply establish an interest or concern of the 3rd Defendant. In support of this, he referred to a passage in the speech of Viscount Dilborne appearing at page 139 of the report:

"Thus, it was held that, whether it be alleged that the driver was the servant or the agent, to establish liability on the part of the employer or the principal it must be shown that the driver was acting for the owner and that it does not suffice to show that the driving was permitted.

Just as the inference may be drawn, from proof that the vehicle was owned by another, that the driver was driving as servant or agent of the owner (Barnard v. Sully (1931) 47 T.L.R. 557), so may a presumption arise, where it is proved that the driver at the time of the negligence was doing something which was in the interest of the owner or for his benefit, that the driver was then acting as a servant or agent of the owner. But when the full facts are known as they were in Hewitt v. Bonvin and as they are in the present case, such an inference and presumption may be unwarranted. 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;".

34. Mr. Chaine argued that on the evidence I should hold that the van was indeed the property of the 1st Defendant. In support of this the 1st Defendant's livery and address were painted on the vehicle and that all the circumstances pointed towards the vehicle being used for the 1st Defendant's purposes. He went on to argue that no evidence had been adduced which would indicate that the 3rd Defendant was one of the proprietors of the 1st Defendant. There was no evidence available for me to draw such an inference. If the vehicle was being used by the 1st Defendant and the 3rd Defendant was not a proprietor of the firm, it was not possible for him to be vicariously liable for the acts of the 2nd Defendant who it was common ground was an employee of the 1st Defendant. This is an attractive argument. I do not though think that it is an argument which can succeed in the present case.

35. I am satisfied what I have to do is to have regard to the reality of the situation. I do not consider it to be realistic to simply focus attention upon the activities of the 1st Defendant and then attempt to ascertain whether the 3rd Defendant is a proprietor of the firm. It is clear from the evidence of the 3rd Defendant and Mr. Yip that they did not attach any great importance to whether the 3rd Defendant was acting for the 1st Defendant or Transworld. This inference can be drawn from the evidence relating to the insurance. I don't think the 3rd Defendant was particularly concerned in whose name the policy was taken out in.

36. This view of the matter is reinforced by the position in Ormrod v. Crosville Motor ⁽²⁾ where it can be seen from the facts of the case that there can be a duality of interests. It may well be the case that the van was used partly for the 1st Defendant's purposes and partly for the 3rd Defendant's. In this connection I reject the 3rd Defendant's evidence that he was only the nominal owner of the vehicle. One of my reasons for coming to this conclusion is the fact that the insurance policy was in the name of the 3rd Defendant and no convincing or satisfactory reason has been given for this.

37. For the reasons I have given I find that the 3rd Defendant was the owner of the vehicle and did authorise Mr. Yip to permit the vehicle to be used in the manner it was.

38. I found Mr. Yip's evidence concerning the use of the vehicle highly unsatisfactory. I do not accept his evidence that when the official driver was not available only he would drive the van. It is inherently unlikely that the manager of a business would interrupt his normal duties simply for the purpose of acting as a driver. It is much more likely that someone else would be found to drive the van.

39. It was strongly my impression that supervision of the van was rather lax and no effective controls were in operation. I accept the Plaintiff's evidence that the 2nd Defendant had previously driven the van. It is also obvious from all the surrounding circumstances that at the time of the accident the van was engaged in work which certainly in part was for the benefit of the 1st Defendant. There was no evidence one way or the other that the 2nd Defendant did not have a valid and subsisting driving licence and on the balance probabilities it would seem likely that Mr. Yip would have known the vehicle was being driven by the 2nd Defendant and that he acquiesced in this without bothering to check his licence.

40. From all of the circumstances I find that the van was owned by the 3rd Defendant and that through Mr. Yip he must be deemed to have permitted the 2nd Defendant to use the vehicle for his benefit. Having regard to what I have already said about the way in which these businesses were conducted, I consider that the use would have been for the benefit of both the 1st Defendant and the 3rd Defendant. I therefore hold that the 3rd Defendant is vicariously liable for the acts of the 2nd Defendant and judgment will be entered against him accordingly.

41. A consequence of this finding is that I do not have to consider whether the 3rd Defendant is guilty of breach of any statutory duty.

3.    Quantum. The Plaintiff gave evidence that he has suffered a great deal of pain and discomfort as a result of the accident. He described in some detail the situation when he was admitted to the Queen Mary Hospital. He said he had been unconscious for some time. When he came round he felt very tired and exhausted. He also felt great pain in his neck. He agreed that he had been kept in the Queen Mary Hospital overnight and thereafter was admitted for convalescence at the Tung Wah Hospital. He remained there a week.

42. Even when he has discharged, he was still suffering from pain and giddiness. However notwithstanding this, he returned to work some time in March.

43. He was employed as a dyer in a Synthetic Flower Factory. This work necessitated an element of skill. It was necessary for him to mix paints and satisfy himself that the colours applied to the flowers corresponded with samples.

44. He continued with this work for approximately one year after the accident. During this period, he took time off to receive physiotherapy treatment at the Wanchai Poly Clinic. It was agreed in evidence that he received such treatment from the 8th of June 1979 to the 31st of July 1979.

45. The Plaintiff claims that the residual effects of the accident have been with him ever since it occurred. He still suffers headaches and a pain in his neck when he turns around. Also he has pain above his eyes and sometimes when he is walking in the street he would feel his head go blank. In addition to this, he could not sit in any moving vehicle for any appreciable period of time without feeling car sickness.

46. One consequence of these complaints was that it has been necessary for him to discontinue his employment as a dyer and to seek alternative work which was less well paid. Indeed it had been necessary for him to accept employment as a messenger as this was the only type of work he could perform having regard to the pain and discomfort he felt.

47. The reason he gave for leaving his employmenttwith the 1st Defendant was that he experienced difficulty in matching colours during his work. He was satisfied that this difficulty arose as a result of the injuries he sustained in the accident. Later on in his evidence he said that the reason he had had to give up a subsequent job he held was that it necessitated numerous trips to China during the course of his work. When travelling to China it was necessary for him to travel in a motor vehicle. When he did so he invariably felt nausea. It will be appreciated from the above that the Plaintiff claims to have suffered quite serious injuries and it is thus necessary to consider his evidence in conjunction with the medical evidence which is available to substantiate his claim.

48. The first doctor to give evidence was Dr. William Wei who is presently a lecturer in surgery at the University Surgical Unit in the Queen Mary Hospital. Dr. Wei signed a memorandum dated the 1st of September 1980 which gave particulars of the Plaintiff's condition when he was admitted to the Queen Mary Hospital on the 8th of February 1979. He referred to three lacerations which were treated by suturing the wounds. He was also aware that the Plaintiff had been rendered unconscious and this being a case had conducted an X-ray examination upon his skull. There were no signs that the Plaintiff's skull had been fractured.

49. Dr. Wei said that although he had himself signed the memorandum I have referred to, he had no recollection or having physically examined the Plaintiff particularly in view of the lengthy passage of time which had elapsed since the memorandum had been written. He was, however, able to give evidence concerning the practice which was and is adopted when patients are brought into hospital with suspected head injuries.

50. It is well-known in the medical profession that patients can suffer post concussional symptoms and accordingly it was necessary to keep such patients under observation. If the patient did not manifest any symptoms indicating more serious injuries, it was generally the practice to discharge the patient after 24 hours. In the present case, he was quite prepared to accept that after his discharge, the Plaintiff might have been admitted to the Tung Wah Hospital for observation for seven days even though there was nothing on the face of memorandum to indicate that this had been a case.

51. At the Tung Wah Hospital it would normally be the practice of that Hospital to similarily keep the patient under observation. If any untoward signs were noticed or if the patient continued to make complaints of pain or manifested other symptomsof distress, he would be referred back to the Queen Mary Hospital for further consideration.

52. I have no hesitation in accepting Dr. Wei as a truthful and reliable witness and I accept that the procedure he described for patients with head injuries and suspected head injuries is accurate. The evidence would tend to indicate that the Plaintiff did not suffer any serious post concussional symptoms. In fairness to the Plaintiff I do also accept that even though Dr. Wei's memorandum did not make any reference to neck pain, nonetheless, he was suffering from this. I think this must be right because one of the certificates for sick leave at this time does make reference to neck pains. Indeed, this is consistent with the agreed fact that later in the year the Plaintiff was treated with physiotherapy for this complaint.

53. The next medical evidence I will refer to are two reports which have been prepared by Dr. Edmund M. T. Cheung. The first is dated the 19th September 1980 and the second is 29th November 1983. Unfortunately, Dr. Cheung has emigrated from Hong Kong and is presently living in Canada Mr Ramanthan applied for the reports to be received in evidence notwithstanding. Dr. Cheung's absence. This application was opposed by Mr. Chaine and after hearing submissions I ruled that the reports would be admitted as evidence.

54. One unfortunate consequence of all of this is that Dr. Cheung could not appear in Court to throw further light on his findings. I think that it may be helpful to extract from these reports, the substance of the comments which are made by the doctor and the conclusions which he reaches. Under the heading "Comments", he states in the 1980 report:

55. It is evident from perusing these reports that most of the complaints made by the plaintiff are of a subjective nature. By this, I mean that it is difficult or impossible for the doctor to make an objective assessment of the pain and discomfort complained of. Put another way, there is no guarantee that the patient is indeed suffering the pain and discomfort he refers to and it is possible that he is faking his complaint.

56. This being the case it is necessary to consider the credibility of the Plaintiff and to consider this in conjunction with all of the other evidence he gave. I am, however, in a rather better position in this case to assess the Plaintiff's evidence as shortly before the trial he was examined by Dr. Huang Chen-ya, a specialist in Neurology.

57. Dr. Huang had examined Dr. Cheung's reports and also during the hearing had an opportunity of considering the X-rays which were available to Dr. Cheung.

58. I regret that Dr. Huang was highly skeptical of the Plaintiff's complaints and was critical of Dr. Cheung's reports. The only evidence available to Dr. Cheung on the X-ray of neck complaints were boney spurs appearing in the neck region. Dr. Huang said the existence of these spurs was very common and it was by no means necessarily the case that person with the spurs would suffer pain and discomfort. The more likely consequence would be that the patient might experience some difficulty in swallowing. This was not a complaint which had been made by the Plaintiff. There was nothing else on the X-rays which would be in any way consistent with supporting the findings Dr. Cheung had made concerning the linkage between the complaints which the Plaintiff was making and the accident. The degenerative condition referred to by Dr. Cheung was quite common with people of the Plaintiff's age and there was no reason to suppose that this would be attributable to the accident.

59. Dr. Huang was also highly skeptical of the diagnosis made by Dr. Cheung that the Plaitniff was suffering from mild epilepsy. There was nothing whatever to suggest that this might be the case. Over and above this if the Plaintiff did have the mental blanks he was complaining of he would not be aware of this. Other people might notice lack of awareness on the part of the Plaintiff but he would not notice it himself.

60. Dr. Huang then went on to consider the Plaintiff's evidence concerning nausea and giddiness. It was possible that the Plaintiff may be suffering from some inner ear complaint. This may account for feeling of disequalibrium or giddiness. In this event such a complaint could be treated by medication. In any event, it was most unlikely that a chain of causation back to the accident could be established.

61. The medical records made no reference to nausea and giddiness when he was treated at the Queen Mary Hospital. The only evidence which was available was the Plaintiff's own testimony.

62. It was unlikely that the Plaintiff could have been suffering from this complaint without seeking medical advice. The complaint was an unpleasant one and if it was genuine he would expect the Plaintiff to seek medical advice.

63. I asked Dr. Huang whether there was any objective evidence that the Plaintiff was suffering from the pain and suffering he was claiming. The doctor very relunctantly came to the conclusion that there was no such objective evidence available and he had been forced to come to the conclusion that the Plaintiff's complaints were either of an hysterical nature or alternatively he was deliberately faking them.

64. I found Dr. Huang to be an excellent witness and I have no hesitation in accepting his evidence. I have particularly borne in mind the fact that Dr. Huang was able to illuminate all of the medical evidence which was available and was subjected to considerable cross-examination.

65. This contrasted with the conclusions which can be derived from Dr. Cheung's reports. It is difficult not to form the conclusion that Dr. Cheung attached considerable weight to what he was told by the Plaintiff. So far as any analysis of the symptoms was concerned his findings have been criticized by Dr. Huang. It is possible that if Dr. Cheung had been available and had given evidence he might have been able to meet some of Dr. Huang's criticisms. This, however, is a matter of speculation. Taking the medical evidence as a whole I am satisfied on the balance of probabilities that Dr. Huang's evidence is to be preferred to the contents of the reports

66. There are, however, other matters which require consideration. One of the most remarkable aspects of this case is the paucity of medical evidence which is available having regard to the serious and substantial complaints which are made by the Plaintiff.

67. I would take as an example the Plaintiff's evidence that the reason he had to give up his employment with the 1st Defendant was his difficulty in matching colours. It is significant to note that there is no complaint along these lines in either of Dr. Cheung's reports, This type of complaint is according to Dr. Huang amenable to tests which can be conducted on a patient. Having regard to the fact that the Plaintiff's employment as a dyer depended largely upon his ability to deal with different shadings of colour it is almost incredible to me that he would not either seek medical advice in this connection or alternatively make reference to this difficulty when attending upon Dr, Cheung.

68. There is also the whole history of the Plaintiff's medical condition which has to be considered. Mr. Mumford for the 4th and 5th Defendants pressed him on details of medical treatment he had received' since the accident. He said that when he had made visits to China he had on occasions consulted doctors there. Apparently on his return to Hong Kong he had not seen fit to refer any of his complaints to a doctor or to obtain any other treatment.

69. The only evidence given by the Plaintiff in respect of medical treatment in Hong Kong were two visits to a Dr. Chen. One of these visits was in 1985 and the other in January 1987. Dr. Chen was not called as a witness but a copy of a note he made concerning the Plaintiff was made available. This did not seem to me to add significantly to the medical picture.

70. I find it virtually impossible to believe that the Plaintiff could have been suffering in the manner he describes over this protracted period of time and not have a much more detailed record of visits to doctors and for there to be much more medical evidence available. All of this has the effect of casting suspicion over the claims which are being made by the Plaintiff. It is difficult to imagine that a person would be willing to step down from working at management level to working as a messenger and simply accept his fate. It seems much more likely that if there was a genuine foundation to these claims visits would have been made to doctors and specialists to receive further advice and treatment.

71. There is another matter which I feel compelled to refer to. A Mr. Hui Shu-hang, an employee of China Machine Tools Company Limited, was called as a witness by the Plaintiff to give evidence concerning the Plaintiff's earnings after he discontinued working as a dyer. The idea was to show that when the Plaintiff worked for China Machine Tools he received a much lower salary than he had enjoyed hitherto. In his exaimination-in-chief, Mr. Hui gave no indication that he was in any way associated with the Plaintiff. It was clearly his intention to simply appear as a representative of China. Machine Tools who had authority to produce the accounts and records of the company. After spirited cross-examination by Mr. Mumford for the 4th and 5th Defendants, he admitted that he did know the Plaintiff. He was not prepared to admit that he was a friend but he did accept that as Fukienese they were both clansmen. When further pressed in cross-examination he admitted that he had resided at the same address as the Plaintiff. He also admitted that he was the same Hui Shu-hang who had witnessed a receipt form which had been signed by the Plaintiff when he had received a payment of compensation under the Employees' Compensation Ordinance. In that form the Plaintiff had described him as his next of kin. Worse was to follow. Mr. Hui produced what purported to be records of China Machine Tools Company bearing the Plaintiff's signature. The signatures were intended to show that the Plaintiff had received his monthly salary. An inspection of the sheet of paper would seem to indicate that the first two signatures which are in the spaces for the months of January and February 1981 had been erased. The signatures then indicated that the Plaintiff received his salary for the remaining months in 1981.

72. It is significant to add that the note paper upon which these signatures appear had China Machine Tools Company Limited's letter heading and a telex number. Later on the 4th Defendant called a representative of Cable and Wireless as a witness who produced records which demonstrated that China Machine Tools Company Limited had not applied for a telex facility until October 1981. The only possible inference to draw from this was that the signatures appearing on the note paper as evidence of the Plaintiff receiving a salary during this period were not contemporaneous and probably constituted a forgery.

73. There were other aspects of Mr. Hui's evidence which were highly unsatisfactory. Mr. Hui was unable to reconcile particulars of other employees' earnings with ledger entries and it was difficult to avoid coming to the conclusion that the records of China Machine Tools Company Limited had deliberately been distorted in an attempt to substantiate the claim which is being made by the Plaintiff for loss of earning capacity. If this surmise is correct it is difficult to avoid coming to a conclusion that it is unlikely that Mr. Hui would have done all of this himself without the active collusion of the Plaintiff. Indeed it is much more likely that the Plaintiff himself would have instigated the action which was taken

74. I realise that the evidence which was produced before me falls short of proving any misconduct on the part of Mr. Hui far less the Plaintiff particularly if the burden of proof in criminal cases of proof beyond a reasonable doubt is borne in mind. However on the balance of probabilities, it seems more likely than not that the Plaintiff has attempted to fabricate evidence concerning his loss of earnings.

75. At the time when this evidence was being given, I indicated as clearly as I could that I would be more than happy to receive any rebuttal evidence from the Plaintiff if it was available. None was forthcoming. I can state that I would have been unwilling to accept the Plaintiff's claim for loss of earnings even if the additional evidence I have just referred to had not been available. However the effect of receiving this evidence is to reinforce my view of this litigation that the claims which are being made by the Plaintiff are not genuine claims and that he has grossly exaggerated the pain and suffering he has experienced.

76. Having said this the Plaintiff is clearly entitled to receive an award in respect of pain and suffering and loss of amenities. I propose basing this on what has been proved to my satisfaction. That is the relatively minor injuries referred to by Dr. Wei when the Plaintiff was admitted to the Queen Mary Hospital after the accident. This includes the lacerations and the short loss of consciousness and the necessity for him to be hospitalised for a week. Over and above this, I am prepared to accept that he did suffer some pain to his neck. This is consistent with the physiotherapy treatment which it is agreed he received from the 8th of June to 31st of July 1979. Also erring on the side of generosity, I am prepared to accept that the Plaintiff suffered from some anxiety neurosis and this should be reflected in this part of my award. Using as a yardstick, awards made in Tsang Kay-ping and another v. Lo Wai-yu⁽³⁾ and Wong Tak v. Lau Yue-hung ⁽⁴⁾ and Lee Chung v. Pang Lao-hung ⁽⁵⁾, I consider that an appropriate award in this case would be $20,000.

77. For the reasons I have given, I do not accept that the Plaintiff has suffered any permanent disability nor has he suffered any loss of earning capacity.

78. Although the Plaintiff has not formally proved loss of wages I am prepared to accept that there has been such a loss. I consider that the correct period to adopt is from the date of the accident to the date when he returned to work, namely, the 26th of February 1979 and for the agreed period when he was receiving physiotherapy treatment that is from the 8th of June 1979 to the 31st of July 1979. That is a total of 18 + 22 + 31 days which equals 71 days. I am also prepared to accept that his wages were $73.33 per day which makes a total of $5,866.40.

79. I am also prepared to accept the item of special damages of $1,000 for special food and $600 for the herbalists fee and medicine notwithstanding the fact that no receipts have been produced.

80. To summarise the position I award the Plaintiff general damages of $20,000 and special damages of $7,466.40. From this sum the workmen's compensation award must be deducted. As I have indicated in this judgment, the 1st Defendant and the 3rd Defendant are vicariously liable for the 2nd Defendant's negligence and judgment is accordingly entered against them. The claims against the 4th and 5th Defendants are dismissed. There is no need for me to enter judgment against the 2nd Defendant as this has been done already. I will hear the parties on costs.

(1)    [1973] AC 127

(2)    [1953] 1 WLR 409

(3)    unreported HCA 2132 of 1980

(4)    unreported HCA 7526 of 1981

(5)    unreported HCA 2764 of 1985

Representation:

Mr. K. Ramanathan (K.M. Lai & Li) for Plaintiff

Mr. B. Chaine (Woo, Kwan, Lee & Lo) for 3rd Defendant

Mr. C. Mumford, Q.C. & Mr. R. Wu (Ngan & Co.) for 4th & 5th Defendant

1st & 2nd Defendants absent