Hor Kin-seng v. Tam Ping-check
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CACV000100/1979
----------------- Coram: Roberts, C.J., Cons, J.A. and Yang, J. Date of Judgment: 12 May 1980 ----------------- JUDGMENT ----------------- Yang, J.: 1. Some time after 1 p.m. on 5th December 1977 the appellant and some other workmen were unloading iron bars from a lorry outside the construction site at 461 Jaffe Road. The lorry was parked with its nearside nearest to the kerb facing east. There were other vehicles parked on both sides of the road, but leaving ample room for vehicles to pass between the two rows of parked vehicles. The appellant was working and moving about near the rear of the lorry when he was struck by a passing lorry, sustaining a fracture to his left ankle. 2. The Commissioner found the driver of the offending vehicle negligent. He also found the appellant guilty of contributory negligence. Counsel for the appellant put the appellant's contributory negligence at 40%, though the Commissioner said that he would have put it at 25% but felt bound by the figure suggested by counsel. 3. The only issue as far as liability was concerned was one of identity. The appellant sought to rely on three documents to establish that the respondent was the driver of the offending vehicle. The three documents were:
4. The Commissioner came to the conclusion that documents (a) and (b) did not assist the appellant in this respect, and we agree with him. 5. It is common ground that Mr. Wong Sze-lok was an adverse witness, and the Commissioner allowed his statement to be made an exhibit at the trial. It had been given to the police on 16th January 1979, and in it he identified the offending vehicle as AX 1058. The respondent admitted that he was, at all material times, the owner and driver of AX 1058. The Commissioner, however, thought that the statement was not evidence, i.e. the statement could not be relied on to establish the truth of what was said therein. This would be so, were it not for sections 12 and 48(1)(a) of the Evidence Ordinance. These sections permit a judge in civil proceedings to rely on a witness's previous statement, which is inconsistent with his evidence given in court, as proof of what is stated therein. It appears from the judgment that the Commissioner placed no reliance on Mr. Wong Sze-lok's oral evidence except in relation to two facts, namely, the presence of busy traffic in Jaffe Road and that the appellant and Mr. Wong were working there at the relevant time. 6. Counsel for the appellant did not object to the production of the statement as evidence of truth of the contents, but argued that no weight should be given to it because (i) the statement erroneously gave the colour of the offending vehicle as yellow and (ii) it was entirely inconsistent with Mr. Wong's oral evidence. 7. The Commissioner having found Mr. Wong an unsatisfactory witness, there was no other evidence to counter-balance his earlier statement. We are of the view that the statement made by Mr. Wong Sze-lok to the police is entitled to some weight and is sufficient evidence to tip the balance in favour of the appellant particularly as the respondent elected not to give any evidence. Suffice it to say that this statement contains the correct registration number of the lorry. There was no suggestion that Mr. Wong Sze-lok was given that number by anybody. And we are satisfied that the identification of the respondent as the driver of AX 1058 was established. 8. Accordingly our judgment is that the respondent was guilty of negligent driving and was 60% liable. 9. The Commissioner having found that the appellant had failed to prove the identity of the driver, nevertheless went on to assess the damages he would have awarded if he had found the respondent driver liable. He assessed special damages at $15,350, which figure he then reduced by 40% to $9,210. For pain and suffering and loss of amenities, he assessed general damages at $8,000, which he then reduced by 40% to $4,800. The total damages he would have awarded therefore came to $14,010 ($9,210 + $4,800). 10. Apart from one item, the appellant has no complaint against the assessments. The complaint is that the Commissioner failed to make an award for the appellant's loss of earning capacity. At present the appellant is performing the same type of work, and earning more than he did, at the time of the accident. The medical reports show that, whilst the appellant suffers from a 3% permanent disability, he is nevertheless able to continue with the type of heavy work he was doing at the time of the accident, though not without some discomfort. Whilst there is a "possibility" of his being able to perform only light work sometime in the future, it remains nothing more than a possibility. The evidence on this issue being as vague as it was, there was no basis upon which an assessment of loss of earning capacity could be reached. 11. For the foregoing reasons the appellant succeeds in this appeal on the issue of liability, on the basis that his contributory negligence is 40%. He fails on the issue of loss of future earning capacity. 12. We confirm the assessments made by the Commissioner. There will therefore be judgment for the appellant for $14,010 with interest at 4% per annum on special damages and at 8% per annum on general damages. 13. Having heard submissions on the question of costs we made the following order: 14. The respondent shall have costs of the first three days of hearing, namely, the 25th, 26th and 27th October, 1979. Costs for the 25th were conceded by the appellant's counsel at the trial, and costs for the 26th and 27th were wasted due to Mr. Wong Sze-lok's failure to attend court to give evidence for the appellant. Subject to the above, the appellant shall have the costs of the proceedings in the court below. 15. The appellant shall also have costs of this appeal. Representation: R. Barretto (Director of Legal Aid) for the appellant. P. Chung (Philip K.H. Wong & Co.) for the respondent. |