LEE CHAN WING v. LEE WING PING

Headnote

                In the absence of evidence to the contrary it is not incumbent upon a self-employed plaintiff claiming damages for loss of earnings to prove that his business, which may be conducted lawfully, was in fact so conducted. RSC Order 18 rule 8 referred to.

BETWEEN

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JUDGMENT

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Kempster, JA :

1. This is an appeal from a judgement of Deputy High Court Judge Saied, as he then was, given on 11 July 1989. By that judgment he awarded Lee Chan Wing, the plaintiff, the sum of $334,435, with interest, by way of damages for personal injuries sustained in consequence of the negligent driving of Lee Wing Ping, the defendant, on Tai Shu Ha Road East, not far from Yuen Long in the New Territories, shortly after 6 a.m. on 6 November 1985. The defendant appeals against the finding of negligence on his part, alternatively against the finding that there was no contributory negligence on the part of the plaintiff and in the further alternative against the quantum of damages awarded.

2. The road in question was single tracked but open to two way traffic. There is a lay-by or passing place to facilitate the passage of traffic adjacent to and to the north of the scene of the accident in which the plaintiff and an unladen metal trolley which he was pushing in a southerly direction, adjacent to the eastern kerb, were struck by a van driven by the defendant in the opposite direction.

3. In his carefully considered and analytical judgment the trial judge made a number of findings of fact. In the context of liability and contributory negligence they were as follows: -

4. Nothing which I have heard from Mr Ismail, who represents the defendant before us, as he did below, persuades me that we are entitled to interfere with any of these findings.

5. Turning to damages, the judge's relevant findings, which are not challenged, were that the plaintiff had been about 63 years of age at the time of the accident, was aged 67 years at the time of the trial, had suffered injuries to the left leg and shoulder and was unemployable. The question at issue is whether or not the figure of $323,375, awarded for loss of earnings, was irrecoverable by reason of illegality, That figure derives from the plaintiff's testimony that his net monthly pre-trial earnings as a market-gardener were $3,250 and from statistical evidence that by July 1989 they would have increased to $5,037.50 monthly.

6. No question of illegality in relation to the sale by the plaintiff in Yuen Long market of vegetables which he had grown was raised in the pleadings or by the evidence. The plaintiff was not even subjected to cross-examination in that regard. Nonetheless in his final address Mr Ismail submitted, as he did to us, that it was for the plaintiff to demonstrate that his business was lawful and did not infringe certain subordinate legislation relating to hawkers.

7. The answer to this bold submission is that "Omnia praesumuntur rite et solemniter esse acta"; as illustrated by authority. In Euro-Diam Ltd v Bathurst [1987] 2WLR 1368. at pp 1380 and 1382, Staughton J, referring to Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65, observed : -

"That is what I called the Bowmaker principle: a plaintiff fails if he has to found his claim on an illegal contract, or to plead its illegality in order to support his claim. ... So, in my judgment, a claim may be said to be tainted with illegality in English law by virtue of the Bowmaker principle if the plaintiff needs to plead or prove illegal conduct in order to establish his claim; or ... if the claim is so closely connected with the proceeds of crime as to offend the conscience of the court."

8. In the Court of Appeal [1988] 2WLR 517 at p 532 Kerr LJ, with whose judgment Russell LJ and Sir Denys Buckley agreed, said : -

"... I share the judge's views entirely ... "

He had earlier observed that the plaintiffs in those proceedings did not have to rely upon a questionable invoice in order to establish their claim.

9. In the instant case, by referring to profits from the sale of vegetables, the plaintiff cannot be said to have pleaded or proved illegal conduct or to have made a claim connected with the proceeds of crime.

10. Before parting with this appeal I would think it appropriate, for the guidance of practitioners, to set out some of the terms of Order 18 Rule 8 of the Rules of the Supreme Court : -

11. I would dismiss this appeal in its entirety.

Sir Derek cons, V-P :

12. I agree entirely with my Lord. I would only add with regard to the point as to the loss of earnings, that it seems, as I understand the argument, to be dependent ultimately on two alternative contentions. One, that the court was not entitled to assume in the absence of evidence to the contrary, that the plaintiff's manner of obtaining his living was lawful. Alternatively, two, that the two sentences in the evidence of the plaintiff which dealt with that aspect were sufficient indication to the contrary. In my view neither of those contentions is sustainable.

Sears, J :

13. I agree with what my Lords have said and would only add this. I can well understand a defendant sitting back and putting a plaintiff to proof of all the necessary ingredients to found the cause of action and to establish liability. As far as damages are concerned, however, in my judgment if a defendant wishes to question the legality or genuineness of a head of damage he should raise it in his pleadings and, if necessary, pursue it in cross-examination of the plaintiff. This is in conformity with the rules of practice and the normal principle that a man is presumed to be lawfully carrying on an activity which is his livelihood unless the contrary is proved.