LAU HO PUN BEN v. CHAN WING CHUEN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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The parties

1. On 27th May 1990, the Plaintiff was injured in a traffic accident by a car driven by the 1st Defendant. The 2nd Defendant was the registered owner of the car. Interlocutory judgment was entered against the 1st Defendant.

The issues

2. The 2nd Defendant agreed that the Plaintiff was injured by the 1st Defendant. The dispute between the Plaintiff and the 2nd Defendant is whether firstly, the 2nd Defendant was the owner of the car at the time of the accident. The 2nd Defendant's case being that in February 1990 he sold the car to the 1st Defendant and he was no longer the owner. Secondly, whether, if he was still the owner at the time of the accident, the 1st Defendant was his servant or agent.

The evidence

3. The 2nd Defendant bought the car on 12th October 1989 through a friend called Simon Chan. Although the car was registered in the name of the 2nd Defendant, the arrangement was that he and Simon Chan would jointly own and use the car. Simon Chan paid half of the purchase price.

4. A few months later, the 2nd Defendant wished to sell the car. Again, Simon Chan arranged the sale. The car was sold to the 1st Defendant. Simon Chan was asked by the 2nd Defendant to complete the transfer procedure. The 2nd Defendant signed on the transfer form and gave it to Simon Chan together with the car key, registration book and insurance policy. The sale price was $12,000 and the 2nd Defendant received $6,000. There was no written contract of the sale. Shortly thereafter he was told that the procedure for registration was not completed because there was problem with the insurance policy. The 2nd Defendant asked Simon Chan to complete the registration as soon as possible and Simon Chan promised to follow up on the matter.

5. Simon Chan gave evidence confirming the sale to the 1st Defendant. He said he gave the car key to the 1st Defendant who paid $8,000 to him, being part of the sale price of $12,000. He, however, retained the vehicle registration document and the blank transfer form signed by the 2nd Defendant because the 1st Defendant had not paid the full price. These documents were only given to the 1st Defendant after the accident. The 1st Defendant said he would pay for the balance of the purchase price. He never did.

Defence accepted

6. I accept the 2nd Defendant's evidence that the car was sold to the 1st Defendant in February 1990. I accept that the car was sold although the registration of the ownership was not effected. The 2nd Defendant was not shaken in the cross-examination on the sale of the car. There was a written authorisation by him dated 1st June 1990. I accept his evidence that he signed the document because the 1st Defendant told him that the car was impounded by the police after the accident and as the car was registered in the 2nd Defendant's name, he needed the authorisation to remove the car. This note is not an indication that he was still the owner. All that the note said was that the 2nd Defendant was the registered owner and authorised the 1st Defendant to deal with the car.

7. I accept that the note was not disclosed in the list of document because the document was given to the 1st Defendant and no copy was retained by the 2nd Defendant.

8. The 2nd Defendant was cross-examined as to the statement he made to the police after the accident in which he said that he gave the signed transfer document to the 1st Defendant and that there was a signed document of the sale. The fact was that the 2nd Defendant had never seen the 1st Defendant until after the accident and there was no written document of the sale. Regarding the first matter, I accept that he was dealing with the matter very briefly when he was interviewed and Simon Chan's role was not mentioned at that time. Regarding the second matter, the answers he gave were not entirely satisfactory. However, I accept that he was referring to the signed transfer form and he had asked Simon Chan to obtain a document recording the sale from the 1st Defendant.

9. I cannot accept the suggestion raised in the cross-examination of the 2nd Defendant that he was trying to help the 1st Defendant who was being suspected by the police that he has stolen the car. The purpose of giving the insurance policy to the 1st Defendant was part of the sale of the car and not merely to enable the 1st Defendant to drive the car.

10. Regarding the original defence filed in which there was no mention about the sale of the car to the 1st Defendant, I accept the 2nd Defendant's evidence that he had in fact informed the solicitor of the sale. There were also minor discrepancies between his witness statements and the evidence he gave in court, but I accept that the evidence he gave regarding the sale was truthful.

Property passed

11. I accept that the property in the car was passed to the 1st Defendant before the accident. The failure to complete the formality of changing the name of the registered owner with the Transport Department does not change the fact that the 2nd Defendant was no longer the beneficial owner. The retention by Simon Chan of the registration book and the signed transfer form is not sufficient to say that the property in the car had not been passed. Simon Chan's view was that the car had been sold. The 2nd Defendant certainly pressed Simon Chan to complete the registration procedure and there was no evidence showing that he had authorised Simon Chan to retain the documents.

2nd Defendant not liable

12. In any event, the 2nd Defendant cannot be held vicariously liable. Permission alone was not sufficient to make a driver the agent of the owner. The true test is whether the driver was using it for the owner's purpose under delegation of a task or duty : Morgans v. Launchbury [1973] AC 127. I find that the 2nd Defendant is not liable to the Plaintiff.

Damages

Pain, suffering and loss of amenities

13. I will now deal with the question of damages. After the accident, the Plaintiff lost consciousness and did not regain consciousness again until he woke up in hospital. He was in hospital for 6 days. He suffered headaches. His left knee was injured and he had operations of the left knee and received physiotherapy treatment. He walked with clutches for 6 months. The injury consisted of head injuries. There was concussion with lengthy retrograde and post-traumatic amnesia, and he is still suffering from post-concussional syndromes with recurrent headache and poor short-term memory. There is evidence of the fracture of the skull. The headaches occur three to four times a month, ranging from 30 minutes to an hour. He has to take pain-killers to relieve the pain. The knee injuries resulted in internal derangement of the knee. There is still pain and restricted knee movements. The injury is assessed to be permanent. He cannot kneel on his knee bone because of the pain and numbness. He also suffers from loss of smell and he could only smell occasionally. He was an active person engaged in sports before the accident. He cannot now engage in badminton or volley ball. His physical strength is lessened. He felt tired after one hour of walking and he had to take pain-killer before he engaged in the annual running test of the police of which he is an employee.

14. The award for serious injuries is now between $400,000 to $540,000. The combination of loss of smell, persistent headaches and knee injury puts the Plaintiff's injury at a level slightly below the lower end of the serious injury category. The appropriate award under this head is $350,000.

Loss of earning capacity

15. The Plaintiff is a police constable. He joined the Police Force in February 1988. His aspiration is to join the C.I.D. Of his colleagues he knew who joined the police at the same time, those who had physical injury or conduct problems remained as police constables while others have joined the C.I.D. He has not been recommended for the C.I.D. training course. For one year he did not work at the Police Tactical Unit. He failed four promotional test for sergeant and only passed the test in 1995. He is waiting for an interview for the promotion. Competition for the job is keen. Those who were promoted to sergeants before have all been C.I.D.s. It is clear that his injuries would pose a handicap to his promotional aspect within the Police Force and also in the labour market if he eventually leaves the Force.

16. He is a young man aged 27. He was born on 2nd August 1969 and will certainly have a long working life ahead of him of at least 25 years. Compensation should be awarded for the loss of earning capacity. Doing the best I can, the amount to be awarded is $200,000.

Special damages

17. The special damages of $30,186 are particularised. Despite being a civil servant, there are some medical expenses that he has to pay on his own. The private medical expenses, tonic food and travelling expenses were reasonably incurred, and I shall allow them. The claim for loss of earnings was abandoned by Mr Cheung.

The award

18. The total award is $350,000 + $200,000 + $30,186, making a total of $580,186. Interest on PSLA is at 3% p.a. from date of writ to date, interest on $30,186 at 6% p.a. from date of accident to date.