LAW PING LEUNG v. NG SZE PONG

HCPI 601/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 601 OF 2008

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J U D G M E N T

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Introduction

1.  On 7 September 2006 at about 2:45 p.m., the plaintiff was knocked down by a public light bus (“PLB”) bearing registration number MB2652 driven by the defendant on Sai Sha Road.  He suffered serious injuries. 

2.  The plaintiff now sues the defendant by his wife as his next friend.  Both liability and quantum are in issue. 

Liability

3.  On liability, the plaintiff relies on the conviction of the defendant on his own plea of careless driving at Shatin Magistrates’ Court on 5 March 2007, as evidence of the defendant’s negligence and breach of statutory duty.  The plaintiff also relies on the statement of one Choi Suk Fong (“Madam Choi”), who was a passenger in the PLB, given to the police on the day of the accident at about 3:45 p.m.  Counsel for the defendant does not object to the admission of that statement.  I have, in the circumstances, no discretion to exclude the evidence : see section 47(a) of the Evidence Ordinance. 

4.  The brief facts to which the defendant admitted at the time of his conviction are, on the essential parts, based entirely on Madam Choi’s statement to the police.  According to Madam Choi, the defendant was driving the PLB on Sai Sha Road on a southerly direction towards Sai Kung.  Madam Choi was then sitting on the third row of the PLB at the right hand side.  Madam Choi said she saw a man (later known to be the plaintiff) about 10 m away at the left side of the PLB stepping two paces from the pavement to the vehicular road.  According to Madam Choi, the speed of the PLB was not fast at the time.  She said that the man, who was already on the vehicular road, walked ahead without looking towards the side of the PLB.  She said that even when she was able to see the man, the defendant did not slow down, and the PLB continued to move slowly.  The man did not pay attention to the PLB, the PLB continued to move on and hit the man.  She then shouted : “You hit some one.”  It was only until that moment that the PLB stopped.  She saw the man lying on the ground.  She immediately called the police. 

5.  Madam Choi’s statement did not specify to which direction the man was walking at the time. However, in a statement made by a police officer (PC 50639) at about 8 p.m. on the day of the accident, it was recorded that Madam Choi said that she saw a man walking with his back to the PLB, and he was then knocked down by the PLB. 

6.  Photographs of the PLB after the accident show that the left side of the bus was dented.  There were also cracks on the left side of the windscreen. 

7.  The defendant gave evidence before me.  He said that when he first saw the plaintiff, he was already one or two paces from the pavement, and was walking along Sai Sha Road in a direction towards Sai Kung, i.e. due south and had his back to the PLB.  According to the defendant, the plaintiff suddenly walked quickly across the road diagonally in front of his PLB and it was then that his PLB hit the plaintiff.  He said he swerved the PLB to the right to avoid the PLB running over the plaintiff.  And after the collision, he steered the PLB a bit to the left to avoid being in the way of the opposite traffic.  He was asked to mark the positions of the plaintiff on a photograph, both at the time he first saw him, and also at the time of the collision.  He also marked on the plan the position where the plaintiff fell after collision. 

How did the accident happen?

8.  It is regrettable that the court has not had the opportunity to hear directly from Madam Choi.  However, her police statement was taken very soon after the event.  The whole incident was fresh in her mind.  Her statement, being that of an independent witness, must deserve great weight.  I bear in mind the factors listed in section 49(2) of the Evidence Ordinance when estimating the weight to be given to Madam Choi’s statement.  In the course of his submissions, Mr Chan made it clear that he does not challenge Madam Choi’s evidence.  He accepts that Madam Choi saw the plaintiff when the PLB was about 10 m away from him.  

9.  The major difference between Madam Choi’s account and the account given by the defendant in the witness box is the defendant’s evidence that the plaintiff suddenly walked quickly across the road diagonally.  There was no mention in Madam Choi’s statement of any sudden movement on the part of the plaintiff or to the effect that the plaintiff was attempting to cross the road. 

10.  I reject the defendant’s evidence that the plaintiff suddenly walked quickly diagonally across the road. 

11.  The version he gave to the court is materially different from that he gave to the police on 14 September 2006, or from the version he gave in his witness statement dated 17 September 2007. 

12.  In the defendant’s statement to the police, he said he was driving at between 20 to 30 km/hr and at a distance of about 2 ft from the pavement when he saw a man running out from the pavement.  The man was only about 10 ft away from the PLB.  The defendant said in that statement that the man was looking forward to the opposite direction, which was a bus station, and did not look towards the direction of his PLB.  He applied the brakes immediately but could not stop in time.  The left front of his PLB hit the man and he swerved the PLB to the right to avoid it from pressing down onto the man.  There was no mention in his statement to the police that the plaintiff was walking along Sai Sha Road or that the plaintiff had suddenly walked quickly across the road diagonally in front of his PLB. 

13.  He also claimed in his statement dated 17 September 2007 that he saw the man standing at the junction of the refuse collection point, and the man then suddenly ran across the road, towards the bus stop on the opposite lane. 

14.  The two positions marked by the defendant on the photograph (exhibit D4), indicating where the defendant first saw the plaintiff, and where the plaintiff was knocked down, do not support the suggestion that the plaintiff was running across the road when he was hit.  The defendant marked the two positions quite close to each other.  Moreover significantly, one can see from the sketch drawn by the police, and also from one of the photographs (photo 14), that there was certain blood stain left quite near to the pavement.  Whilst that is consistent with the position marked by the defendant on exhibit D4, it does not support the defendant’s evidence that the plaintiff was running across the road, diagonally or otherwise, when he was being hit. 

15.  Having considered all the evidence and the submissions, I find the accident to have happened in the following circumstances : The plaintiff stepped out from the pavement at the location where there was an opening in the railing.  He then proceeded to walk along the railings but on the vehicular road in a direction towards Sai Kung.  It was while he was thus walking that he was knocked down by the PLB driven by the defendant. 

16.  I also find that the stretch of road before the point of collision was straight and long.  The road condition was good.  Lighting was optimal. 

17.  I find that the defendant was driving relatively slowly.  Indeed, he should be preparing to stop, as Madam Choi had indicated that she wanted to alight at the rubbish collection point.  The defendant said he was doing between 20 km/hr and 30 km/hr.  I accept that evidence. I do not accept Mr Lam’s submission that the defendant must have been driving at around 40 km/hr.  That submission is based entirely on the position of the PLB depicted on the police sketch plan.  Mr Lam submitted that since that indicates that the stopping distance was 20 m, the speed before collision would, according to the Road Users’ Code, have been 40 km/hr.  I think the flaw in that argument is that it does not take account of the evidence, which I accept, that after the collision, the defendant did not immediately bring the PLB to a complete stop.  He proceeded further by swerving to the right to avoid the PLB pressing over the plaintiff and then steered back to the left to avoid possible collision with oncoming north-bound traffic on Sai Sha Road. 

Was the defendant negligent?

18.  Mr Chan made essentially two points on liability.  First, Mr Chan submitted that although the evidence suggests that the defendant became aware of the presence of the plaintiff later than the passenger, this does not per se justify a finding that the defendant failed to keep a proper lookout.  Mr Chan’s second point is that even if the court were to find that the defendant was negligent, there is here no causation as the accident was inevitable. 

19.  I shall deal with his first point first.  In that connection, Mr Chan referred me to a number of authorities for the proposition that the driver of a vehicle has many tasks to perform as part of his duty to keep a proper lookout.  These are : James v Fairley [2002] EWCA Civ 162 at §14, Davies v Journeaux [1976] RTR 111 at 115D-F, Morales v Eccleston [1991] RTR 151 at 158H-K and Chan Chi Lung v Lam Shek Wu, HCPI 401/2001 at §18.  Mr Chan further submitted that the fact that Madam Choi was able to see the plaintiff when the PLB was some 10 m away did not mean that the defendant failed to keep a proper lookout in not having been able to observe him until the PLB was only 10 ft away. 

20.  Whilst I accept that the duty on the part of a driver to take a proper lookout does embrace more than just paying attention to what is ahead of him, and I also accept that in principle, the mere fact that a passenger on a vehicle may have been able to observe something a split second before the driver can does not necessarily suggest that the driver has failed to keep a proper lookout, each case must depend on its facts.  In the present case, there is no evidence before me that the attention of the defendant had been diverted to something happening around him that could explain why he did not see the plaintiff until the PLB was so close to him.  To the contrary, since he should be looking for a spot to allow his passenger to alight, he should have been focusing his attention to what was in front, and particularly on the kerbside.  On his own evidence given at the trial, the defendant did see the plaintiff walking outside the railing.  Given that the road was long and straight, and there was no suggestion of anything that could have obstructed his line of sight, I am satisfied that a reasonably prudent driver would have noticed the plaintiff much earlier, and that the defendant has failed to keep a proper lookout.  That failure resulted in his not taking notice of the plaintiff until it was too late for him to brake or to sound the horn or take effective measure such as swerving to the right to avoid collision. 

21.  I am also satisfied that a prudent driver seeing a pedestrian walking on a single-lane vehicular road with his back to the traffic would have realized that the risk of an accident happening is “reasonably apparent” and not a “mere possibility”, such that a prudent driver should have been alert and ready to take all necessary precautions to avoid collision : see Fardon v Harcourt-Rivington (1932) 146 LT 391, applied in Kong Chung Ching v Lam King Ho [1992] 1 HKC 104. 

Causation

22.  I turn to the second point made by Mr Chan.  Mr Chan described this as perhaps the most important issue in the case.  His argument is that even if the defendant ought to have noticed the plaintiff earlier, the accident would still have been unavoidable.  Mr Chan submitted that since the bloodstain was right next to the kerbside, the plaintiff apparently collided with the PLB almost immediately after he stepped out on to the road.  He cited a number of cases (James v Fairley [2002] EWCA Civ 162, Chan Hwai Yan v Cheng Yip Chi HCPI 510/2000 and Chan Chi Lung v Lam Shek Wu HCPI 401/2001) to support his argument.  These cases are more illustrations of the point that he sought to make, rather than authorities that establish any legal principle. 

23.  Mr Chan submitted that on the basis of Madam Choi’s evidence, the defendant would only have spotted the plaintiff when he was about 10 m away; and since the PLB was moving at a speed of between 20 km/hr and 30 km/hr, the defendant would only have less than 2 seconds to avoid hitting the plaintiff. 

24.  Even if such calculations were right, I am not prepared to accept that the accident was inevitable.  Drivers are called upon to react swiftly to circumstances on the road.  It would have taken very little time for a prudent driver to brake and to swerve the PLB slightly to the right to avoid the accident, or to have sounded the horn to alert the plaintiff of the impending danger. 

25.  However, the position of the bloodstain on the police sketch suggests that the plaintiff had been walking for a few metres outside the railing before he was knocked down.  This is consistent with the fact that in both Madam Choi’s evidence and in the evidence given by the defendant at the trial, the plaintiff was actually seen walking alongside the railings.  I am therefore unable to accept Mr Chan’s submission that the collision took place almost immediately after the plaintiff stepped out on to the road. 

26.  Mr Lam drew my attention to the answers given by Madam Choi to the police in which she was asked whether the PLB slowed down or stopped when the plaintiff walked out of the road, to which Madam Choi responded that the PLB kept its speed.  This evidence suggests that the defendant did have the opportunity to take measures including braking, sounding his horn, or swerving his PLB to avoid the accident.  I am satisfied that the defendant’s negligence in failing to keep a proper look out was a cause of the accident. 

Contributory negligence

27.  By walking outside the railing on the road with his back to the traffic, the plaintiff has plainly failed to exercise reasonable care for his own safety.  There is also no doubt that such failure was causative of the accident.  Mr Lam did not contend otherwise. 

28.  The main debate centred on the degree of contributory negligence.  That question is to be approached by way of an overall appreciation of the blameworthiness and causative potency of the respective acts and omissions of the plaintiff and of the defendant : see per Denning LJ (as he then was) in Davies v Swan Motor Co Ltd [1949] 2 KB 291 at 326 :

“This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness.”

29.  As is common, counsel on each side drew attention to authorities that assist his side in asking for a higher, or a lower degree of contribution.  Both counsel referred me to the decision of the Court of Appeal in Kong Chung Ching v Lam King Ho [1992] 1 HKC 104.  That was a case where the deceased had stepped onto the roadway without looking to see if there were any vehicles approaching.  The trial judge took the view that the driver should have been aware, when he saw the deceased, that there was a real possibility that he would step out into the roadway and that there was, therefore, a danger of a collision occurring.  His assessment of liability at 50:50 was upheld by the Court of Appeal.  Mr Lam relied on Lau Tak Lung v Ngan Guen Min HCPI 573/1997 where Deputy Judge Wong applied Kong Chung Ching as a yardstick and assessed the plaintiff to be 25% to blame in a case where the plaintiff was knocked down by a PLB after climbing out from the pavement and walked onto the road. 

30.  On the facts of this case as I have found them, I take the view that the defendant must bear the greater part of the blame.  That is so both in terms of blameworthiness and causative potency.  The fact that there was an opening in the railing and the fact that there was a bus stop on the opposite side of the road, and a road sign cautioning drivers to slow down are all matters which must have been known to the defendant.  He should have been paying particular attention to pedestrians coming out of the opening.  His failure to keep a proper lookout was particularly blameworthy in the circumstances.  It was that failure which was the main cause of the accident.  I hold that the defendant was 75% to blame.  

Quantum

31.  By the time of the trial, the parties’ dispute on quantum are over the following areas :

(1) pain and suffering and loss of amenities (“PSLA”),

(2) loss of society,

(3) loss of earnings pre-trial,

(4) loss of earnings post-trial,

(5) future medical expenses.

32.  On PSLA, the plaintiff contends for $1,100,000 whilst the defendant argues that a fair award under this head would be $700,000. 

33.  The evidence relevant to this issue is to be found from the medical reports which the parties placed before me and on the evidence of the plaintiff’s wife who gave evidence at the trial.  There is really no dispute on the nature and extent of his suffering and disabilities. 

34.  The plaintiff was admitted to Prince of Wales Hospital after the accident.  On admission, he was unconscious with a Glasgow Coma Scale score of 7/15.  He had multiple lacerations over the limbs, his left eye and left knee.  He only regained consciousness after about 10 days.  He had fractured right clavicle together with bilateral lung contusion with pneumothorax.  Computed tomography showed contusion over the right temporal region with traumatic subarachnoid hemorrhage.  He had skull base fracture.  Emergency burr hole operation for intracranial pressure monitoring and clot evacuation were performed.  After the operation, he stayed in intensive care unit for 2 weeks during which he required mechanically assisted ventilation.  Tracheostomy was performed on 12 September 2006.  The right clavicle fracture was treated conservatively with shoulder immobilizer.  

35.  After his condition improved, he was then transferred to Shatin Hospital for rehabilitation.  Clinically, he had poor cognition and memory after the injury.  He underwent physiotherapy and occupational therapy treatment.  The tracheostomy was weaned off on 16 October 2006.  He was discharged from Shatin Hospital on 6 February 2007.  

36.  The plaintiff has no memory of the accident.  His thinking process and memory have been substantially impaired.  His response to verbal communications is slow and sometimes irrelevant.  He finds it difficult to learn and retain new information.  His recent memory is poor, but long term memory is relatively preserved.  He often forgets what he has done a moment ago or where he has placed his belongings.  He has to be reminded of his appointments. 

37.  Although he is now able generally to carry out his normal daily living by himself, he has to be accompanied when going outdoors because his sense of direction is poor and he has suffered three episodes of grand mal seizures with loss of consciousness, generalized convulsive movements and uprolling of the eyeballs. 

38.  He also suffers from intermittent headaches of a dragging character and mild intensity.  The headaches occur once or twice a week and the duration of each attack is about 2 minutes.  He also suffers from intermittent dizziness of mild intensity.  The dizziness occurs once a week and the duration of each attack is brief.  It is brought on by riding on buses.  Both the headaches and dizziness resolve themselves.  

39.  His personality has changed.  Whereas he was of a mild temper before the accident, he is now easily irritable.  He used to be sociable, but no longer so.  

40.  He has mild dysphagia (difficulty of swallowing) and mild left hemiparesis (weakness of one side of his body). 

41.  Dr Y.L. Yu assessed his permanent impairment of the whole person to be 35% whilst Dr Edmund Woo would assess the combined total of impairment of the whole person at 25%.  Dr Yu’s opinion is that the plaintiff would not be able either to resume his pre-accident work as a lorry driver, or indeed be able to take up any gainful employment.  Dr Woo agreed that it would be difficult for the plaintiff to return to his pre-accident job, but opined that he could be suited for simple menial tasks, such as a messenger or a delivery worker after undergoing a cranioplasty.  Both doctors agree that because of his neurocognitive and neurobehavioural impairments, it is unlikely that the plaintiff possessed sufficient mental capacity for managing his own personal and financial affairs. 

42.  Further improvement is not expected. 

43.  Cosmetically, there is an area of 8 cm x 12 cm depression on his skull and he was described by Dr C.K. Lam as having a “weird” and “angry” appearance.  The neurologists recommended that he should undergo a cranioplasty.  If carried out, this would improve his appearance. 

44.  The plaintiff’s wife gave evidence that the plaintiff became ill-tempered after the accident.  He would sometimes scold people and would yell at her.  He looked “ferocious”, and even his grandchildren were very scared of him at first.  Also, he had become forgetful.  Physically, his limbs have also become weak, especially his left leg.  He can no longer squat down, and needs to hold on to furniture for support when putting on his trousers.  She described him as having become another person.  She had to work long hours to take care of the plaintiff, and her social life has been greatly affected.  They no longer had sex after the accident. 

45.  Mr Chan referred me to the following cases on PSLA : Ngan Man Yuk v Lau Kwan Him HCPI 1263/2003, Chan Hak Foon v Sutera Harbour Resort Sdn Bhd HCPI 386/2003 and Lam Mo Bun v Hong Kong Aerosol Co. Ltd [2001] 1 HKLRD 540. 

46.  Mr Lam approached PSLA by inviting me to consider the orthopaedic injuries, cosmetic impairment and neurological injuries and impairment.  He contended that this is a case which should be placed at least at the top end of the substantial injury category, or even under the gross injury category.  He referred me, inter alia, to Siu Leung Sing v Wong Fook Wing HCPI 1096/1999 and to Cheung Wai Ping v Chan Yuen Yee HCPI 668/2005. 

47.  As Litton VP (as he then was) observed in Chan Pui Ki v Leung On [1996] 2 HKLR 401 at 408C, there are cases, such as the present one, where the injuries are composite, and one must bear in mind the total effect of the injuries on the plaintiff. 

48.  Of the cases cited, I find the award in Cheung Wai Ping v Chan Yuen Yee to be of most assistance.  The plaintiff in that case also suffered serious injuries.  He had left parietal epidural haematoma and traumatic sub-arachnoid haemorrhage with fracture of the left parietal bone.  He had two successive craniotomies.  He also had a tracheostomy.  The plaintiff was found to have suffered from cognitive impairment and left hemiparesis.  There was a risk of post-traumatic epilepsy, although that has apparently not manifested itself by the time of the trial.  As in the case of this plaintiff, he was assessed to be incapable of managing and administering his property and affairs.  Dr Yu put permanent impairment of the whole person at 20% while Dr Woo put it at 15%.  Deputy Judge Muttrie accepted that the injuries and disabilities in that case fell into the gross disability category and awarded $1,000,000 for PSLA in February 2007. 

49.  Figures produced by the plaintiff suggest that the Consumer Price Indices rose from 101.9 in February 2007 to 109.2 in July 2009. 

50.  Considering the injuries and disabilities as a whole, the impact of the accident on the plaintiff can in my view properly be considered to fall within the gross disability category.  I would award $1,100,000 for PSLA. 

Loss of society

51.  I confess to having some difficulty in relation to this head of claim.  Section 20C of the Law Amendment and Reform (Consolidation) Ordinance creates a cause of action for damages for loss of the injured person’s “society”.  The phrase used in the section is “deprived of his society”, and in Chinese “被剝奪了受傷害者的情誼”.  

52.  There is no doubt that the plaintiff’s wife found the plaintiff’s “society” much less desirable than it was before the accident.  But can it be said that she was “deprived of his society”? 

53.  I note that in sub-section (4), the draftsman used the phrase “impairment of his ability to render such services”.  That subsection, however, is obviously intended to enable the cause to be asserted in the name of the injured person, thereby dispensing with the need to join the spouse or the person who has been deprived of the injured person’s society as a plaintiff.  However, the cause of action conferred by section 23C is predicated upon showing that the injury caused the person to be “deprived of” (and not merely suffered an impairment of) the injured person’s society. 

54.  However, I am aware that in Chan Yuk v Dragages et Travaux Publics (HK) Ltd [2000] 2 HKLRD 795 (and on appeal [2000] 3 HKLRD 1), the Court awarded loss of society short of the maximum in a case where the injured person had a change of personality.  At p. 802B, Seagroatt J considered there was “no doubt” that the plaintiff came within the ambit of the first limb of section 20C.  He described the wife as having suffered the loss of society “to a significant extent”.  Instead of the normal society and kindly companionship, the plaintiff had become a mentally damaged man, with physical problems which rendered him dependent on the wife.  On appeal, the award was increased to $130,000 merely to correct the error of the judge at first instance in wrongly taking the maximum as $40,000, instead of $150,000, see [2000] 3 HKLRD at 11C-F. 

55.  It is apparent that Seagroatt J did not read section 20C as being confined to cases where the loss of society was total. 

56.  There are other cases where an award under section 20C was made for less than total loss, see e.g. Cheung Wai Ping v Chan Yuen Yee HCPI 668/2005 (Deputy High Court Judge Muttrie, 8/2/07) at §§43-44; Li Yuet Yee and others v Ng Chi Hang HCPI 451/2006 §6 (Master J Wong, 31/10/08). 

57.  The defendant has not taken this point.  Instead, the defendant relied on Li Yuet Yee in contending that the plaintiff and his family still maintained a strong bond, and an award under this head should not exceed $50,000. 

58.  In the absence of full submissions on this point, I do not consider it right for me to elevate the doubt I have to a departure from the line of authorities referred to above.  Furthermore, there is in the present case a total loss of society insofar as the plaintiff’s wife has been deprived, by reason of the accident, of her enjoyment of sex with her husband.  On the facts of this case, I would award $100,000 under this head. 

Pre-trial loss of earning

59.  This head has given rise to an interesting argument.  The dispute here is both one of fact, and of law.  On the factual side, the plaintiff’s claim is that the plaintiff was receiving a sum of about $20,000 per month as wages before the accident from a company called Hang Fai Tansportation Company Limited (“Hang Fai”).  Hang Fai’s business is the transportation of goods between the Mainland and Hong Kong.  It started off as a sole proprietorship business run by the plaintiff.  In about 1996/1997, the business was incorporated as a limited company.  At the time, the plaintiff’s son, Law Tat Fung, was only about 20 years old.  The plaintiff appointed himself and his son as directors.  He also made him a shareholder along with himself. 

60.  In September 2004, the plaintiff resigned as director and also gave up his shares.  From then on, his son became the sole director and shareholder of Hang Fai. 

61.  The plaintiff’s son gave evidence to the effect that every month, the plaintiff received payment firstly in the form of cheques paid to him by two old customers, and secondly in the form of cash that he drew from Hang Fai.  He said in evidence that the amount was not fixed, but generally, it would have been over $20,000 per month.  The plaintiff produced his tax return and statements of his MPF contributions, both of which were documents which came into existence prior to this litigation and are cogent evidence of the arrangement as testified by the son. 

62.  Mr Chan’s cross-examination was unable to shake the son’s evidence on this point.  I find him to be an honest witness and accept his evidence.  I find that the plaintiff was, before the accident, working in Hang Fai and entitled to receive a sum of $20,000 per month.  He was working as a driver, responsible for transportation of goods within Hong Kong, and also assisted in the management of the other drivers in the employ of the company. 

63.  The son’s evidence however also revealed that the plaintiff continued to receive payment to the order of $20,000 per month after the accident, and indeed up to the time of the trial.  He said, and I accept, that instructions have already been given to the customers to cease paying the plaintiff, and that the arrangement had to stop. 

64.  He explained that his mother received advice from the Labour Department that the plaintiff was entitled to continue receive his wages because he was injured in the course of work.  The evidence (which was undisputed) was that the plaintiff was on the way of retrieving certain documents which were needed for the business.  The son’s evidence is that it was only later that the surveyor from the insurance company advised him that he should only be paying 4/5 of the wages; and that he did not have to make the MPF contribution.  

65.  The son also gave evidence that the business had not been doing well in the last few years.  He had to rely on a loan from the Government to make the payments; and that since they were family, the money which the plaintiff received was managed by the plaintiff’s wife and used to pay for family expenses.  In this context, “family” includes the son’s family as the plaintiff and his wife live together with the son’s family. 

66.  On these facts, a question arises as to whether the plaintiff is entitled to claim for past loss of earnings.  On one view, he received payment of his wages from his employer, and did not suffer any loss.  He cannot therefore claim for a loss he never suffered. 

67.  Mr Lam, however, submitted that the monthly payment of $20,000 should be regarded as “nominal”, or perhaps notional, since the money was really paid back into the family pool.  To prevent any risk of double recovery, the plaintiff was prepared to undertake to return any amount recovered from the defendant to Hang Fai. 

68.  In cases where a claimant receive moneys gratuitously conferred upon him from sources as a mark of sympathy or assistance, the law is that such receipts should not be taken into account.  In Parry v Cleaver [1970] AC 1, Lord Reid said that it would be :

“revolting to the ordinary man’s of justice, and therefore contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large, and that the only gainer would be the wrongdoer.”

69.  In Dennis v London Passenger Transport Board [1948] 1 All ER 779, the plaintiff received pension and sick pay which equalled the amount of his wages from his employer, London County Council, and from the Ministry of Pensions.  Denning J (as he then was) said :

“… The cardinal point to remember is that it is the defendants who are responsible for what has occurred. In my opinion, a wrongdoer is not to be allowed to reduce damages by the fact that other persons have made up to the plaintiff his wages, like the London County Council and the Ministry of Pensions in this case.  The plaintiff has lost his wages. In point of law, therefore, prima facie he should have them paid by the wrongdoer.  As they have been made up to him by other people who expect to be repaid I think it is proper that that sum should be included as damages, but subject to the direction that the amount paid to the plaintiff by the Ministry of Pensions and the London County Council should be paid to those bodies out of the sums recovered.”

70.  In Dennis, the payment to the employee was voluntary and the plaintiff was expected to refund the amount if he recovered compensation from the tortfeasor.  When it was made under a duty, as where an employer is under a statutory obligation to pay wages whether the employee is fit for duty or not, the law is that the employee has suffered no loss and can recover no damages, see Metropolitan Police Receiver v Croydon Corporation [1957] 2 QB 154 and Hussain v New Taplow Paper Mills [1988] AC 514.  It would also appear from the authorities that if the employee has an obligation to repay, whether it be legal or moral, or arising out of an implied understanding, the money paid should be left out of account : see Hensman v Goodsall, unreported, 23 January 1997 and noted in Kemp & Kemp, The Quantum of Damages at §5-105/1. 

71.  Deputy High Court Judge Carlson recently considered this question in Chan Ka Lim v Chow Wai Kin HCPI 727/2004.  He endorsed the following propositions advanced by counsel as correctly summarizing the law :

(1) Whether the amount received should be deducted depends on the nature of the payment.

(2) In determining the nature of the payment, the Court looks at the substance, rather than the label, of the payment. It will consider the actual arrangements made and the particular circumstances of the case.

(3) If the payment is salary properly so-called which the plaintiff received as of right, deduction is required.

(4) But if the payment is ex gratia or a loan only, no deduction should be made. It is sufficient if there is an “understanding” or “expectation” of repayment, or even that the plaintiff feels under a moral obligation to repay.

72.  I gratefully adopt this summary.  The position here is that Hang Fai was under a duty to pay compensation to the plaintiff under section 5(1) of the Employees’ Compensation Ordinance since he suffered personal injury by accident which arose out of and in the course of his employment.  During the hearing, counsel addressed me on the basis that compensation was payable under section 10 of the Ordinance.  This section applies in the case of a temporary incapacity, whether total or partial. And if that section were applicable, Hang Fai’s liability would be to pay 4/5 of the wages up to a period of 2 years (in the absence of an application to Court under section 10(5)).  Anything beyond would have been paid under a mistake, and is in law, plainly recoverable by Hang Fai from the plaintiff, see Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349. 

73.  I do not, however, believe that section 10 is the applicable provision here.  The incapacity of the plaintiff was permanent, and the relevant section should be section 7.  Since the plaintiff was over 56 at the time of the accident, the amount payable under section 7(1)(c) would be 48 times his earnings i.e. $960,000.  On the evidence before me, I accept that Hang Fai has been paying the plaintiff about $20,000 per month from the date of the accident.  That sum did not exceed $960,000.  

74.  At the trial, Mr Lam offered on behalf of the plaintiff an undertaking with the view to removing any possibility of double recovery.  I do not consider see how any offer of undertaking can overcome the basic difficulty of the plaintiff’s case here.  The short point is that since the plaintiff has received his wages as of right and without any obligation to repay, he cannot be said to have suffered any loss under this head. 

75.  Hang Fai would have a right under section 25(1)(b) of the Employees’ Compensation Ordinance to sue for the recovery of any sum which it is obliged to pay as a result of the accident.  That, however, is not a matter I can be concerned with for the purpose of these proceedings. 

76.  Does it matter that the payment made to the plaintiff was only notional, as it was really paid back into the family pool?  If the plaintiff was really paying the money back pursuant to a legal or moral obligation to refund, it can be said that he did not really receive any money, and there should be no reason why the defendant should have the benefit of that payment.  However, what actually happened was simply that the money was used by the plaintiff’s wife to disburse family expenses.  The payment to the plaintiff was intended to discharge Hang Fai’s legal obligation under the Ordinance.  It was not a sham, but rather one which was intended by the parties to have full legal effect.  Moreover, the plaintiff was part of the family, and it cannot be said that he did not benefit from the payment.  In the circumstances, I hold that the plaintiff has not suffered loss in pre-trial loss of earnings because he has received full payment from his employer. 

Post-trial loss of earnings

77.  The position with regard to post-trial loss of earnings is entirely different.  The plaintiff’s son gave evidence, which I accept, that Hang Fai could not continue making the payments.  

78.  In any event, I am not concerned with a situation where the plaintiff has received money, and therefore, cannot claim for a loss.  I am satisfied that he has suffered loss of future earnings, which I assess at $20,000 x 12 x 1.05 x 4 = $1,008,000. 

79.  In this connection, I note that although Dr Woo expressed the view that the plaintiff might be suited for simple menial tasks such as a messenger or a delivery worker, Mr Chan did not advance any argument to the effect that the plaintiff has not totally lost his earning capacity.  In my view, Mr Chan was right not to do so.  The evidence is that the plaintiff often forgets what he has done a moment ago and needs to be reminded of his appointments.  I regard it as most unlikely that he would be employable as a messenger or delivery worker.  

Future medical expenses

80.  This last item of controversy on quantum revolves around the question whether it is reasonable for the plaintiff to seek the cost of a cranioplasty in a private hospital, as opposed to undergoing the operation in a public hospital.  On this aspect, I accept the evidence of the plaintiff’s wife to the effect that the plaintiff has had very bad experience when he was last hospitalized in a public hospital.  It would still be a challenge for Mrs Law to persuade the plaintiff to agree to the surgery at a private hospital, but at least the prospect that he would be accompanied by his wife without the limitations of visiting hours imposed in a public hospital would be likely to make the whole experience much less formidable for the plaintiff.  I accordingly allow the sum claimed by the plaintiff under this head of $106,000. 

Order

81.  Apart from the above, the parties have agreed special damages in the sum of $20,913.  The total quantum therefore comes to $1,100,000 + $100,000 + $1,008,000 + $106,000 + $20,913 = $2,334,913.  There must be a deduction of 25% on account of contributory negligence.  The total sum I award is therefore $1,751,185. There will be interest at 2% on the PSLA award, and interest at 1/2 the judgment rate on special damages, both from the date of writ to the date of judgment. 

82.  I make an order nisi that the defendant shall pay the plaintiff’s cost of the action, to be taxed if not agreed.  The plaintiff’s costs be taxed in accordance with the Legal Aid Regulations.