TSUNG WO HA AND OTHERS v. MAK SAI CHOI

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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Background

1. The plaintiff is the wife of Tsung Wo Ha who was the driver of a mini-bus on the 30th of May 1979. On that day Mr. Tsung's bus was proceeding down Kwai Chung Road going north when another bus, driven by the defendant, which was going south crossed the substantial concrete divider between the two carriage-ways and collided with Mr. Tsung's bus virtually head-on. Mr. Tsung suffered very serious head injuries. The defendant was subsequently charged in the Magistrates Court with dangerous driving and pleaded guilty to careless driving of which he was accordingly convicted, fined and disqualified from driving for 3 months. In his defence he claimed that the accident was caused by the front off-side tyre of his bus deflating causing him to loose control of the vehicle.

2. Mr. Tsung's injuries have meant that he can no longer drive or earn any sort of living. He has been to various institutions and is at the moment in the Cheshire Home. He is now quite happy but his mental capacity is greatly reduced. He has a wife and three children aged 12, 14 and 15 years, all daughters.

3. At the hearing of this claim the defendant, who had been refused legal aid, was not represented. He admitted that he was responsible for the accident but said he could not pay any damages awarded. He is also a mini-bus driver and I have no doubt, bearing in mind the level of damage, that is correct. The defendant was refused legal aid and while there was no question of liability I  was therefore not assisted by argument by the defendant as to quantum. I understand that Government finds may be made available in cases, such as this, where the 3rd party Insurance Company has defaulted and one would have thought it was very much in its interest that the defendant be represented as to quantum of damage.

Liability

4. There was evidence that while the front off-side tyre of the defendants bus was deflated, it was caused by the accident and was not the cause of it. The defendent had been convicted of careless driving and the onus was then on him to show that he was not negligent (Stupple v. Royal Ins. Co. Ltd. (1971) 1 Q.B. 50). This he did not do and I am quite satisfied he was 100% responsible for the accident.

Damages. Loss of earnings

5. Mr. Tsung's wife gave evidence that he was now aged 50 (44 at the date of the accident 30.5.1979) and they had 3 daughters aged 12, 14 and 15. Mr. Tsung was earning $3,500 - $4,000 a month at the date of the accident. There was evidence that the average income of a mini-bus driver in 1984-85 was $4,500 for day shift and $5,000 for night shift. There was no evidence what shift Mr. Tsung worked.

6. Mr. Tsung would probably have continued driving until he was about 60 and I consider a multiplier of 7 should be used for post-trial loss. I accept that Mr. Tsung was earning about $3,750 p.m. at the date of the accident and this would have risen to $4,750 at the date of the trial. I therefore take the figure of $4,250 as an average.

7. I therefore assess pre-trial loss of earnings at $4,250 x 12 x 6 = $306,000, and post-trial loss of earnings at $4,250 x 12 x 7 = $357,000.

General damages. Loss of amenities, pain and suffering

8. Mr. Tsung is gravely mentally disabled and will require care and attention, probably in an institution, for the rest of his life which will be shortened by about one third. He is, however, now quite happy and is clearly not aware of his misforture. I think he falls into the ''gross disability" category of Lee Tung-lam v. Leung Kam-ming (1980) H. K. L. R. 657, where awards of $100,000 to $150,000 cna be made. I consider an award of $125,000 would have been proper then but I should take account of inflation since 1980. In Lee Ping-sum v. Chan Wai-tong C.A. 53/1983 the decision of the Court of Appeal was reversed by the Privy Council as to the level of the award but not as to taking into account a rate of inflation. There the amount set out in Lee Tung-lam was increased by 50%. I will increase it by 60% to give a figure of $200,000 for damages for loss of amenities, loss of expectation of life, pain and suffering.

Special damages

9. The claim for provision of a wheel chair is proved, $1,970, and I allow $2,000 for special food and $4,000 for Tsung Law Yuk Lin's travelling expenses.

There will be interest at 7% on the special damages (food, travel expenses) from the date of the accident and on the past loss of earnings from the date they would have been received. There will be interest at 2% on the damages for loss of amenities, pain and suffering from the date of issue of the writ.

10. The plaintiff to have his costs, to be taxed in accordance with the Legal Aid Regulations.

11. There remains the question of what provision should be made pursuant to Order 80 Rule 12 for the disposal of the funds received (if any), the plaintiff being under a disability as to his affairs. I will hear counsel on that on what order should be made so as to protect the rights of Mr. Tsung's wife and children as well as the institutions which will be looking after Mr. Tsung.