SO WING KWONG v. CHENG CHI KWONG AND OTHERS

HCPI 1098/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1098 OF 1997

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J U D G M E N T

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1. The Plaintiff's claim for damages for personal injuries arises out of an accident which occurred at around 6:45p.m. on 17th January 1996 when he was crossing Bonham Strand on foot after leaving work. He was struck by private car driven by the 1st Defendant. Shortly before the accident that private car had been entrusted by the 2nd Defendant, who had use of the car that evening, to those operating a car parking service on behalf of the 3rd Defendant, the Fook Hing Hot-Pot Seafood Restaurant in Queen's Road West, while he and his colleagues had a meal at the restaurant. When the accident happened, the 1st Defendant, who had only that day been engaged to perform car parking services, was driving the car, endeavouring to find a car parking space. Despite having knocked the Plaintiff down and damaged the wing mirror and windscreen of the car, the Defendant drove off. Fortunately a passer-by managed to take down the number of the vehicle.

2. The Plaintiff claims that both the 2nd and the 3rd Defendants are vicariously liable for the negligence of the 1st Defendant.

3. No issue as to liability arises in respect of the 1st Defendant. Interlocutory judgment in default of defence with damages to be assessed was entered against him on 27th March 1998. He did not appear at the trial either in person or by counsel.

4. Liability remains a live issue in respect of the 2nd and 3rd Defendants. Only the 2nd Defendant appeared at the trial and he was represented by Mr. H.Y. Wong.

5. Quantum remains a live issue in respect of the 1st and 3rd Defendants but not in respect of the 2nd Defendant. It was agreed between the Plaintiff and the 2nd Defendant that in the event of the Plaintiff establishing liability against the 2nd Defendant, the damages should be $500,000 inclusive of interest.

Liability

6. The first issue insofar as liability is concerned is whether the accident was caused by the negligence of the 1st Defendant. Only the Plaintiff gave evidence as to this issue which was to the effect that he had checked to see if any vehicle was approaching before he stepped onto the road. There was none. After stepping onto the road, he heard the noise of an engine of a car to his right. He stopped but was unable to make it back the pavement before he was struck by the car. He believed that the car was being driven at high speed. His evidence of negligence is supported by the admission made by the 1st Defendant in his statement to the police that he failed to check the condition on the pavement on his left and just kept looking ahead. It is also supported by the failure of the 1st Defendant to stop after the accident which suggests that he knew that he was at fault.

7. I find that the accident was caused by the negligence of the 1st Defendant. There was no evidence of any contributory negligence on the part of the Plaintiff.

8. In so far as the 3rd Defendant is concerned, the main issue on liability is whether the 1st Defendant was its employee driving in the course of his employment. There was no evidence at the trial to support the allegation pleaded in the 3rd Defendant's defence that those operating the car parking service outside its restaurant were not employees of the 3rd Defendant but operating a separate business providing car parking services.

9. The evidence before the court clearly indicates that those operating the car parking service were employees of the 3rd Defendant and that the 1st Defendant had been employed that day. In particular in his police statement, Mr. Hui Man Pow, who said that he accepted the keys of the car from a person who must has been the 2nd Defendant and who engaged the 1st Defendant as a car parking boy at a wage of $150 for that night, described himself as "head of the parking department" of the 3rd Defendant which he had joined in December 1995.

10. I am accordingly satisfied that the 3rd Defendant is vicariously liable for the negligence of the 1st Defendant.

11. The principal issue in this trial has been the liability of the 2nd Defendant for negligence of the 1st Defendant.

12. There was no dispute that the 2nd Defendant had driven his colleagues to the restaurant in the vehicle and had handed over the keys to those operating the car parking service. There was a conflict between his statement to the police in which he said that the owner of the car was a friend who had lent it to him and his evidence in court in which he said that the car had been lent to the company. The discrepancy is not material as Mr. Wong has conceded that as a matter of law it makes no difference so far as liability is concerned and that the 2nd Defendant was in the same position as the owner of the vehicle when he entrusted it to the 3rd Defendant to park.

13. That concession on behalf of the 2nd Defendant, accords with the observations of Eveleigh J. in Nottingham v. Aldridge [1971] 1 QB 739 at 752 when he laid down what Mr. Chow for the Plaintiff maintains is that the true test to be adopted by the court in considering whether the 2nd Defendant is vicariously liable for the 1st Defendant's negligence:

"I am prepared to accept Mr. Morris's contention that ownership of a motor vehicle is not required as a matter of law to impose liability upon another for the acts of a driver who is not his servant but in such a case, it must in my view be established that the driver is driving in a genuine representative capacity, that is as an agent for and on behalf of the principal and as one to whom there has been a delegation of a task or duty." (My emphasis)

14. It is submitted on behalf of the Plaintiff that the 1st Defendant was driving the vehicle in a genuine representative capacity i.e. as agent for and on behalf of the 2nd Defendant. Instead of driving a vehicle to a car park himself, the 2nd Defendant delegated the task to the 3rd Defendant which carried out the task through its employee, the 1st Defendant.

15. Mr. Wong argues that that passage lays down only part of the test to be applied. Not only must the driver be driving as the agent for and on behalf of the principal and as one to whom has been a delegation of a task or duty, but the Defendant must retain in addition a right to control the vehicle. He argues that the latter part of the text is not satisfied in this case as the 2nd Defendant had surrendered the right to control the vehicle to the 3rd Defendant. He relies upon para. 5-66 in Clerk & Lindsell on Torts (17th edition) in support of this contention and in support of his further contention that a bailment of chattel (which he said occurred in this case when the car was transferred to the 3rd Defendant) amounts to abandonment of the right to control the vehicle. He relies upon the judgment of Streatfield J. in Chowdhary and Another v. Gillot and Others [1947] 2 All England 541, as authority for his argument as to the effect of bailment.

16. I am not persuaded by Mr. Wong's arguments.

Chowdhary and Another v. Gillot and Others, it is in my view of limited significance to this case. It was not a case where the owner of the car was being sued for injuries caused by the driver to a third party but was an action by the owner for injuries he himself had sustained. It related not to the transfer of control of the vehicle but to transfer of an employee. It is certainly not authority for the proposition that whenever there is a bailment of whatever kind, the owner (or the person in the position of the owner) surrenders control and cannot thereafter be vicariously liable for the negligence of person who is driving on his behalf to whom there has been a delegation of a task or duty.

17. Even if the retention of a right to control had been a necessary element before there could be vicarious liability, I am satisfied that the mere fact of a bailment would not in itself mean the owner of the vehicle (or a person in the position of a owner) had abandoned the right to control. It would depend in each case on the purpose of the bailment.

18. In any event, I am not satisfied that the retention of a right to control beyond that implicit in the delegation of a task or duty to an agent is a necessary element before vicarious liability can be established. In Norton v. Canadian Pacific Steamships Ltd. [1961] 1 WLR 1057, Lord Justice Pearson had referred to the evidence before the court that the Defendants did not exercise or have any right of control of the use of the bogies to which that case related. Yet he made no reference to that factor when setting out the test (at p.1063):

"In my opinion, the reason in Ormerod's case is based on the same principle. The owner of a car when he takes or sends it on a journey for his own purposes, owes the duty of care to other road users and if any of them suffers damage from negligent driving of the car whether by the owner himself or by an agent to whom he has delegated the driving, the owner is liable."

19. My view is strengthened by the remarks of Lord Wilberforce in Launchbury v. Morgans [1973] A.C. 127 at 135 in which he set out the circumstances in which the common law has attributed vicarious liability.

"The owner ought to pay, it says, because he has authorised the act, or requested it or because the actor is carrying out a task or duty delegated or because he is in control of the actor's conduct."

In other words, control is simply an alternative basis for vicarious liability.

20. I am satisfied on the evidence that at the time of the accident, the 1st Defendant was driving the vehicle in a genuine representative capacity as agent for and on behalf of the 2nd Defendant. The 2nd Defendant had delegated the task of parking the vehicle to the 3rd Defendant which carried out that task through its employee, the 1st Defendant.

21. I reject the argument for the 2nd Defendant that simply because the 1st Defendant appears to have been trying to find a place to park the car other than at the usual construction site used by the 3rd Defendant he was on a frolic of his own. I find the 2nd Defendant vicariously liable for the negligence of the 1st Defendant.

Quantum

22. At the time of the accident, the Plaintiff was aged 29. He is running his own business as a graphic designer. I accept his evidence that his net monthly profit over the last complete financial year prior to the accident amounted to $5,254 a month.

23. In the course of the accident, the Plaintiff sustained injuries to his left knee and his right arm. He was taken to the Accident and Emergency Department of Queen Mary Hospital where he was observed to have a grossly swollen right arm, left ankle and arm abrasion and left knee tenderness with normal range of movement.

24. An X-ray showed that there was fracture of the shaft the right humerus. He was admitted to the Orthopaedic Department of Queen Mary Hospital for treatment. The diagnosis was fracture of the right humerus and left knee ligament (the lateral collateral ligament, the anterior cruciate ligament and the posterior cruciate ligament) injury.

25. The humerus fracture was treated with intramedullary nail and the left knee ligament was repaired on 23rd January 1996. On 31st January 1996, the Plaintiff was transferred to MacLehose Medical Rehabilitation Centre for rehabilitation. He was given a knee brace on arrival.

26. He received physio therapy and his condition improved gradually. He received treatment as an in-patient until 31st May 1996. Thereafter he continued to receive therapy treatment on an out-patient basis until he was discharged on 28th June 1996. Subsequently he attended follow-up at the Orthopaedic Department of Queen Mary Hospital on 4 occasions.

27. Recent reports of Dr. Au Ka Kau and Dr. David Chan were put before the court as well as the Plaintiff's own account of his physical disabilities. He complains, inter alia, of pain in the left knee which increases during a change in the weather. There is aching discomfort over his knee on prolonged standing and tiredness of the left lower limb if he walks for more than an hour. He has a sense of weakness in his left leg. This affects him when he has to undertake outdoor work such as delivering and collecting items in connection with his work. Both doctors agree that he suffers from a 30° reduction in internal rotation of the right shoulder, a 4cm wasting of a left thigh and weakness of the anterior cruciate ligament. Both doctors assess his disability at 8% of the whole person.

28. The accident has forced him to give up former activities, such as squash and cycling. The Defendant has been able to resume his work as a graphic designer. I accept Dr. Au's view that his disabilities and in particular the fact that he becomes fatigued easily would effect his competitiveness in the open job market if he had to look for alternative employment.

Pain and Suffering and Loss of Amenities

29. In the light of disabilities, I have referred to I consider the Plaintiff's injuries fall short of the serious injury category. In my view, the appropriate award under this head is $320,000 which is two-thirds of the figure for damages at the lower end of the serious injury category.

Pre-accident Loss of Earnings

30. I accept that it was reasonable for the Plaintiff to take 6 months sick leave. I shall adopt the monthly figure of $5,254 to which I referred earlier as the appropriate multiplicand. The Plaintiff is entitled to $31,524 under this head.

Loss of Earning Capacity

31. The Defendant has resumed his form of business in graphic design. It is not a particularly profitable business but the Plaintiff's disability is a factor which may well persuade him to remain in this business rather than, as he might otherwise have done, seek more remunerative alternative employment for which he would be less competitive. The fact that he tires easily is likely to affect his earnings even in his existing business. I award the Plaintiff a global sum of $120,000 under this head to reflect these factors.

Past Medical Expenses

32. I accept the figure of $8,880 given by the Plaintiff in his statement (para. 15a) which he adopted in his evidence. I award him $8,880 under this head.

Future Medical Expenses

33. I consider it reasonable the Plaintiff should be given the option of having the hardware used for fixation of the fracture removed. I award him $18,000 under this head.

Travelling expenses

34. I regard the figure of $3,912 given by the Defendant as reasonable.

35. I regard the Plaintiff's remaining miscellaneous claims in the sum of $7,604 for purchase of a brace, a key holder and tonic food as reasonable and I award him that sum.

36. The damages for which the 1st and the 3rd Defendants are liable are as follows:

Pain and suffering, loss and loss of amenities	$320,000.00
Loss of earnings	$31,524.00
Loss of earning capacity	$120,000.00
Past medical expenses	$8,880.00
Future medical expenses	$18,000.00
Travelling expenses	$3,912.00
Miscellaneous expenses	$7,604.00
Total	$509,920.00

37. I give judgment for the Plaintiff against the 2nd Defendant in the agreed sum of $500,000.00 inclusive of interest up to today.

38. I give judgment for the Plaintiff against the 1st and the 3rd Defendants in the sum of $509,920.00 plus interest on damages for pain and suffering, loss and loss of amenities at 2% from the date of issue of the writ until today, plus interest on loss of earnings and past medical expenses, travelling expenses and miscellaneous expenses at 5.63% from the date of issue of the writ until today.

39. Interest on judgment debts of all the Defendants to be at judgment rate from today until payment.

40. The Plaintiff's costs to be taxed and paid by the 1st and the 3rd Defendants.

41. Unless the Plaintiff or 2nd Defendant makes application within 14 days from today to be heard on the questions of costs, I order the Plaintiff's costs to be taxed and paid by 2nd Defendant.

42. The 2nd Defendant has issued the notice of contribution and indemnity against the 1st and the 3rd Defendants. On the basis of my findings, I consider that the 2nd Defendant should be entitled to a full indemnity against the 1st and 3rd Defendants in respect of his liability for the judgment debt inclusive of interest. Whilst I consider that the 2nd Defendant is entitled to indemnity in respect of a portion of the Plaintiff's costs which he has been ordered to pay, I do not consider that there should be a full indemnity in view of the unsuccessful defence which he has advanced. I order the 2nd Defendant be indemnified by the 1st and the 3rd Defendants as to one half of the Plaintiff's costs which he is ordered to pay. I order the 1st and the 3rd Defendants pay one half of the 2nd Defendant's costs of defending the action.