BHAKTABAHDUR LIMBU v. LAI CHEE POR

1988, No. A4730

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

-----------------

JUDGMENT

-----------------

Sir Derek Cons, Acting C.J.:

1. This is an action to recover damages for personal injuries received in a traffic accident which occurred at about 8:05 on the evening of the 8th April, 1986 in Sha Tau Kok Road at its injunction with a small side road leading to the Gallipoli Lines of the Brigade of Gurkhas. The Plaintiff, who then was a Rifleman in the Brigade, had been cycling along by the side of the main road going from his morried quarters, intending to turn right into the small side road leading to the Lines. Behind him was minibus. He looked over his shoulder and must have seen the minibus, as it aid, slow to a halt. He then started his turn across the front of the minibus and without pausing or looking further, across the remainder of the road.

2. At just that moment a Volvo motor car, driven by the Defendant, which had come up behind the stationary minibus, was in the act of passing the minibus on its off side. The speed of the car was around 75 kilometres per hour or perhaps a little more. The road of that point is narrow, just over 21 feet wide. The collision with the cycle was inevitable.

3. I draw these conclusions - and I think in the circumstances it is impossible to be more specific - from the evidence of the police constable who provided a sketch of the area with measured brake marks left by the Defendant's vehicle; of Dr. Lingard who, with the benefit of the report from the Motor Vehicle Inspector as to its braking efficiency, deduced the speed of the Defendant's car therefrom; and of the one eyewitness standing with his cycle at the corner of the junction.  The Defendant's statement made to the police that same evening and his evidence in this Court does not differ significantly from what I have found, save as to the speed at which he was travelling, which he still puts at 50 kilometres per hour, the lawful speed limit for that area.

4. I am satisfied that in passing the minibus at that speed the Defendant was driving negligently. Although the road ahead was straight and he could see that no vehicle was approaching from the opposite direction, there was a blind spot in front of the minibus. The Defendant could not see what was happening there and in Hong Kong, as elsewhere, it is not uncommon for passengers alighting from minibuses to cross toe road unthinkingly in front of them. This would be even more likely where there is a road opposite leading to an army barracks. However I do not accept the suggestion that the Defendant should also have been prepared for either the eyewitness or some vehicle to emerge from the side road and turn against him in the main road. To do so in such a narrow road, with a minibus stationary in the opposite lane would, in my view, be equally "the driving of a lunatic" as that referred to by Ormrod, L. J. in Challoner v. Williams and Croney [1975] 1 Lloyd's L.R. 124 at 129.

5. It has not been suggested that the Plaintiff was not likewise negligent.  The crucial question, to which I shall return later, is the extent of his share in the responsibility for the damage.

6. Sadly the damage was extensive. Injury to the Plaintiff's head has left him with a snort concentration span and inability to remember short term.  His personality has changed from that of a happy, helpful husband to one who is bad-tempered and unwilling to work at home. He is inclined to vent his temper on whoever happens to be present, whenever he accidentally knocks into a wall or other object, which cannot be infrequent seeing that damage to the ocular nerves has deprived him almost completely of the left half of his normal field of vision.  In addition the patella of his right knee was fractured during the accident so that he walks now with a limp and cannot make further than half a mile at the most. In none of these areas can any improvement be expected.  He will remain as he is for the remainder of his life.

7. In these respects I have had the benefit of evidence from Mr. Peter Whyte, a consultant psychologist, Dr. Fali Shroff, a neural surgeon, and Dr. WONG Tak-Cneung, an ophthalmologist and their respective reports, together with reports from Drs. O' Brian, Brian Choa and Heffernan. But it is not necessary to go into these matters in detail, for general damages for pain and suffering and loss of amenities have been agreed at HK$330, 000. The object of the evidence was to establish the extent, if any, to which the Plaintiff is now capable of obtaining employment with a view to the assessment of his loss of earning capacity. In my view his short concentration span and inability to abstract instruction or to remember those given to him for any significant length of time, coupled with his restricted Vision and physical immobility, would make it difficult for him to find employment even in Hong Kong at this moment in time.  In Nepal, where on the evidence of Sergeant Bissaaran and Corporal Ray the opportunities are much less, I find him effectively unemployable.

Loss of earnings

8. At the time of the accident the Plaintiff was serving with the Brigade of Gurkhas under a 15-year contract which would have expired on the 15th November last year.  He would then, after a period of leave, have expected to be offered service with the Gurkhas Reserve unit in Brunei. That would have been for three linked contracts of three year search, with bonuses and gratuities on the satisfactory conclusion of each in addition to his monthly pay. Instead he was invalidated out of the Brigade and returned to Nepal in February 1988. He receives a disability Pension which in fact is only fractionally less and that which he would have received upon completion of his full contract.

9. The Defendant does not dispute the likelihood of service in Brunei. Indeed he has agreed that payment for the first month that the Defendant would have been serving now should be included in the special damages. But Mr. Yu on his behalf contends that the rest of the payments should be discounted by reason that the Defendant will be receiving them in a lump sum in advance.  He refers me to para. 1475 of the 15th Edition of "McGregor on Damages" and has submitted calculations based, as I understand, upon an interest rate of 10% which indicate a figure of HK$408, 030 as opposed to the HK$645, 384.99 that are claimed. Mr. Pirie for the Plaintiff, on the other hand, observes that the claim is based on current rates offered in Brunei and takes no account of inflation which would inevitably make the second and third contracts more valuable, thereby balancing the discount sought by Mr. Yu.

10. No evidence has been adduced to show the rate of inflation in either Brunei or Nepal or that either has, in the past, been reflected in the pay of the Gurkhas Reserve Unit but nevertheless it does seem to me not unreasonable to assume that there will De some increase in pay offered as time goes by.  For my calculations I nave assumed that the second and third contracts would in the event, have been increased by 10% and 20% respectively. In addition to that tile Plaintiff would no doubt have invested his pay, or the major part of it, as he went along Allowing for this 5% interest overall, i.e. half of the 10% suggested by Mr. Yu, the Plaintiff would, by the end of his service in Brunei, have amassed capital, in round figures, of HK$ 1, 040,000. HK$ 550,000 invested at 10% for nine years produces almost exactly that sure and is thus, in my view, the proper figure to award for future loss of earnings.

Loss of earning capacity

11. According to the evidence of Sergeant Bissaaran and Corporal Ray most Gurkhas soldiers, on completion of their service, use the money they have saved to purchase land in Nepal.   I accept that but for the accident the Plaintiff would have done the same and either worked it himself, paid others to work it for him or sold when the price was suitable. In the last two instances, which are the only two open to him now, I would have expected the Plaintiff to seek other employment for himself. I was told that for most uneducated men in Nepal this would be limited to labour on the land, giving a return of 500 Rupees per month with board, lodging and clothing. The Plaintiff, however, has acquired some semi-skilled manual talents in his role as a pioneer in the Brigade and in addition knows how to drive. I think it therefore not unreasonable to assess his erstwhile earning power in Nepal at 750 Rupees a month.

12. Mr. Pirie, by reference to his instructions when appearing in Balasing Gurung v. Ng Lay, Action 4587 of 1585, unreported, dated 5th August, 1986, suggests that the life expectancy of a man in Nepal is 59 to 60 years. On retirement from Brunei then the Plaintiff could perhaps have looked forward to some 17 more years of which I think it probable he could have worked for 14. Using that then as a multiplier the resulting figure is in the round HK$ 35,500.

Housing Costs

13. On return to Nepal in 1988 and until the Gurkha Welfare Association provided other facilities for the family, the Plaintiff rented a house in Dharan so as to be reasonably near suitable medical facilities.  The cost of that has been agreed between the parties at HK$ 3355.80.

Medical Expenses

14. The Plaintiff's medical treatment in Hong Kong and for some time after his return from. Nepal was provided free of charge in military hospitals. However, at some stage, the British Military Hospital in Dharan was transferred to the government of Nepal and since then the Plaintiff's wife has been required to pay for whatever medicine she has purchased for him either from that hospital or from shops which sell the same. The medicine was for, she said, the treatment of his knee, his eyes and teeth, three of which were knocked out in the accident, and recovered subsequently from his bronchial tubes. The purchases of medicine do not seem to have been upon the advice of a medical practitioner but possibly medical advice is not as freely available in Dharan as in Hong Kong and in any event Dr. Shroff testified that the Plaintiff would require pain killers and perhaps other drugs in the future.

15. The wife's evidence was that she made purchases 10 to 12 times a month, sometimes less, paying each time between 200 and 300 Rupees. She estimated teat "in the last several months" she had spent some 12,000 Rupees. If those months be taken at six that would give a monthly average of 200 Rupees which to me seems unduly high for analgesics, eye drops and knee bandages. I cannot help feeling that in this, as in another respect, she has exaggerated the situation and I am prepared to allow no more than 1,000 Rupees per month. This would give expenses to date of HK$ 1,692 and for a 26-year future, based on the sane life expectancy as before, the figure in the round would be HK$ 88,000.

Care and attention

16. The evidence of the Plaintiff's wife was that on release from hospitals she had to do most things for him, as he could then neither wash nor cress himself. She says that even now he is unable to bathe himself below the waist. The Plaintiff did not give evidence but he was present in court for some of the hearing. I art not persuaded that he is any way near to helpless as his wife makes out but I am satisfied that it would hot be prudent to allow him to go far by himself or to be left unattended where there is machinery or domestic danger of any kind.  In these areas care and attention is and has been necessary and can properly be reflected in damages.

17. It is not clear how long the Plaintiff actually spent in hospital after his accident but a month overall would seem a fair period to take. That makes 22 months for his wife to look after him in Hong Kong and 26 since their return from Nepal. Neither side has made any attempt to value those services by logical reference to any standard. Mr. Pirie has merely suggested a figure of between HK$ 200 and HK$ 300 for the period here and 350 rupees in Nepal. Mr. Yu, having put no lower figure, I am content to accept those suggestions, taking the mean in bong Kong of HK$ 250. This would give a total of HK$ 8,066 for care and attention to date. Future care and attention, assessed on the same basis for 26 years would be roughly HK$ 30,000.

18. All the figures 1 have given are, of course, subject to the correction of my arithmetic, but if that is not necessary damages at 100% liability can be tabulated as follows:

19. To assist in the assessment of contributory negligence reference has been made to the cases of Balasing Gurung v. Ng Lay, Challoner v. Williams and Croney, and Patel v. Edwards (1970) Road Traffic Reports at 425. Although each has some similarity of circumstance with the present, none is the same and they can do no more than illustrate the approach of the courts on their particular facts. I note in the present instance Mr. Pirie's observation that the Defendant was driving what could at that speed amount to a lethal weapon. On the other hand the Plaintiff had immediate control of his bicycle and had he looked on reaching the centre of the road he could so easily have stopped or turned away and the accident would have been avoided. In my judgment both parties are equally to blame and damages should be adjusted accordingly.

20. Judgment will therefore be entered in the Plaintiff's favour:-

21. Subject to argument by counsel the Plaintiff is to have his costs with a direction for legal aid taxation.