HO WING CHU v. CHAN KWOK KEUNG AND ANOTHER

IN THE HIGH COURT OF JUSTICE

HONG KONG

____________

BETWEEN

___________

JUDGMENT

___________

1. This is an action by the plaintiff against the defendants for damages for personal injuries and loss suffered in a road traffic accident.

2. The facts reveal that on the 11th December 1985 at about 8:15 a.m., the plaintiff was outside the entrance to the Mongkok market at the junction of Argyle Street and Sham Chun Street waiting for a taxi when he was knocked down by a van driven by the second defendant which was being reversed down Sham Chun Street, which is a one way street, towards Argyle Street. The plaintiff who was 61 at the time of the accident, had been to the market at about 7:30 a.m. to purchase provisions for his catering business that he carried on in the Kowloon Walled City. After completing his purchases which were taken by his foki who accompanied him, the plaintiff attempted to hail a taxi,but without success. Whilst doing so with his right foot on the pavement and his left foot on the road, the van struck him in the back and he fell to the ground. As it was raining the plaintiff was holding an umbrella over his head. The second defendant said that he had driven the van into Sham Chun Street from Argyle Street with the intention of unloading goods. As traffic was congested, he stopped his van in the middle of Sham Chun Street outside the market and then proceeded to reverse the vehicle in order to park on the near side. Before doing so, he checked his mirrors and saw that on one was behind the van but after reversing for a distance of only l' - 1½', he struck the plaintiff who was on the left side of the van. According to the second defendant the plaintiff was walking from the market across Sham Chun Street. The second defendant admitted that he did not sound his horn or give any warning before he started to reverse.

3. The first defendant who is the registered owner of the van for whom the second defendant was driving as his servant or agent did not give evidence. No independent witness gave evidence.

4. As a result of the collision, the second defendant was charged with careless driving and pleaded guilty at the North Kowloon Magistracy on the 2nd April 1986 when he was fined $350.00.

5. It has been conceded that the second defendant drove negligently, but Miss Eu who appeared on his behalf contended that the plaintiff was guilty of contributory negligence to the extent of 30%. She cited in support of her submission, Chan Wing-kuen v. Ho.Shiu-gun and another ⁽¹⁾ where Zimmern J. held the plaintiff to have been contributorily negligent to the extent of 15% when he was standing behind a car which he expected to move forward, but which suddenly reversed and collided with him, on the grounds that a prudent man would not have stood in that position. However, the facts in that case which arose following a dispute between two drivers about a parking space were quite different from the instant case. Here the second defendant was in a one-way street reversing against the flow of traffic when visibility was not perfect due to rain. Although he said that he looked into his mirrors to ensure that no one was behind his vehicle, the second defendant quite clearly did not keep a proper lookout and on his own admission, did not give any warning. As he was reversing, someone shouted to him to stop as he had collided with someone. It is plain and I find as a fact that the second defendant did not see the plaintiff before he was knocked down.

6. The only issue raised by the defendant was that the plaintiff was not in the position that he alleged when he was hit but was crossing Sham Chun Street from the market and according to the statement made by the plaintiff to the police in hospital on the day after the accident was facing the seafood shop on the opposite side of Sham Chun street which can be seen in the agreed photographs. The plaintiff may well have been facing the shop at some time before the accident, but upon the evidence at the time of the collision, I find that he was on the pavement somewhere by the corner of Argyle Street and Sham Chun Street with one foot on the road. In assessing the evidence, I found the plaintiff to be a perfectly honest and reliable witness whose evidence I accept. The second defendant was frank, but I do not accept his evidence that the plaintiff was walking across Sham Chun Street. In any event, he did not see him before the accident and would not know. I am satisfied that the accident was caused by the negligent driving of the second defendant in driving too close to the nearside kerb without giving the plaintiff any warning of his approach. The plaintiff, had concentrated his attention on the traffic coming from his right in Argyle Street with the intention of hailing a taxi so that he could board it in Sham Chun Street. He had his back to the traffic in Sham Chun Street with an umbrella over his head and would not have expected a vehicle to reverse in the circumstances that were described. Admittedly, the plaintiff had one foot on the road, but in such a crowded place as Hong Kong, this is an everyday occurrence. In my judgment it would be quite unreasonable to attach any blame to the plaintiff for the accident. I am satisfied that the second defendant was wholly at fault for the reasons that I have just given. The plea of contributory negligence therefore fails.

7. The plaintiff has carried on the business of a cook in the Kowloon Walled City for about 30 years. His business was to supply lunches to factories in the area of San Po Kong. However, as a result of the injuries that he suffered in the accident, the plaintiff sold his business to a former employee Ho Tak Lam for $5,000 although the plaintiff said, that it related to the furnishings. The amount was challenged by Miss Eu but I see no reason to disbelieve this evidence. In addition I accept the plaintiff's evidence that he no longer has any interest in the business which was suggested to him in cross-examination.

Illegality

8. A claim has been made by the plaintiff for loss of earnings and future loss of earnings which has been disputed on the grounds that the business that he carried on was illegal. Miss Eu referred me to the case of Tam Choi v. Ho Wai Hing and The Kowloon Motor Bus Co. (1933) Ltd. ⁽²⁾ where Sir Geoffrey Briggs, C.J. held that a plaintiff in a running down action cannot recover damages for loss of earnings from an illegal activity. In that case a claim for loss of earnings by an unlicensed hawker was disallowed. At page 6 of his judgment the Chief Justice said: -

"It is an offence to hawk goods without a licence under the Hawker By-laws which are made under the Public Health and Urban Services ordinance. The offence is punishable by a fine or imprisonment. I do not think that a plaintiff in a running - down case can recover damages for the loss of earnings from an illegal activity. I do not think that an unlicensed hawker could sue and recover the price of goods which he has illegally hawked. The contract would be unenforceable. Also, it is against public policy that a person engaged in an illegal activity such as hawking without a licence should benefit from such illegal activity."

9. In the instant case, the plaintiff's business comes within the definition of a food factory under By-law 32(1) of the Food Business (Urban Council) By-laws, Cap. 132 which cannot be conducted without a licence granted by the Urban Council. However, no licence has been granted to the plaintiff for it is not the policy of the Urban Council to grant licences for premises in the Kowloon Walled City. Miss Eu, in her submission prayed in aid, the plaintiff's failure to obtain a business registration certificate and to submit a return to the Inland Revenue Department. The Kowloon Walled City occupies a unique position in Hong Kong. The jurisdiction of the Hong Kong Government over this part of Hong Kong has at various periods been in dispute, although Mr Pritchard who appeared for the plaintiff did not challenge this issue. Indeed, it was recently announced that the Government intends to take steps to demolish the Walled City within the next three years. Whereas the plaintiff carried on his business without a licence, it is clear that if he had applied for one, it would not have been granted. Again, although there was no specific evidence before me, it is reasonable to assume that the Government's policy of turning a blind eye to that aspect also applies to the powers to enforce the provisions of the Business Registration Ordinance and the Inland Revenue Ordinance. It is therefore necessary to take that policy into account when considering the matter of illegality. The Kowloon Walled City must be treated in accordance with the special circumstances that prevail. Having regard to this situation, it would be startling if the present argument should succeed because of the Government's policy not to enforce the strict requirements of the law. That proposition does not, in my view, accord with the attainment of justice. I do not therefore accede to the submission made by Miss Eu.

Medical Evidence

10. The plaintiff suffered a fracture of the left femur and was in hospital from the date of the accident until his discharge on the 15th January 1986. He was placed on traction for ten days and had an operation when intra-medullary nails were inserted into the femur. While in hospital the plaintiff also received physiotherapy treatment. After his discharge, the plaintiff used crutches for one month and since that time has used a stick. Before the accident, the plaintiff was able to walk normally and rode a bicycle during the course of his work in delivering lunches. However, the plaintiff is now only able to walk with the aid of a stick for about one hour at a time. He suffers pain above his knee during wet and cool weather and is unable to squat. He was granted sick leave until the 15th march 1986. The medical assessment of the plaintiff's permanent disability is 9% of the whole person.

Quantum

Pain and Suffering and Loss of Amenities

11. It is agreed that the damages for pain and suffering come within the lowest category of serious injury referred to in Lee Ting Lam v. Leung Kam-ming ⁽³⁾ of awards between $60,000 to $80,000. Taking into account inflation since 1980, I consider that the appropriate award for damages under this head is $110,000.

Loss of Income and Loss of Future Earnings

12. The plaintiff gave detailed evidence of his loss of earnings whilst eight witnesses from factories to whom he supplied lunches gave evidence of the amounts paid by their firms. Not unexpectedly, the plaintiff did not keep any written accounts. The plaintiff claimed that his total net monthly profit was $8,000, but Miss Eu cast doubt upon the plaintiff's figures and submitted that an average figure should be $5,000. As I have said before, I found the plaintiff to be an honest witness and I do not consider that he attempted to inflate his income or exaggerate his expenditure. $8,000 was not, in my judgment, an unreasonable figure upon the evidence and I accept that sum as his monthly loss of profit.

13. The plaintiff obtained a job as a security guard on the 22nd June 1987 at a monthly wage of $1,816. He had considered raking a job earlier, but consulted his wife and family as to whether he should do so. Ultimately, he agreed to take his present position. However, he was criticised for not obtaining a job earlier, but there was no evidence that in fact he could have done so. The plaintiff is now aged 63 and he is to be admired at his age for taking up his present employment which involves a 12-hour working day seven days a week.   I consider that a reasonable time for the plaintiff to have obtained other employment would be fourmonths after the expiration of his sick leave. Accordingly for a period of seven months from the date of the accident, the plaintiff is.entitled to a sum of $56,000 for loss of income. Loss of income from that time until to-day is calculated at the sum of $74,400 being ($8,000 - $1,800)x 12 which amounts to $74,400.

14. The multiplier suggested by Mr Pritchard was 4 and that of Miss Eu 2½. However, I am quite satisfied that 4 is the appropriate multiplier in this case. Accordingly for a period of 4 years the loss of income will be $8,000 - $1,800 = $6,200, $6,200 x 12 x 4 = $297,600.00.

Special Damages

15. Sums of $654 in respect of hospital expenses and $140 for the plaintiff's travelling expenses were agreed. A further sum of $1,000 for travelling expenses was claimed by the plaintiff's relatives who visited him in hospital. In fact the sum paid by the plaintiff's relatives exceeded $1,000 and I am of the opinion that the expenses claimed were reasonable and for the benefit of the plaintiff. I therefore award $1,000 in respect of this item. Nourishing food was claimed in the sum of $9,000 and it is customary to make an award under this head. However, I consider $9,000 to be excessive and that $2,000 is reasonable. These items amount to $3,794 which I shall round off at $3,800. With the loss of earnings up to the date of the trial, the total special damages are assessed at $134,200. General damages amount to $407,600 which, having regard to the ordinary vicissitudes of life will be discounted to $350,000. From the damages awarded I do not consider that it is appropriate to deduct the sum of $5,000 that the plaintiff received for the sale of the business or the furnishings.

16. Judgment is therefore entered in favour of the plaintiff for the sum of $350,000 as general damages and special damages of $134,200. There will be interest of 2% on the general damages awarded for pain and suffering from the date of the service of the writ and upon the special damages at 4% from the date of the accident. The plaintiff is also entitled to costs with the usual taxation in accordance with the Legal Aid (Scale of Fees) Regula$ions.

(1)    (1978) H.K.L.R. 68

(2)    OJ Action 2997 of 1973

(3)    (1980) H.K.L.R. 657