WONG SO CHING v. OFFICIAL ADMINISTRATOR, APPOINTED TO REPRESENT THE ESTATE OF AU TAT FU, DECEASED AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT

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Clough, J.A.:

1. The plaintiff in this action appeals from the order of His Honour Judge Cameron, made on the 31st October 1986 in the Victoria District Court. dismissing her claim against the first defendant for damages in respect of personal injuries sustained by the plaintiff in a motor accident which occurred on the 21st May 1983 in Tsuen Wan.

2. Although he dismissed the claim the judge rightly went on to assess the quantum of the damages to which the plaintiff would have been entitled if she had been able to establish the first defendant's liability. He would have awarded $15,000 in respect of general damages for pain and suffering and loss of amenities, $17,024 in respect of pre-trial loss of earnings and other special damages, but would have made no award in respect of the plaintiff's claim for loss of future earning capacity. He would have reduced the damages awarded by 25 per cent by reason of the contributory negligence of the plaintiff in not wearing a seat belt at the time of the accident. The plaintiff now contends that an award of $15,000 would be inadequate, that she had a valid claim for loss of future earning capacity and that the judge should not have made a finding of contributory negligence.

3. Before the hearing of the appeal the parties were able to come to terms regarding the quantum of the claim for general damages and loss of earning capacity. The only issues which remained to be determined on appeal concerned liability and contributory negligence.

4. The first defendant was sued as the personal representative of Au Tat Fu (''Au") who was the driver of the motor car in which the plaintiff was a passenger at the time of the accident resulting in these proceedings. He was killed in the accident. The second defendant was the owner of the car. The proceedings against him were discontinued by the plaintiff before the trial.

5. The accident occurred at about 9:40 p.m. in good weather conditions on the 21st May 1983 on the Tuen Mun main road near Tsing Lung Tau Bridge. At the time Au was the driver of the motor car which had been borrowed from the second defendant to take a party of young people to a barbecue in the New Territories. The plaintiff who is a young woman, was sitting in the front passenger seat of the car. Two young women: namely Chau Chui-lai and Cheung Wai-king, and a young man, Chan Wing-cheong ("Chan"). were sitting in the back seat.

6. At the scene of the accident there is a sheer rock face abutting on to the near side of a three-lane one-way highway. The car veered to the left, crashed into the rock face, turned over twice and came to rest with its wheels upwards. Au was trapped in the driver's seat and died from his injuries. The plaintiff was injured but her injuries were happily less serious.

Liability

7. On the issue of liability the first defendant had denied the plaintiff's pleading that the accident was caused by the negligence of Au. The second defendant had gone further and pleaded positively that the accident was caused solely or alternatively contributed to by the negligence of the plaintiff in interfering with the steering of the car.

8. At the trial the only witness called in support of the plaintiff's case on this issue was the plaintiff herself. In addition to her evidence a number of statements and reports were the subject of Order 38 hearsay notices, including statements which had been taken by the police on the 2nd June 1983 concerning the accident from the three back seat passengers in the car and from the driver of another car which carried five other young people who intended to go to the barbecue. All these documents were evidently put into the plaintiff's bundle of documents at the trial.

9. The material documents were not the subject of any counter notice. I do not accept the argument of Mrs. Kaplan for the plaintiff (who did not appear below) that the Judge was only entitled to refer to those documents which counsel for the plaintiff specifically mentioned. In the absence of a counter notice I consider that the judge was fully entitled to have regard to all the relevant documents which were before him and to treat their contents as admissible hearsay evidence to which appropriate weight could be given in accordance with sections 47, 51 and 52 of the Evidence Ordinance (Cap. 8).

10. The combined evidence given by the plaintiff and contained in the statements of the three back seat passengers, regarding the events preceding the accident on the evening in question, was to the following effect. In the evening Au had picked up the plaintiff and driven her in the borrowed car to his house where he had changed his clothes. Later they went in the car to Sham Shui Po Pier where they were due to meet their friends, including, five others who intended to travel to the barbecue in another car. Between Au's home and Sham Shui Po Pier the plaintiff drove the car at Au's request because it was getting late and Au was not familiar with the route to the meeting place.

11. The plaintiff thereafter drove the car with Au in the front passenger seat and three friends in the back, to a supermarket in Un Chau Street where Au and Chan made a purchase. When they left the supermarket Au took over the driving and continued to drive along Kwai Chung Road, Castle Peak Road and Tuen Mun Road until the accident occurred.

12. At the time of the accident the plaintiff had held a driving licence for about two years. Au had only held a licence for about ten days. The plaintiff had known Au since their primary school days and had previously been driven once by him in another car. She did not own a car herself but she said she had driven different makes of car.

13. In his statement Chan said that before they set off from Sham Shui Po Pier, Au had told the plaintiff that the car's foot brake was not very sensitive and that the brake had to be applied at "a farther distance". In reply to a question from the Judge the plaintiff said that when she was driving the car earlier in the evening she had mentioned to Au that it seemed to be quite fast and that she felt as if she were driving a racing car and that it would take some time for her to control it properly.

14. As to the manner of Au's driving prior to the  accident, the plaintiff said that when they were travelling along Castle Peak Road he fore reaching Shum Cheng and entering the Tuen Mun Highway she "discovered that the car had gone beyond its lane to adjacent lane and came back". She said that fortunately no accident occurred and when the car went up to Tuen Mun Highway they told Au to be more careful and concentrate more on his driving. None of the back seat passengers mentioned such an incident in their statements. One of them, Chau Chui-lai was asked by a police officer if the car had swung after starting off from Kowloon. She is recorded in her statement as having given a negative answer and as having added "It was normal". In this connection it is material that each of the statements of the three back sea passengers was taken by a different police officer.

15. As to the events immediately preceding the accident, the evidence of the plaintiff was that when the car was in the Tuen Mun Highway and approaching Tsing Lung Tau, Au complained that it was slow and seemed to lack power. She said he announced that he would change down to third gear and did so. The evidence contained in the statements of the back seat passengers referred to this incident in varying degrees of detail. Chan said in his statement that prior to this incident the other car containing the other party of young people had overtaken them and that Au was then driving at about 20 m.p.h. but increased speed to about 40 m.p.h. when he changed down to third gear. The evidence of the other to back seat passengers was less detailed. They referred to the other car overtaking them, to Au s complaint about the car's lack of power and to the plaintiff's asking him if he had stepped on the accelerator.

16. In his statement Chu Siu-kwan, the driver of the overtaking vehicle, described how, after he had driven from Castle Peak Road on to the Tuen Mun Road, he had overtaken Au's vehicle because it was going too slowly when he was travelling at 30 m.p.h. in the overtaking vehicle.

17. The crucial evidence of the plaintiff regarding the circumstances under which the accident occurred is contained in the following passage of her evidence in chief:-

18. There was no cross-examination of the plaintiff regarding this evidence describing the circumstances in which the accident happened.

19. In his statement Chan described the circumstances of the accident in the following words:-

"The deceased kept on driving along the 1st lane of Tuen Mun Rd. to near Tsing Lung Tan where there was a slight (left) bend ahead. The car was travelling at about 40 m.p.h. When negotiating that bend, I felt the brake being lightly applied. There was no car in front of us. We then got into the 2nd lane (central). I felt the car was swerving. It nearly hit cars travelling on our left and right. I also saw WONG So-ching helping the deceased to hold the steering wheel. I kept down, closed my eyes and held the front seat with both hands, I didn't see anything after that. I heard jee - sounds and felt the car was continuing to skid forward. Soon it stopped. I crawled out of the car at once and saw it had overturned."

20. In their statements the two young women who had been passengers in the back seat gave a less detailed account of the accident. Chau Chui-lai said:-

"... I felt the car starting to swing for 5 times. Then, I heard a 'bang'. But I dared not see (what had happened). Then, the car bounced off to the road. It was because (the car) had crashed into the hillside and then overturned."

21. Cheung Wai-king's  account was the least detailed. She said:-

"Then the car swerved from side to side for 4 to 5 times until it crashed into the hillside on the left. My head was trapped inside the car. I didn't know whether the car had turned over. Soon I was helped outside the car by passers-by."

22. At the conclusion of her statement some questions and answers were recorded, including the following:-

23. There were no other eye-witnesses. Chu Siu-kwan, the driver of the other car carrying the rest of the party turned back when he heard the crash but he did not see it happen.

24. No witnesses were called for the defence. At the conclusion of the plaintiff's case, counsel for the first defendant made submissions on the issue of contributory negligence which had been raised in relation to the failure of the plaintiff to wear a seat belt. The record contains no indication whatsoever that counsel for the first defendant, who had not cross-examined the plaintiff on the issue of liability, made any submissions indicating that there were grounds for holding that the plaintiff had not proved that the accident had been caused by the negligence of AU.

25. Mr. Ismail for the first defendant (who did not appear below) informed this court that, according to his instructions based on the note taken by an articled clerk at the trial, the judge had, at the conclusion of the submissions of counsel for the first defendant, asked her if she wanted to take the point that the accident had been caused by the plaintiff's interference with the driver. Counsel had evidently replied that she left it to the judge.

26. Mr. Ismail said he relied on this intervention by the judge as showing that counsel for the plaintiff was given notice of the judge's views. Be that as it may, the record shows that when he came to make his submissions in reply, counsel for the plaintiff submitted that the accident had quite clearly been caused by the negligence of Au and he then moved on to deal with contributory negligence.

27. In his careful reserved judgment the judge began by referring to the first defendants denial that the accident had been caused as alleged or that it had been caused by the negligence of Au. He then added:-

"While in the Defence of the 1st Defendant there was no allegation as in the 2nd Defendant's Defence of the Plaintiff disturbing or interfering with the safe driving of AU Tat-fu (the deceased) it became a matter to be considered as it was raised by the Plaintiff herself in giving evidence and was mentioned in the statement of the other passengers in the car."

28. After a careful and detailed review of all the relevant evidence the judge commented that the accounts given by the plaintiff and the other three passengers differed. They agreed, he observed, that after being overtaken by Chu Siu-kwan in the other car, Au complained that his car lacked power and changed down into third gear. He added that it was not clear exactly what happened after that.

29. The judge then proceeded to arrive at a conclusion on the negligence issue to which Mrs. Kaplan contended he could not properly have come without having first given the plaintiff an opportunity of rebuttal. Moreover, the conclusion was, she contended, erroneously based on inferences which were not sustainable.

30. The reasoning of the judge leading him to his conclusion was as follows. He said he got the impression that the plaintiff was very anxious to make it known that her action in putting her hand on the steering wheel was to assist Au when the car swerved. In his view the "most accurate account" was that given by Chan. He referred to his evidence, leading up to the point where in his statement Chan had described the car veering over to the centre lane. It appeared to the judge that it was at this stage that the plaintiff assisted by placing her hand on the steering wheel and it was from that moment that things started to go really wrong and resulted in the accident.

31. He commented that, as was indeed the case, the plaintiff's evidence was not that she had grabbed the steering wheel in the agony of the moment in an attempt to avoid collision when the car was heading for the hillside. The judge then expressed his finding on the issue of liability in the following passage in his judgment: -

"AU Tat-fu (the deceased) was not an experienced driver. He did get into difficulties negotiating the left hand bend veering over into the centre lane but the evidence does not indicate hp had lost control of the car. On the evidence it seems quite possible that the action taken by the Plaintiff instead of assisting AU Tat-fu (the deceased) exacerbated the situation with result that the car collided with the hillside. It is not possible to hold that the collision with the hillside would have occurred if AU Tat-fu had been left to deal with the matter himself. The Plaintiff and the 3 passengers in the rear all mentioned the car swaying from side to side. In my view the swaying must have resulted from both the Plaintiff and AU Tat-fu acting and reacting to each other's hold steering, wheel and it was this continued swaying which led to the car going out of control and colliding with the hillside. The Plaintiff has failed to prove that the car's collision with the hillside was caused by the negligence of AU Tat-fu. The Plaintiff's claim must therefore fail."

32. In my judgment this finding is unsustainable. The unchallenged evidence of the plaintiff, which I have set out above, was that it was because of her assistance in putting her hand on the steering wheel that the car did not hit another car when Au had swerved from the centre lane into the left lane after changing down into third gear. There was nothing in the statement of Chan or the other two passengers which was inconsistent with the plaintiff's evidence on this matter. The only inference to be drawn from this evidence of the plaintiff was that, contrary to the judge's finding, Au, who was an inexperienced driver, had permitted the car to get out of control at this time and that there would have been a collision if the plaintiff had not intervened. Indeed Chan, whom the judge referred to as giving the "most accurate account" of the accident, had already become so frightened at this stage that, according to statement, he thereafter closed his eyes, held the front seat with his hands, and did not see anything after that.

33. As Chan said In his statement that he had already closed his eyes by the time when, according to the plaintiff's evidence, the car began to swerve to the left (her side) and she had her and brushed aside by Au when she tried to assist him, it is not surprising that Chan's statement is silent about this vital incident. In the absence of any cross-examination whatsoever of the plaintiff's evidence on this matter or any attack on her credibility by cross-examination or even submission by counsel, the judge was, with respect, wrong to reject the plaintiff's evidence.

34. The plaintiff's evidence was admittedly brief but, in my judgment, her apparent anxiety to make it known that her action in putting her hand on the wheel was to assist Au when the car swerved, should not have been held against her. Her unchallenged evidence was clearly to the effect that she had saved the party in the car from disaster when the car first swerved from the centre to the left lane but she was prevented from assisting Au to avoid the swerving to the left which caused the eventual collision with the hillside because, when the swerving began, he brushed aside her assistance. On this evidence, contrary to the judge's finding, Au made a deliberate election to deal with the matter himself and the result was disaster.

35. The fallacy of the judge's approach is demonstrated by the fact that he begins by saying that it seems "quite possible" that the plaintiff's action exacerbated instead of assiting Au with the result that the car collided with the hillside. In the absence of any cross-examination of the plaintiff this amounted to mere conjecture. Furthermore there was no evidential justification for the judge's subsequent inference from the evidence of tie three passengers about the car swaying from side to side that the swaying ''must have resulted" from the plaintiff and Au acting and reacting to each other's hold on the steering wheel. The uncontradicted evidence of the plaintiff was to the contrary.

36. Mr. Ismail contended that the judge had been left in the equivocal position where on the evidence the accident might have been caused by a cause other than the negligence of the driver. He relied particularly on the passage in the recorded evidence of the plaintiff where, having said that Au pushed her hand away, she added immediately "That is when car hit hillside." In my judgment this evidence has to be read in its context in the light of her evidence as a whole, which clearly was to the effect that her second attempt to assist Au was brushed aside with fatal consequences.

37. The judge, who tried this case with his usual care, clearly saw the possibility of a defence (which had been pleaded by the second defendant) that the cause of the accident was not the negligence of Au but the interference by the plaintiff with his otherwise safe driven. However, that defence was never put forward on the first defendant's behalf and should not have been entertained without, at the very least, requiring the plaintiff to be recalled to be given an opportunity to deal with it. On the evidence I agree with Mrs. Kaplan's argument that the unchallenged evidence of the plaintiff had established the cause of the accident to be the negligence of Au. I would therefore allow the first defendant's appeal on the issue of liability.

Contributory Negligence

38. It was common ground that the front passenger seat of the car driven by Au was fitted with seat belt but the plaintiff chose not to use it. Regulation 7 of the Road Traffic (Safety Equipment) Regulations requiring the wearing of seat belts was not brought into operation until after the accident. on the 25th August 1984, by L.N.302/84.

39. However this court held in HO Wing Cheung v. Liu Siu-fun ⁽¹⁾ following Froom v. Butcher ⁽²⁾ that in Hong Kong the wearing of a seat belt. when it is available in a car, is a practice which a man of ordinary prudence should observe, and that if he does not do so he is at least partly to blame for the consequences of his failure. In the present case the plaintiff did not raise any reasonable excuse for not wearing a seat belt.

40. At the trial counsel for the first defendant submitted to the judge that it was likely, and counsel for the plaintiff submitted that it was clear, that the plaintiff was thrown from the vehicle at the time of the accident. The judge accepted these submissions. He observed that it was not certain how the plaintiff was thrown out but if, as appeared to him to he likely, she was thrown out through a window,  it must already have been broken because otherwise her injuries would have been more extensive.

41. On appeal Mrs. Kaplan contended that the evidence did not support the judge's finding that the plaintiff, had been thrown out of the car. This seemed to me to be a bold contention, having regard to the submission below by counsel for the plaintiff that it was clearly to be inferred that the plaintiff had been thrown from the car. Was there sufficient evidence to justify that inference?

42. The plaintiff herself was not able to say how she had emerged from the car. She said in chief that she remembered the car overturning twice when she was still inside it and that after that she somehow became out of the car". She was then led by her counsel to say that the next moment someone was helping her on the side of the road. Under cross-examination the plaintiff said that when the car hit the hillside she did not have the feeling of being thrown forwaed but she was still leaning on the back seat and she did not bend down. According to her evidence the force of the impact did not throw her forward. She said she did not know how she came to be out of the car and she did not know how she sustained cuts to her body.

43. In his statement Chan said that when the car stopped he crawled out and saw that it had overturned. The plaintiff was, Chan said, lying on the road in front of the left corner of the car. He had gone to help her. In her statement Cheung Wai-King said that her head had been trapped inside the car and she had been helped out of the car by passers by. At that stage, according to her statement, she saw the plaintiff sitting on the pavement by the hillside, being helped by Chan, and Chow Chui-lai was sitting with the plaintiff. In her statement Chow Chui-lai did not say anything material concerning the manner in which the plaintiff emerged from the vehicle.

44. In the light of the above evidence it was, in my judgment, open to the judge to accept the submission of the plaintiff's counsel that she was thrown from the vehicle. There was no direct evidence that she was seen to be thrown but the plaintiff herself was not able to say how she left the vehicle and she was first seen by Chan lying on the road in front of the left corner of the vehicle. This was immediately after the accident. Accordingly I do not consider that the judge is to be faulted for his finding, on the evidence before him, that on the balance of probabilities the plaintiff was thrown out of the vehicle which finding was, furthermore, in accordance with the submission of her counsel below.

45. However Mrs. Kaplan was on strong ground when she contended that the injuries sustained by the plaintiff were equally consistent with the plaintiff having been in the car when she sustained them. The evidence of the plaintiff in chief was that she remained in the car while it overturned twice. Under cross-examination she had denied being thrown forward at the time of impact and she could not say if she had been thrown through the windscreen. When finding that the plaintiff had been thrown from the car "after the collision with the hillside" the judge was not purporting to determine, nor was there evidence which enabled him to determine, precisely how soon after the collision the plaintiff had been ejected. He was only able to say that it appeared to he likely that the ejection was through a window which had already been broken by the time it occurred, otherwise the plaintiff's injuries would probably have been more extensive.

46. The most serious injury sustained by the plaintiff was to her left ankle. This injury was described in the report of the medical board convened on the 26th January 1984 as "an avulsion fracture over the lateral border of the Lt talus probably due to tear of the antero-lateral talo-fibular ligament." The plaintiff also sustained multiple abrasions over the left side of her forehead, both elbows, both forearms, both knees, left face, left buttock, left leg, and small lacerations over the left wrist and both elbows.

47. In his judgment the judge first considered the plaintiff's contention that the defence had failed to call any evidence to show that the plaintiffs injuries could have been avoided or lessened by the wearing of a sear belt. He then vent on to deal with the case before him, saying:-

"I see no particular problems in the present case. The Plaintiff was thrown out of the car. If the Plaintiff had been wearing a seat belt she would not have been thrown out of the car and she would not have sustained the injuries she did.''

After expressing those views the judge indicated that after weighing all the evidence he would have assessed the plaintiff's share of responsibility at 25 per cent for purposes of contributory negligence if he had not dismissed the claim on the issue of liability.

48. It seems clear that the judge was intending to apply Froom v. Butcher ⁽²⁾ and HO Wing Cheung's Case ⁽¹⁾ and to determine whether the injuries actually sustained by the plaintiff would have been prevented or lessened had she been wearing a seat belt. However, in my judgment the judge's conclusion is not sustainable on the evidence which was before him. His conclusion was that if the Plaintiff had been wearing a seat belt she would not have been thrown out of the car and would therefore not have sustained the injuries she did. In the absence of direct or circumstantial evidence to establish on the balance of probabilities that the plaintiff's injuries were caused by her being thrown out of the vehicle his conclusion cannot stand.

49. As Lord Denning emphasised in Froom v. Butcher ⁽²⁾ , and the trial judge acknowledged in his judgment, the court when considering contributory negligence in a seat belt case for the purposes of sections 1(1) and 4 (definition of "fault") of the Law Reform (Contributory Negligence) Act 1945 (corresponding to section 21(1) and (10) of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23), should look to the cause of the damage. In that case, at page 292G, Lord Denning observed -

"But in seat belt cases the cause of the accident is one thing. The cause of the damage is another. The accident is caused by the bad driving. The damage is cauused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seat belt. If the plaintiff was to blame in not wearing a seat belt, the damage is in part the result of his own fault. He must bear some share in the responsibility for the damage: and his damages fall to be reduced to such extent as the court thinks just and equitable. In Admiralty the courts used to look to the causes of the damage: see The Margaret (1881) 6 P.D. 76. In a leading case in this court, under the Act of 1945, we looked to the cause of the damage: see Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B.291, 326. In the crash helmet cases this court also looked at the causes of the damage: see O'Connell v. Jackson [1972] 1 Q.B. 270. So also are should in seat belt cases."

50. If the damage is required to be shown to have been caused in part by the plaintiff's failure to wear a seat belt, it follows that where she is thrown from a vehicle it must first be determined whether the sustained her injuries at the time she was thrown or while she was still in the vehicle. The next question is whether her injuries would have been prevented or lessened if the plaintiff had beer wearing a seat belt.

51. In the present case the plaintiff's evidence was that she remained in the vehicle after the impact with the hillside and while it "overturned twice". Hence Mrs. Kaplan's persuasive argument that the plaintiff's injuries were equally consistent with their having been sustained before the plaintiff emerged from the car. The judge evade no finding, and there was no evidence from which it could be inferred, that the plaintiff was ejected from the vehicle at the very moment of the vehicle's impact with the hillside. The plaintiff's injuries were not by themselves of a nature which indicated with any degree of probability whether they were sustained in the car or upon ejectment from it.

52. There was no evidence from any doctor or engineer regarding the likely actual cause of the plaintiff's injuries. The photographs of the vehicle taken after the accident indicate that, as might be expected it was badly damaged in the front from what must have been a severe impact with the rock face of the hillside before it turned over twice. Furthermore all the windows, including the windscreen were shattered.

53. In the absence of any expert or other evidence connecting the plaintiff's injuries with the moments of her ejectment from the vehicle after it had rolled over twice rather than the period of time when she was still in the vehicle between the collision with the hillside and her ejectment, it seems to me that there was no evidential basis for a finding on the balance of probabilities that the plaintiff's injuries, or any of them, were caused by her failure to wear a seat belt.

54. It may be that medical evidence, if called, would have established that all or some of the injuries in question must have been caused when the plaintiff was thrown out of the vehicle or that such injuries as may have been caused while the plaintiff was still in the vehicle would have been prevented or lessened if she had been wearing a seat belt. But no such evidence was adduced on behalf of the first defendant upon whom the onus lay on the issue of contributory negligence.

55. In my judgment the nature of the injuries sustained by the plaintiff and the circumstances of the accident were not therefore, by themselves such as to permit the judge's conclusion that the plaintiffs injuries would have been prevented if she had worn a seat belt. I would therefore allow the appeal on the contributory negligence issue and hold that no contributory negligence on the part of the plaintiff was established by the first defendant.

56. I add that it may be that the judge, in arriving at his decision on the contributory negligence issue, intended to place reliance (as did Mr. Ismail in supporting his decision on appeal) on the following passage, to which the judge referred, in the judgment of the Chief Justice, delivering the judgment of this court in HO Wing-cheung's Case⁽¹⁾ at p. 304: -

"It must be obvious to any normal person that some injuries, among them facial damage of the kind involved in this case, could be prevented or reduced by the wearing of a seat belt.

57. The Chief Justice made these observations in a part of his judgment where he was discussing the applicability in Hong Kong of the principle applied by the English Court of Appeal in Froom v. Butcher ⁽²⁾ that a man of ordinary prudence would take the precaution of wearing a seat belt where it was available. After holding that the same test was applicable in Hong Kong, the Chief Justice observed at the end of this part of his judgment -

"We have no hesitation in saying that the wearing of a seat belt in any car in which this is available, is a practice which a man of ordinary prudence should observe. If he does not do so, he is at least partly to blame for the consequences of his failure."

58. I respectfully adopt all that was there said by the Chief Justice. However I have no doubt that in using such language when applying the test laid down in Froom v. Butcher ⁽²⁾, this court was not intending to lay down a universal rule that failure by an injured plaintiff to wear a seat belt when available, by itself, always results in his being contributorily negligent in respect of his injuries. He is certainly always liable in such circumstances for the consequences of his failure, but, as Froom v. Butcher ⁽²⁾ lays down in the passage cited by the Chief Justice in HO Wing Cheung's Case ⁽¹⁾ at page 303 as principle (b)), it must be established by the defence that the injuries which are the consequences of such failure would have been prevented or lessened if the plaintiff had worn seat a belt.

59. Furthermore in HO Wing Cheung's Cage ⁽¹⁾  the Chief Justice made it clear that the medical evidence in that case showed that the relevant plaintiff, who had suffered substantial facial injuries when sitting in the front passenger seat of her car might have suffered some injuries from flying glass, if wearing a seat belt but no more.

60. Every case must clearly be decided on its own facts and on the evidence before the court. As Lord Denning made clear in Froom v. Butcher ⁽²⁾ at p. 296 B-C:-

"        Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seat belt had been worn. In such case the damages should not be reduced at all. At other times the evidence will short that the failure made all the difference. The damage would have been prevented altogether ether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25 per cent. But often enough the evidence will only show that the failure made a considerable difference. Some injuries to the head, for instance, would have been a good deal less severe if a seat belt had been worn, but there would still have been some injury to the head. In such case I would suggest that the damages attributable to the failure to wear a seat belt should be reduced by 15 per cent."

61. There is no hard and fast rule that expert evidence from a doctor or engineer is required to establish contributory negligence in a seat belt case. The primary facts of some cases will speak for themselves on this issue. In other cases, as in this case, the issue of causation will only be determinable in favour of the defence if there is satisfactory medical or other evidence called specifically to deal with the issue and to tip the evidential balance in favour of the defence.

62. Failure to call such evidence in such cases may result in failure to establish contributory negligence, as happened in Leung Nai Wing v. Hsing Kiang Shiang ⁽³⁾ which was cited to the trial judge. However, I emphasise that there is no universal rule that requires expert evidence to he called on these matters.

63. Accordingly I would allow this appeal on the issues of liability and contributory negligence which have been argued before us. I would therefore set aside the judge's order and substitute an order giving judgment in favour of the plaintiff for the agreed sums of $20,000 for general damages, pain and suffering and loss of amenities and $10,000 for loss of earning capacity, together with the sum of $17,024 which the trial judge assessed in respect of pre-trial loss of earnings and other special damages. I would make an order for the judgment to include pre-trial interest (if any) on such sums, from such dates and at such rates as the parties may agree, with liberty to apply in default of agreement.

64. I would also make an order nisi awarding the costs of the appeal and below to the plaintiff and direct a legal aid taxation of the plaintiffs party and party costs.

(1)    [1980] H.K.L.R. 300

(2)    [1976] Q.R. 286 (G.A. )

(3)    (Unreported) (H.C.A. No. 8451 of 1984)

Fuad, J.A. :

65. I agree that the appeal should be allowed for the reasons given by my Lord, and that the orders he proposes should be made.

Power, J. :

66. I also agree.