HUNG KIN FAI, DAVID v. KOO KIN CHUNG AND ANOTHER

1983 No. 12207

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. The Plaintiff in this action claimed damages for personal injuries which he suffered in a traffic accident which occurred at about 2.45 a.m. at Wong Nei Chung Gap Road.

2. The Plaintiff's case was that he was driving his motorcycle with the headlight on, along the right hand lane of the southbound carriageway of the Wong Nei Chung Gap Road. The vehicle was in good condition. Ahead of him in the left hand lane was the first named Defendant, who was also riding a motorcycle, which was owned by the second named Defendant. Suddenly the 1st Defendant started go execute a U-turn and the Plaintiff was unable to avoid a collision between his motorcycle and that driven by the 1st Defendant. As a result of the collision, the Plaintiff suffered injury. The Plaintiff sought to establish that the 2nd Defendant, the owner of the motorcycle driven by the 1st Defendant was vicariously liable for the negligence of the 1st Defendant.

3. The case of the 1st Defendant, who was unrepresented, was that he denied any negligence on his part. He admitted that he had pleaded guilty to charges of careless driving, failing to display 'L' plates, carrying an unauthorised passenger and driving outside permitted times for a learner driver. The 1st Defendant also alleged that the collision resulted from excessive speed of the Plaintiff's motorcycle, a failure to keep a proper lookout and failure to brake in time to avoid the accident or the part of the Plaintiff.

4. The case of the 2nd Defendant was that at the material time the 1st Defendant was not acting as his servant or agent and was not authorised to ride the motorcycle.

5. When the Plaintiff gave evidence,  I formed the view that he was an honest and reliable witness. He said that just before the accident he was travelling at about 30 m.p.h. and gradually overhauling the 1st Defendant, ahead of whom there was a police checkpoint. To the Plaintiff's  knowledge, the checkpoint was there every night and he was expecting to see it. When the 1st Defendant was only one vehicle length ahead of the Plaintiff,  he swerved into the Plaintiff's path without warning. It was put to the Plaintiff that he was travelling without lights at an excessive speed and he denied the allegations.

6. The Plaintiff's explanation for saying that he only saw the 1st Defendant when he was ten yards away was that he had been negotiating a slight bend by the Hong Kong Cricket Club and it was only after that that he saw the Defendant. A police officer who had prepared a sketch at the scene gave evidence that though the road was not entirely straight, there was no sharp bend at the location of the accident and nothing to obstruct the view. One could see well over 10 or 20 yards. I took this matter into consideration, and formed the view that the Plaintiff had probably not taken much notice of the vehicle travelling in the other lane because there was nothing remarkable about it until it suddenly swerved into his path. I was satisfied that when he was 10 yards behind the 1st Defendant and gradually overhauling him, he was aware that the Defendant was there and would have seen a signal if one had been given.

7. When the 1st Defendant gave evidence about the accident, he said that there was a checkpoint ahead: he activated his indicators and looked back. Seeing no traffic coming, he swerved out, intending to make a U-turn. He heard the sound of an engine, was struck and lost consciousness. Before that, he knew it was a motorcycle, having identified the sound as that of the two-stroke engine of a Yamaha motorcycle. The 1st Defendant said that his allegation of excessive speed was based on the loud noise of the engine of the Plaintiff's motorcycle which, according to him "is eligible for racing".

8. In cross-examination, the 1st Defendant admitted that he made the U-turn to avoid the roadblock because he was only holding a provisional driving licence, was carrying a passenger, displaying no 'L' plates and driving outside permitted house. The 1st Defendant also admitted that, when he turned, the crash was instantaneous, the period between putting on his indicators and turning being no more than 'a flash'.

9. So far as his driving experience was concerned, the 1st Defendant volunteered the information that he had never taken a test. When he arranged to take one, he rode there on a bicycle without lights, was rammed and had to be admitted to hospital. He had crashed before, when riding a hired 250 c.c. motorcycle.

10. I was satisfied on the evidence that the 1st Defendant was entirely to blame for the accident. Seeing a roadblock ahead, knowing that he was a learner driver carrying a passenger, displaying no 'L' plates and driving outside permitted hours, he suddenly started to execute a U-turn without ascertaining that it was safe to do so. The Plaintiff, driving perfectly properly with his headlight on had no opportunity to avoid the accident. There was no contributory negligence.

11. I now turn to the question of the liability of the 2nd Defendant, the basis for the Plaintiff's claim was an admission by the 2nd Defendant in his Defence that he was the owner of the motorcycle driven by the 1st Defendant. In further and better particulars, he said that the motorcycle "was put under the custody of the 1st Defendant because he, i.e. the 1st Defendant, had undertaken to adjust the brake system and signal lights for the 2nd Defendant".

                "The 2nd Defendant had never consented, not even by implication or indication, to let the 1st Defendant drive the said motorcycle".

12. The evidence of the lst Defendant on this issue was that he had received the motorcycle from the 2nd Defendant at about 5 p.m. on the 25th June. It was arranged that he would do some work on the machine. The 2nd Defendant, who lived nearby, would come to collect the key and ride the motorcycle away on the morning of the following day. The 1st Defendant had mended the brakes, and indicator and had cleaned the carburettor.

13. The 1st Defendant had not asked if he might use the motorcycle. After the work was done, a friend telephoned him and asked him to come to visit him. On impulse, he took the motorcycle in order to make the visit. It was when he was on his way back to his home in the Wah Fu Estate that the accident occurred.

14. The 1st Defendant admitted in cross-examination that he made a test drive of the motorcycle after completing his work on it. The drive consisted of a small round trip within the estate.

15. According to the 1st Defendant, he had asked the 2nd Defendant on a previous occasion for permission to borrow the motorcycle but had been refused. When he took the vehicle for the visit on the night  in question, he did it for fun and the 2nd Defendant had no knowledge of it. He expected to be scolded if the 2nd Defendant found out.

16. It was put to the 1st Defendant in cross-examination that the reason the vehicle was left with him overnight was because it was contemplated that he would use it that night in order to test it. That suggestion was denied.

17. When the 2nd Defendant gave evidence, he confirmed the arrangements described by the 1st Defendant. In the morning, he made a telephone call in order to arrange for collection of the motorcycle and was told that the 1st Defendant had had a traffic accident. It was only when he visited the 1st Defendant in hospital that he realised that his motorcycle was involved. He was angry about that and he had not given permission for the driving.

18. In cross-examination the 2nd Defendant agreed that the 1st Defendant would have tested the machine, but "testing would only be a circle" to see if it was in good condition after repair.  He drew a distinction between taking a trip on the cycle and testing it. He rejected the suggestion that the 1st Defendant had permission to take the vehicle on a journey which was not only to travel to and from a party but also to test the machine. The vehicle had only been in his possession for less than a month and he had previously refused the 2nd Defendant permission to borrow it. He would never lend it to anyone. Had the 1st Defendant asked to borrow the cycle to go on a trip of his own, the 2nd Defendant would have refused.

19. I found as a fact that the 2nd Defendant had entrusted the motorcycle to the 1st Defendant for repair, contemplating that there would be a very brief test, drive in the Wah Fu Estate. For convenience, he would collect the vehicle on the following morning. The repairs having been completed and the short test carried out, the 1st Defendant had no further implied authority to ride the motorcycle and he had no express or implied permission to use the vehicle for his own purposes. It was only after the repairs had been completed that the 1st Defendant received the invitation from his friend and decided to make use of the motorcycle. No permission was given by the 2nd Defendant for that use, which had not been contemplated by either defendant at the time when the arrangements for repair and collection had been made. The 2nd Defendant had previously refused permission for the 1st Defendant to borrow the bicycle and I was satisfied that if asked on the night in question, he would also have refused. The 1st Defendant, who was clearly an extremely irresponsible man, had taken the motorcycle off on e frolic of his own and was not acting at the material time as the servant or agent of the 2nd Defendant.

20. There was no master and servant relationship between the defendants. In the informal repairing arrangement, no specific remuneration was agreed and the 1st Defendant was left to do such work as he pleased in his own way. Mr. Barretto, for the Plaintiff, put his case on the basis that at the material time the 1st Defendant was acting as agent for the second. He relied upon the principle that where an agent has authority to drive a vehicle on behalf of or for the purposes of the owner (whether wholly or partly on the owner's business or in the owner's interest) and negligently causes damage in the course of that authority, the owner will be liable as principal, even though not present at the time (see Thompson v Reynolds (1926) N.I. 131: Hewitt v Bonvin (1940).1 KB 188). The Plaintiff needed to show more than permission to drive - Norwood v Navan (1981) RTR. 457 CA.

21. Mr. Barretto relied upon the decision in Ormrod v Crosville Motor Services Ltd. (1953) WLR 1120 in which it was held that the owner is liable if the driver is, with the owner's consent, driving a vehicle partly for his own purposes and partly for the owner's purposes. In that case, a motor car was driven by a friend of the owner with the intention of reaching Monte Carlo, where the owner was to join him, so that they could use the car for a holiday together. The friend was held to be the owner's agent even before the owner joined him. The owner knew and approved of the driving. In the instant case I found that the owner did not know of the driving and the journey was wholly on the 1st Defendant's business.

22. Mr. Barretto argued that because some sort of test drive was contemplated, the 1st Defendant's journey could be regarded as being partly for his own purposes and partly for the purposes of a test drive. I held that the test drive which had been contemplated by the parties was very limited in scope and that it had been completed well before the trip which the 1st Defendant undertook exclusively for his own purposes.

23. After the completion of the repairs and the short test drive, the defendants were in the position of bailor and bailee. The bailor of a chattel is not liable for the negligence of the bailee in his use of the chattel, for example where the owner of a motor car lends his car to a friend for the friend's own purposes - Monk v Warbey (1935) 1 KB 75. It is otherwise where an owner allows a prospective purchaser to test drive his car, because the driving is partly for his purposes, i.e. the sale of the car - WONG It Yong v LIM Gaw Teong (1969) 1 MLJ 79.

24. In the instant case, the drive was not even partly a test drive. The 2nd Defendant was not vicariously liable for the negligence of the 1st Defendant.

25. I therefore give judgment for the Plaintiff on liability against the 1st Defendant but his claim fails against the 2nd Defendant and I accordingly give judgment for the 2nd Defendant.

Damages:

26. The 1st Defendant admitted the particulars of the Plaintiff's injuries as set out in the Statement of Claim and in a number of agreed medical reports which were tendered. The evidence given by the Plaintiff regarding his injuries and their effects was not challenged.

27. The Plaintiff was put to the proof of his special damages.

28. I will deal first with the question of damages for pain, suffering and loss of amenities.

29. The Plaintiff was rendered unconscious by the accident but when he was taken to Tang Shiu Kin Hospital shortly afterwards, he was conscious. He had a 2 cm laceration above the left eyebrow, bruising of the left eye, abrasion of the right hand, dislocation of the left elbow, and a Colles fracture of the left radius. He was transferred to the university Orthopaedic Unit at Queen Mary Hospital where the dislocation was reduced and he was found to have mild left medial nerve palsy. The Plaintiff had cerebral oedema which was treated with steroids.

30. The court had two reports from Dr. Wedderburn, one dated the 23rd September 1982, some fifteen months after the accident, and one dated 18th December 1984, some two and a half years after the accident.

31. The first report showed that the Plaintiff suffered concussion and also post traumatic amnesia lasting four days. Post concussional symptoms consisted of dizziness and severe headaches. The dizziness had cleared up completely by September 1981 and he had one mild headache of about four minutes duration once a week. There had been some bleeding into the left eye but it had cleared up, leaving the vision unaffected.

32. The broken arm was in a plaster cast for six weeks The Plaintiff was discharged after two weeks and attended regularly at the Sai Ying Pun Clinic until late October, 1981.  After removal of the cast he had physiotherapy three times a week for both arms for two and a half months.

33. The median nerve traverses the front of the elbow and was crushed in the dislocation, resulting in median nerve palsy.  The median nerve supplies sensation in the thumb, index and middle finger, and the Plaintiff suffered a loss of sensation in the thumb and these fingers.  He had wasting of the Thenar Eminence (the muscular swelling in the palm on the thumb side).

34. On examination the Plaintiff had lost the final 5^o of straightening the arm at the elbow though flexion was normal. Wrist movement was normal save that forward flexion was reduced from 80^o to 60^o.

35. Due to a semi-paralysis of the small muscles of the hand which help to move the thumb and control fine finger movement, he could not perform fine movements of finger and thumb as well as he could on the right hand.

36. The Plaintiff was found to have an 80 lb grip with his right hand but only a 10 lb grip with his left.

37. There was considerable wasting of the forearm muscles. The measurement round the right forearm was 10" and, round the left, 9".

38. The Plaintiff had a 2% impairment of the arm from the left wrist, a 2% impairment from loss of elbow joint movement and a 10% impairment of the arm from the median nerve loss. A 14% impairment of the arm was said by Dr. Wedderburn to be a 6% impairment of the whole man.

39. The Plaintiff returned to work after 6 months, a period considered reasonable by the doctor.  Having previously worked 25 days a month, he could only work 20 because of discomfort in the arm.

40. His permanent disability, assessed at 6% would have been much higher if the preferred arm had been affected. Dr. Wedderburn hoped to see the Plaintiff returning to full time work as his muscle strength marginally improved and he learned new tricks or forms of dexterity with his left hand, though the Doctor recognised that he might suffer an earnings loss because of his reduced efficiency in competition with others in the labour market.

41. Unfortunately, when Dr. Wedderburn came to write his report dated the 18th December 1984, the hoped-for overall improvement had not taken place. There was a permanent loss of median nerve function. There was obvious wasting of the muscles of the forearm, the circumference of which was, at two levels, 1" and 1¹/8" less than that of the right forearm.

42. Due to the increase in size of a displaced bone (the coronoid process) the range of elbow movements had decreased. The loss of movement of extending the arm at the elbow had increased from 5^o to 8^o, the impairment having increased to 3%. The bony mass of the displaced coronoid is not likely to increase further. Wrist movement is now normal but median nerve supply to the forearm muscles has not improved at all. Further recovery of muscle power cannot take place. Impairment of the arm has now reduced to 12% but the impairment of the whole man is unaltered.

43. Because of the abnormality of the elbow joint and a new appearance of bone density in the Olecranon (the socket of the elbow joint) Dr. Wedderburn does not doubt that the Plaintiff has pain in his arm and occasionally has to take a day or two off work. A man unable to work full time is unlikely to be hired on a permanent basis and has to seek casual work. His earning power is thus affected to a higher degree than that of the impairment. In the circumstances, Dr. Wedderburn assessed the Plaintiff's permanent disability at 10%. The hoped-for impairment has not materialised and if anything the Plaintiff's difficulties are slightly increased.

44. There is mild osteo-arthritis of the elbow but this will not substantially increase.

45. I could see in court that there was a substantial discrepancy in size between the Plaintiff's forearms, considerable wasting being evident in the left forearm muscles.

46. The Plaintiff is now aged 27. His evidence corresponded with the medical evidence. He had been knocked unconscious in the accident. His arm now hurts on a regular basis so that he can only work 20 days in a month on average.

47. I was referred to several cases on quantum, including :

48. In the present case, the Plaintiff has a 10% impairment of the whole man, and recurrent pain in his arm as well as loss of function in his elbow and grip in his hand. Taking into account previous awards, particularly that in LAM Kwok-hung, which was made some eighteen months ago, I consider that an appropriate figure in this case, for pain, suffering and loss of amenities is $32,000.  I award that sum.

Future loss of earning capacity

49. The Plaintiff's condition is not expected to improve.  His market value as a decorating worker is affected by the fact that he cannot do ouside work, e.g. painting the outside of buildings, because his poor grip with the left hand makes it unsafe to do so. Further, his inability to work a full month because of recurrent pain means that employers will tend to put him last in the queue of applicants, and he must rely on casual work. Thus his opportunities of finding steady work are reduced and when he does work he will lose five days a month on average, because of recurrent pain.

50. Evidence was given by the Plaintiff's former employer, and I accepted it, that any employer in the trade will take a fully fit worker before the Plaintiff.

51. There is indisputed evidence that the current wage for a painting worker is $190 per day.

52. The Plaintiff is 27 years old, with many years of his working life before him. I will take a multiplier of 14 years as recommended by Mr. Barretto.

53. The appropriate multiplicand, assuming a loss of 5 days work per month at $190 per day is 5 x 190 x 12 = 11400

14 x 11400 = 159,600

I award $159,600 for loss of future earning capacity.

Special Damage

Pre-trial loss of earnings

54. The daily rate of pay at the time of the accident was $160, according to the Plaintiff and I accept that. He said that he looked for work 10 months to a year after the accident. It would appear from the medical report, however, that he told Dr. Wedderburn he had returned to work after 6 months. I think it probable that the correct figure is about 9 months, i.e. about 6 months after the physiotherapy ended. I shall assume a total loss of earrings for 9 months. At $160 per day, 25 days per month, that is 160 x 25 x 9 = $36,000. This takes us to the end of March 1982.

55. From 1st April 1982 to the 8th May 1985, the hearing date, the Plaintiff lost 5 days a month. The wage rate at the time of the accident was $160 per day and at the date of hearing it was $190 per day. The average is $175 per day. He lost 5 days per month over a period of 37¼ months. I therefore calculate his loss at 5 x 175 x 37¼ = 32,594, which will be rounded up to $32,600.

56. Thus the total sum awarded for pre-trial loss of earnings will be 36,000 + 32,600 = $68,600.

57. There will be interest on the damages for pain, suffering and loss of amenities at 2% per annum from the date of issue of the writ until judgment. There will be interest on the special damages at 7% from the date of the accident until judgment. The 1st Defendant is ordered to pay the Plaintiff's costs of the action to be taxed, if not agreed, in accordance with the Legal Aid Regulations.