KUNG KWOK LEUNG v. LUI WOON MAN AND ANOTHER

1984, No. 204

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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__________

JUDGMENT

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1. The plaintiff claims damages for personal injuries and consequential loss or damage suffered by him as a result of a traffic accident on the 11th January 1981.

2. As a result of agreement reached between the parties the only issues now before me are the following: -

Contributory Negligence

3. At about 12.55 p.m. on the 11th January 1981 the plaintiff was riding his Honda motor cycle in an easterly direction along Wai Yip Street, Kwun Tong. He was returning to his place of work which was at No. 111 Wai Yip Street. At the time the carriage way in Wai Yip Street travelling in an easterly direction was divided into two lanes. The plaintiff was travelling along the lane immediately adjacent to the pavement. Parked on the pavement at 103 Wai Yip Street was a large earth-moving type of lorry. As the plaintiff approached 103, this lorry, driven by the 2nd defendant, moved from its stationary position onto the same lane as that in which the plaintiff was travelling. The two vehicles collided, the points of impact being the offside front portion of the lorry and the mid-section of the motor cycle. The plaintiff's arm was caught under the front offside mudguard of the lorry. He was dragged to the roadway where the motor cycle collapsed on top of him.

4. Both the plaintiff and the 2nd defendant agreed that a sketch drawn by a police constable who came to the scene of the accident about forty-five minutes later accurately depicts the position of the lorry where it came to a standstill after the collision. The plaintiff said in evidence that at the time he was travelling at about 20 m.p.h. but he was unable to give an estimate of the speed of the lorry at the time of impact. The 2nd defendant was unable to give any estimate of speed of the motorcycle based on observation of its approach as he was unaware of its presence on the road until he heard a braking sound and the noise of the collision. On the basis of what he heard he estimated the speed of the motor cycle at not less than 30 m.p.h. The 2nd defendant said in evidence that the sketch also accurately depicts the skid marks made by the braking motor cycle shortly before impact.

5. The 2nd defendant said that he had not changed from first gear by the time the collision had occurred. The width of the lane in which the plaintiff was travelling was such that even without a warning signal from the lorry he should have been easily able to veer right and overtake the lorry as it emerged from its parking position on the pavement. From the sketch, however, it is clear that the 2nd defendant on entering the carriage way continued to veer diagonally across the inner lane towards the outer lane. The marks on the roadway - which the 2nd defendant said were made by the plaintiff's motor vehicle - indicate that the motor cycle, at the time the brakes were applied, was endeavouring to veer away from the 2nd defendant's vehicle. The sketch also makes it clear that had the 2nd defendant straightened his vehicle on entering the inner lane, the plaintiff following the path indicated by his skid marks would have been able to safely overtake the 2nd defendant's vehicle.

6. I am satisfied that there was nothing that the plaintiff could reasonably have done in the circumstances to avoid the collision which the 2nd defendant made inevitable by the negligent way that he entered and drove across the inner lane. I therefore find that there was no contributory negligence on the part of the plaintiff.

Nourishing Food

7. The plaintiff was in hospital for 53 days following the accident and was away from work on sick leave for a further 160 days. The claim is for nourishing food at the rate of $15 a day for the period of his stay in hospital and $7.50 per day for the remainder of his sick have. The defendant has opposed the claim on the basis that (a) there was no evidence of how much was actually spent and (b) there was no evidence that it was helpful.

8. The plaintiff is and was at the time of the accident, a widower. During the period of his sick leave his household consisted of himself and three 'groom-up daughters'. Two of them were not then working. His mother-in-law often visited their home before the accident. She said in evidence that following the accident she went to visit the plaintiff everyday in hospital, taking "nice food consisting of chicken and abalone because he was in need of blood". The plaintiff's evidence was that he was "given tonic food almost everyday whilst he was in hospital and once every day or two after he left hospital". I think that the mother-in-law would. have played the surrogate roles of mother and housewife in the plaintiff's household, particularly during the period of his sick leave. I infer that most of the expense of providing him with nourishing food would have been met by him. I therefore do not accept the defence submission that the claim should not succeed at all. On the other hand, it is clear from the evidence that the claim is an exaggerated one.

9. Taking into account the period that the plaintiff spent in hospital and at home convalescing before his return to work I think that it is reasonable to conclude that he would have had to outlay about $1,000 more than he would ordinarily have had to spend in order to supplement his diet with nourishing food. I accordingly award $1,000 under this head.

Taxi fares

10. The plaintiff's mother-in-law lived at North Point and the plaintiff was in hospital in Kwun Tong. The defendants have opposed this claim on the basis that (a) there was no evidence of how much was spent per trip and (b) there was no evidence of how many times she went. The plaintiff's mother-in-law said in evidence that she visited him every day when he was in hospital and that she went there by taxi because she did not know the way. There was evidence that the round trip by taxi from North Point to Kwun Tong costs $80. I do not however accept her evidence to the extent that it implies that she spent $30 on taxi fares every time she visited her son-in-law in hospital. In the absence of credible evidence proving a greater disbursement from the plaintiff's household fund in connection with the expense of visiting him in hospital I conclude that a reasonable amount to award under this head is $500.

Loss of earnings

11. At the time of the accident the plaintiff was employed as a trucking supervisor by Hecny Transportation Company Limited. His salary was then $2,800 per month. His rating as an employee was such that had he remained with his employer he would have received annual increments of salary amounting to 13%. Although he was able to return to work on the 12th of August 1981 he was not physically capable of carrying on at his old job. The expert medical evidence about his post-accident physical condition is that he can do no work other than sedentary work or work which does not involve standing, walking or considerable physical effort. As a result of his post-accident condition his employer transferred him to a new job in the office of the employer's godown at a lower salary, namely, $2,600 per month. It also involved some manual work, assisting in the loading of cargo. He remained in it until February 1982 when he resigned. He said in evidence that the reason he resigned was that he had difficulty removing goods because of his injured leg, the post was lower in status than his former post and he was receiving less salary than before. His only job after that was working for a property management firm but he had to relinquish that job because he was required to stand for nine hours o day outside multi-storey building to attend to visitors to the premises. He has not had employment since then end he last tried to find a job in April 1983.

12. Both parties are agreed that the pre-trial loss of earnings from the 11th of January 1981 to the 28th of February 1982 amounted to $7,857.54. I am required to assess the remainder of his pre-trial loss between the 1st of March 1982 and the date of trial and his loss of future earnings.

13. The plaintiff's own evidence was that the maximum he could presently earn is $1,800 per month as a watchman or security guard. It is difficult to accept his figure of $1,800 because it was obvious from his evidence that he has made very little effort to seek alternative employment.

14. A manager of his former employer said. that he told the plaintiff just prior to his resignation that he "couldn't give him a better post at that time." It was clear from the manager's evidence that the plaintiff had been employed by a benevolent employer. There was no compulsory retiring age for employees - this employment ceased only on resignation or death. Employees received an annual increment ranging from 8% to 15%. The most indolent employee would receive an annual increment of 8% and the most highly rated employees an increment of 15%. The plaintiff's entitlement was 13%.

15. The plaintiff had not, at any time since his resignation, made any inquiry to see whether a better post for him with his former employer had become available. I accept that he was prompted to resign because of the discomfort involved in carrying out the duties of the godown job. I infer that his failure to follow up the possibility of re-employment with his former employer and his failure to find alternative suitable employment is the result of his satisfaction with his present domestic arrangements whereby his grown-up daughters go out to work and he remains at home doing the domestic chores. From the tenor of the evidence given by the manager I conclude that it is more likely than not that his former employer would have found suitable alternative employment for such a highly regarded employee at a salary of at least $2,200 per month within six months of his resignation.

16. On that basis I think that he is entitled to be compensated for six months at the full rate of his date-of-accident-salary, plus any increments that might have become effective, and thereafter at the rate of the difference between the $2,200, incrementally adjusted from time to time, and the full salary of his old position as adjusted. incrementally from time to time, until the date of trial. His loss of future earnings should be calculated by using the differential at the date of trial as a multiplicand and twelve as the multiplier. I have chosen the figure twelve because the plaintiff was aged 43 at the date of the accident and I have taken into account his employer's "retirement-age-policy". Had the plaintiff returned to his employer, as 1 am confident he could have done had he wanted to, his period of empleyment could have extended well beyond the norm set by other employers.

17. I therefore assess his loss of earnings as followings:-

18. Pre-trial loss

1/3/82 -30/9/82	$2,800 x 1.13 x 6	=	$13934
1/10/32 - 31/12/32	$600 x 2	=	$1200
1/1/83 - 31/12/83	($3164 - $2427)	=
	$737 x 12	=	$3844
1/1/84 - 31/12/84	($3575 - $2743)	=
	$832 x 12	=	$9984
1/1/85 - 10/4/85	($4040 - $3010) =
	$1030 x 3.3	=	$3399
Total:			$42411 =====
Loss of future earnings	$1030 x 93	=	$95790

19. The plaintiff's full award in damages is:-

 

SPECIAL DAMAGES

1.	Damage to clothing	$850.00
2.	Medical Expenses	$835.00
3.	Nourishing food	$1000.00
4.	Travelling expenses	$2900.00
5.	Pre-trial loss of earnings:	$50269.00
	$7,858 (agreed) + $42,411 (assessed)	________
	Total:	$55,854.00 ========
Less $15,360.00 as WORKMEN'S COMPENSATION=		$40,494

GENERAL DAMAGES

l.	Pain suffering & loss of amenities
	(agreed)	$41500.00
2.	Loss of future earnings	$95790.00
	Total:	$137290.00 ========

20. I give judgment in favour of the plaintiff for damages in the sum of $177,784.00; interest on $40,494.00 at the rate of 6.75% per annum from 11.1.81 to today and on $137,290.00 at the rate of 2% per annum from the date of service of the writ to today; and costs. Defendants allowed 21 days to pay.