LEUNG NAI WING v. HSING KIENG SHING

Personal injuries - road traffic accident - injuries to passenger not wearing seat belt - contributor negligence - where pleaded for defendant to prove where disputed that motor vehicle fitted with seat belts - for the defendant further to prove that had seat belts been worn the injuries would either have been avoided or lessened - expert evidence on comparative position if seat belts had been worn desirable - non-expert evidence may also be adequate in certain circumstances - where defendant discharges burden of proof appropriate contribution percentages. - Held: 1. Defendant failed to discharge burden; 2. No element of contributory negligence; 3. Damages of $183,393 awarded.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

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JUDGMENT

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1. The plaintiff and the defendant had dinner together at Tsuen Wan on.the night of 7th January 1983. The plaintiff, who was a duly licensed driver, had left his own car registered number CB5316 in Kowloon and after dinner the defendant drove the plaintiff to Kowloon intending to take him to where the plaintiff's car was parked. On reaching Kowloon at about 2.15 a.m. the following morning, the defendant's car, when approaching the traffic lights at the junction of Waterloo Road and Pui Ching Street, failed to stop in time and collided with a car immediately ahead. At the time of the accident the plaintiff was seated in the front passenger seat of the defendant's car.

2. As a result of the accident the plaintiff suffered injuries to his right eye, multiple facial lacerations and bruising to his body. The injuries to his right eye resulted in 100% functional impairment and subsequently the eye was removed and an artificial eye fitted. After being released from Hospital the plaintiff returned to work after a period of sick leave but was subsequently thereafter dismissed. The plaintiff was later able to obtain a new job but at a lesser salary. He now claims general and special damages for the loss caused as a result of the accident.

Liability:

3. Following the accident the defendant was convicted of careless driving contrary to Section 12(1) of the then Road Traffic Ordinance, Cap. 220, on his plea of guilty in the North Kowloon Magistracy on 6th June 1983. At the trial of the present action the defendant conceded that he had driven the car negligently and that the plaintiff's physical injuries were suffered in the accident. The narrow dispute between the parties was whether the plaintiff was contributorily negligent. This issue, raised by the defendant as a consequence of the undisputed fact that at the time of the accident the plaintiff was not wearing a seat belt, was pleaded in paragraph 5 of the Defence in these terms:

"... such injuries, loss and damage ... could have been avoided or reduced by the Plaintiff being a front seat passenger in the said private car CB5316, wearing a seat-belt at the material time which he failed to do."

4. The unusual factual aspect of this case was the evidence surrounding the question whether the car was fitted with seat belts at the time of the accident. The plaintiff agreed he did not wear a seat belt but was unable to state whether the seat he sat in was equipped with seat belts. He had never been in the car before the night of the accident and had boarded the car in a dimly lit car park. The defendant gave evidence and he too agreed that he did not wear a seat belt. Although the obligation to wear seat belts had come into force some months previously his prectice was not to wear seat belts. When questioned he was unable to state whether seat belts were fitted on the night of the accident. The defendant's car was a 1979 Mitsubishi 1410 c.c. saloon car which he had purchased new and only sold earlier this year.  When the car was sold this year the defendant stated it was fitted with seat belts and his strongest evidence as to the earlier condition of the car was that it should have been fitted with seat belts when he purchased it in 1979. However, on the crucial issue of whether the car had seat belts fitted on the date of the accident, namely 8th January 1983, he was uncertain.

5. Shortly after the defence case was closed, Counsel for the defendant applied to reopen his case and call further witnesses including one witness on the seat belt issue. After overruling an objection entered on behalf of the plaintiff leave was granted. The defence then called Mr. Johnson Lee, Senior Assistant Sales Manager of Universal Cars Ltd. Mr. Lee had been employed by Universal Cars Ltd. for the previous 12 years and stated that throughout that period the Company was the sole Hong Kong franchise holder for the sale of new Mitsubishi cars. In 1979 all new Mitsubishi cars of the same model as the defendant's car sold by Universal Cars Ltd. were fitted with seat belts. The new cars were manufactured in Japan in accordance with a Hong Kong specification which included the provision of seat belts so it was highly unlikely any new cars mould have been sold without seat belts. In cross-examination he recognised that the same models might be manufactured in Japan for other countries without seat belts and that it was possible a few of those might have been re-exported to Hong Kong.  Mr. Lee also stated that his Company held a large stock of spare parts, including seat belts, for Mitsubishi cars.

6. On the evidence it is first necessary to find whether the defendant's car was at it he date of the accident fitted with seat belts. Only if I find that seat belts were fitted would it be necessary for me to go on to consider the second and what is usually the only substantial seat belt issue, namely whether the injuries sustained would have been less severe or avoided altogether by the wearing of a seat belt. Counsel for the plaintiff submitted that as the defendant had pleaded contributory negligence the burden of proof on this issue was also placed on him. This submission reflected, but did not expressly cite, the conclusion reached by Watkins J., in Owens v. Brimmell (1977) 1 QB 859, that if a defendant failed to prove that had the plaintiff worn a seat belt the injuries would have been less serious, there would be no reduction in the damages due to a plaintiff, owing to his failure to wear a seat belt.

7. I hold that where no seat belt is worn the same burden which rests on a defendant who pleads contributory negligence also rests on such a defendant to establish that seat belts were fitted to the car where that fact is disputed. In this action the burden of proving on the balance of probabilities that at the date of the accident seat belts were fitted to the car therefore lies on the defendant. After considering the whole of the evidence I accept that the cumulative effect of the testimony of the plaintiff and the defendant would have left me in doubt on this issue. However, the evidence of Mr. Lee is that all new cars sold by his Company in 1979 as sole franchise holder were fitted with seat belts. The defendant stated that when the car was sold earlier this year it was fitted with seat belts. After allowing for the possibility of some new cars being supplied other than by his Company, I find that it is more probable than not that when the defendant purchased the car in 1979 it also was fitted with seat belts. I am equally willing to infer that on the balance of probabilities those seat belts remained fitted at the time of the accident in 1983.

8. The perhaps surprising evidence that the defendant's car was fitted with seat belts in 1979 and yet he did not use them until after the accident was paralleled by the plaintiff's evidence that during the same period his Honda Prelude car was fitted with seat belts but he did not use them until after the accident. No doubt the explanation in part for this attitude was that although for some years new cars purchased in Hong Kong had been fitted with seat belts, it was only in 1982 that it became obligatory for seat belts to be worn under what is now Regulation 7 of the Road Traffic (Safety Equipment) Regulations, Cap. 374, subject to the exceptions therein stipulated.

9. However, I remind myself that long before the wearing of seat belts for the purposes of our criminal law became obligatory, whether they were worn waa relevant in civil personal injuries claims. For the Court of Appeal in Ho Wing -cheung v. Liu Siu-fun (1980) HKLR 300 had held that the reasonable man travelling in a car would take the precaution of wearing a seat belt where one is available. Failure to do so where a seat belt was available might, the Court of Appeal held, amount to contributory negligence. The qualifications in the Court of Appeal's judgment as to requirement of availability, necessarily followed from the position that as a matter of law the Road Traffic Ordinance at that time neither required cars to be fitted with seat belts or passengers to wear them. In those circumstances the Court of Appeal's judgment does highlight the serious civil consequences of not wearing seat belts, whatever the penal consequences under the Road Traffic Ordinance. The Court of Appeal did refer also to the fact that even in 1980, Paragraph 15 of the then Highway Code advised the use of seat belts and that Section 7(4) of the then Road Traffic Ordinance provided that failure to observe the provisions of the Code might be relied upon as tending to establish or negative liability in any proceedings. Section 109(5) of the new Ordinance contains a similar provision.

10. Having found that the car was fitted with seat belts at the time of the accident the defendant must secondly prove that the injuries sustained would have been less severe if a seat belt had been worn. The only direct evidence of how the injuries were sustained was given by the plaintiff who stated that when the collision occurred he was thrown forward and hit the windowscreen. He further agreed that as a result of being thrown forward and his head hitting the windowscreen his right eye was lacerated and he suffered facial cuts. The medical reports of Dr. E. M. So, the ophthalmic surgeon and Dr. R. S.  Wang the plastic surgeon, are consistent with the injuries being caused in the manner described by the plaintiff. I find that the injuries were so caused.

11. The more difficult question is whether the injuries would have been avoided or been less severe had seat belts been worn. The plaintiff submits that there is no evidence which supports the view that the injuries would have been less severe. The defence concedes that injuries might not have been avoided but submits that they would have been less severe. Counsel for the defendant referred me to the leading English authority of Froom v. Butcher (1976) QBD 236 C.A. which is also noted at 'Charlesworth & Percy On Negligence' (7th Edn.) 152 where other cases and articles dealing with seat belts are helpfully collected. Froom v. Butcher was followed by the Court of Appeal in Ho Wing-cheung v. Liu Siu-fun. In the latter case there was medical evidence before the trial judge that the probable injuries would have been less if a seat belt had been worn. This is the kind of comparative expert evidence on the difference the wearing of a seat belt would probably have made, which ideally should be adduced in cases of this kind.

12. In this action no expert evidence was adduced. I appreciate that even where such evidence, is called from doctors or traffic engineers it may not be decisive. There are also cases where there are other competing possible factual causes such as the facia board being pushed back to where the passenger would have been seated even if a seat belt had been worn, which may reduce the effect of expert evidence. However, where possible, direct evidence on the consequences of not wearing a seat belt should be called. Where a defendant pleads contributory negligence, the burden is on him to prove that had a seat belt been worn the injuries would either have been avoided or been less severe. In this action the defence called no evidence on this issue but was content to rely on the plaintiff's evidence.

13. The defence did refer me to McGee v. Francis Shaw & Co. Ltd. (1973) RTR 409 where no expert evidence was called but the plaintiff was held by Kilner Brown J. to have been one-third negligent. The Court appears largely to have accepted the submission that on the particular facts of that case the plaintiff's conduct reached the high watermark of contributory negligence in a seat belt case. The plaintiff who had worn seat belts on previous occasions, deliberately elected not to do so on this occasion; he knew the bad driving habits of the defendant; the defendant who wore a seat belt in the same front seat was uninjured; the car was driver at a low speed when the plaintiff was thrown forward and hit the windowscreen; the impact was not sufficient to break the windowscreen. Kilner Brown J., referred to difficulties which had arisen in earlier cases of assessing the difference wearing a seat belt might have made but considered that on the facts of the case before him that particular problem did not arise. On those facts he was able to take a bold approach and hold that had a seat belt been worn the plaintiff would not have sustained any injuries.

14. In the present action the fact that the plaintiff had never before been in a car driven by the defendant was undisputed. Neither the plaintiff or the defendant wore seat belts. Both were injured. So this Court is deprived of the factual comparision available from direct evidence which was obviously of considerable assistance to the Court in McGee v. Francis Shaw & Co. Ltd. The plaintiff further asserted that here there was evidence of the relatively high speed of 30 miles per hour when the defendant approached a traffic light controlled intersection in the urban area when the road was wet. I find that those facts were established but also find that the accident occurred at 2.15a. m. when traffic was relatively light The present case is made more difficult in that neither the report of the Magistrate's Court proceedings or the medical reports established whether the window-screen was broken or whether the plaintiff suffered cuts from broken glass. The failure to wear a seat belt does not of itself establish contributory negligence. This is not a res ipsa loquitor situation.

15. The crucial question is whether in the absence of direct evidence the Court may infer that less severe injuries would have resulted had a seat belt been worn?  I appreciate that even in the absence of expert evidence there will be many cases, such as occurred in McGee v. Francis Shaw & Co. Ltd., where on other established primary facts such an inference adverse to a plaintiff may properly be drawn. In the present case I accept that there is no direct evidence that the plaintiff was injured otherwise than being thrown forward and hitting the windowscreen. I accept too, that this is not a case which falls within the group of cases where a Court is unable to find that the injuries would have been less severe, because there is direct evidence of other possible causes of the injuries I am Satisfied that this case lies in the difficult grey area somewhere between those two extremes. After reviewing the whole of the evidence, I have reached the conclusion that it would be matter of speculation and not inference if I were to find that the injuries would have been lessened if a seat belt had been worn. I therefore hold that the defendant has failed on the balance of probabilities to establish contributory negligence on the part of the plaintiff.

16. If I had held that there was contributory negligence it would have been necessary for me to go on and determine the extent of that negligence. In view of the fact that I have heard evidence over two days on this issue it is desirable that I should express my opinion on what would in that event have been the appropriate percentage. In Froom v. Butcher the English Court of Appeal stated that in normal cases damages should be reduced by 25% where wearing a seat belt would have prevented the injuries and 15% where a seat belt would have reduced the injuries. Those percentages were clearly concerned only with the norm. McGee v. Francis Shaw & Co. Ltd. illustrates how different factual situations will lead to different percentages. In that case the very special facts indicating a high degree of negligence on the part of the passenger resulted in a finding of 331/3% contributory negligence rather than the norm of 25%.

17. Our Court of Appeal in Ho Wing Cheung v. Liu Siu-fun considered a factual situation which fell into the second of the categories set out by the English Court of Appeal, namely where the injuries would have been reduced. In dealing with that second category the Court of Appeal in Ho Wing Cheung v. Liu Siu-fun held that 20% was the appropriate percentage. I was referred to Chan Wai-tong v. Li Ping Sum (1985) 2 WLR 396 on other matters but it is also a useful reminder that in this field the appropriate standards are to be found in Hong Kong decisions and not those of other jurisdictions. I have considered the appropriate percentages in the light of Ho Whing -cheung v. Liu Siu-fun. In the present, case many of the findings I have made in relation to whether there was contributory negligence are also relevant to the degree of contributory negligence. The defence also conceded the plaintiff was less negligent than the plaintiff in McGee v. Francis Shaw & Co.Ltd. When I consider those factual matters I have reached the conclusion that had there been contributory negligence, I would have found that it amounted to 15%.

Quantum:

18. The assessment of damages is simplified by the fact that both parties agreed to the sum of $100,000 for pain and suffering and have also reached agreement on the majority of items under special damages. The claim for clothing of $1,130 was disputed for which the defendants offered $500 and I award $600.

19. The major dispute at the commencement of the trial Was in relation to loss of earnings and provident fund entitlement. At the date of the accident the plaintiff was employed as a merchandiser by a large and long established import and export company which operated a non-contributory Staff Provident Fund. The plaintiff had commenced employment with the Company on 15th November 1979 at a salary of $2,000 per month. The plaintiff is the holder of a Technician's Diploma in Fabric Manufacture from the Hong Kong Polytechnic. Among his duties were to select local manufacturers to make handbags for overseas clients and negotiate terms. At the date of the accident his salary had been increased to $3,500 after a series of annual increases of $200 to $300 since 1979. In addition to salary he was entitled to commission and had respectively received $8927, $8983, $817 and $5027 per annum since 1979. The Staff Provident Fund Rules included the provision that if an employee left before completing 10 years service he was not entitled to any payment. The sum of $10,383.32 contributed by the company subject to those rules stood to the credit of the plaintiff in the Staff Provident Fund as at 31st December 1982.

20. The plaintiff took 3 months sick leave after the accident and then returned to work at his existing salary. However, his employment was soon thereafter terminated namely on 31st October 1983. After unsuccessfully looking for a similar job in the import/export trade he was employed by a transportation company as a clerk on 1st January 1984 at a salary of $3,000 which job he at present holds. The amended statement of claim includes claims for $14,000 being loss of benefit from the Staff Provident Fund and loss of earnings based on the difference between his former and current income. In assessing the latter damages, Counsel for the plaintiff in opening suggested a multiplier of 15. Whether either of these claims could be sustained depended on Whether the termination of the plaintiff's employment was a consequence of the accident.

21. A director and the chief accountant of the plaintiff's former employer gave evidence. Both stated that the reason for the termination of the plaintiff's employment was a reduction of staff and a rearrangement of departments which resulted in the plaintiff's department being absorbed by another department. As a result of these changes 12 employees had to have their employment terminated. The director stated that there were no complaints with the plaintiff's work performance and if the company had rearranged its departments differently it may have been that some other employee would have been dismissed and the plaintiff retained. The director was emphatic that the plaintiff's loss of an eye was not a factor in the decision to terminate his employment.

22. I find that the plaintiff's employment was not terminated as a result of the accident. Counsel for the plaintiff sensibly recognised the overwhelming evidence on this issue and in his closing submissions limited the plaintiff's claim for a lump sum payment for loss of future earning capacity. This claim was based on the plaintiff's disadvantage in the labour market as a result of having only one eye. The appearance of the plaintiff at the trial seemed little affected by the accident. The fitting of the artificial eye has had minimal affect on his appearance. The plaintiff stated that as part of his former job he was required to inspect and examine hand bags and fabrics and that the loss of an eye affected his ability. The director of his former employer, called by the defence, also stated that the loss of the eye would affect his employment opportunities as a merchandiser.

23. The plaintiff has technical qualifications and import and export experience. I accept his evidence that now that he had settled down after the accident he is again looking for alternative jobs in the import and export business sector. I accept too, that immediately after his former position was terminated he was unable to find a similar job in that field but that in part would have been due to the fact that he had not completely recovered from his injuries. I am satisfied that the accident has caused the plaintiff to be disadvantaged in the labour market. On this issue I was referred to Chan Wai Tong v. Li Ping Sum  in particular at page 404, letters F, G and H.

24. Counsel for the defendant recognised that a lump sum payment for loss of future earning capacity was appropriate and referred me to awards being made on that basis in Cheung Yuk-chun v. Mitsui Construction Co. Ltd. HCA No. 12597/82 (1985) HKIJ 112 and Yip Wan-chun v. Jim Han-tak HCA No. 11640/82 (1985) HKLJ 238. In both those cases awards of $30,000 were made. In my opinion the loss of future earning capacity is higher in the present case and I award $60,000 under that head.

25. In the result the plaintiff is awarded damages as follows:

General Damages:

Special Damages:

26. There will be interest at 2% on the damages of $100,000 for pain, suffering and loss of amenities from the date of service of the writ to judgment and interest at 5.6% on special damages from the date of the accident to the date, of judgment. The plaintiff is also entitled to his costs to be taxed if not agreed in accordance with the Legal Aid Regulations.