LAW HING v. LEUNG TIN KAN AND ANOTHER

1987 No.A4267

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The Plaintiff was driving his light goods vehicle on Tai Po Road near Wong Yi Au Tsuen on 7th May 1985, when the 1st Defendant drove a coffin van owned by the 2nd Defendant over the central double white line and collided into the Plaintiff's vehicle. The writ of summons was taken out on 17^th July, 1987 and interlocutory judgment for damages to be assessed and costs was entered by consents on 31st May, 1988.

2. The Plaintiff called Dr. David Wing Lee (P.W.1) and his own wife (P.W.3) as his witnesses in addition to giving evidence himself. The Defendants called a total of 3 medical doctors (D.W.1, D.W.2 and D.W.4), and 2 officers from the Census and Statistics Department and Transport Departments respectively. A total of no less than 12 medical reports/records/memoranda were produced before the court.

3. The parties were only able to reach an agreement on travelling expenses, towing charges and hospital expenses in the respective sums of $1,312.00, $2,100.00 and $543.00. It was also agreed that the Plaintiff's lorry was a total loss though there was no consensus as to the value of the same.

Pain, Suffering and Loss of Amenities

4. As a result of the accident, the Plaintiff sustained multiple injuries to the face, right shoulder, right knee and neck. Medical findings upon admission to hospital disclosed bilateral periorbital haematoma, fracture of the right 3rd to 5th ribs at the back and fracture of several teeth. He was hospitalised for a total of 18 days. Subsequent examination revealed that there were degenerative changes of the cervical spine i.e. cervical spondylosis. The Plaintiff claimed that he had prior to the accident suffered no symptoms of cervical spondylosis. He complained of typical, symptoms such as neck and should pain, and weakness of both arms and hands after the accident. His condition improved gradually and at the hearing of the assessment he no longer suffers any pain on neck movement though there would still, be occasional pain, and would only felt pain in his arms when lifting heavy objects. The weakness of his arms still persist though it has substantially improved. Medical evidence is consensus that the said symptoms could have been triggered off by the trauma of the accident, and that it is possible for a person with cervical spondylosis to go through life without any manifestation of any such symptoms at all. However, the Defendant's doctor (D.W.4) and the Medical Assessment Board opined a permanent , impairment as against the Plaintiff"s doctor's (D.W.1) 20% permanent disability. After considering the medical reports and the doctors' oral testimony, I accept the assessment of the Medical Assessment Board and Dr. York Chow (D.W.4) and find the Plaintiff to be suffering from a 2% permanent impairment of, the man. There is no evidence .that the Plaintiff enjoys any particular hobby. He is now 57 (Though the hospital reports alleged hip to, be 51 in 1985).

5. I was referred to Li Yee Yuen v. Tam Wing Leung and another, HCA No. 9964/1982, where a 54 years old man suffering from a whiplash injury was awarded $35,000.00 under this head. The conditions of the Plaintiff in that case are not dissimilar to the present Plaintiff. That plaintiff was diagnosed to he suffering from a 10% impairment of the whole man in 1982 due to the symptoms of cervical spondylosis and an additional 10% due to loss of muscle strength. He, being a self employed lorry driver prior to the accident, was described as unfit to drivel In 1984, his condition miraculously improved and was considered safe to return to driving. His impairment was reduced to 3% to 4%. I agree with the Court's observation in that case that uncomfortable, it may be, this sort impairment by no means severe. An appropriate award under this head would be $45,000.00.

Loss of Earnings

6. The Plaintiff alleged that he was not able to resume any work as a self-employed lorry driver until August 1986. He said he was then working about 3 to 4 days a week at an Wright average of less than $100.00 a day. Since January 1987 he was able to work for more than 4 days a week earning a daily average of about $100.00, or over $2,000.00 a month. He now earns about $3,200.00 a month. He was given sick leave certificate between 19th July, 1985 and 16th June, 1986. Dr. William Chow (D.W.1) testified that the Plaintiff told him on 16th May 1986 that his condition had improved and he was confident he could drive and had been trying to go back to work then. On 13th June, 1986 though the Plaintiff still complained of neck and back pain as well as numbness in both hands, he told D.W.1 I that he had gone back to work. In the premises, no further sick leave certificates were issued to him after 16th June, 1986. The Plaintiff's wife (P.W.3) said the Plaintiff ceased work for only a few months and he returned to work in 1986. She said she stopped giving the Plaintiff nourishing soup after he resumed work, and that he was given such nourishing soup for 6 - 7 months only. This would put the Plaintiff lack to work in early 1986. I do not find P.W.3's evidence on this helpful as she was uncertain of her evidence, and her evidence is inconsistent with the medical findings and records. I finds as a fact that the Plaintiff was back to work at the latest on 13th June, 1986. He had been earning an income on a gradually increasing scale of from a few $10.00 a day for 3 to 4 days a week since June 1986, to over $2,000.00 a month after January 1987, and to the average monthly rate of over $3,200.00 at the time of assessment. The evidence in this respect is understandably imprecise due to the nature of the Plaintiff's business, the lack of records of cash receipts and the Plaintiff not being a man of adequate education. The Plaintiff attributed his reduced income to his inability to carry heavy load due to the symptoms brought about by the cervical spondylosis. He said he had to assist in the loading and unloading of goods in his business. He said he lost business as customers would not engage him due to his inability to help the loading and unloading of goods. He said for small lorries like his, it would not be economical or practical to employ an assistant. He said he would not like to seek employment as a truck driver at construction sites, which would bring him a much higher income, as he enjoyed the freedom of self-employment. The Defendants contended that he should work as a truck driver at construction sites in which case he could now earn $212.50 a day (rate at August 1988) or $5,312.50 a month on a 25 day basis. Such a job, the Defendants said, would not involve any loading and unloading and thus would be within the Plaintiff's capability. Though it had been queried by the Plaintiff, I accept that the nature of the job of such truck drivers would not entail them in loading or unloading goods.

7. In Melia v. Key Terrain Ltd., 1969 C.A. No.91, page 12005 of Vol. 1, Kemp & Kemp, Sachs L.J. was quoted to have said:-

    "The question for consideration is whether the Plaintiff should have mitigated the damage he suffered by taking a job which would have brought him an extra ? a week but would have involved him in night work on alternate weeks. He had never in his life before done night work and has a strong distaste for it. It also involved repetitive work of a type of which he had no previous experience and to which many people are averse.

    As between a Plaintiff and a tortfeasor the onus is on the latter to show that the former has unreasonably neglected to mitigate the damages. The standard of reasonable conduct required must take into account that a Plaintiff in such circumstances is not to be unduly pressed at the instance of the tortfeasor. To adopt the words of Lord Macmillan in the well-known Waterlow case, the Plaintiff's conduct ought not to he weighed in nice scale at the instance of the party which has occasioned the difficulty.

    The authorities on this matter each depend on their own facts, but, in general, when one looks at them, they lay down negative rather than positive tests. To those negative it can be added that normally a plaintiff is not called upon to change his way of life to one which is distasteful to him, and certainly not to do so in order to save the tortfeasor ? a week or (putting in percentages) a 15 per cent addition to that he would otherwise earn.

    The learned judge came to the conclusion and, indeed, it seems an inevitable conclusion that this man had a genuine dislike for night work. This is not at all an unreasonable dislike at the age of 59, and particularly on the part of a married man."

8. It has long been regarded as settled law in English courts that the onus of proving that the plaintiff had failed to act reasonably to mitigate his loss lies upon the defendant, see Steale v. Robert George & Co. (1937) Ltd., [1942] A.C. 497 and Richardson v. Redpath Brown & Co. Ltd. [1944] A.C. 62. However, the Judicial Committee of the Privy Council in a recent decision in the case of Selvanayangam v. University of the West Indies, 1983 1 WLR 585, appeared to have reversed the well recognised onus of proof. The issue in the appeal was the refusal by the Plaintiff to undergo medical. treatment recommended by the doctor. It was held, inter alia, that the burden was on the Plaintiff to prove that in all the circumstances, including the medical advice he had received, he had acted reasonably. In delivering, the judgment of the Judicial Committee, Lord Scarman said at page 589:-

    "Their Lordships do not doubt that the burden of proving reasonableness was upon the plaintiff. It always is, in a case in which it is suggested that, had a plaintiff made a different decision, his loss would have been less than it actually was. The point was succintly made in an admiralty case of collision at sea by Lord Merriman P. : The Guildford [1956] P.364, 370. Their Lordship would add a further comment on the law, well established though it is. The rule that a plaintiff who reject a medical recommendation in favour of surgery must show that he acted reasonably is based upon the principle that a plaintiff is under a duty to act reasonably so as to mitigate his damage."

9. The Privy Council case was described by the learned author of McGregor on Damages to have been "sensibly ignored" by subsequent English Courts of Appeal in London and South England Building Society v. Stone (1983) 1WLR 1242, and Metelmann S Co. v. B.R. (London) (1984) 1 Lloyd's Rep. 614 (15th ed., McGregor on Damages, para. 290). Lord Scarman in making reference to the judgment of Viscount Simon, L.C. in Richardson v. Redpath Brown & Co. Ltd., supra, had surprisingly failed to note the part of his judgment at page 73 that said "There was in fact no evidence sufficient to prove that the workman had unreasonably refused to be operated upon, and inasmuch as the burden of proving his unreasonableness lay on the employer, the workman must succeed."

10. The Full Court had ruled in 1969 that both the decisions of the Privy Council and the House of Lords are binding on Hong Kong, Courts: see Chan Kai Lap v. The Queen [1968] HKLR 463. The 2 decisions of the House of Lords in Steale v. Robert George & Co. (1937) Ltd. and Richardson v. Redpath Brown & Co. Ltd., supra, are in direct conflict with the decision of the Judicial Committee of the Privy Council in Selvanayangam v. University of the Jest Indies; and all 3 cases dealt with the identical situation of a plaintiff refusing to submit to medical treatment. One may perhaps explain the reference to "the burden" by Lord Scarman in the passage quoted supra to be a reference to "evidential burden" rather then "legal burden", in view of the existence of expert medical recommendation for the medical treatment in question. However, at the end of the passage quoted supra, the learned judge had, contrary to the weight of prevailing judicial opinion, sought to justify the burden of proof on the Plaintiff simply by the existence of a duty to mitigate on him. Should the Defendant, then, carry the burden of proving, that he had discharged his duty by exercising all due care in a negligence suit? I am contended to be bound by the House of Lord decisions; and considered myself to be freed from construing the Judicial Committee's statement of law to be a reference to the "legal burden", or alternatively, to be a conclusion reached per incuriam.

11. The Plaintiff has always been self-employed since he started his career in transportation over 20 years ago. He said he enjoyed the freedom self-employment brings. There is no evidence to indicate being an employed driver of trucks at construction sites would ensued the same or similar degree of freedom he would have being his own boss. In fact there is no evidence as to the similarities or dissimilarities of the job environments between a self-employed and an employed lorry driver. There is no sufficient evidence to give a clear picture of his family situation. The personal grounds for the Plaintiff's preference for self-employment were not really explored adequately at the assessment. Apart from the monetary benefit, there is no justification urged upon me to require the Plaintiff to give up his business and to embark on a new life-style at the age of 57 as an employee. I cannot put the underlying rationale any better than Sachs L.J. in Melia v. Key Terrain Ltd., supra. Despite the rather substantial monetary benefit such a change may bring, that alone without more in the light of the personal circumstances of the Plaintiff known to me, is insufficient for the Defendants to discharge their burden of establishing unreasonableness on the part of the Plaintiff in refusing to give up his business to become a salaried truck driver. I am not satisfied that the Plaintiff has been guilty of a failure to mitigate loss.

12. The Plaintiff's evidence as to his earnings between 1986 and 1988 is corroborated by his wife's evidence that after the Plaintiff resumed work in 1986 she received $1,000.00 a month from him which gradually increased to $1,500.00 and then to $2,500.00. Prior to the accident she used to receive $4,000.00 a month from the Plaintiff. I shall adopt the figure of $1,500.00 as the Plaintiff's monthly earnings in 1986 when he resumed work. In the premises, the mean figure for his earnings from 13th June, 1986 to the date of assessment would be $2,350.00. He said he should now be earning $5,500.00 to $6,000.00 month but for his impairments. A truck driver in construction sites would now be earning $5,312.00 a month. I accept the Plaintiff should be making $6,000.00 a month but for the accident. In the premises, the mean figure for his "should be "income for the said .period would be $5,250.00 ($4,500.00 + $6,000.00?), The award under this head is thus in the sum of $143,500.00:-

Loss of Earning Capacity/Future Earnings

13. The Plaintiff suffers a loss of $2,800.00 a month ($6,000.00 7 $3,200.00) in his business. In view. of his age and the nature of his work, a multiplier of 4 is appropriate. In the premises, the award under this head for loss of future earnings is $134,400.00. Dr. York Chow said ,the Plaintiff may have to stay off work for 2 weeks a-year for treatment. The $3,200.00 the Plaintiff earned per month is already an average figure. The Plaintiff is 57 and there is no evidence of any real risk of the Plaintiff having to close down his present business. It is therefore inappropriate to make a separate award for loss of earning capacity. (See Moeliker v. Reyrolle & Co.Ltd. [1977] 1 WLR 132 at 142 ).

Value of Vehicle

14. The Defendant sought to adduce secondhand hearsay evidence through a clerical officer of the Transport Department (D.W.5) to establish that the value of the Plaintiff's vehicle at the time of accident is much less than he alleged. Such evidence is obviously inadmissible to prove the proper value of the vehicle. The Plaintiff had failed to produce a bank passbook which could corroborate his evidence on the $27,000.00 he allegedly paid for the secondhand lorry he purchased 2 moths before the accident. He could not produce any documentary evidence of the $11,100.00 he allegedly paid for putting the lorry in a roadworthy condition. "The Plaintiff was however able to tilt the balance in his favour and I find on a balance of probabilities that he has suffered a loss of $33,100.00 in respect of his lorry.

Nourishing Food

15. After years of debate, it is now accepted: that "even in the absence of the necessary evidence required as to the advisability or suitability of the food to allow a nominal sum, when relatives have spent this on food which the injured person or the relatives reasonably believe to be helpful to the Plaintiff's recovery", such expenditures are to be regarded as proper (per Roberts L.J. in Yu Ki v. Chin Kit Lam & another [1981] HKLR 419 at 421). However, the amount must be reasonable and appropriate. "What is not allowed is to saddle the defendants with the expenses of articles of luxury food and drink which cannot he said to be appropriate and necessary (in the widest sense) in assisting in the care of the injured person." (Per Briggs L.J. in Mui Ling-kwan v. Wong Yin-wah [1973] HKLR 465 at 472).

16. The Plaintiff claimed a total of $10,800.00 in respect of nourishing food he consumed for 6 Months between 10th May, 1985 and 10th November 1985, at the average rate of $60.00 per day. In view of the nature of the Plaintiff's impairments and his life-style, nourishing food with every, meal to the order of $60.00 a day appeared to be excessive and out of proportion to asist him in recovery. I find $30.00 a day for extra nourshing food to be a reasonable in the circumstances. An appropriate award under this, head would be $5,400.00.

17. In the premises, total, award is made in, the sum of $365,355.50.

18. Interest on $185,955.00 ($143,500 + $33,100.00 + $5,400.00 + $1,312.00 + $2,100.00 + $543.00) will run at the rate of 4% per annum from the date of accident to the date of this assessment, and on $45,000.00 at the rate of 2% per annum from the date of writ to the date of this assessment. There will be an order nisi for costs of the assessment to the Plaintiff with certificate for counsel, such costs to be taxed if not agreed. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

19. Dated the 2nd day of December, 1988.