HUNG CHI WAH v. YAU KA LUN ALAN AND OTHERS

DCPI 1031/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1031 OF 2008

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JUDGMENT

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1.  This is the Plaintiff’s application against the 1^st and 2^nd Defendants for compensation in respect of the injuries he sustained in an accident which happened on 12.6.2005 when he was travelling as a passenger on board a medium goods vehicle (FU5828) (“the Vehicle”) bearing a trade licence plate registration T-11093 (“the T plate”) along Route Twisk, Tsuen Wan, New Territories, Tsuen Wan bound near lamp post FA5594.  The Plaintiff’s evidence is that at the material time he was sitting as a passenger in the Vehicle.  Suddenly there was a sound “pang” and he lost his consciousness.  When he regained his consciousness he was removed by several persons from the Vehicle.  I accept his evidence.

2.  On 28.2.2006, the 1^st Defendant was convicted on his plea of guilty to an offence of careless driving in the Tsuen Wan Magistracy in respect of the accident.  He did not file any defence to the Statement of Claim and was absent at the trial.  There is no evidence from him to refute the evidence of negligent driving on his part.  The issue on the liability of the 2^nd Defendant depends on whether the 1^st Defendant was driving the Vehicle as the agent of the 2^nd Defendant at the material time.

3.  The Plaintiff’s case is that the 1^st Defendant had the authority and/or consent of the 2^nd Defendant to use the T plate for the test drive of the Vehicle and the 1^st Defendant was the agent of the 2^nd Defendant in doing so.  Hence the 2^nd Defendant was vicariously liable for the negligence committed by the 1^st Defendant during the test drive of the Vehicle by the 1^st Defendant.

4.  There is no evidence from the Plaintiff that the 1^st Defendant was the employee of the 2^nd Defendant at the material times.  The Plaintiff said that he did not know who was the employer of the 1^st Defendant at the time of the accident.  The Plaintiff’s evidence is that when he got on board the Vehicle, the T plate had already been hung on it.  The 1^st Defendant said to him that he intended to sell it to their common friend, Fai Chai, on that day.  There is no evidence from the Plaintiff that the 2^nd Defendant had instructed the 1^st Defendant to sell the Vehicle on its behalf.  There is no evidence to show that the driving of the Vehicle was a test drive.    There is no evidence that the Vehicle belonged to the 2^nd Defendant.  According to the record of interview given by the 1^st Defendant on 2.7.2005 to the police, the Vehicle belonged to the 1^st Defendant.  So the 1^st Defendant was driving for the purpose of selling his own car.  It had nothing to do with the business of the 2^nd Defendant.  The 2^nd Defendant carried on a parallel import business of medium goods vehicle.  Such business did not cover the sale of medium goods vehicle. 

The evidence of the 2^nd Defendant

5.  Chan Chi Keung said that he kept the T plate inside his garage at the material time.  He placed them on top of the table inside his container officer.  He could not put it inside the drawer because of its length.  He did not pay regular attention to its whereabouts because his garage was at a remote village in the New Territories with few visitors.  It was his two partners who worked with him for about 10 years.  There was no ground for him to suspect that his two partners would use the T plate for purposes other than that which was allowed.  His evidence is not challenged.  I accept it.

Test records

6.  The Plaintiff purports to rely on copies of the vehicle test records, with the company name of the 2^nd Defendant printed on it, to prove that the 1^st Defendant was authorized by and/or with the consent of the 2^nd Defendant to use the T plate at the time of the accident.  The Plaintiff produced the following test records:-

(a)     at p.75:        this form does not have the company chop of the 2^nd Defendant;

(b)    at p.100:      this form has the company chop of the 2^nd Defendant affixed on it.  There is also a signature on it, but the identity of the signatory is unknown;

(c)     at p.101;      this copy was similar to (b), but it has on it an additional police chop with the words “Personal Data Copy for Accident Investigation only”.

7.  The Plaintiff said that he had been given copy of the test records of pages 75 and 100 by the 1^st Defendant in early 2006, amongst other documents given to him for him to claim compensation from the insurance company.  His evidence does not show how pages 75 and 100 came into existence.  Lam denied that the signature on p.100 is his signature.  To prove its authenticity, the burden is on the Plaintiff to produce the original.  The 1^st Defendant did not testify on how he came to possess such documents.  Hence the Plaintiff fails to prove the authenticity of these test records.

The Certificate of Insurance

8.  The Plaintiff also relies on a copy of Certificate of Insurance to support his claim that the 2^nd Defendant authorized the 1^st Defendant to use the T plate at the time of the accident.  The Certificate of Insurance was produced by the Plaintiff.  But when asked by his Counsel he said that he had not seen it before. 

9.  The Plaintiff argues that consent had been given by the 2^nd Defendant to the 1^st Defendant as the copy of the certificate of insurance must have come from the 2^nd Defendant.  There is no evidence from the 1^st Defendant as to how he obtained the certificate of insurance (P.112).  The copy at P.112 is the copy disclosed and possessed by the Plaintiff.  It was the copy given to the police.  According to the Plaintiff, it was a copy from the original, and the original was in the possession of the 2^nd Defendant.  But if it were the original copy there should not be any fax number on it.  A recipient of a document faxed to him would find that there is a fax number on the document, but the person who faxed out the document would find that there was no fax number on the document upon which the fax machine operates.  The document at P.112 is a copy of the document which is in possession of the Plaintiff.  If the 2^nd Defendant wants to help out the 1^st Defendant, it would use the original certificate of insurance, which would not have a fax number on it.  Hence the inference is that the 1^st Defendant did not get the copy of the certificate of insurance from the 2^nd Defendant.

10.  The fundamental fact is that the 1^st Defendant was driving the Vehicle for the purpose of selling his own car at the material time.  In doing this he could not be acting as the agent of the 2^nd Defendant.  The 1^st Defendant was in fact doing his own business.

11.  By reason of the matters aforesaid I adjudge that the Plaintiff has simply failed to discharge the burden that the 2^nd Defendant authorized and/or gave consent to the 1^st Defendant to use the T plate as its agent.  Therefore the 2^nd Defendant is not vicariously liable for the injuries sustained by the Plaintiff in the accident at the material time.  But the 1^st Defendant is clearly liable for such injuries.

12.  As a result of the traffic accident the Plaintiff suffered multiple injuries: a laceration of his left arm and a laceration of his left ear. At the time of the accident he sustained a rupture of the left brachial artery.  Emergency operation was performed.  The left elbow wound was explored for the cause of the profuse bleeding.  It left a surgical scar in the left forearm.  Repair operation was performed on torn left brachial artery by resection of the damaged part of the artery.  The left ear laceration was sutured.  A long arm back slab was put on to protect the repaired artery and the repaired muscles.  He is still suffering from pain over the scar on exertion.  The long arm slab was removed on 2.7.2005.

13.  The Plaintiff was discharged from hospital on 18.6.2005.  Since then he attended follow-up and physiotherapy treatment.  When he was seen on 27.10.2005, the range of motion of his left elbow was almost fully recovered, and his muscle power was satisfactory.

14.  On 12.12.2008 he was examined jointly by Dr. Bong Shu Chun and Dr. Wong Kwok Shing, Patrick.  Both experts agreed that he can go back to his previous job.  He may have slight decrease in efficiency in his work productivity when he has to carry heavy load with his arms.  But regular exercise would assist him in his improvement.  Both experts agreed that he suffers 3% impairment of the whole person and about 3% of earning capacity as a result of the injury he suffered.

Pain, suffering and loss of amenities

15.  Under this head the Plaintiff claims for a sum of $300,000.  In Ngai Lung Hing v. Gowin Engineering Co. Ltd. & anor. (HCPI No. 211 of 2005), the Plaintiff was using a portable electric grinder to drill a hole in a plank of wood when the grinder bounced from the plank and the blade cut deeply into his right forearm.  The injury comprised a 70% cut of the brachioradialis muscle bulk, similarly of the extensor crapi radials longus and extensor crapi radials brevis.  Suturing was undertaken of the muscle bulk and he was discharged 3 days later.  He attended 9 sessions of outpatient physiotherapy and 26 sessions of occupational therapy.  His general condition was satisfactory.  His right arm was and remains weak by comparison with his pre-accident condition and undue exertion causes pain and numbness.  The stiffness of the wrist and muscle injury was assessed at 4% and 6% impressments of the whole person, in total 10%.  The court awarded him $300,000.  The injuries sustained by the Plaintiff are not as serious as those suffered by the plaintiff in the case of Ngai Lung Hing.  An award in the sum of $250,000 is reasonable.

Loss of earnings

16.  The monthly income of the Plaintiff the time of the accident was about $13,500.  This is obtained by deducting from his gross monthly income of $18,500 his monthly operational costs of $5,000.  His gross monthly income comprises:-

(1)  Target Fashion:  $6,200 per month;

(2)  Lai Sun Flower Shop:  $3,750 per month;

(3)  Lai Nga Laundry:  on the average $6,381;

(4)  His average monthly earnings from non-regular clients: $2,200.

His total monthly income is $18,531, rounded up to $18,500. 

17.  He was given sick leave for 142 days from 12.6.2005 to 31.10.2005.  His pre-trial loss of earning is therefore $63,024.65 ($13,500 x 12 x 142 / 365).

Loss of earning capacity

18.  The Plaintiff claims $522,000 for loss of earning capacity due
to the injuries he sustained in the accident.  In Moeliker v A Reyrolle & Co. Ltd [1977] 1 WLR 132, the Court said:

‘Where a plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk he will at some time before the end of his working life lose that job and be thrown on the labour market?  I think the question is whether there is a “substantial” risk or is it a “speculative” or “fanciful” risk …… If the court comes to the conclusion that there is no “substantial” or “real” risk of the Plaintiff losing his present job during the rest of his working life, no damage will be recoverable under this head.’

The Plaintiff was running his own business of driving a van to deliver goods for others.  He admits that he resumed working on light duty job about 2 months after the accident.  He continued to work in the transportation business throughout the pre-trial period.  This is reflected in the joint medical reported dated 20.12.2008 which stated that the joint interview and examination was carried out for the Plaintiff on 12.12.2008.  The report further states: -

’11. … … … around end of November 2005 he went back to work in his own transportation business as administrative officer.

12. He continued to work in that capacity until a few months ago when he stopped work because he said he ran out of client.’ 

It simply is untrue that he was absent from work for about 29 months.  Dr. Bong Shu Chun and Dr. Wong Kwok Shing agree that he can go back to his previous work.  Both doctors agree that the estimated permanent whole person impairment to be 3% and the estimated loss of earning capacity to be 3%.  For that minimal 3% of permanent whole person impairment, it cannot be said that he would face substantial risk of future unemployment in the labour market.  This claim of loss of earning capacity is simply misconceived.  I dismiss this head of claim.

Special damages

19.  The Plaintiff incurred $68,720 in medical expenses and travelling expenses in the sum of $2,000.  The total award is $70,720.

20.  The total amount of award is $383,744.65 ($250,000 + $63,024.65 + $70,720).

21.  I dismiss the Plaintiff’s claim against the 2^nd Defendant.  I order that the 1^st Defendant do pay the Plaintiff a sum of $383,744.65 with interests thereon; interest on the sum of $250,000 at 2% p.a. from 12.6.2005 to 18.1.2010; interest on the sum of $133,744.65 at 50% judgment rate from 10.5.2008 to 18.1.2010; commencing from 19.1.2010 to satisfaction, interest on the sum of $383,744.65 at judgment rate.

22.  The Plaintiff took out a summons dated 15.10.2009 for an order tat judgment on liability be entered for the Plaintiff against the 1^st Defendant be entered, leaving the quantum of damages to be assessed.  This is an inappropriate application, as the trial would commence on 16.10.2009.  The liability of the 1^st Defendant should be considered in light of all the evidence.  The application taken out by the Plaintiff is simply redundant.  I dismiss this summons.  The costs of this application are to be borne by the Plaintiff.

Costs

23.  I make an order nisi, to be made absolute in 14 days’ time, that (1) the Plaintiff do pay costs of this action to the 2^nd Defendant, to be taxed, if not agreed, with certificate for Counsel; (2) the 1^st Defendant do pay costs of this action to the Plaintiff, to be taxed, if not agreed, with certificate for Counsel; (3)  there be no order for costs between the Plaintiff and the 3^rd Defendant.