LEUNG CHUNG NGAR CHRISTOVER v. YEUNG MAN WAI AND ANOTHER

HCPI 63/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 63 OF 1999

____________

______________

J U D G M E N T

______________

1. On the 6 March 1998 shortly after 2 p.m., the Plaintiff and three other men were engaged in hanging a signboard for "The Salon International" above the pavement outside the premises at No.4, Tak Shing Street, Kowloon. The Plaintiff and a man known as Sam (Mr Lee Lap Leung), were holding the ladder steady whilst the other two were on the ladder fixing the signboard. The Plaintiff had his back to the street; that is, he was facing the ladder and the shop front. The position of Sam was either to the right of him or facing him holding a different part of the ladder.

2. There are three photographs which help to illustrate the scene and relevant features. They were taken about nine months later but that does not affect the position. Above the hairdressing premises at No.4 is an over hang, projecting in part over the pavement. On top of this are two brackets with projecting horizontal bars. The right hand side one has a sign hanging from it. The left hand one does not. It was from this bracket and bar that the signboard was to be hung on that day.

3. The other relevant feature is the entrance to Fortune Terrace car park which abuts the end of the hairdressing premises and is bounded by a pair of steel gates. Fronting the entrance to the car park the pavement slopes down to the road way but it is clear that the pavement for pedestrians continues across the entrance. The entrance is not a roadway as such. In common with all such constructed entrances, pedestrians have priority. Motorists may enter the parkway only if they have ensured that they do not put any pedestrian at risk. The Defendant drove a motor car from the roadway into the entrance and one of the offside wheels went over the Plaintiff's left foot, causing him injury.

4. It is clear from the photographs and from the plan prepared by the Police Officer who attended on the day of the accident, that the position of the ladder and all who were either on it or supporting it, was on the pavement area property which has a normal kerb height bordering the roadway. None of those persons constituted an obstruction to the entrance for any vehicle which was properly driven. If the ladder and/or any person supporting it, had been on the entrance section of the pavement it would have been impossible for anyone on the ladder to fix the signboard to the support. Although there was a clear dispute on the evidence of the parties this factor is so self-evident that it is difficult to see how the Defendants could reasonably argue that the Plaintiff had positioned himself into the path of their vehicle. I will deal with this shortly.

5. The Plaintiff, with his back to the roadway, would not be aware of the movement of vehicles along it. He could not be expected to take account of any vehicles seeking to use the entrance to the car park. He was in a position which would entitle him to conclude that no one would be careless enough to drive close to him, let alone over his foot.

6. When the Police Officer who attended the scene interviewed the first Defendant (the driver) several days later, he drew a sketch plan with detail based on the Defendant's instructions. This showed the course of the vehicle apparently making a correct right-angled turn onto the extended pavement into the entrance. The ladder and the Plaintiff are shown marked, with the Plaintiff some distance to the left of the ladder.

7. The first Defendant's statement to the Police Officer is however more enlightening. When he was ready to turn right into the car park he saw that there were two persons near the entrance to the car park with a wooden ladder fixing the sign of a hairdressing salon. He saw two persons on the ladder but did not know if anyone was under the ladder. He turned his wheel to the left and then to the right onto the car park entrance. When he was on the pavement he heard a bang from the rear of his vehicle. It is difficult to know what the 'bang' was but it is most likely to have been the sound of the Plaintiff falling against the body work of the car after his foot had been run over. It was clear that the Defendant had no real explanation to offer for what happened but he put forward an idea that the Plaintiff must have carelessly fallen down the ladder when descending it. He added that he did not know whether the Plaintiff was one of the two persons he had seen on the ladder earlier. He said that when he drove across the pavement he gave the ladder a clearance of about two and a half feet.

8. This accident happened in broad daylight. It was about 2 o'clock in the afternoon. If he had been keeping a proper lookout he ought to have seen the Plaintiff and Sam on the pavement holding the ladder. It is clear he did not.

9. In his evidence he said he saw people in the vicinity of the ladder but was not certain of their positions. He had driven half of his vehicle past the entrance - by that he seems to mean that half the length of his vehicle had passed the gateway - when he heard a sound and it felt as though he had driven over something. In his external rear mirror he said he saw the Plaintiff sitting by the rear of his vehicle. For some reason after he had turned off the road towards the entrance to the car park, he had taken no account of any persons nearby whom he ought to have been able to see out of his front windscreen and then through his offside window.

10. As a consequence this event he was prosecuted for careless driving and convicted. He clearly was careless. In my view he was wholly responsible for the accident and there is no basis for the counter allegation of contributory negligence. I am satisfied that the Plaintiff was at all times properly positioned on the pavement clearly visible and at no time moved into the path of the vehicle. I accept the Plaintiff's evidence. The Defendant cut the corner of the entrance and went over part of the pavement quite unnecessarily in fact. I do not need to consider why he performed this incorrect unnecessary manoeuvre.

One other issue as to liability remains for me to resolve though I consider it is quite unnecessary in the circumstances. Even allowing for the highly litigious approach in this community the parties ought to have been able to reach a common sense decision on this. The second Defendant, the owner of the vehicle, was sued as the owner having vicarious liability for the first Defendant to whom he lent the car. There is one Defence for both Defendants, and therefore one firm of solicitors. They are acting on the instructions of one insurance company, that of the car owner, the second Defendant. Vicarious liability has not been an issue in this case. The Defendants' solicitors have not said, as they ought to have done, "vicarious liability does not matter in this case. The issue is was the driver negligent. If so, we are the insurer concerned." It is wholly artificial for anyone to raise any issue as to separate costs in respect of the case against the second Defendant. This is not the first time I have been faced with such an empty cause. I propose to give it short shrift. The practical course is to dismiss the claim against the second Defendant with no order for costs. The Plaintiff will have judgment against the first Defendant with the costs of the action. Had it been necessary to ventilate the issue of vicarious liability fully I may have come to the conclusion that the first Defendant was driving as servant or agent of the second Defendant but I was not prepared to allow time and cost to be wasted on this.

11. At the conclusion of all the evidence I invited Miss Susanna Leong to address me on liability and following that I indicated that I would be finding wholly in the Plaintiff's favour. The case having taken up its estimated three days I informed both counsel that they should put in written submissions on damages. There were three or four main heads : pain and suffering etc., past loss of earnings; future loss of earnings; and/or loss of earning capacity. There was a small amount of other special damages which had been agreed. Both submissions were to be lodged by the end of the following week and I asked for no more than four pages from each counsel, seeing it as a sensible exercise in conciseness. I was surprised to receive from both counsel a submission in excess of twenty pages.

Damages

Pain and suffering etc.

12. The nature of the Plaintiff's injuries to his left foot and his persistent problems are set out in the hospital medical reports. He was examined by Dr Arthur Chiang on his solicitors' instructions and his report is dated 12 March 2000. For the Defendants he was examined by Dr Danny Tsoi and his reports are dated 31 July and 18 September 1999, the latter being a series of comments upon an occupational therapy report obtained by the Plaintiff's solicitors in June 1999. That occupational therapy report was in my view a quite pointless exercise. Both counsel rightly decided that it was not necessary for either doctor to be called to give evidence and agreed that I could deal with this head of damages on the basis of the reports there being no significant difference in the assessment and prognosis.

13. He suffered fractures of the metatarsal neck of the 3rd and 4th toes, and dislocation of the 5th metatarso-phalangeal joint, of the left foot. The fractures were treated by closed reduction and K-wires. The dislocated joint was reduced. He was in hospital for three days and discharged on crutches. The K-wires were removed about 6 weeks later.

14. He has some prominence of the 4th and 5th metatarsals giving rise to a degree of tenderness on the sole of the left foot and the need to wear some cushioning to help alleviate this. In relation to the 4th metatarsal this has resulted from mal-union of that fracture.

15. No post-traumatic arthritic change has been noted on the X-rays. Some physiotherapy is recommended by Dr Chiang who considers that unduly prolonged standing during his work is likely to give rise to some difficulty, with consequent reduction in work capacity. Dr Tsoi agrees that there will be residual pain on prolonged weight-bearing and that he will need to rest intermittently.

16. This man is a hairdresser. He is of necessity on his feet for long periods. He needs to be mobile. I accept that the limitations referred to have imposed and will continue to impose some restriction in his skilled work with consequent loss.

17. The overall position is permanent but I see no indications to suggest that the problems would bring about a change of occupation. I think his artistic skill and experience will override any such problem. I do not doubt that he is conscious of the fact that his work takes him longer, that it affects his overall confidence and that his clients are aware that he takes longer. He may well feel less than satisfied with his results. I accept he is not able to go ice-skating with his children and so is unable effectively to tutor and encourage them by example.

18. Nonetheless this is not a serious injury and he has coped well. General damages will be $200,000.00.

Pre-trial loss of earnings

19. There is considerable uncertainty as to this Plaintiff's pre-accident earnings. Wage slips show an average of $31,506.90 monthly. The Inland Revenue return signed by him shows a lower figure of $24,166.75. I am asked to ignore the figure returned by him on a statutory form on which he is obliged to tell, and confirms that he has told, the truth, on the basis that some tax avoidance measures have been taken. I have been shown no accounts or computations to demonstrate what these are or could be. I do not see how I can go behind the Inland Revenue return. I am certainly not prepared to embark on a computation using figures which on any view have been withheld from the tax authorities. Such would be to condone an untruthful statement. Accordingly the basis on which his loss is to be calculated is the Inland Revenue figure of $24,166.75. The pre-trial loss of earnings has to be divided into three periods:

1) from the date of the accident up to the date of his departure for the United Kingdom;

2) the period of time in the United Kingdom;

3) from the date of his return to Hong Kong up to the date of trial.

1. Between 1 April and 30 November 1998 his recorded earnings were $227,186.00. From 1 December 1998 to the 31 March 1999 his earnings were only $41,489.00. The Defendants contend that there is no physical explanation for this in the light of certain comments in the medical reports of Dr Mat, Dr Chow and Dr Chiang. I do not consider the argument advanced on this score tenable. He still had the problems to contend with which have become permanent. I accept that since the accident he stands much longer in his work simply by reason of those physical limitations. However it is also clear that the deposits in his savings account, after excluding the payments from the insurance company policies which on conversion from US dollars amount to $123,610.50, show a total of over $320,000.00 between 8 April 1998 and 15 March 1999. This is a monthly average of approximately $26,660.00. The returns of income of the Inland Revenue for the same period shows $268,675.00, a monthly average of $22,389.00. I have some difficulty in reconciling these figures. Whereas the picture disclosed by the savings account shows no loss in comparison with his pre-accident earnings the Inland Revenue return does. I have not been provided with an acceptable explanation for this but I accept that for the few months, perhaps three or four, following the accident, he must have suffered some loss and the Defendants accept this in principle. I do not accept the Plaintiff's contention that a sum of $70,000.00, which he seeks to deduct notionally from the figure in the Inland Revenue return ($227,186.00), should be treated as ex-gratia compensation and not as earnings. The argument is unclear and incomplete. At one stage it seemed to be based, substantially, on reimbursement of medical expenses but that, on the evidence, proved not to be so. The dating of certain documents served only to confirm my doubts.

How then am I to quantify the loss for this 3 to 4 months period? There is no hard figure to act as a multiplicand. The multiplier itself is not capable of precise calculation. Against this background I propose to assess the loss at $50,000.00 for that immediate post accident period.

Having done that the payments into his savings account (net of the insurance payments) indicate either a quick recovery to normal, or a substantial increase in the fees charged. I think that the slowing of his work would have reduced the number of clients; some he may have lost as a result. Once again the loss, though there, is incapable of precise quantification. I propose to make a lump sum award to reflect this and for the 8 or 9 months of the remainder of that financial year I award $40,000.00.

It is apparent that he has made a return to the Inland Revenue disclosing less than he actually received but that is not a matter for me to deal with on this point as there is clear evidence of what he actually received.

That leaves for this period the months of April to July 1999 during which period he made an exploratory trip to the United Kingdom. There is no reliable documentation for this period. The only approach I can adopt is to use the same basis as that which was used for the previous 8 or 9 months period. I award $15,000.00 for this period.

Accordingly the net loss for this first period is $105,000.00.

2. 1 August 1999 to 30 November 1999 (4 months)

This was a tentative career change with possible permanent settlement in the United Kingdom. He had trained and obtained high references in London over a decade earlier. He joined his countrymen in Manchester. His monthly wage was about $12,000.00. He told me he ought to have been able to earn more but for the consequences of the foot injury. I accept that, although I think his expectation would have to be tempered by the fact that he was, in effect, starting from scratch in a business which depends on recommendation by word of month, and the clientèle can be volatile. If his loss of confidence and patience were demonstrated, he would find it difficult to build up his own clientèle. I see no reason to think that but for his problems with discomfort and tiredness he would not have earned at least what he had been earning pre-accident in Hong Kong. However the tax element would have been higher and in any event he should not have been working. In view of the fact that he had no work permit, the wage he was paid may have been deliberately low so as not to attract attention. There is another public policy consideration. Why should a Defendant have to pay for a partial loss in these circumstances when by reason of the Plaintiff's own choice he should not be working or earning any income? In my judgment there should be no award for this period.

3. After a period of absence in the United Kingdom, a matter of his choice, he would have encountered some delay in building up his clientèle again in Hong Kong. There is a good deal of uncertainty as to when he became free-lance, for how long he was freelance and his actual employment relationship with the various hairdressing concerns with which he has been linked over these years. I find the evidence wholly unsatisfactory. There are no reliable records. This is particularly so given the conflict between purported monthly payments evidenced by payslips and the Inland Revenue records for the year prior to the accident.

For the period from December 1999 to date of trial - almost one year - I think that his skill would have enabled him to build up clientèle again reasonably quickly. His average monthly earnings are a little under $20,000.00. I accept there is some loss for this period. It is difficult to quantify it. I propose to assess it on a broad basis as $100,000.00 having adopted in general terms the approach I used for the first period - i.e. post accident until 31 July 1999.

This is in some ways an unsatisfactory way of dealing with past loss. There ought to be clear documentation to enable this to be done with some simplicity. It has been singularly lacking and I have had to reconcile the conflicts as best I can. I remind myself that it is for the Plaintiff to prove his case in all respects.

The total net loss of earnings to date of trial is $205,000.00.

Future loss of earnings

20. The financial uncertainties remain. I think his skill is such that he will continue in the business and attract a loyal clientèle. His confidence will probably return. Nonetheless the physical discomfort will persist and he will take longer with a client that he used to before the accident. This will have some effect upon his earnings. Again I have no hard and fast figures to use on which to make a calculation but I think the loss will be a modest one for which he will be able to make some adjustment. He is 37 years of age. Without a reasonably precise figure for the loss and with his ability to make adjustments this is not a case for a multiplicand and multiplier. I think a lump sum of $300,000.00 will compensate for that somewhat vague future loss.

Loss of earning capacity

21. In my view there is none. I see no likelihood of his being out of such employment. He will weather the economic uncertainties on the broad front. His training and skill will in my view ensure that my earlier comments in respect of the claim for future loss of earnings are also relevant.

Special damages

22. These are agreed in the sum of $10,230.00.

Summary

Pain suffering etc.	200,000
Past loss of earnings	205,000
Future loss of earnings	300,000
Special damages	10,230
	$715,230

23. There will be judgment for the Plaintiff against the first Defendant for $715,230.00 with costs. There will also be interest on those heads of damage which rank for interest at the appropriate rate for the relevant periods. This will be agreed between the parties.