CHAN CHUN KEUNG v. CHIU KWOK KEUNG AND OTHERS

Action No. 11970 of 1983

HEADNOTE

Action for damages in respect of personal injuries suffered in a traffic accident, when plaintiff travelling as passenger in back of goods vehicle - 1st defendant administrator of estate of deceased driver of private car which crossed double white line and collided head-on with goods vehicle - 2nd defendant employer of deceased driver at time of accident and paying maintenance and petrol money for use of deceased's car. Negligence of deceased driver admitted by 1st defendant but disputed by 2nd defendant - 2nd collision when car travelling behind could not stop and collided with rear of goods vehicle - causation of injuries and damages disputed by both 1st and 2nd defendants - 2nd defendant denying vicarious liability - plaintiff in back of goods vehicle - between heavy goods not secured by ropes or cables to sides of vehicle - plaintiff and goods thrown forward towards driver's cabin - plaintiff suffering injuries to leg and back.

IN THE HIGH COURT OF JUSTICE

HIGH COURT

BETWEEN

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JUDGMENT

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1. The plaintiff in this action claims damages from the defendants as a result of personal injuries received in an accident which happened on the 2nd November 1981 at about 4:00 p.m. on the Tuen Mun Highway near the Ting Kau Viaduct in the New Territories. The plaintiff claims that he was lawfully travelling as a passenger in the ' back of '  a goods vehicle No. CD9331 which was travelling in a northerly direction along the highway towards Tuen Mun when a private car registration No. CH7333 driven by the deceased crashed head on into the front of the goods vehicle. The plaintiff alleges that at the material time, the deceased was driving the car during and in the course of his employment with the 2nd defendant as the servant and/or agent of the 2nd defendant. He alleges that the damages resulting from the personal injuries which he suffered in the accident were caused by the negligence of the deceased. All the usual particulars of negligence are alleged and in particular, it is alleged that the deceased drove the car in a manner such as to cause or permit it to cross the double white dividing line on the said highway into the carriageway for vehicles proceeding in the opposite direction.

2. Negligence is admitted by the 1st defendant. However, somewhat surprisingly the 2nd defendant denies that the deceased was negligent at the time.

3. I do not propose to waste any time on this matter. I am satisfied that the accident was caused by the negligence of the deceased who, allowed his car to cross the double white line and to collide head on with the goods vehicle in question. There being no evidence to explain why the private car should have done this, the doctrine res ipsa loquitor applies.

4. The next question which arises on the pleadings is whether the negligence of the deceased caused the personal injuries sustained by the plaintiff. This issue arose from the fact that there was a second collision very soon after the first collision when a private car following the goods vehicle collided with the of side rear of the goods vehicle. Again, at the trial, this issue was not seriously contested and I am quite satsfied that the accident and the plaintiff's injuries were a direct result of the negligence of the deceased.

VICARIOUS LIABILITY

5. I come next to the question whether the 2nd defendant should be held vicariously liable for the 1st defendant's negligence. This is obviously the most important issue from D2's point of view.

6. In respect of this allegation, the plaintiff can rely on a number of admissions made on behalf of the 2nd defendant shortly after the accident occurred.

7. In the light of the evidence of these admissions, it is somewhat surprising that the 2nd defendant at this trial should deny that the deceased was acting in the course of his employment at the time of the accident.

8. Miss Bridges for the plaintiff contends that the 2nd defendant is estopped from denying this fact and claims that the judgment in the Employees' Compensation Case is conclusive evidence against all persons as to the existence of the legal situation that it actually brings about.

9. This argument faces two obstacles, first, no order or decree from the Employees' Compensation Court was ever produced in evidence (only a consent application); and secondly, the plaintiff in the present action was not a party to the employees' compensation proceedings.

10. Miss Bridges argues that since the 2nd defendant is the estoppel denier in the present proceedings, it would be inequitable to prevent the plaintiff from raising estoppel simply because the plaintiff was not a party to the previous proceedings. She argues that the point is that the 2nd defendant made positive statements in formal legal proceedings as a result of which $140,000 has been paid to the deceased's estate. Therefore, the 2nd defendant must be estopped from denying the fundamental facts on which such judgment is based. To say otherwise, she argues, makes for injustice. In this regard, she says the court always has an inherent jurisdiction not to permit the prosecution of proceedings which are vexatious, scandalous or an abuse of the process of the court. She relies on paragraph 18/19/17 of the 1985 White Book, and some of the cases referred to therein. In the alternative, she argues that an estoppel by conduct has been raised to prevent the 2nd defendant from denying the fact that the deceased was acting in the course of his employment at the time of the accident.

11. I hold that the 2nd defendant is not estopped from denying these facts. The plaintiff was not a party to the former proceedings and no judgment or decree has been exhibited in this court. Furthermore, he was not a party to the compromise application and he was not induced to act in a particular way so as to alter his position as a result of the compromise.

12. It is therefore open to the 2nd defendant to contest this issue in this court. However, in doing so, the 2nd defendant faces considerable difficulties in view of all the admissions made very shortly after the accident to the effect that the deceased was acting in the course of his employment at the time. For though the burden of proof remains on the plaintiff, the admissions are evidence of the plaintiff's contention. However, I must look at the evidence as a whole and decide whether the plaintiff has succeeded in establishing on the balance of probabilities that the deceased was acting in the course of his employment at the time of the accident.

13. In support of the plaintiff's contention, Miss Lai of the Taiko Royal Insurance Company gave evidence as to the admissions contained in the telephone conversations on the 12th and 16th of November with Mr. Mundell and Mr. Chu respectively. With the consent of the defence, she put in the notes that she had made at the time of the conversations, exhibits P2 and P3. She is an intelligent, and obviously well educated woman. She was in my view an impartial and honest witness and it seems to me unlikely that she would have included anything in her notes which had not been mentioned to her in these telephone conversations. There appears to be no reason why she should. These telephone conversations had resulted from her receiving a copy of the Form 2 which the 2nd defendant had submitted to the Labour Department which she assumed meant that the insured wished to claim on the policy. It was Miss Lai's task to investigate the claim on behalf of the insurers. As a result of the information she got from the 2nd defendant in these two telephone conversations, she was satisfied that the deceased was acting in the course of his employment at the time of the accident and $140,000 was in due course, paid out by the insurers.

14. Three witnesses were called by the 2nd defendant on this issue. The first was Mr. Cheung Pui Ming who was the other employee in the private car which the deceased was driving at the time of the accident. He testified that on the 2nd November 1981, the weather was very bad for the whole day. There being rain, he and the deceased could not do anything. Eventually, they left the construction site together at about 4 o'clock in the deceased's car. He testified that there were two reasons why the 1st defendant took him in the car. The first was that they were "on the same way" and the second was that "it was the instruction of the company". He explained what he meant by "on the same way" by saying that the deceased lived in Kowloon whereas he himself lived in Tsuen Wan and so, the deceased will have to pass by Tsuen Wan anyhow, so he would drop him at Tai Wo Hau on the way. He testified that he did not know where the deceased was going to go after dropping him. On the matter of time, he testified that he looked at his watch after leaving the site and it was about 4 o'clock. However, later in cross-examination, he admitted that it was possible that they had left the site as early as 3:35 p.m. He further admitted that it would only take about half an hour to get from the place of the accident to the laboratory in Tokwawan. He also said in cross-examination that "the deceased had his own construction site but whenever he has got some problems, he would come to the laboratory in Tokwawan to discuss with Mr. Chu about the problem."

15. The second witness for the defence was Mr. Chu Pak Koon. He admitted talking to Mr. Mundell about the accident but he could not recall exactly what he had said. He did, however, remember that he had said the following:

"Just a few days before the accident, I have asked Mr. Chiu Kwok Kuen when he has time to come to report to me in respect of the site because he was just posted to that construction site for less than a month and that he was a very responsible person and that he followed all the instructions I had given him before. So I told Mr. Mundell that I believed he was coming to make a report to me at that time."

16. He explained the basis for his belief as being first that the deceased was a very responsible person, secondly, that the deceased sometimes came to see him to make reports from other constuction sites on previous occasions, and thirdly ,that when a man has just passed away, he will only think of his good deeds and never think of the bad side. He maintained that he definitely had not made an appointment to see the deceased that afternoon. He admitted that the deceased's working hours on the 2nd November should be 8:00 a.m. to some time after 5:00 or 6:00 p.m., but testified that he did not know where the deceased was going at the time of the accident.

17. He was cross-examined with regard to his telephone conversation with Miss Lai and said that he did not remember the contents of the telephone conversation. However he testified under cross-examination that he had told the deceased to come and see him and make a report on a certain matter when he had time. He admitted telling Mr. Mundell that he thought that the deceased was coming to the laboratory to report to him. Although he claimed he could not remember the contents of the telephone conversation with Miss Lai, he was adamant that he had not told her that the employee had an appointment with him. He did, however, agree that at the time of the accident, problems had arisen at the site and these problems made it necessary for the deceased to have a discussion with him.

18. I was not greatly impressed with Mr. Chu as reliable witness. His evidence was not consistent and it was contradicted by Miss Lai. Furthermore at one stage, he appeared to suggest that he did not understand that it was necessary for an employee to have suffered his injuries in the course of his employment in order to get Workmen's Compensation. Yet, it is clear, in my view, on the evidence that he fully appreciated the importance of this fact from the point of view of the deceased's family.

19. The third witness for the 2nd defendant was Mr. Mundell, the gentleman who signed the Form 2, and who had the first of the two telephone conversations with Miss Lai. He testified that at the time when he filled in the Form 2, he thought that the deceased was almost certainly on his way home. The reason for this was that it had rained fairly heavily that day and there was no further work on the site. As such, it was quite normal for sites to close and staff to go home. He thought they would all be going home and he said that there was no reason for Mr. Cheung, the other employee, to go to the office at all. He said:

"Basically, I was informed that the deceased may have been travelling to the office to see Mr. Chu and that the staff felt that the deceased was entitled to Workmen's Compensation."

He went on to say that he did not believe that the deceased may have been travelling to the office to see Mr. Chu because the site had closed down and under normal circumstances, there was very little cause for the deceased to see Mr. Chu. He did not, in fact, believe that the deceased was going to see Mr. Chu but since he had been told that he was, that was why he completed the form in that way.

20. So far as the telephone conversation with Miss Lai is concerned, he could not even remember having such a conversation. He had thought the matter would be investigated by the insurance company and eventually sorted out by the insurance company and the deceased's family. Despite the fact that he could not remember the telephone conversation with Miss Lai, he denied that he had ever said some of the things recorded by her in her note, exhibit P2. Under cross-examination, he said that he was very sure in his own mind that the deceased was travelling home at the time of the accident and he supported this by saying that there was no logical reason for him to believe that the deceased was travelling to the office to see Mr. Chu. This seems strange in view of his earlier evidence that he was informed that the deceased may have been travelling to the office or the evidence of Mr. Chu that he had told Mr. Mundell that he had asked the deceased to go and see him about problems. However Mr. Mundell denied that Mr. Chu had ever told him the latter. He said he was quite sure of this. His reason for believing that the deceased was going home was because he suspected the motives of Mr. Chu and some of the staff to obtain Workmen's Compensation for the deceased's family, because he knew there were sympathy resulting from a previous incident. Finally, he said:

"It is what I believe and there were no facts to substantiate the fact that he was going home or that he was going to the office. It is an assumption on my part."

21. It will be seen that there are contradictions between the evidence of Mr. Chu and Mr. Mundell and between the evidence of both of them and that of Miss Lai of the Taiko Royal Insurance Company.

22. I am satisfied that Mr. Mundell was very shortly after the accident admitting to Miss Lai that he believed that the deceased was travelling to the Kowloon main office. Mr. Chu in his telephone conversation with Miss Lai not only said that he believed this but said that he had an appointment with the deceased at the main office. Both of them have now denied these assertions but I am quite satisfied that they were, in fact, made to Miss Lai, very shortly after the accident on 12th and 16th November 1981 respectively.

23. I am satisfied on the evidence as a whole that the plaintiff has established that it was more likely than not that the deceased was driving his car to the Kowloon main office at the time of the accident and was in the course of his employment at that time. Indeed the second defendant has allowed its insurers to pay out a large sum of money on this basis. I, hold that the 2nd defendant is vicariously liable in respect of the negligence of the deceased.

24. There was a further contention on behalf of the plaintiff that, quite independently of this first point, as the deceased was receiving an allowance for the use of his car in driving himself and his colleague to work and back, in addition to his use of his car in the performance of his duties once he has arrived at the site where he worked or before he left work at the end of the day, he was thus by so driving his car, acting in the course of his employment. A considerable number of authorities have been cited on this point, but in view of my finding above, I do not propose to deal with this aspect.

CONTRIBUTORY NEGLIGENCE

25. I now come to the issue whether there was contributory negligence on the part of the plaintiff.

26. The 1st defendant particularizes the contributory negligence as follows:-

27. The 2nd defendant particularizes the contributory negligence in this way:-

28. Mr. Spicer for the 2nd defendant quite rightly no longer relies upon paragraph (i) of 2nd defendant's particulars, because it is clear that the plaintiff was lawfully a passenger in the tail compartment of the goods vehicle.

29. The reamining particulars in respect of both defendants may be summarized as follows:-

30. I will examine first the legal position. Section 21(1) of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 of the Laws of Hong Kong provides:

"Where any person suffers damages as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damages, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

31. I am bound, therefore, to reduce any damages recoverable in respect of the negligence of the defendants in this case to such extent as I think just and equitable having regard to the plaintiff's share in the responsibility for the damage.

32. The burden of proving contributory negligence lies on the defendants.

33. In Davies v. Swan Motor Company (Swansea) Limited, ⁽¹⁾ Lord Denning described the position as follows:

"The amount of the reduction is such an amount as may be found by the court to be just and equitable, having regard to the claimant's ,share in the responsibility, for the damage. This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness."

34. That was a case where a collision took place between an onmibus and a dust cart, owing to the negligence of each of the drivers, and as a result of which the plaintiff's husband was killed. He had been standing on the dust cart's step where he was forbidden to be, and was crushed in the collision, which was in no way cuased or contributed by his presence there. However, because his fault contributed to his injuries, the damages payable to his widow were reduced by one-fifth.

35. In Jones v. Livox Quarries Limited, ⁽²⁾ Denning L.J. at page 615 said:

"Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckoning he must take into account the possibility of others being careless."

36. This test was adopted by Edmund Davies L.J. in O'Connell v. Jackson. ⁽³⁾

37. In Jones v. Livox Quarries Limited, ⁽²⁾ the plaintiff was injured while standing on the towbar at the back of a traxcavator into which a dumper vehicle collided from behind causing the plaintiff to suffer serious injuries. The conduct of standing on the towbar had been expressly forbidden by his employer. In the course of his judgment, Denning L.J. said:

"Once negligence is proved, then no matter whether it is actionable negligence or contributory negligence, the person who is guilty of it must bear his proper share of responsibility for the consequences. The consequences do not depend on foreseeability, but on causation. The question in every case is: What faults were there which caused the damage? Was his fault one of them? The necessity of causation is shown by the word 'result' in section (1) of the Act of 1945, and it was accepted by this court in Davies v. Swan Motor Co. (Swansea) Ltd.

 

        There is no clear guidance to be found in the books about causation. All that can be said is that causes are different from the circumstances in which, or on which, they operate. The line between the two depends on the facts of each case. It is a matter of common sense more than anything else."

38. And later he said:

"In my opinion, however, foreseeability is not the decisive test of causation. It is often a relevant factor, but it is not decisive. Even though the plaintiff did not foresee the possibility of being crushed, nevertheless in the ordinary plain common sense of this business the injury suffered by the plaintiff was due in part to the fact that he chose to ride on the towbar to lunch instead of walking down on his feet."

39. In that case, the Court of Appeal approved the trial judge's assessment that the plaintiff was one-fifth to blame for his injuries.

40. In O'Connell v. Jackson, ⁽³⁾ the facts were that a moped rider was hurt when a car collided with his moped. The car driver was responsible for the accident, but the moped rider's injuries would not have been so severe if he had been wearing a crash helmet. At that time, it was not compulsory for him to wear a crash helmet, but the Highway Code advised "When on a motor-cycle, scooter or moped, always wear a safety helmet". The judge took the view that due to the short time before the accident that that particular edition of the Highway Code had been issued, it was seriously open to doubt that the driver of the moped would have seen a copy of it. However, in that case, there was evidence that the plaintiff was alive to the risk and had only himself to blame for failing to remedy the omission. He was held 15% to blame for his injuries.

41. In the present case, the defendants rely upon the seat belt cases.

42. In Froom and others v. Butcher, ⁽⁴⁾ it was held that the reduction of damages for failure to wear a seat belt should be 25% for those injuries which would have been prevented by wearing a belt and 15% for injuries which would have been less severe and that there should be no reduction if the injuries would have been the same if a belt had been worn. The Court of Appeal approved the trial judge's overall assessment of 20% responsibility for his injuries.

43. At the time when this decision was made, it was not compulsory for passengers in a vehicle to wear seat belts, although it was compulsory for them to be fitted in motor vehicles in the front seats.

44. That case was followed in Patience v. Andrews and another, ⁽⁵⁾ where the. plaintiff, who was a passenger in a car, driven into a collision, was not wearing a seat belt and was thrown out of the passenger door. Neither of the head injuries which the passenger suffered would have occurred if a seat belt had been worn. Applying Froom v. Butcher, ⁽⁴⁾ the learned judge held that the plaintiff was 25% responsible for his injuries.

45. In Ho Wing Cheung v. Liu Siu Fun and another, ⁽⁶⁾ the Court of Appeal in Hong Kong followed Froom's case. The medical evidence was that she might have suffered some injuries from flying glass if wearing a seat belt, but no more. The Court of Appeal assessed her share of responsibility for her injuries at 20%.

46. Ho Wing Cheung's case was followed in Hong Kong in Jim Wing Lam v. Choi Kwok Keung and another,⁽⁷⁾ where damages were reduced by 20%.

47. It is to be appreciated that in all these cases which I have mentioned above causation was proved and the plaintiff was doing something which involved danger in the event of a collision which would have been obvious to the ordinary prudent man or he acted in disobedience of express orders, or did not heed advice. I come now to the facts in this case.

The Facts

48. The plaintiff was a passenger in the back of a goods vehicle. On board, the goods vehicle were about 25 to 26 bags of powder which were described by the plaintiff as being 18" x 24" "just like size of cement". They were stacked in the middle of the tail compartment of the goods vehicle on a wooden rack or pallet, of the sort which is suitable for being lifted by a fork lift truck. The bags were tied together but not secured in any way to the sides of the goods vehicle. Each bag weighed about 50 kilos. At the front of the tail compartment of the goods vehicle and immediately behind the driver's cabin, were two rows of plastic containers of Nitric Acid each weighing about 10 kilos. The plaintiff had positioned himself between the pile of bags and the containers of Nitric Acid. He had taken one of the bags down from the top of the stack of bags and was half sitting on it and half leaning on the remaining bags behind him. He was facing the driver's cabin. When the accident happened, the evidence is that the pallet slid across the floor of the tail compartment of the goods vehicle towards the driver's cabin. Both the plaintiff and the stack of bags were thrown forward. The plaintiff ended up facing the driver cabin with his feet touching it and all the bags were infront of him. He does not remember precisely what happened but it is clear from his evidence and that of the driver of the goods vehicle that afterwards the plaintiff was partially trapped under some bags of powder. Indeed, it was not until the firemen arrived after the accident that he was extricated. The plaintiff sustained "a left knee injury with torn interior crociate and medial collateral ligaments and a fracture of the transverse process of the first lumbar vertebra".

49. Mr. Wedderburn in his report of the 29th April 1985, exhibit P4(c), stated that the injury to the knee is usually a result of a man being either struck on the outside of the knee or having the affected leg firmly on the ground while making a turning movement. He said it is a common injury in skiing when an attempt is made to make a sharp turn and the other leg turns but the affected ski is held by the snow.

50. Although it is very difficult to say exactly how these injuries occurred, it seems to me that there is a possibility that they were caused to some extent by the fact that the bags of powder were propelled against him and fell on top of him. On the other hand it is possible that being propelled forward onto the plastic containers to the driver's cabin, his knee was somehow wrenched.

51. I will now examine the ways in which it is alleged that the plaintiff was at fault.

52. The first way in which it is claimed that the plaintiff was at fault is that he did not securely position himself. I do not consider that there is anything in this allegation as there were no seats or belts provided in the tail compartment.

53. The second allegation is that he did not sit properly. Again, I can see nothing in this allegation.

54. It will be convenient to consider the third and fourth allegations together.

55. The third allegation is that he did not securely position the goods while the fourth allegation is that he did not take any or adequate precautions.

56. Rule 99(1) of the Road Traffic (Construction and Use) Regulations, which were in force at the time of the accident, provided:-

"Every motor vehicle, every trailer drawn thereby and all parts and accessories of such vehicle and trailer shall at all times be in such condition, and the number of passengers carried by, and the weight, distribution, packing and adjustment of the load, of such vehicle or trailer shall at all times be such that no danger is caused or is likely to be caused to any person on the vehicle or trailer or on a road."

57. It is clear that the plaintiff in this case was lawfully in the tail compartment of the goods vehicle and was a passenger at whose protection this regulation was aimed. It was the duty of the person or persons responsible for loading the vehicle to ensure that the plaintiff by reason of the fact that he had to travel in the back of the vehicle would not be endangered by the weight distribution packing or adjustment of the load.

58. Mr. Leung, the third witness for the plaintiff, who was the owner of the goods vehicle gave evidence to the effect that he does not give instructions to his workers as to how the goods are to be loaded into the back of his lorries. He said: "They ought to know what to do".

59. Mr. Lee, the second witness for the plaintiff, who was the lorry driver stated quite categorically in the witness box that it was not necessary that the bags should be secured.

60. The plaintiff himself testified that there was no need to tie the tins or the bags down "because they were not such goods". He said cartons of recording tapes or refrigerators were the sort of goods which were tied down. He testified that the goods on board at the time of the accident were the sort of goods which were delivered every day and that before the accident it had never been necessary to tie them down because the sides of the tail compartment were fenced off by the boards, so even if they extended for the whole area of the tail compartment, they would not fall out. He admitted that he hadn't contemplated that he might be hurt in an accident in the way he was. He said that there were no ropes or cables provided to secure the goods to the vehicle and there was no necessity to tie goods down when there was a small quantity of goods.

61. It would be difficult to say that the injuries which the plaintiff suffered would not have occurred if the goods had been secured to the vehicle in some way. The forces exerted in a head on collision are very powerful. Dr. S. Lingard who is a consulting engineer with the Hong Kong University Department of Mechanical Engineering, gave expert evidence on the forces involved. He made a calculation on the basis of the speed of the goods vehicle and the speed of the private car both travelling at 35 mp.h. towards one another and taking into consideration their respective weights and based on a coefficient of restitution of 1.15 he came to a conclusion that the result indicates a value for the impulse applied to both vehicles during the impact of 33 kNs. This corresponds he said with a maximum force during the impact of about 660 kN (66.4 Ton f). It appears from the evidence that the speeds of the vehicles were not greatly different from those assumed by Dr. Lingard for his calculations.

62. In this case, there is no clear indication that the plaintiff had the say in the way in which those particular goods were loaded. It seems highly probable on the evidence that the goods were placed in the vehicle by the use of a fork-lift truck and that because of the weight and size of the load, it was not felt necessary that any further precautions should be taken. What was done was done in accordance with the usual practice. No ropes or belts or cables were supplied by his employer to secure the goods in place, other than those which secured the bags in a pile before being placed on top of the wooden pallet. At the time of the accident, the plaintiff was not in any way acting contrary to any instructions from his employer, he was doing what was usually done.

63. In all the circumstances, taking into consideration the test of causation and blameworthiness, I consider that if there was any fault on the part of the plaintiff which might have contributed to his own injuries, it was so minimal and the contribution so speculative as to be of no practical significance. In the circumstances, I will not make any reduction from the damages to be awarded in this case on the basis of contributory negligence.

QUANTUM

64. The plaintiff sets out his particulars of injuries as follows:

65. These particulars were substantially supported by the evidence.

66. Dr. Wedderburn who examined him on the 29th April this year is of the opinion that the plaintiff suffered a 2% impairment of the wholeman as a result of the injury and its residuals.

67. Dr. Wedderburn was cross-examined on behalf of the 1st defendant and it was suggested that the plaintiff's injuries would not have lasted as long if he had perserved with his physiotherapy. Dr. Wedderburn, however, was not prepared to agree with that but he did say that in addition to the physiotherapy which he was receiving at the Out-Patient Department, the plaintiff was advised to do exercises at home to build up the wasted muscles. He did express the opinion that he would have been very surprised if the plaintiff had done the exercises at home in between the physiotherapy sessions because the muscle wasting was so gross. Dr. Wedderburn pointed out in fairness to the plaintiff that he had had 7 or 8 months of physiotherapy, 3 times a week under supervision and he had also had an operation and he may well have lost faith in physiotherapy as an essential agent.

68. It does seem that the plaintiff in this case did not show a great deal of perserverance in carrying out the exercises which he had been advised to do at home. He had been seen 3 times by Dr. Wedderburn and on the second occasion when he was seen on the 28th October 1983 and when Dr. Wedderburn informed him that there had been considerable improvement in the muscle redevelopment of the left thigh he strongly denied this and became quite indignant. It would appear that the plaintiff is not a man of great perseverance and determination, with a very postive outlook but it seems to me that a person who commits a tort on another person must take that person as he finds him. All persons do not have the same degree of courage and perseverance.

69. I have been referred to a number of authorities with a view to assessing the damages for pain, suffering and loss of amenities. The nearest to the present case is Yu Man Chui v. Chow Chi Fun ⁽⁸⁾ where an award of $20,000 was made. There, it would appear that the victim made a more speedy recovery than the plaintiff in the present case. Furthermore, in that case, osteoarthritis was inevitable. In the present case, of course, there was the fracture of the transverse process of the first lumbar vertabra, and the pain and suffering and convalescence lasted longer. I consider that for the purpose of assessing the quantum of damages under this head, these two cases are not greatly dissimilar. Making an allowance for inflation, I consider that the plaintiff in the former case would have been awarded something in excess of $26,000 today. I consider in all the circumstances $30,000 is an appropriate assessment in the present case and I so award.

Special Damages

70. Of the special damages, a number of items have been agreed, namely:

71. Bonesetter's fees were disputed in this case. 

72. The plaintiff claimed $1,000 under this head representing 20 visits at $50 a time. However, when he was giving evidence, he could not remember the exact number of times he had been to the bonesetter and he could produce no receipts. He thought it was 10 odd times to 20 times. It is quite clear from his evidence that he believed that the treatment which he received from the bonesetter was doing him some good. This evidence was not very precise but I consider that it would be reasonable in the circumstances to assess a figure of $500 under this head.

73. So far as tonic foods are concerned, Mr. Ozorio for. the 1st defendant did not wish to address me and Mr. Spicer for the 2nd defendant appeared to accept that the figure claimed was more than reasonable. The amount claimed by the plaintiff for tonic food was $168 and I will accept and assess the damages accordingly.

Loss of Earnings

Pre-trial loss of earnings

74. There is evidence that at the time of the accident, the plaintiff was on probation earning $1,700 per month. He was on sick leave from the 2nd November 1981 (the date of accident) until the 31st August 1983;. From the latter date until he started work with Sun Dairy Industrial Company Limited as a moulding machine operator in June 1984, he had part time jobs and his total earnings during this period were $2,500. His average monthly earning with the Sun Dairy Industrial Company Limited since the beginning of June 1984 until the present time is $2,496.53 per month.

75. Mr. Ozorio for the 1st defendant submits that the plaintiff was fit for sedentary work as from at least the 1st November 1982 relying upon an answer given by Dr. Wedderburn in cross-examination. However, Dr. Wedderburn qualified his earlier reply later on by saying that he had known some who had gone back to work when they were on sick leave, but it was one in a thousand. I do not consider that it would be reasonable to reduce the damages on the basis that the plaintiff could have gone back to any sort of work whilst he was on sick leave.

76. Miss Bridges for the plaintiff submits that I should take a figure of $2,287.50 as his loss of earnings per month during the period that he was on sick leave and through to the time he started working for Sun Dairy. This is based on the evidence of his former employer to the effect that although the plaintiff was earning $1,700 at the time of the accident, he was on probation at that time and that as soon as he had finished his probation, he would become a permanent worker and would get what he should get as a permanent worker. He testified that if the plaintiff had carried on working with him, he would have been earning the same as his replacement.

77. On the strength of this, Miss Bridges asked the court to assess his loss of earnings on the basis that he would have earned a median figure of $2,287.50 for 31 months from the 2nd November 1981 until the end of May 1984.

78. I consider that for the purpose of calculating his loss of earnings during the pre-trial period, the calculation should be based on 3 periods. The first is from the date of the accident until the end of his sick leave on the 31st August 1983, a period of some 22 months.

79. The second period should be from the end of his sick leave until the day he started working with Sun Dairy at the beginning of June 1984, a period of some 9 months.

80. The third period is from June 1984 until the present time, a period of some 12 months.

81. So far as the first period is concerned, I do not consider $2,287.50 per month is an accurate figure for his monthly earnings. It seems reasonably clear on the evidence that his probation period was almost over. His former employer Mr. Leung Choi Wan (PW3) testified that when the plaintiff came to work for him, he had no experience in this trade before and so his starting salary was a bit lower. When he finished probation he would get what a permanent worker gets which would be what his replacement Mr. Leung Hon Bun earned. He gave evidence of Mr. Leung Hon Bun's earnings as follows:

82. I consider that these figures are sufficiently accurate to make a calculation as to what the plaintiff's loss of earnings up to the present time would have been.

83. I consider that the plaintiff is entitled to claim for full loss of earnings during the period of sick leave.

84. The second period covers the 9 months period between the end of his sick leave and the time he commenced work with Sun Dairy. There was evidence that he could have earned approximately 50% of his monthly wage at some stage during this time as a rattan worker. However, he did not accept the job which had been found for him under the selective placement scheme of the Labour Department. I do not consider that he did enough to mitigate his damages during this period.

85. For this period I assess his loss of earnings as half what his replacement earned

86. The third period covers the last 12 months while he has been working for Sun Dairy. The evidence is that during this period, according to the schedule of his earnings during this time (Exhibit P6), he has earned on average $2,496.53 per month.

87. Mr. Ozorio for the 1st defendant challenges this figure as not being representative of the plaintiff's "working capacity" because it includes three short periods when the plaintiff's earnings dropped dramatically when he went back to China.

88. The evidence was, however, that he would earn $60 per day over a period of some 26 working days. It would appear that the calculation of his average earnings takes into account a considerable amount of overtime and in my view that more than makes up for the 3 low earning periods. I consider the figure of $2,496.53 to be a fair figure as representing his current earnings during this third period. That means that his loss of earnings during this period is:

89. $3,100 - $2,496.53 = $603.47 x 12 = $7,241.64

90. His total loss of earnings to date therefore is:

91. It is agreed that from this figure must be deducted the total of sums he received from his former employer by way of Employees' Compensation, namely $33,580.

92. That leaves a sum representing loss of earnings of $39,136.64.

Loss of Future Earnings

93. The evidence is that if the plaintiff was still working for his former employer he would be earning $3,100 per month. He is in fact earning with Sun Dairy $2,496.53 per month. That represents a shortfall of $603.47 per month.

94. He is now 30 years of age. Miss Bridges asks me to adopt a multiplier of 14 to calculate his loss of future earnings.

95. Mr. Ozorio disputes that there will be any loss of future earnings due to the fact that there was evidence from Mr. Lee Kwan Yee of Sun Dairy that when a moulding machine operator has 3 years experience his salary will be increased from $60 per day to $80 or $90 per day, a rise of approximately 33.3% to 50%.

96. Miss Bridges asks me to ignor the possible advantages plaintiff may reap from his new job in the future but look at the earnings now.

97. I consider that I must take into account the future benefits the plaintiff will get from his present employment. In another 2 years time he can expect his earnings to rise dramatically and he will be better off than he would have been had he stayed with his former employer. So although he will be suffering a monthly loss for the next 2 years, this will be more than compensated for in the years ahead when he will be earning a better wage.

98. In the circumstances I do not consider that any award should be made for loss of future earnings.

99. I assess and award damages as follows :-

100. Special Damages

101. I give judgment for the plaintiff against both defendants in this sum.

102. Finally I come to the 2nd Defendant's claim for indemnity against the 1st Defendant. This is contained in a "Notice of Claim of Indemnity" which was served on the 1st Defendant at the commencement of the trial under 016 rule 8. No issue is taken on the time of service.

103. In the notice of claim the 2nd Defendant requires that the following issues should be determined not only between the Plaintiff and the Defendants but also between the 1st Defendant and the 2nd Defendant :-

104. I have already ruled on (1). So far as (2) and (3) are concerned, these issues fall to be determined as a result of S 19 of the Law Amendment and Reform (Consolidation) Ord. Cap. 23. Although this section has now been replaced by Section 10 of the Civil Liability (Contribution) Ord. No. 77/84, Section 9 provides that nothing in this latter ordinance shall affect any case where the damage in question occurred before the date in which it comes into force. So I am concerned with the former ordinance.

105. Section 19 provides :-

106. Mr. Spicer for the 2nd Defendant seeks an order for a complete indemnity against the 1st Defendant.

107. Mr. Ozorio for the 1st Defendant makes no submission on this point.

108. In the circumstances I consider following the principles enunciated in

109. Semtex Ltd. v. Gladstone ⁽⁹⁾;

110. Lister v. Romford Ice end Cold Storage ⁽¹⁰⁾; and

111. Harvey v. R.G. O'Dell ⁽¹¹⁾

that the 2nd Defendant is entitled to full indemnity from the 1st Defendant and I so order.

112. The parties have indicated that they wish to address me further on interest and costs and 1 will therefore hear submissions on these matters.

(1)     [1949] 2 K.B. p.291 at 326

(2)     [1952] 2 Q.B 6O8 at p.615

(3)     [1972] 1 Q.B. 27O at p.275

(4)     [1976] 1 Q.B. 286

(5)     [1983] R.T.R. 447

(6)     [1980] H.K.L. R. 300

(7)     Hong Kong Supreme Court Civil Action No. 1 of 1983

(8)     H.C.A. No. 2518 of 1981

(9)     1954 1 W.L.R. 945

(10)   1957 A.C. 555 H.L.

(11)    1958 2 Q.B. 78)