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HCPI 601/2008
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF FIRST INSTANCE
D D
PERSONAL INJURIES NO. 601 OF 2008
E --------------------- E
F BETWEEN F
LAW PING LEUNG Plaintiff
G BY SIU SIU WA, HIS WIFE AND NEXT FRIEND G
H H
and
I I
NG SZE PONG Defendant
J J
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K K
Before Recorder Benjamin Yu, S.C. in Court
L Dates of Hearing : 4 and 7–8 September 2009 L
Date of Judgment : 11 September 2009
M M
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N N
JUDGMENT
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O O
Introduction
P P
1. On 7 September 2006 at about 2:45 p.m., the plaintiff was
Q knocked down by a public light bus (“PLB”) bearing registration number Q
MB2652 driven by the defendant on Sai Sha Road. He suffered serious
R R
injuries.
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2. The plaintiff now sues the defendant by his wife as his next
B B
friend. Both liability and quantum are in issue.
C C
Liability
D D
3. On liability, the plaintiff relies on the conviction of the
E E
defendant on his own plea of careless driving at Shatin Magistrates’ Court
F on 5 March 2007, as evidence of the defendant’s negligence and breach of F
statutory duty. The plaintiff also relies on the statement of one
G G
Choi Suk Fong (“Madam Choi”), who was a passenger in the PLB, given
H to the police on the day of the accident at about 3:45 p.m. Counsel for the H
defendant does not object to the admission of that statement. I have, in
I I
the circumstances, no discretion to exclude the evidence : see section 47(a)
J of the Evidence Ordinance. J
K K
4. The brief facts to which the defendant admitted at the time of
L his conviction are, on the essential parts, based entirely on Madam Choi’s L
statement to the police. According to Madam Choi, the defendant was
M M
driving the PLB on Sai Sha Road on a southerly direction towards Sai
N Kung. Madam Choi was then sitting on the third row of the PLB at the N
right hand side. Madam Choi said she saw a man (later known to be the
O O
plaintiff) about 10 m away at the left side of the PLB stepping two paces
P from the pavement to the vehicular road. According to Madam Choi, the P
speed of the PLB was not fast at the time. She said that the man, who
Q Q
was already on the vehicular road, walked ahead without looking towards
R the side of the PLB. She said that even when she was able to see the man, R
the defendant did not slow down, and the PLB continued to move slowly.
S S
The man did not pay attention to the PLB, the PLB continued to move on
T and hit the man. She then shouted : “You hit some one.” It was only T
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until that moment that the PLB stopped. She saw the man lying on the
B B
ground. She immediately called the police.
C C
5. Madam Choi’s statement did not specify to which direction
D D
the man was walking at the time. However, in a statement made by a
E police officer (PC 50639) at about 8 p.m. on the day of the accident, it was E
recorded that Madam Choi said that she saw a man walking with his back
F F
to the PLB, and he was then knocked down by the PLB.
G G
6. Photographs of the PLB after the accident show that the left
H H
side of the bus was dented. There were also cracks on the left side of the
I windscreen. I
J J
7. The defendant gave evidence before me. He said that when
K he first saw the plaintiff, he was already one or two paces from the K
pavement, and was walking along Sai Sha Road in a direction towards Sai
L L
Kung, i.e. due south and had his back to the PLB. According to the
M defendant, the plaintiff suddenly walked quickly across the road diagonally M
in front of his PLB and it was then that his PLB hit the plaintiff. He said
N N
he swerved the PLB to the right to avoid the PLB running over the plaintiff.
O And after the collision, he steered the PLB a bit to the left to avoid being in O
the way of the opposite traffic. He was asked to mark the positions of the
P P
plaintiff on a photograph, both at the time he first saw him, and also at the
Q time of the collision. He also marked on the plan the position where the Q
plaintiff fell after collision.
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How did the accident happen?
B B
8. It is regrettable that the court has not had the opportunity to
C C
hear directly from Madam Choi. However, her police statement was
D taken very soon after the event. The whole incident was fresh in her D
mind. Her statement, being that of an independent witness, must deserve
E E
great weight. I bear in mind the factors listed in section 49(2) of the
F Evidence Ordinance when estimating the weight to be given to F
Madam Choi’s statement. In the course of his submissions, Mr Chan
G G
made it clear that he does not challenge Madam Choi’s evidence. He
H accepts that Madam Choi saw the plaintiff when the PLB was about 10 m H
away from him.
I I
J 9. The major difference between Madam Choi’s account and the J
account given by the defendant in the witness box is the defendant’s
K K
evidence that the plaintiff suddenly walked quickly across the road
L diagonally. There was no mention in Madam Choi’s statement of any L
sudden movement on the part of the plaintiff or to the effect that the
M M
plaintiff was attempting to cross the road.
N N
10. I reject the defendant’s evidence that the plaintiff suddenly
O O
walked quickly diagonally across the road.
P P
11. The version he gave to the court is materially different from
Q Q
that he gave to the police on 14 September 2006, or from the version he
R gave in his witness statement dated 17 September 2007. R
S S
12. In the defendant’s statement to the police, he said he was
T driving at between 20 to 30 km/hr and at a distance of about 2 ft from the T
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pavement when he saw a man running out from the pavement. The man
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was only about 10 ft away from the PLB. The defendant said in that
C statement that the man was looking forward to the opposite direction, C
which was a bus station, and did not look towards the direction of his PLB.
D D
He applied the brakes immediately but could not stop in time. The left
E front of his PLB hit the man and he swerved the PLB to the right to avoid E
it from pressing down onto the man. There was no mention in his
F F
statement to the police that the plaintiff was walking along Sai Sha Road
G or that the plaintiff had suddenly walked quickly across the road G
diagonally in front of his PLB.
H H
I 13. He also claimed in his statement dated 17 September 2007 I
that he saw the man standing at the junction of the refuse collection point,
J J
and the man then suddenly ran across the road, towards the bus stop on the
K opposite lane. K
L L
14. The two positions marked by the defendant on the photograph
M (exhibit D4), indicating where the defendant first saw the plaintiff, and M
where the plaintiff was knocked down, do not support the suggestion that
N N
the plaintiff was running across the road when he was hit. The defendant
O marked the two positions quite close to each other. Moreover O
significantly, one can see from the sketch drawn by the police, and also
P P
from one of the photographs (photo 14), that there was certain blood stain
Q left quite near to the pavement. Whilst that is consistent with the position Q
R
marked by the defendant on exhibit D4, it does not support the defendant’s
R
evidence that the plaintiff was running across the road, diagonally or
S S
otherwise, when he was being hit.
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15. Having considered all the evidence and the submissions,
B B
I find the accident to have happened in the following circumstances : The
C plaintiff stepped out from the pavement at the location where there was an C
opening in the railing. He then proceeded to walk along the railings but
D D
on the vehicular road in a direction towards Sai Kung. It was while he
E was thus walking that he was knocked down by the PLB driven by the E
defendant.
F F
G 16. I also find that the stretch of road before the point of collision G
was straight and long. The road condition was good. Lighting was
H H
optimal.
I I
17. I find that the defendant was driving relatively slowly.
J J
Indeed, he should be preparing to stop, as Madam Choi had indicated that
K she wanted to alight at the rubbish collection point. The defendant said K
he was doing between 20 km/hr and 30 km/hr. I accept that evidence.
L L
I do not accept Mr Lam’s submission that the defendant must have been
M driving at around 40 km/hr. That submission is based entirely on the M
position of the PLB depicted on the police sketch plan. Mr Lam
N N
submitted that since that indicates that the stopping distance was 20 m, the
O speed before collision would, according to the Road Users’ Code, have O
been 40 km/hr. I think the flaw in that argument is that it does not take
P P
account of the evidence, which I accept, that after the collision, the
Q defendant did not immediately bring the PLB to a complete stop. He Q
R
proceeded further by swerving to the right to avoid the PLB pressing over
R
the plaintiff and then steered back to the left to avoid possible collision
S S
with oncoming north-bound traffic on Sai Sha Road.
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Was the defendant negligent?
B B
18. Mr Chan made essentially two points on liability. First,
C C
Mr Chan submitted that although the evidence suggests that the defendant
D became aware of the presence of the plaintiff later than the passenger, this D
does not per se justify a finding that the defendant failed to keep a proper
E E
lookout. Mr Chan’s second point is that even if the court were to find
F that the defendant was negligent, there is here no causation as the accident F
was inevitable.
G G
H 19. I shall deal with his first point first. In that connection, H
Mr Chan referred me to a number of authorities for the proposition that the
I I
driver of a vehicle has many tasks to perform as part of his duty to keep a
J proper lookout. These are : James v Fairley [2002] EWCA Civ 162 at J
§14, Davies v Journeaux [1976] RTR 111 at 115D-F, Morales v Eccleston
K K
[1991] RTR 151 at 158H-K and Chan Chi Lung v Lam Shek Wu,
L HCPI 401/2001 at §18. Mr Chan further submitted that the fact that L
Madam Choi was able to see the plaintiff when the PLB was some 10 m
M M
away did not mean that the defendant failed to keep a proper lookout in not
N having been able to observe him until the PLB was only 10 ft away. N
O O
20. Whilst I accept that the duty on the part of a driver to take a
P proper lookout does embrace more than just paying attention to what is P
ahead of him, and I also accept that in principle, the mere fact that a
Q Q
passenger on a vehicle may have been able to observe something a split
R second before the driver can does not necessarily suggest that the driver R
has failed to keep a proper lookout, each case must depend on its facts.
S S
In the present case, there is no evidence before me that the attention of the
T defendant had been diverted to something happening around him that T
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could explain why he did not see the plaintiff until the PLB was so close to
B B
him. To the contrary, since he should be looking for a spot to allow his
C passenger to alight, he should have been focusing his attention to what was C
in front, and particularly on the kerbside. On his own evidence given at
D D
the trial, the defendant did see the plaintiff walking outside the railing.
E Given that the road was long and straight, and there was no suggestion of E
anything that could have obstructed his line of sight, I am satisfied that a
F F
reasonably prudent driver would have noticed the plaintiff much earlier,
G and that the defendant has failed to keep a proper lookout. That failure G
resulted in his not taking notice of the plaintiff until it was too late for him
H H
to brake or to sound the horn or take effective measure such as swerving to
I the right to avoid collision. I
J J
21. I am also satisfied that a prudent driver seeing a pedestrian
K walking on a single-lane vehicular road with his back to the traffic would K
have realized that the risk of an accident happening is “reasonably
L L
apparent” and not a “mere possibility”, such that a prudent driver should
M have been alert and ready to take all necessary precautions to avoid M
N
collision : see Fardon v Harcourt-Rivington (1932) 146 LT 391, applied in
N
Kong Chung Ching v Lam King Ho [1992] 1 HKC 104.
O O
Causation
P P
22. I turn to the second point made by Mr Chan. Mr Chan
Q Q
described this as perhaps the most important issue in the case. His
R argument is that even if the defendant ought to have noticed the plaintiff R
earlier, the accident would still have been unavoidable. Mr Chan
S S
submitted that since the bloodstain was right next to the kerbside, the
T plaintiff apparently collided with the PLB almost immediately after he T
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stepped out on to the road. He cited a number of cases (James v Fairley
B B
[2002] EWCA Civ 162, Chan Hwai Yan v Cheng Yip Chi HCPI 510/2000
C and Chan Chi Lung v Lam Shek Wu HCPI 401/2001) to support his C
argument. These cases are more illustrations of the point that he sought
D D
to make, rather than authorities that establish any legal principle.
E E
23. Mr Chan submitted that on the basis of Madam Choi’s
F F
evidence, the defendant would only have spotted the plaintiff when he was
G about 10 m away; and since the PLB was moving at a speed of between G
20 km/hr and 30 km/hr, the defendant would only have less than 2 seconds
H H
to avoid hitting the plaintiff.
I I
24. Even if such calculations were right, I am not prepared to
J J
accept that the accident was inevitable. Drivers are called upon to react
K swiftly to circumstances on the road. It would have taken very little time K
for a prudent driver to brake and to swerve the PLB slightly to the right to
L L
avoid the accident, or to have sounded the horn to alert the plaintiff of the
M impending danger. M
N N
25. However, the position of the bloodstain on the police sketch
O suggests that the plaintiff had been walking for a few metres outside the O
railing before he was knocked down. This is consistent with the fact that
P P
in both Madam Choi’s evidence and in the evidence given by the
Q defendant at the trial, the plaintiff was actually seen walking alongside the Q
railings. I am therefore unable to accept Mr Chan’s submission that the
R R
collision took place almost immediately after the plaintiff stepped out on to
S the road. S
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26. Mr Lam drew my attention to the answers given by
B B
Madam Choi to the police in which she was asked whether the PLB
C slowed down or stopped when the plaintiff walked out of the road, to C
which Madam Choi responded that the PLB kept its speed. This evidence
D D
suggests that the defendant did have the opportunity to take measures
E including braking, sounding his horn, or swerving his PLB to avoid the E
accident. I am satisfied that the defendant’s negligence in failing to keep
F F
a proper look out was a cause of the accident.
G G
Contributory negligence
H H
27. By walking outside the railing on the road with his back to the
I I
traffic, the plaintiff has plainly failed to exercise reasonable care for his
J own safety. There is also no doubt that such failure was causative of the J
accident. Mr Lam did not contend otherwise.
K K
L 28. The main debate centred on the degree of contributory L
negligence. That question is to be approached by way of an overall
M M
appreciation of the blameworthiness and causative potency of the
N respective acts and omissions of the plaintiff and of the defendant : see per N
Denning LJ (as he then was) in Davies v Swan Motor Co Ltd [1949] 2
O O
KB 291 at 326 :
P P
“This involves a consideration, not only of the causative potency
of a particular factor, but also of its blameworthiness.”
Q Q
R 29. As is common, counsel on each side drew attention to R
authorities that assist his side in asking for a higher, or a lower degree of
S S
contribution. Both counsel referred me to the decision of the Court of
T Appeal in Kong Chung Ching v Lam King Ho [1992] 1 HKC 104. That T
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was a case where the deceased had stepped onto the roadway without
B B
looking to see if there were any vehicles approaching. The trial judge
C took the view that the driver should have been aware, when he saw the C
deceased, that there was a real possibility that he would step out into the
D D
roadway and that there was, therefore, a danger of a collision occurring.
E His assessment of liability at 50:50 was upheld by the Court of Appeal. E
Mr Lam relied on Lau Tak Lung v Ngan Guen Min HCPI 573/1997 where
F F
Deputy Judge Wong applied Kong Chung Ching as a yardstick and
G assessed the plaintiff to be 25% to blame in a case where the plaintiff was G
knocked down by a PLB after climbing out from the pavement and walked
H H
onto the road.
I I
30. On the facts of this case as I have found them, I take the view
J J
that the defendant must bear the greater part of the blame. That is so both
K in terms of blameworthiness and causative potency. The fact that there K
was an opening in the railing and the fact that there was a bus stop on the
L L
opposite side of the road, and a road sign cautioning drivers to slow down
M are all matters which must have been known to the defendant. He should M
N
have been paying particular attention to pedestrians coming out of the
N
opening. His failure to keep a proper lookout was particularly
O O
blameworthy in the circumstances. It was that failure which was the
P
main cause of the accident. I hold that the defendant was 75% to blame. P
Q Quantum Q
R 31. By the time of the trial, the parties’ dispute on quantum are R
over the following areas :
S S
(1) pain and suffering and loss of amenities (“PSLA”),
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B
(2) loss of society,
B
(3) loss of earnings pre-trial,
C C
(4) loss of earnings post-trial,
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(5) future medical expenses.
E E
32. On PSLA, the plaintiff contends for $1,100,000 whilst the
F F
defendant argues that a fair award under this head would be $700,000.
G G
33. The evidence relevant to this issue is to be found from the
H H
medical reports which the parties placed before me and on the evidence of
I the plaintiff’s wife who gave evidence at the trial. There is really no I
dispute on the nature and extent of his suffering and disabilities.
J J
K
34. The plaintiff was admitted to Prince of Wales Hospital after K
the accident. On admission, he was unconscious with a Glasgow Coma
L L
Scale score of 7/15. He had multiple lacerations over the limbs, his left
M eye and left knee. He only regained consciousness after about 10 days. M
He had fractured right clavicle together with bilateral lung contusion with
N N
pneumothorax. Computed tomography showed contusion over the right
O temporal region with traumatic subarachnoid hemorrhage. He had skull O
base fracture. Emergency burr hole operation for intracranial pressure
P P
monitoring and clot evacuation were performed. After the operation, he
Q stayed in intensive care unit for 2 weeks during which he required Q
mechanically assisted ventilation. Tracheostomy was performed on
R R
12 September 2006. The right clavicle fracture was treated
S conservatively with shoulder immobilizer. S
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35. After his condition improved, he was then transferred to
B B
Shatin Hospital for rehabilitation. Clinically, he had poor cognition and
C memory after the injury. He underwent physiotherapy and occupational C
therapy treatment. The tracheostomy was weaned off on 16 October
D D
2006. He was discharged from Shatin Hospital on 6 February 2007.
E E
36. The plaintiff has no memory of the accident. His thinking
F F
process and memory have been substantially impaired. His response to
G verbal communications is slow and sometimes irrelevant. He finds it G
difficult to learn and retain new information. His recent memory is poor,
H H
but long term memory is relatively preserved. He often forgets what he
I has done a moment ago or where he has placed his belongings. He has to I
be reminded of his appointments.
J J
K 37. Although he is now able generally to carry out his normal K
daily living by himself, he has to be accompanied when going outdoors
L L
because his sense of direction is poor and he has suffered three episodes of
M grand mal seizures with loss of consciousness, generalized convulsive M
movements and uprolling of the eyeballs.
N N
O 38. He also suffers from intermittent headaches of a dragging O
character and mild intensity. The headaches occur once or twice a week
P P
and the duration of each attack is about 2 minutes. He also suffers from
Q intermittent dizziness of mild intensity. The dizziness occurs once a Q
week and the duration of each attack is brief. It is brought on by riding
R R
on buses. Both the headaches and dizziness resolve themselves.
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39. His personality has changed. Whereas he was of a mild
B B
temper before the accident, he is now easily irritable. He used to be
C sociable, but no longer so. C
D D
40. He has mild dysphagia (difficulty of swallowing) and mild
E left hemiparesis (weakness of one side of his body). E
F F
41. Dr Y.L. Yu assessed his permanent impairment of the whole
G person to be 35% whilst Dr Edmund Woo would assess the combined total G
of impairment of the whole person at 25%. Dr Yu’s opinion is that the
H H
plaintiff would not be able either to resume his pre-accident work as a
I lorry driver, or indeed be able to take up any gainful employment. I
Dr Woo agreed that it would be difficult for the plaintiff to return to his
J J
pre-accident job, but opined that he could be suited for simple menial tasks,
K such as a messenger or a delivery worker after undergoing a cranioplasty. K
Both doctors agree that because of his neurocognitive and neurobehavioural
L L
impairments, it is unlikely that the plaintiff possessed sufficient mental
M capacity for managing his own personal and financial affairs. M
N N
42. Further improvement is not expected.
O O
43. Cosmetically, there is an area of 8 cm x 12 cm depression on
P P
his skull and he was described by Dr C.K. Lam as having a “weird” and
Q “angry” appearance. The neurologists recommended that he should Q
undergo a cranioplasty. If carried out, this would improve his
R R
appearance.
S S
44. The plaintiff’s wife gave evidence that the plaintiff became
T T
ill-tempered after the accident. He would sometimes scold people and
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would yell at her. He looked “ferocious”, and even his grandchildren
B B
were very scared of him at first. Also, he had become forgetful.
C Physically, his limbs have also become weak, especially his left leg. He C
can no longer squat down, and needs to hold on to furniture for support
D D
when putting on his trousers. She described him as having become
E another person. She had to work long hours to take care of the plaintiff, E
and her social life has been greatly affected. They no longer had sex after
F F
the accident.
G G
45. Mr Chan referred me to the following cases on PSLA : Ngan
H H
Man Yuk v Lau Kwan Him HCPI 1263/2003, Chan Hak Foon v Sutera
I Harbour Resort Sdn Bhd HCPI 386/2003 and Lam Mo Bun v Hong Kong I
Aerosol Co. Ltd [2001] 1 HKLRD 540.
J J
K 46. Mr Lam approached PSLA by inviting me to consider the K
orthopaedic injuries, cosmetic impairment and neurological injuries and
L L
impairment. He contended that this is a case which should be placed at
M least at the top end of the substantial injury category, or even under the M
gross injury category. He referred me, inter alia, to Siu Leung Sing v
N N
Wong Fook Wing HCPI 1096/1999 and to Cheung Wai Ping v Chan Yuen
O Yee HCPI 668/2005. O
P P
47. As Litton VP (as he then was) observed in Chan Pui Ki v
Q Leung On [1996] 2 HKLR 401 at 408C, there are cases, such as the present Q
one, where the injuries are composite, and one must bear in mind the total
R R
effect of the injuries on the plaintiff.
S S
48. Of the cases cited, I find the award in Cheung Wai Ping v
T T
Chan Yuen Yee to be of most assistance. The plaintiff in that case also
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suffered serious injuries. He had left parietal epidural haematoma and
B B
traumatic sub-arachnoid haemorrhage with fracture of the left parietal bone.
C He had two successive craniotomies. He also had a tracheostomy. The C
plaintiff was found to have suffered from cognitive impairment and left
D D
hemiparesis. There was a risk of post-traumatic epilepsy, although that
E has apparently not manifested itself by the time of the trial. As in the E
case of this plaintiff, he was assessed to be incapable of managing and
F F
administering his property and affairs. Dr Yu put permanent impairment
G of the whole person at 20% while Dr Woo put it at 15%. Deputy Judge G
Muttrie accepted that the injuries and disabilities in that case fell into the
H H
gross disability category and awarded $1,000,000 for PSLA in
I February 2007. I
J J
49. Figures produced by the plaintiff suggest that the Consumer
K Price Indices rose from 101.9 in February 2007 to 109.2 in July 2009. K
L L
50. Considering the injuries and disabilities as a whole, the
M impact of the accident on the plaintiff can in my view properly be M
considered to fall within the gross disability category. I would award
N N
$1,100,000 for PSLA.
O O
Loss of society
P P
51. I confess to having some difficulty in relation to this head of
Q Q
claim. Section 20C of the Law Amendment and Reform (Consolidation)
R Ordinance creates a cause of action for damages for loss of the injured R
person’s “society”. The phrase used in the section is “deprived of his
S S
society”, and in Chinese “被剝奪了受傷害者的情誼”.
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52. There is no doubt that the plaintiff’s wife found the plaintiff’s
B B
“society” much less desirable than it was before the accident. But can it
C be said that she was “deprived of his society”? C
D D
53. I note that in sub-section (4), the draftsman used the phrase
E “impairment of his ability to render such services”. That subsection, E
however, is obviously intended to enable the cause to be asserted in the
F F
name of the injured person, thereby dispensing with the need to join the
G spouse or the person who has been deprived of the injured person’s society G
as a plaintiff. However, the cause of action conferred by section 23C is
H H
predicated upon showing that the injury caused the person to be “deprived
I of” (and not merely suffered an impairment of) the injured person’s I
society.
J J
K 54. However, I am aware that in Chan Yuk v Dragages et Travaux K
Publics (HK) Ltd [2000] 2 HKLRD 795 (and on appeal [2000] 3
L L
HKLRD 1), the Court awarded loss of society short of the maximum in a
M case where the injured person had a change of personality. At p. 802B, M
Seagroatt J considered there was “no doubt” that the plaintiff came within
N N
the ambit of the first limb of section 20C. He described the wife as
O having suffered the loss of society “to a significant extent”. Instead of the O
normal society and kindly companionship, the plaintiff had become a
P P
mentally damaged man, with physical problems which rendered him
Q dependent on the wife. On appeal, the award was increased to $130,000 Q
R
merely to correct the error of the judge at first instance in wrongly taking
R
the maximum as $40,000, instead of $150,000, see [2000] 3 HKLRD at
S S
11C-F.
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55. It is apparent that Seagroatt J did not read section 20C as
B B
being confined to cases where the loss of society was total.
C C
56. There are other cases where an award under section 20C was
D D
made for less than total loss, see e.g. Cheung Wai Ping v Chan Yuen Yee
E HCPI 668/2005 (Deputy High Court Judge Muttrie, 8/2/07) at §§43-44; Li E
Yuet Yee and others v Ng Chi Hang HCPI 451/2006 §6 (Master J Wong,
F F
31/10/08).
G G
H
57. The defendant has not taken this point. Instead, the H
defendant relied on Li Yuet Yee in contending that the plaintiff and his
I I
family still maintained a strong bond, and an award under this head should
J
not exceed $50,000. J
K K
58. In the absence of full submissions on this point, I do not
L
consider it right for me to elevate the doubt I have to a departure from the L
line of authorities referred to above. Furthermore, there is in the present
M M
case a total loss of society insofar as the plaintiff’s wife has been deprived,
N by reason of the accident, of her enjoyment of sex with her husband. On N
the facts of this case, I would award $100,000 under this head.
O O
P
Pre-trial loss of earning P
59. This head has given rise to an interesting argument. The
Q Q
dispute here is both one of fact, and of law. On the factual side, the
R R
plaintiff’s claim is that the plaintiff was receiving a sum of about $20,000
S
per month as wages before the accident from a company called Hang Fai S
Tansportation Company Limited (“Hang Fai”). Hang Fai’s business is
T T
the transportation of goods between the Mainland and Hong Kong. It
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started off as a sole proprietorship business run by the plaintiff. In about
B B
1996/1997, the business was incorporated as a limited company. At the
C time, the plaintiff’s son, Law Tat Fung, was only about 20 years old. The C
plaintiff appointed himself and his son as directors. He also made him a
D D
shareholder along with himself.
E E
60. In September 2004, the plaintiff resigned as director and also
F F
gave up his shares. From then on, his son became the sole director and
G shareholder of Hang Fai. G
H H
61. The plaintiff’s son gave evidence to the effect that every
I month, the plaintiff received payment firstly in the form of cheques paid to I
him by two old customers, and secondly in the form of cash that he drew
J J
from Hang Fai. He said in evidence that the amount was not fixed, but
K generally, it would have been over $20,000 per month. The plaintiff K
produced his tax return and statements of his MPF contributions, both of
L L
which were documents which came into existence prior to this litigation
M and are cogent evidence of the arrangement as testified by the son. M
N N
62. Mr Chan’s cross-examination was unable to shake the son’s
O evidence on this point. I find him to be an honest witness and accept his O
evidence. I find that the plaintiff was, before the accident, working in
P P
Hang Fai and entitled to receive a sum of $20,000 per month. He was
Q working as a driver, responsible for transportation of goods within Hong Q
Kong, and also assisted in the management of the other drivers in the
R R
employ of the company.
S S
63. The son’s evidence however also revealed that the plaintiff
T T
continued to receive payment to the order of $20,000 per month after the
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accident, and indeed up to the time of the trial. He said, and I accept, that
B B
instructions have already been given to the customers to cease paying the
C plaintiff, and that the arrangement had to stop. C
D D
64. He explained that his mother received advice from the Labour
E Department that the plaintiff was entitled to continue receive his wages E
because he was injured in the course of work. The evidence (which was
F F
undisputed) was that the plaintiff was on the way of retrieving certain
G documents which were needed for the business. The son’s evidence is G
that it was only later that the surveyor from the insurance company advised
H H
him that he should only be paying 4/5 of the wages; and that he did not
I have to make the MPF contribution. I
J J
65. The son also gave evidence that the business had not been
K doing well in the last few years. He had to rely on a loan from the K
Government to make the payments; and that since they were family, the
L L
money which the plaintiff received was managed by the plaintiff’s wife
M and used to pay for family expenses. In this context, “family” includes M
the son’s family as the plaintiff and his wife live together with the son’s
N N
family.
O O
66. On these facts, a question arises as to whether the plaintiff is
P P
entitled to claim for past loss of earnings. On one view, he received
Q payment of his wages from his employer, and did not suffer any loss. He Q
cannot therefore claim for a loss he never suffered.
R R
S 67. Mr Lam, however, submitted that the monthly payment of S
$20,000 should be regarded as “nominal”, or perhaps notional, since the
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money was really paid back into the family pool. To prevent any risk of
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double recovery, the plaintiff was prepared to undertake to return any
B B
amount recovered from the defendant to Hang Fai.
C C
68. In cases where a claimant receive moneys gratuitously
D D
conferred upon him from sources as a mark of sympathy or assistance, the
E law is that such receipts should not be taken into account. In Parry v E
Cleaver [1970] AC 1, Lord Reid said that it would be :
F F
“revolting to the ordinary man’s of justice, and therefore contrary
G to public policy, that the sufferer should have his damages G
reduced so that he would gain nothing from the benevolence of
his friends or relations or of the public at large, and that the only
H H
gainer would be the wrongdoer.”
I I
69. In Dennis v London Passenger Transport Board [1948] 1
J J
All ER 779, the plaintiff received pension and sick pay which equalled the
K amount of his wages from his employer, London County Council, and K
from the Ministry of Pensions. Denning J (as he then was) said :
L L
“… The cardinal point to remember is that it is the defendants
M who are responsible for what has occurred. In my opinion, a M
wrongdoer is not to be allowed to reduce damages by the fact
that other persons have made up to the plaintiff his wages, like
N the London County Council and the Ministry of Pensions in this N
case. The plaintiff has lost his wages. In point of law, therefore,
O
prima facie he should have them paid by the wrongdoer. As O
they have been made up to him by other people who expect to be
repaid I think it is proper that that sum should be included as
P damages, but subject to the direction that the amount paid to the P
plaintiff by the Ministry of Pensions and the London County
Council should be paid to those bodies out of the sums
Q Q
recovered.”
R R
70. In Dennis, the payment to the employee was voluntary and the
S S
plaintiff was expected to refund the amount if he recovered compensation
T
from the tortfeasor. When it was made under a duty, as where an T
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employer is under a statutory obligation to pay wages whether the
B B
employee is fit for duty or not, the law is that the employee has suffered no
C loss and can recover no damages, see Metropolitan Police Receiver v C
Croydon Corporation [1957] 2 QB 154 and Hussain v New Taplow Paper
D D
Mills [1988] AC 514. It would also appear from the authorities that if the
E employee has an obligation to repay, whether it be legal or moral, or E
arising out of an implied understanding, the money paid should be left out
F F
of account : see Hensman v Goodsall, unreported, 23 January 1997 and
G noted in Kemp & Kemp, The Quantum of Damages at §5-105/1. G
H H
71. Deputy High Court Judge Carlson recently considered this
I question in Chan Ka Lim v Chow Wai Kin HCPI 727/2004. He endorsed I
the following propositions advanced by counsel as correctly summarizing
J J
the law :
K K
(1) Whether the amount received should be deducted depends on
L the nature of the payment. L
M
(2) In determining the nature of the payment, the Court looks at
M
the substance, rather than the label, of the payment. It will
N consider the actual arrangements made and the particular N
circumstances of the case.
O O
(3) If the payment is salary properly so-called which the plaintiff
P received as of right, deduction is required. P
Q
(4) But if the payment is ex gratia or a loan only, no deduction Q
should be made. It is sufficient if there is an “understanding”
R or “expectation” of repayment, or even that the plaintiff feels R
under a moral obligation to repay.
S S
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72. I gratefully adopt this summary. The position here is that
B B
Hang Fai was under a duty to pay compensation to the plaintiff under
C section 5(1) of the Employees’ Compensation Ordinance since he suffered C
personal injury by accident which arose out of and in the course of his
D D
employment. During the hearing, counsel addressed me on the basis that
E compensation was payable under section 10 of the Ordinance. This E
section applies in the case of a temporary incapacity, whether total or
F F
partial. And if that section were applicable, Hang Fai’s liability would be
G to pay 4/5 of the wages up to a period of 2 years (in the absence of an G
application to Court under section 10(5)). Anything beyond would have
H H
been paid under a mistake, and is in law, plainly recoverable by Hang Fai
I from the plaintiff, see Kleinwort Benson Ltd v Lincoln City Council I
[1999] 2 AC 349.
J J
K 73. I do not, however, believe that section 10 is the applicable K
provision here. The incapacity of the plaintiff was permanent, and the
L L
relevant section should be section 7. Since the plaintiff was over 56 at
M the time of the accident, the amount payable under section 7(1)(c) would M
N
be 48 times his earnings i.e. $960,000. On the evidence before me,
N
I accept that Hang Fai has been paying the plaintiff about $20,000 per
O O
month from the date of the accident. That sum did not exceed $960,000.
P P
74. At the trial, Mr Lam offered on behalf of the plaintiff an
Q undertaking with the view to removing any possibility of double recovery. Q
R
I do not consider see how any offer of undertaking can overcome the basic
R
difficulty of the plaintiff’s case here. The short point is that since the
S S
plaintiff has received his wages as of right and without any obligation to
T
repay, he cannot be said to have suffered any loss under this head. T
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A A
75. Hang Fai would have a right under section 25(1)(b) of the
B B
Employees’ Compensation Ordinance to sue for the recovery of any sum
C which it is obliged to pay as a result of the accident. That, however, is C
not a matter I can be concerned with for the purpose of these proceedings.
D D
E 76. Does it matter that the payment made to the plaintiff was only E
notional, as it was really paid back into the family pool? If the plaintiff
F F
was really paying the money back pursuant to a legal or moral obligation
G to refund, it can be said that he did not really receive any money, and there G
should be no reason why the defendant should have the benefit of that
H H
payment. However, what actually happened was simply that the money
I was used by the plaintiff’s wife to disburse family expenses. The I
payment to the plaintiff was intended to discharge Hang Fai’s legal
J J
obligation under the Ordinance. It was not a sham, but rather one which
K was intended by the parties to have full legal effect. Moreover, the K
plaintiff was part of the family, and it cannot be said that he did not benefit
L L
from the payment. In the circumstances, I hold that the plaintiff has not
M suffered loss in pre-trial loss of earnings because he has received full M
N
payment from his employer.
N
O Post-trial loss of earnings O
P 77. The position with regard to post-trial loss of earnings is P
entirely different. The plaintiff’s son gave evidence, which I accept, that
Q Q
Hang Fai could not continue making the payments.
R R
78. In any event, I am not concerned with a situation where the
S S
plaintiff has received money, and therefore, cannot claim for a loss. I am
T T
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satisfied that he has suffered loss of future earnings, which I assess at
B B
$20,000 x 12 x 1.05 x 4 = $1,008,000.
C C
79. In this connection, I note that although Dr Woo expressed the
D D
view that the plaintiff might be suited for simple menial tasks such as a
E messenger or a delivery worker, Mr Chan did not advance any argument to E
the effect that the plaintiff has not totally lost his earning capacity. In my
F F
view, Mr Chan was right not to do so. The evidence is that the plaintiff
G often forgets what he has done a moment ago and needs to be reminded of G
his appointments. I regard it as most unlikely that he would be
H H
employable as a messenger or delivery worker.
I I
Future medical expenses
J J
80. This last item of controversy on quantum revolves around the
K K
question whether it is reasonable for the plaintiff to seek the cost of a
L cranioplasty in a private hospital, as opposed to undergoing the operation L
in a public hospital. On this aspect, I accept the evidence of the
M M
plaintiff’s wife to the effect that the plaintiff has had very bad experience
N when he was last hospitalized in a public hospital. It would still be a N
challenge for Mrs Law to persuade the plaintiff to agree to the surgery at a
O O
private hospital, but at least the prospect that he would be accompanied by
P his wife without the limitations of visiting hours imposed in a public P
hospital would be likely to make the whole experience much less
Q Q
formidable for the plaintiff. I accordingly allow the sum claimed by the
R plaintiff under this head of $106,000. R
S S
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Order
B B
81. Apart from the above, the parties have agreed special
C C
damages in the sum of $20,913. The total quantum therefore comes to
D $1,100,000 + $100,000 + $1,008,000 + $106,000 + $20,913 = $2,334,913. D
There must be a deduction of 25% on account of contributory negligence.
E E
The total sum I award is therefore $1,751,185. There will be interest at 2%
F on the PSLA award, and interest at 1/2 the judgment rate on special F
damages, both from the date of writ to the date of judgment.
G G
H 82. I make an order nisi that the defendant shall pay the plaintiff’s H
cost of the action, to be taxed if not agreed. The plaintiff’s costs be taxed
I I
in accordance with the Legal Aid Regulations.
J J
K K
L L
(Benjamin Yu, S.C.)
M Recorder of the Court of First Instance M
High Court
N N
Mr Simon H.W. Lam, instructed by Messrs S.H. Chou & Co., for the
O O
Plaintiff
P Mr Samuel Chan, instructed by Messrs W.K. To & Co., for the Defendant P
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