Lee Hon Cheung v. Chan Tang Kai Lan and Another

HCA004522/1991

1991, No.A4522

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon Mr Justice Cheung in Court

Dates of hearing: 1, 2, 3, 4 19 and 20 May 1995

Date of delivery of judgment: 30 October 1995

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J U D G M E N T

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Chan Pui Ki v. Leung On and Kowloon Motor Bus

1. After the conclusion of this case, the Plaintiff in Chan Pui Ki v. Leung On and The Kowloon Motor Bus Company (1933) Ltd. (H.C. Action No.A2006 of 1992) argued that the conventional multiplier is no longer appropriate and the award for pain, suffering and loss of amenities should be revised upwards. The judgment in that case is delivered by me today. In view of the decision I have reached in that case, other than giving judgment on liability, I shall not give judgment on damages in this case. I shall invite counsel to address me further on the appropriate multiplier and the award for pain, suffering and loss of amenities and to adduce further evidence relating to the multiplier. I have, however, set out in this judgment the damages I would otherwise have awarded.

Liability

2. Over seven years ago, the Plaintiff, Lee Hon Cheung, Gerhard ("Mr Lee") was seriously injured in a traffic accident, he was then ten years old. He is now 18. He was born on 26th August 1977. His father now brings this action on his behalf to recover from the Defendants damages arising out of the accident. The 2nd Defendant was the owner of a car No.DH8100 while the 1st Defendant was the driver of that car.

3. The accident happened at the junction of Lung Cheung Road and Hammer Hill Road. The location of the junction is shown on the plan at p.10 of the agreed bundle of documents. Lung Cheung Road was a dual carriageway. On the southern side the traffic travelled from east to west and on the northern side, the traffic travelled from west to east. Inside the junction there was a yellow box. On each of the four corners of the yellow box there was a triangular pedestrian island. There were pedestrian crossings leading from the pavements of Lung Cheung Road and Hammer Hill road to the four triangular islands. There were also pedestrian crossings surrounding the yellow box and connecting each of the triangular islands. To the right of the yellow box, there was a central island in the middle of Lung Cheung Road.

The Plaintiff's case

4. On 21st June 1988 at about 4:30 p.m., Mr Lee was going home after finishing his piano lesson. His home at that time was in Tai Kung Road near Hammer Hill Road. He started his journey on the pavement in the south eastern side of Lung Cheung Road. He wanted to cross the road from south to north. He illustrated on a plan the path he had taken : he was on the south-eastern part of Lung Cheung Road and he used the pedestrian crossing to reach the triangular island. There was a pedestrian traffic light (marked X1) on the triangular island. The light was green when he crossed the road. When he reached this triangular island, he used another pedestrian crossing to come to the central island in the middle of Lung Cheung Road. There was also a pedestrian traffic light in the central island which he marked as X2. That light was in green when he crossed the pedestrian crossing. As he reached the central island, there was a barrier in front of him. As he could not walk straight on so he turned to his right and arrived at another pedestrian crossing. From this position in the central island, he saw the pedestrian traffic light, which he marked as X3, was green in colour, it was flashing. This traffic light was in the triangular island on the northern side of Lung Cheung Road. He looked to his left, he saw no cars coming so he walked the rest of the road quickly to the triangular island on the north-eastern side of Lung Cheung Road. He was, however hit by a car in the middle of the road. From the path he has drawn on the plan, he did not use the pedestrian crossing after he left the central island, instead his path took him slightly to the left of the pedestrian crossing.

5. He denied that he ran from the western end of the central island at an angle across the yellow box in order to go to the triangular island on the north-western side of Lung Cheung Road. He said he did not run into the yellow box. From what he could remember, when he was hit, half of the car that hit him was in the yellow box and the other half was outside the yellow box. He said that he was near the pavement when he was struck by the car.

The Defendant's Evidence

6. At the time of the accident, the 1st Defendant Miss Chan was a nurse by occupation. She was also a director of a food import company. On that day, she had just finished her work at the hospital, her shift was from 8:00 a.m. to 4:15 p.m. She was driving on the third lane away from the curb. She was driving along Lung Cheung Road from west to east. Her car was a Mercedes Benz 300SE, it was six to eight months old. The car had an anti-lock braking system ("ABS"). In 1988, she had driven along that road a few times. Prior to that between 1974 to 1980, she lived in Kwun Tong and she travelled along that road very frequently. She was familiar with the junction between Lung Cheung Road and Hammer Hill Road. She was aware that the junction was controlled by automatic traffic signals. She was driving at about 30 miles per hour and she noticed that the traffic light was in green when she entered the yellow box. Her car was near the middle of the yellow box when she first noticed the Plaintiff. He was 4 to 5 feet in front of her car to her right. She did not know where he had come from. She had not seen him previously. She was in extreme panic and she stepped on her brake pedal at once but the front left hand side of the car hit him. She did not sound the horn. The impact caused him to be thrown up, and then landed on the left of her car. After she stopped her car, she got out and ran towards him. She then ran to make a telephone to the police in a shop on the other side of the road. Then she went back to look after the Plaintiff. She said her car stopped within the yellow box.

Accident occurred inside the yellow box

7. There is a conflict of evidence as to the exact location of the collision. Mr Lee said he was hit by the car very near to the pedestrian crossing whereas the driver said the collision took place within the yellow box in the junction. Mr Lee was cross-examined as to a statement he made to the police on 23rd July 1988 in which he said he was hit after he had ran about 6 paces into the carriageway. He explained that when he gave the statement he was not fully conscious (after the accident, he was unconscious for about 3 weeks). He was asked questions by the police and he provided yes or no answers to the police officers. The police suggested to him a range of steps and asked him if the suggestion was correct. When the police mentioned the approximate number of steps, he answered yes. I accept the evidence that his father tried to stop the interview, but the police insisted to have the statement taken from him. The police had previously come to the hospital when he was still unconscious. At the end of the statement, his father was asked to sign. His father initially refused, saying that his son was not fully conscious, but the police asked the father to sign nonetheless. I am satisfied that what Mr Lee said in his statement does not give an accurate account of the events. He was simply not physically fit enough to give an accurate account to the police.

8. I have fully considered the evidence of the parties. I have no doubt that Mr Lee was an honest witness. However, I also bear in mind the fact that he was only 10 years of age at the time of the accident and he sustained serious injuries which according to the evidence caused him to lay unconscious in hospital for three weeks. As a result, his recollection of the event that took place so long ago may not be accurate.

9. According to a sketch plan prepared by the police, the car was shown to be within the confines of the yellow box with its front protruding slightly over the edge. According to Mr Ho Kay, a passer-by who arrived at the scene shortly after the accident, the vehicle was in the yellow box when he arrived. Ms Pinto, Counsel for Mr Lee, argued that the plan was not drawn according to scale, the police officer who prepared the plan did not give evidence and Mr Ho Kay in his cross-examination said that he could not recall whether the car was half in the box or wholly within the box. She submitted that Mr Ho could only be relying on the police sketch plan when he said the car was in the box.

10. I have taken these matters into account. The reason for not calling the policeman who prepared the sketch plan was because he had since emigrated. The sketch plan was prepared by the police shortly after the accident. There is no indication that the car had moved after the accident. After such a lapse of time, Mr Ho's memory would necessarily be blurred. However, according to his statement given to the police on 12th July 1988, he said that after he heard the "bang" sound, he saw the car was inside the yellow box of the road. Looking at the independent evidence, I am satisfied that the final position of the car was as indicated on the sketch plan. Dr Lingard, a motor vehicle expert called by Mr Lee, said that after the impact the car would travel a short distance of about 5 meters before coming to a complete stop. If this is the case then the accident must have taken place inside the confines of the yellow box. The finding I make is that the accident occurred inside the yellow box.

11. Mr Pirie, Counsel for the Defendants, argued that Mr Lee was at that time running from the central island diagonally towards the north-west part of the junction and that the traffic light was green in favour of the driver. I accept Mr Lee's evidence that when he started to cross the Lung Cheung Road from south to north the traffic light he had seen was green and at some stage the traffic light he saw in front of the central island was flashing green. However, the likelihood is that by the time he started to cross the last stretch of Lung Cheung Road the traffic had changed colour. He agreed that he did not travel on the pedestrian crossing after he left the central island. I accept his evidence that after he had reached the central island, he turned to the right because of the barrier in front of him and arrived at the pedestrian crossing. I find that he had strayed into the yellow box when he started to cross the road.

12. Mr Seymour-Hart, a motor vehicle expert called by the Defendants, boldly asserted that Mr Lee must have come out from behind the railings in the road in the central island and the flashing green light he might have seen was not the one described by him in his evidence but the one on Hammer Hill Road which was diagonally ahead of him when he came out from the railings. I shall deal more with Mr Seymour-Hart's evidence later on, however, I do not accept what he said regarding which traffic light Mr Lee had seen. This is entirely a matter of surmise which I do not think an expert would be in a better position to deal with and there is no evidence to show that Mr Lee had, in fact, emerged from the railings in the central island.

Was the Plaintiff wholly to blame?

13. Mr Pirie submitted that based on the fact that the accident occurred in the middle of the yellow box, Mr Lee must be wholly to blame for the accident. Mr Pirie first of all accepted that there if a motorist saw a pedestrian on a traffic island doing or about to do something stupid, like running out, then he must take some action either by braking or by sounding his horn or swerving his car. This is because a car can do much more damage to a pedestrian than a pedestrian can do to the car.

14. In London Passenger Transport Board v. Upson [1949] AC 155, Lord Uthwatt at p.173, disagreed with the view that drivers are entitled to drive on the assumption that other users of the road, whether drivers or pedestrians, would behave with reasonable care. He said that :

"It is common experience that many do not. A driver is not, of course, bound to anticipate folly in all its form, but he is not in my opinion entitled to put out of consideration the teachings of experience as to the form those follies commonly take."

15. Mr Pirie further accepted the proposition that a motor vehicle driver approaching a pedestrian crossing where pedestrians had generally crossed ought to exercise special care and be watchful to see that pedestrian do not cross regardless of whether the lights are in his favour or not. He argued, however, that the present action did not occur on a pedestrian crossing. He argued that at busy junctions, where a driver has to concentrate on a number of factors, such as traffic emerging from the side or traffic in front of him, he is not negligent even if he had seen the Plaintiff on the pedestrian island, a split second or so before the pedestrian dashed out from the island.

16. In Davies v. Journeaux [1976] RTR 111, a young girl stood on the pavement and then began to dash across the road looking away from the car. This was seen by the passenger in the defendant driver's car. The driver who had not sound the horn and did not see the girl until she was dashing across the road applied the brakes heavily but collided with her and she was injured. Edmond Davies, L.J. held at p.115 that :

"For my part I cannot hold that because, as it turned out, the passenger saw the girl standing 'momentarily' on the platform a split second or so before the defendant driver saw her dashing across that of itself establishes a lack of proper look out on the defendant's part. But, of course, it does not stop there, because as I have already sought to make clear, even had the defendant seen the plaintiff at the same instant at the passenger did, there was no ground upon which in my judgment it can properly be said that he should have then proceeded to do the one thing which it is complaint he failed to do, namely sound the horn."

The Court of Appeal held that the pedestrian was wholly to blame for the accident.

17. Mr Pirie argued that in the normal cause of event a driver should not have to anticipate a pedestrian will cross the yellow box diagonally across her path when the pedestrian should have been on the island which was possibly obscured by traffic lights or railings or other street furnitures. He argued that if the possibility of danger emerging is only a mere possibility which would never occur to the mind of the reasonable man, then there is no negligence in not having taken extraordinary precautions.

18. In Moore v. Poyner [1974] RTR 127, the driver was driving his car along a residential road. There were houses on both sides of the road. Parked against the kerb outside a house was a coach. Adjoining the house and leading to the road was a pathway. The coach concealed the pathway from the driver's view. A child ran from the pathway and across the pavement in front of the coach. She then ran into the road and was struck by the driver's car. The Court of Appeal held that the child was wholly to blame for the accident. Buckley, L.J. held at p.133 that :

"It seems to me that this is a case in which there was an appreciable risk that a child might be masked by the coach and that he might run into the path of the defendant's car; but the likelihood of that happening at the precise moment at which he was passing the coach was so slight that it is not a matter which the defendant ought to have considered to require him to slow down to the extend that I have indicated."

19. In Ng Ching Hung v. Lau Shun Hing [1990] CA182, a driver saw a maxi-cab stopped ahead of him to take-up passengers. The driver steered his car to the right in order to overtake the maxi-cab. When his car, reached the front of the maxi-cab, a man suddenly run out from the front of the maxi-cab and was struck by the driver's car. The Court of Appeal held that :

"To require a driver in circumstances such as this to slow down from the moderate speed of 25 to 26 mph to a speed that would ensure that he was in a position to avoid any risk of a pedestrian running into his path from in front of the mini-bus would be quite unreasonable. We are also satisfied that the suggestion that the defendant should immediately have sounded his horn places too heavy burden on the driver. The defendant drove his vehicle so that it was well clear of the maxi-cab, he was no shown to have proceeded at an unsafe speed in the circumstances and there is no evidence that he failed to keep a proper look-out. When the plaintiff appeared in front of him, there was no action that he could take to avoid a collision. In our view, there is nothing before the judge to establish that the defendant failed to act with reasonable care. We were satisfied that the trial judge was wrong to find negligence on his part and that this appeal must therefore succeed."

Defendant liable

Failure to exercise proper lookout

20. I disagree with Mr Pirie's submission that the driver was not in anyway liable for the accident. Her evidence was that when she first noticed Mr Lee, he was 4-5 feet away from her to her right. If this is so, clearly she had not keep a proper look-out when she was driving her car. Lung Cheung Road was a straight road. There is no evidence that her view was blocked by street signs or by barriers erected in the middle of the junction. There was no reason why she would only have noticed Mr Lee when he was so near to her.

21. Furthermore, according to Dr Lingard, an expert called by Mr Lee and whose evidence I accept, in order to achieve the stopping position of the car as shown on the plan, with a speed of 30 mph, which the driver said was the speed she was driving, the total stopping distance, taking into thinking time as well, would be between 24 to 25 meters. Since the impact would be 5 to 6 meters before the car came to a rest, the distance must be at least 20 meters when the driver first saw Mr Lee. The Defendants' expert said that given the car was fit with an ABS system, the total stopping distance of the car would be between 16.3 meters and 20.4 meters. I shall deal with this aspect of the case later on. But whatever distance one would adopt, the driver's evidence regarding the distance she first saw Mr Lee could not stand.

22. Had the driver kept a proper look out of the road ahead of her she would have seen the little boy in the road. I would expect a reasonable driver to sound the horn or take preventive actions to avoid hitting the boy. She did not sound her horn or try to swerve her car. She did not say that it was not possible to swerve her car to the adjoining lanes because of traffic conditions. The evidence was that her car was travelling on the same lane at the time of the impact. Had she swerved to the two other lanes, the collision could easily have been avoided.

23. The case of Ng Ching Hung was clearly distinguishable because the driver could not see the man before the accident because his view was blocked by the maxi-cab. Similarly in Moore the view of the driver was blocked by the stationary coach.

24. In the present case, the driver was approaching a road junction. It is clear from the plans that there were pedestrian crossings surrounding the road junction. While the traffic light might be in her favour, it does not mean that she could disregard the presence of pedestrian. It is worthwhile to consider Au Cheung v. Choi Lai-fan [1979] HKLR543. In that case, the driver knocked down a pedestrian who was crossing an uncontrol pedestrian crossing on a dual carriageway located near a road junction. The traffic light was green in his favour. The trial judge's conclusion that the driver was 80% to blame for the accident was not disturbed by the Court of Appeal. Roberts C.J. held that,

"In a case with facts of the nature which we have been considering and taking account of the way in which pedestrians commonly behave in Hong Kong, a similar duty should surely lie upon the driver to have regard to the possibility that a pedestrian might step into the road ahead of him. Green light is permission to a driver to drive beyond a certain point, it does not entitle him to lower his standard of care ....."

"In my opinion, the significance of the presence of a studded area is that it amounts to an invitation to pedestrians to cross there, with due regard to the dangers of motor traffic. It is also a warning to motorist that pedestrians are more likely to be found in that area than they would on unmark parts of the road, so that a higher degree of care is required from them when approaching such areas ....."

"..... stepping outside the studs will be only one of the factors which the court will have to take into account in assessing the degree of negligence of a pedestrian. Taken by itself, it does not seem to me to be a factor which is necessarily of any significance at all ....."

"In essence, this is the case in which either the driver was driving too fast and thus was unable to pull-up in time to avoid the collision, or as seems far more likely, that he was driving at a reasonable speed (and this seems to be substantiated by the absence of brake marks, and by the comparatively short distance between the impact and the point at which the vehicle became stationary) but failing to keep a proper look-out. It is difficult to see how, if he had been giving proper attention to the road ahead of him, he could have failed to see a pedestrian walking across the road in front of him at a brisk pace, until the moment at which the vehicle hit the pedestrian."

25. In So Loi Mui v. Tang Shiu Gay [1977] HKLR 181, a child of 7 years of age was knocked down and injured by a car driven by the defendant as she was running across the road. The road on which the accident occurred ran alongside the harbour and on the harbour side there were spectators including children who were watching practice of the dragon boat race. Yang, J. (as he then was) after referring to Davies and Moore held that :

"The principle which emerges from the observations cited above appear to be this : whether the road condition at the material time was such that a reasonably careful driver should have anticipated the possibility of a danger emerging, if so, then he should take such steps as are reasonably necessary to avoid such danger should it emerged."

He held that if the driver in that case had been keeping a proper look out he would have noticed the spectators on the side of that stretch of the road and he should have seen the plaintiff starting to run across when he was about 30' away from her. He held that that defendant was 60% to blame.

26. In Au Ching Bun v. Chan Siu Pui (HCA No.6699 of 1983), the Plaintiff, a boy of 5½ was crossing a road with his elder brother who was about 7 years of age. They were crossing the road on a zebra crossing. The brother let go of the plaintiff's hand in order to cross the road quickly. The plaintiff ran into the road and was knocked down by a bus. Deputy Judge Nazareth (as he then was) held that the bus driver was negligent in failing to drop his speed when he came to the zebra crossing from which there were approaching pedestrians. He was also negligent in not maintaining a proper look out. He should have noticed the two young boys. He held that :

"Any reasonable driver should exercise a high degree of care on the zebra crossing, particularly pedestrians are using it, than elsewhere on a road."

27. In Kong Chung Ching v. Lam King Ho (Civil Appeal No.197 of 1991), a driver struck a pedestrian when he was endeavouring to cross a road. The trial judge apportioned the liability of the parties to be fifty-fifty, the Court of Appeal affirmed the decision. Nazareth, J.A. held at p.17 that :

"That said, I have to say that I am disturbed by the safety, ease and lack of effort with which action, i.e. to sound the horn or move away into the adjoining lane, could have been taken by the 1st Appellant (driver) in the particular circumstances, even if they were not usual; also by the possibility that such action might be the natural and instinctive reaction of any driver."

Kaplan J. held at p.18,

"I take the view that if a pedestrian is so careless of his own safety that he climbs over the railings in order to cross a road and does not look in the direction of on-coming vehicles, it is an inference for the reasonable driver to draw that such pedestrian is likely to cross the road without waiting or checking. It would have been so easy for the 1st Appellant (driver) to sound his horn or move to the empty adjoining lane and I am satisfied that this would or should have been the natural reaction of any reasonable driver.

The basis facts were there for him see and a situation such as this does not permit of a driver weighing up the likelihood whether the pedestrian who had placed himself in this dangerous position, was or was not going to wait for the vehicle in question to pass. In my judgment, the 1st Appellant was clearly put on notice that something untoward might well be about to happen and he should have taken appropriate steps to deal with the situation."

28. In Mulligan v. Holmes [1971] RTR 179, two pedestrians were crossing a studded crossing in a road junction. As they crossed, the lights were green in favour of the cars. They were hit by a car. The trial judge apportioned liability of the car driver and the pedestrians as fifty-fifty. The Court of Appeal altered the pedestrian's liability to be 20%. Salmon, L.J. held at p.184 :

"In considering what proportion they (the pedestrians) should bear, one has to consider the degree of blame worthiness and causative effect attaching to the negligence of the respective parties."

He held that in so far as any blame attached to the pedestrians, it was very small indeed and he would attribute 80% of the blame to the driver and 20% of the blame to the pedestrians.

29. The driver was approaching a road junction with pedestrian crossings. She had to cross two pedestrian crossings which were located on either side of the yellow box. To repeat the words of Roberts C.J., the presence of the studded pedestrian crossings is a warning to a motorist that pedestrians are much more likely to be found in that area then they would on unmarked parts of the road so that a higher degree of care is required from them when approaching such areas. The fact that Mr Lee was in the yellow box and not in the pedestrian crossing should not make any difference as far as the driver's ability is concerned because the yellow box was between the two pedestrians crossings and it was within the area in which the driver was required to pay a higher degree of care.

30. Further in the present case, a pedestrian found inside the yellow box should clearly put the driver on notice that something untoward might well be about to happen and she ought to take on preventive measures to avoid hitting the pedestrian.

Excessive speed

31. I am also satisfied that the driver is liable because she was driving at an excessive speed in the circumstances of the case. Dr Lingard has established and I accept his evidence that what the driver said regarding the accident could not be correct. Dr Lingard measured the width of the yellow box to be 22 meters. For someone driving at 30 mph, the stopping distance would be 25 meters. If the Defendant commenced braking when she saw Mr Lee in the middle of the yellow box, the end up position of the car would be beyond the edge of the yellow box. Dr Lingard was further of the opinion the car was travelling at a relatively high speed in view of the damaged parts of the car as described in the MVE Accident Report. The nearside front body panels, wheel arch panels, bonnet panels were buckled and displaced and the head light unit was damaged. The speed was higher than 30 mph although Dr Lingard was unable to say how much higher. He said :

"As a fairly subjective observation, for a car of this type that seems to me to be a very extensive damage for an impact with a pedestrian at relatively low speed, particularly a pedestrian who is relatively small and not very heavy."

32. Mr Seymour-Hart measured the width of the yellow box to be 20 meters. He gave a range of the stopping distance of the car travelling at 30 mph. If the brake has a co-efficiency of fiction of 0.8, the car would stop at 20.4 meters. At a co-efficiency fiction of 0.9, the car would stop at 19.2 meters. This is based on a braking distance of 10.1 meters plus a thinking distance of 9.1 meters. At a co-efficiency fiction of 1.12, the braking distance is 16.6 meters. He said using the 0.8 value the driver could have just stopped in the box and using the 1.2 value she could have stopped well within the confines of the box. He attributed the short braking distance to the presence of the ABS system in the car. He referred to pp.76 and 77 of Bingham Motor Claims in which the author referred to braking distance of 33' on a dry smooth concrete when the car travels at 30 mph. He used a thinking time of 0.68 seconds to arrive at a figure of 9.1 meters. At p.77, Bingham also referred to the Highway Code which gives the overall stopping distance for a car travelling at 30 mph at 23 meters. It is made up of 9 meters thinking distance and 14 meters braking distance.

33. I am satisfied that Mr Seymour-Hart's evidence regarding the stopping distance of the car is incorrect. First of all, the thinking distance in the Highway Code is based on a reaction time of 0.68 seconds. I am satisfied with Dr Lingard's evidence that one second is more typical for an average alert driver and 1.3 seconds for one who is not concentrated. This is supported by a report of the Accident Investigation Unit of the London Metropolitan Police in 1985. Mr Seymour-Hart had under-estimated the driver's reaction time and overestimated the braking efficiency of the car. The MVE accident report showed that the braking efficiency of the car was 90%. Mr Seymour-Hart said the result of the test was probably done by a tapley meter which was a simple device. It would give a single reading of retardation and would not show the full dynamic situation. Even assuming that a tapley meter was used (and there was no evidence in this regard), Dr Lingard said this device operated well. They are well-developed and are absolute in their calibration. They are widely used all over the world for investigative braking testing. Dr Lingard said that a brake efficiency at 90% is a very good level even for a new car with an anti-lock brake system. The 1994-1995 road test figures referred to by Dr Lingard showed that 80% to 90% is the typical level of maximum brake efficiency for the new cars on dry roads.

34. Mr Seymour-Hart referred to a publication of the 1994 Society of Motor Engineer in which it was said that a shorter braking distance is achieved by a car equipped with an ABS system. Dr Lingard referred to an article in the Automobile Engineer of December 1994 which stated, inter alia, "anti-lock brake systems were initially developed to maintain vehicle stability under heavy braking. Brake control to maximise braking effort as well has only been achieved recently ..."

35. In the present case, the car was manufactured in 1987. The fact is that Mr Seymour-Hart has simply not tested the car and his evidence that the car can achieve a shorter braking distance is not supported by the evidence.

36. Mr Seymour-Hart also expressed his surprise that the damage to the car appeared to be little more serious but he discounted the seriousness by saying that the damaged parts of the car were made of light material. He said the head lamp was fixed with plastic fitting, the radiative grille was a plastic component, the body panels were made of a fairly thin steel and was quite easy to be indented. He also said that if a pedestrian runs directly towards a car while the car is heading his way then one would have the maximum effect of the pedestrian momentum as he struck the front of the car.

37. Dr Lingard had calculated the impact of the car and the boy and came to the view that the impact was minor. He could not correlate it to the damage to the car as described in the MVE report.

38. I must say that I am not impressed with the evidence of Mr Seymour-Hart. Notwithstanding his own admission in his first report that there was an absence of technical evidence such as tyre skid marks, debris and other contact evidence and that it was impossible to reconstruct the stage of the accident or to have accurately estimated the approach speed of the car, he still boldly concluded that Mr Lee was wholly to blame for the accident without giving any reasons.

39. He was prepared to give an opinion as to which particular traffic light Mr Lee might possibly have looked at before he crossed the road. Obviously, this is a matter of surmise which had nothing to do with the technical aspect of this case. Notwithstanding the fact that an independent witness, Mr Ho Kay who stated that the traffic was not heavy at 4:30 at that junction and that the traffic would only become heavy after 5 p.m., Mr Seymour-Hart maintained that the junction was an extremely busy junction at the time of the accident. I am not assisted by his evidence.

Apportionment of liability

40. I am satisfied that Mr Lee should also be responsible for the accident. He probably had seen a green flashing light at some stage of his crossing but when he crossed the last stretch of Lung Cheung Road the traffic light was no longer in his favour. He had not kept a proper lookout of the traffic that might be coming from his left. He did not use the pedestrian crossing in front of when he crossed the last stretch of road. Although at the time of the accident he was ten years of age, he should have recognised the danger of running across the road in such a manner.

41. However, I am of the view that the 1st Defendant should be responsible for a greater proportion of the blame. Had she taken a proper lookout and take preventive measures such as sounding the horn or swerving her car to another lane the accident could have been avoided. Furthermore, her speed was excessive in the circumstances of the case. I find that the Plaintiff was 30% negligent and the Defendant was 70% negligent.

Injuries

42. Mr Lee sustained serious injuries as a result of the accident. He was immediately admitted to the United Christian Hospital. Because of his deteriorating conscious state he was transferred to the neurosurgical unit in the Prince of Wales Hospital ("PWH") on the same day. He was discharged from hospital on 30th July 1988.

Orthopaedic injuries

43. Mr Lee fractured his femoral shaft and the proximal part of his left tibia. He undergone two operations in the fractured limb. A pin was inserted into the heel region and weight was applied. He tolerated the traction very poorly. A long leg dynacast was given instead 5 days later. The cast was kept for 4 weeks then it was changed to a long leg brace. He attended out patient treatment five times. He was discharged on 30th July 1988 on full weight bearing walking.

44. On 2nd November 1988, he was observed to be walking with a mild limping gait with shortening of his left lower limb by about 1.5 cm. When he was examined by Dr Yeung Po Sun on 12th October 1991, the fractures had healed but there was a 15o medial angualation in the femoral fracture. There was a shortening of 1 cm of the left leg. There was some stiffness of his left knee and wasting of the left thigh muscle. After he was discharged from the hospital he had difficulties in moving about. He took up sports again two years ago. He can now play soccer. He is also studying Chinese martial art. As a result of the leg injuries he was not able to assert as much force with his left leg and he tried to avoid kicking with his left leg. There was a limitation of movement and he could not bend his left leg.

Head injury

45. On admission to the PWH he was confused, opened eye RTO verbal command and localised pain.

46. C.T. scan showed cerebral oedema. He was disorientated and confused for about 3 weeks until 15th July 1988. When he attended the out-patient treatment at the Prince of Wales Hospital on 21st September 1988 he was neurologically stable but complained of deterioration in memory and in frequent headache. He complained to Dr W.T. Siu of the Department of Surgery, PWH on 2nd January 1991 of poor concentration and intermittent headache. Dr Siu was of the opinion that he suffered a mild to moderate degree of permanent neurological deficit.

Cosmetic injuries

Face

47. On admission to the hospital there were two deep lacerations over the left eyebrow and forehead measuring 4 cm and 6 cm respectively. There were multiple bruises over the left lower abdomen, several lacerations over the left thigh. When Mr Lee was examined by Dr Philip Mao in June 1993 there was a 3¼ inch long vertical oblique scar running from the left forehead and slicing through the left eyebrow at the junction of the middle and lateral thirds with deficiency of the eyebrow. The scar continued downwards to the lateral side of the left eye.

Body

48. There are multiple keloidal irregular scars totalling eight in all on the lateral and anterior services of the upper part of the left thigh. The biggest one measures 2 inches x 1 inch. The rest, on an average, are about 1 inch in diameter. On either side of the heel bone there are puncture holes where the pins had been inserted.

49. Mr Lee said he suffered pain from the scaring tissue, he was also worried about his scars on the face which was very apparent, he tended to think people would star him because of the scars. There was also some loss of bone of the upper orbital margin.

Impairment and disability

50. Dr Phillip Mou was of the view that Mr Lee has a total of 11% impairment of the lower extremity for his left leg which is 4% impairment of the whole person. He has another 2% impairment of the whole person for his facial's scar. There is a 10% impairment of the whole person in respect of his post-traumatic amnesia, the period of confusion and mental disturbance and headache. The total of impairment is 16% of the whole person. His disability was assessed as 20% of which the major part would be due to the head injuries which resulted in mental deterioration.

51. Dr Kan Yiu Ting was of the view that Mr Lee has a 30% impairment of the whole man :

Cognitive Personality charge Leg Cosmetic Headaches

15% 5% 5% 4% 1%

Assessment of head injuries

52. According to Mr Lee, he had headache for almost four years. Each duration lasted between 15 to 30 minutes. Besides the headache, he became bad temper with memory lost. He could not concentrate for a long period of time. When he tried to concentrate there was an onset of headache. When he tried to remember too many things at one time, he would mix-up the things.

53. Dr Kan Yiu Ting stated that a widely accepted criteria of assessing the severity of blunt head injuries is the duration of post-traumatic amnesia (PTA). An injury with a PTA of about three weeks is classified as very serve and grave neurological injuries are to be expected in the victims. In the case of Mr Lee, there is cognitive and personality deterioration. Dr Kan said that although he performed well during interview in tests of general information, topographic knowledge and academic subjects, these were very crude test of one's intellect. In the absence of formal intelligence tests before and after the accident the most reliable assessment should be the change in school performance. Dr Kan said that it was beyond doubt that Mr Lee has suffered a serious regression in school works particularly those involving more abstract or conceptual thinking. Impairment in school work is the most tragic thing that can occur in an adolescent as it affects his future career and achievement in life. He said "One cannot be accused of being far-fetch if one postulates that this injury may have rid the victim of his chance of becoming an professional in future." He gave a 15% impairment of the whole person in respect of his cognitive impairment.

Personality and mood changes

54. Mr Lee used to be joyful, outgoing and enjoyed companies. After the accident, he was withdrawn and showed less concern in his schoolworks. His temper now is irritable, easily provoked. He was involved in beating up a school mate so severely that hospital treatment was required.

55. Dr Kan was further of the view that by being relatively withdrawn an easily irritable Mr Lee has disadvantaged himself by distancing himself from people and may become notorious with his peers. Dr Kan suggested another 5% impairment under this head.

56. Dr. Kan was of the view that since there was no epileptic seizure in the first week after the accident, no development of intracranial hematoma, no depressed fracture of skull and no seizure to date, the future risk of epilleptic is negligible.

57. Dr Kan was of the view that Mr Lee could not possibly have entered tertiary institutes. He said it was very difficult to judge what kind of job Mr Lee could take but he could probably work as a salesman in the fast-food outlet. Dr Kan was not even certain Mr Lee could be a clerk in a commercial firm.

Pain suffering and loss of amenities

58. In December 1994 the Court of Appeal in Chun Yat Nam v. The Attorney General (Civil Appeal No.92 of 1994) revised the quantum of damages set out in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657. I set out the four levels of revised damages.

Serious injuries

Injuries which give a disability which mars general activities and enjoyment of life but allows reasonable mobility to the victim, e.g. a loss of a limb replaced by a satisfactory artificial device or bad fractures leading recurrent paying to $250,000 - $350,000.

Substantial injuries

59. Injuries which require treatment in hospital for many months and leave the victim with a much reduced degree of mobility, e.g. a leg amputated from the thigh so that an artificial leg cannot be used satisfactory; or multiple injuries which leaves a condition requiring regular treatment for the rest of the victim's life, $335,000 - $415,000.

Gross disability

60. Injuries which leave the victim with very restricted mobility or cause serious mental disability or behavioural changes. This includes paraplegic who, particularly if young can expect to be placed at the upper end of the bracket. $415,000 to $630,000.

Disaster

61. Victim requires constant care and attention and is incapable of ever leading or approaching an independent adult life. $630,000 upwards.

Defendants' submissions

62. Mr Pirie argued that the injuries sustained by Mr Lee fall within the lower to middle range of the serious injuries category. He suggested a figure of $275,000 plus 5% inflation due to passage of time since Chun Yat Lam was decided. He submitted that there is no evidence for Dr Kan to conclude that there is cognitive impairment of Mr Lee. There is an absence of proper evaluation of his intelligence impairment. Dr Kan did not look at Mr Lee's school reports when he made the assessment. The scar was not as apparent as indicated. Dr Mao was prepared to give 2% impairment in respect of the scars. The headaches had ceased after four years. Mr Pirie also drew my attention to the guidelines for the assessment of general damages in personal injury cases prepared by the Judicial Studies Board of England. In respect of head injuries, the suggested awards are as follows :

63. Mr Pirie submitted that the injury in this case falls within the Minor Brain Damage category.

Substantial injury/Gross disability

64. I agreed with Miss Pinto's submission that the injuries sustained by Mr Lee fall between substantial injury and gross disability. It is the combination of the head injury which resulted in cognitive impairment and personality change together with the physical and cosmetic impairments which leads me to this conclusion. Mr Lee suffered very severe head injuries. He was in hospital for three weeks in a unconscious state. Although there is no contemporary medical evidence as to what had happened in the three weeks, some idea can be gathered from the evidence of the father. During these three weeks Mr Lee was unable to recognise his parents or anyone else and was unaware of the events that took place around him. Throughout the three weeks he sang the first verse of his school song loudly which his father described as causing a nuisance to others. Then at the end of the three weeks he suddenly became silent and then he called out "Mom". He then began to recognise his mother and it was not until three days later that he could recognise his father.

65. At page 90 of Management on Head Injuries by Jennett and Teasdale the authors said that an approximate guide to the relationship between the return of speech and the end of PTA is that the interval from injury to the end of PTA is about 4 times longer than the interval until he first speaks (unless there has been a specific factor delaying the return of speech). However, relatives may remember when the patient first remember their previous visit, or "became really sensible" or "was himself"; this usually correlates with the end of PTA. If tests of orientation are being given day by day, the end of PTA will be found to correspond closely with the end of spatial disorientation.

66. In my judgment, in view of the long period of PTA the head injuries could be described as very severe head injuries. The head injuries had manifested themselves in the cognitive impairment of Mr Lee and in his personality changes. Although Mr Pirie pointed out that the test result for Primary 5, i.e. the year in which the accident occurred, had began to show signs of deterioration, on the whole the overall achievements by Mr Lee before his injuries was one of an intelligent and hardworking student. He was a student at La Salle College which is one of the more prestigious schools in Hong Kong. In Primary 3, his position in the final exam was No.2 in the class. He was described in the report as a cheerful, energetic and sociable boy who is frank and sincere in his manners. In Primary 4, good grades were shown in his exams. In Primary 5, there were some failures in subjects but on the whole good grades were achieved. He was exempted from final examination for Primary 5 because of the medical problems.

67. What happened after the accident was a different story. In Primary 6, i.e. the year after the accident, he still managed to get good grades, this probably was because of the special attention paid to him by the teachers. The deterioration in academic performance started at Form 1 onwards. In 1991 (Form 1) he was placed 274 out of 281 students; 1992 (Form 2), 269 out of 269; 1993 (Form 3), 261 out of 262; 1994 (Form 4), 214 out of 236; 1995 (Form 5), 201 out of 222. For his Form 4 results, he failed in his mid-year test and was given a conditional pass in the final test. For the Form 5 mock examination he again failed. He also failed in the first quarter exam in Form 5.

68. I accept the evidence of Dr. Kan. Although no intelligence test was conducted, the best indication of his intellectual deterioration is the school results particularly when the pre-accident results pointed towards an above average student achieving good grades at school. The Defendants have not called any contradictory evidence . What could cause greater pain to a young person than the deterioration in his cognitive power which would prevent him from developing his full potential and achieving the goals he wishes to achieve in life. Mr Lee also suffered a fracture of his leg, he has to go through two painful operations and has to wear a cast and a brace for a substantial period of time. He has to endure physiotherapy for his injuries. The cosmetic injuries are not minor in nature, the scar over his eyebrow and forehead was noticed by me. For a growing adolescent, the scars on his face and on his thigh are particularly distressing. All in all, a figure of $500,000 is a fair assessment.

Loss of earnings

Two approaches

69. The cases revealed that two approaches had been adopted by the courts in assessing loss of future earnings of an infant plaintiff. On one hand is the global award approach in which a lump sum was awarded. Examples of this approach can be found in the case of Joyce v. Yeomans [1981] WLR 549. In Hong Kong the lump sum approach was adopted in Renny Cho Kwok Hung (H.C.A. No. A168 of 1972) in which Macdougall J. in June 1980 awarded a sum of $150,000 to cover both loss of pain and suffering and future loss of earning. In Liu Suet Un v. Yu Man Fai (H.C.A. No. A4433 of 1985), Master Perrior in March 1987 awarded a lump sum of $150,000. In Cheung Wai Luen v. Wong Tsui Kwan [1976] HKLR 152, Mr Registrar Wong gave a lump sum of $35,000 for loss of future earnings. In Ho Wing Yan v. Ho Sau Ling Fanny (H.C.A. No. A3582 of 1990), Master Jennings awarded a lump sum of $220,000 for loss of earning capacity.

70. On the other hand, the court have adopted a multiplier and multiplicand approach in Lam Mei Lan v. Leung Yuk [1979] HKR 600 and Leung Chi Ming v. So Ki Yin [1978] HKLR 291.

71. Mr Pirie objected to the multiplier/multiplicand approach and he invited me to give a modest figure of $120,000 to $130,000 for future loss of earnings.

The multiplier/multiplicand approach

72. I am satisfied that after reviewing the authorities, a multiplier and multiplicand approach should be adopted. The case of Croke v. Wiseman [1982] WLR 71 is instructive. The English Court Appeal held that a gravely injured child of 21 months who was expected to live for many years into adult life was entitled to damages for loss of future earnings during his period of likely survival. The damage was not to be treated as being so speculative that it could not be assessed. Griffiths L.J. at page 82 held that in the case of a gravely injured child "there are compelling social reasons why a sum of money should be awarded for his future loss of earnings" Shaw L.J. agreeing with Griffiths L.J. at page 84 refused to accept that there should be any difference of principle between a child plaintiff and an adult plaintiff. The approach of Griffiths L.J. and Shaw L.J. was approved in the Privy Council in Jamil Bin Harun v. Yang Kamsiah and Another [1984]1 AC529 where a plaintiff aged seven years of age was injured in a motor accident. Lord Scarman delivering the judgment of the Privy Council held that :

"If damages are to be a fair and adequate compensation for a plaintiff who is expected to live for many years during which time he will be unemployable or his earning capacity substantially reduced, it will be necessary to assess his future loss, difficult though the task may be in cases where the victim is a child. Though difficult, the court must do the best it can upon the evidence."

"..... the Federal Court (of Malaysia) has demonstrated by its judgment that there is enough evidence to reach a reasonable, and certainly a not excessive estimate. There is clear evidence of the physical and mental consequences of an injury, which has converted a normal happy intelligent child into a person who will for the division of her life be unemployable, and a burden on her family and friends. The Federal Court, using its knowledge of Malaysian circumstances, estimated, in today's money the sort of earnings she could reasonably expect, without any special qualifications or skill to earn : and the appellant's counsel does not challenge their figures. While it would have help the court to have had evidence as to the present family and social circumstances, since it might have shown that this little girl had better prospect then average, any evidence given as to her future prospect would be as much a matter of inference and estimate as is the judgment of the court without such evidence. The reality is that in most cases the court must form its estimate based upon its own knowledge of social conditions and upon evidence (which was available from the doctor and the school) of the present and past circumstances of the plaintiff."

73. The decision of the Federal Court of Malaysia was reported in [1981] MLJ 292. At page 295, it was held that :

"Unfortunately, we do not have any evidence of Salbiah's social and economical background or her prospects. We have again to do the best we can and doing just that, we take what we believe to be a reasonably moderate figure of $200 for her net monthly income and having regard to a span of a working life of, say, 25 years, having regard to her age and to the discounts earlier referred to as necessarily to be taken, we arrived at figure of $33,816."

74. It is clear that the Federal Court was adopting a multiplier/multiplicand approach and this approach was approved of by the Privy Council. The decision is binding upon me and accordingly the multiplier and multiplicand approach is the one I will adopt.

Assessment

75. Mr Lee's father was unemployed at the time of the accident. He was formerly employed by a computer company in industrial production as a Sales Manager and eventually promoted to be the Area Manager of the Asia Pacific Region. Mr Lee has an elder sister of 18 years of age. She was finishing her advance level of study and was expected to enter university. There is also a younger sister. She is a Form 2 student. The mother worked at home as a garment worker. The father impressed me as a intelligent man and I agree with Miss Pinto's submission that Mr Lee would have been able to attend at least the level of his father but for the accident. With the opening up of tertiary education in Hong Kong, the chance of school children attending higher education after their secondary schools is high. However, because of the cognitive impairment, Mr Lee finished for the past five years in the lowest section of his forms, it is unlikely that he would have much chance of receiving a higher education. Dr Kan was of the view that he would probably work as a fast food worker. He was uncertain if he could even work as a clerical staff in an office. I accept Dr Kan's evidence in this regard: he was giving a realistic assessment as to what he considered to be the likely prospect of Mr Lee's future employment with his injuries.

76. According to the half-yearly report of wages statistics of September 1994 issued by the Wages and Labour Cost Statistics Section of the Census and Statistic Department of Hong Kong, the average monthly salary of a sales supervisor was $16,543. The average monthly salary of a general worker and captain in a fast-food shop was $5,458 and $8,719 respectively. I take as the median the average earnings $5,458 and $8,719 arriving at $7,088. The diminution in income is the difference between $16,543 and $7,088 at $9,455. As for the multiplier I would adopt Miss Pinto's suggestion of 13. This was accepted by Mr Pirie to be the correct multiplier if the multiplier/multiplicand approach was to be adopted. The loss of future earnings award is $9,488 x 12 x 13 = $1,474,980.

Miscellaneous damages

(1) Agreed damages $4,130. The parties agreed at this sum which represents hospital charges, out-patient treatments and walking equipment etc.

(2) Travelling expenses of family members in visiting Mr Lee while he was in hospital.

HK$120 (taxi fare per round trip) x 3 weeks per day x 40 days in hospital = $14,400 is claimed. At the time of the accident, the family was living in Diamond Hill, Kowloon. The hospital was the Princes of Wales Hospital in Shatin. I am satisfied that the amount claimed was a reasonable one and should be allowed. Mr Lee was in critical conditions. He had been unconscious for three weeks and his condition was so serious that the father thought the son had died when he was admitted to the hospital. Those were distressing times for the parents and they naturally would like to be with their son when he was in hospital. The parents took turns in visiting while he was in hospital. The father would go in the morning when the mother would stay at home to look after the youngest daughter. At noon time she took the daughter to the school bus. In the afternoon the mother would go to the hospital to visit the son. She would stay there up to the time when the youngest daughter returned from school. The father would go to the hospital again in the evening.

(3) Travelling expenses of Mr Lee and his mother in attending out-patient and follow-up treatments.

The sum of $11,315 was claimed. This represented $85 (single trip taxi fare) x 2 x 61 days + $7.50 (single trip bus fare) x 2 x 63 days.

After his discharge from the hospital, the mother had to take Mr Lee to the Prince of Wales Hospital for follow-up treatment and occupational therapy and to the Kowloon Hospital for physiotherapy. Initially the hospital visits were five days a week : two days in the Prince of Wales Hospital and three days in the Kowloon Hospital. Eventually the visits became less and the visits stopped at the end of 1992. The taxi fare from home to the Prince of Wales Hospital was about $180 return. In 1989/90, the family moved to Junk Bay and the taxi fare was less because of the shorter travelling distance. Mr Lee returned to school in September 1988. The mother took him to school and collected him after school. After school, they would take a taxi to the hospitals.

While the mother has not given details of the travelling expenses, I am satisfied the sum claim is a reasonable one. The mother impressed me as a truthful witness. She said that at that time the financial situation of the family was desperate and she tried to save money by taking the buses on some trips. According to Dr L. Wu who examined Mr Lee on 2nd November 1988, he was still walking with a mild limping gait. In view of the travelling distance and his physical conditions I am satisfied that the travelling expenses are reasonably incurred.

(4) Nourishing food

$30,000 is claimed. The father said that the two main items of nourishing food were shark-fin and birds-nest. The father believed there were gelatine substance in these two types of food which were conducive to the healing of bones. He could not give a breakdown of this figure but the round figure was $30,000. The father's view is one commonly shared by the Chinese population in Hong Kong. These two types of food are getting more expensive as years go by. I have no reason to disbelieve that the father had incurred such large sums of money in buying this type food. Following the approach in Yu Ki v. Chin Kit Man [1981] HKLR 419 I will allow a sum of $15,000 for tonic food.

(5) Loss of wages of the mother

Before the accident, Mr Lee's mother worked at home sewing garments she took home from a contractor. Her earning was about $3,000 per month. As a result of the accident, she was unable to work for two years because she had to look after her son. The loss of wage claimed is $72,000 at $3,000 x 24 months. I accept the mother's evidence that after the accident, she could not do the sewing work because she had to take care of her son and to take him to school and hospitals for medical treatment. Although obviously causing her some embarrassment, she frankly told the court that because of their financial difficulties she had sold quite a number of ornaments and jewellery which she had accumulated while her husband was earning a good income in his former job. The proceeds were used to support the family. While the husband had to go out to look for work and to maintain his contact, the responsibility of looking after the son fell on the mother. I am satisfied that she was unable to continue sewing the garments as a result of the son's accident. I will allow the sum of $72,000.

Summary

77. The total award of damages on the basis of full liability is as follows :

78. As Mr Lee was 30% to blame for the accident, this amount must be reduced by 30%, giving a sum of $1,464,291.50.

79. There shall be interest at 2% per annum on the award on PSLA from the day of the issue of the writ to judgment and thereafter at judgment at judgment rate until payment. Interest at 4% on the pre-trial special damages from the day of the accident until judgment and thereafter at judgment rate until payment.

80. However, as indicated, I shall not give judgment on damages and invite the parties to further address me on this issue.

Representation:

Miss Josephine Pinto, inst'd by M/s Tong & Tsoi for Plaintiff

Mr Nicholas Pirie, inst'd by M/s Hastings & Co. for Defendants