Chung Cheung v. Tung Hing Ho

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1067 of 1964

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Coram: Briggs J.

Date of Judgment: 23 September 1968

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JUDGMENT

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1. This case arises out of a traffic accident which occurred as long ago as 5th March 1964. The writ is dated 4th September 1964 and an appearance was entered to it on 5th January 1965. Nothing further occurred until the filing of the Statement of Claim on 18th September 1967. No defence was then filed in answer and judgment was given in the plaintiff's favour on 15th November 1967 when it was ordered that damages be assessed. This was set aside at the instance of the defendant on 16th December 1967 and a defence was filed on 4th January 1968. The case finally came to trial before me on 18th September 1968. Four and a half years have elapsed therefore since the accident happened. I was told that that part of the highway on which the accident occurred has been altered at some time during this long interval. And of course the recollection of the witnesses who were involved in the accident must necessarily be less accurate than if the case had been earlier tried.

2. I was given no explanation of why there has been this long delay. It is enough to say that it has not made my task any easier.

3. On 5th March 1964 at about 10 p.m. the plaintiff was walking on the pavement on the left hand side of Castle Peak Road, Kowloon, at approximately the 9 1/2 milestone. He was going in the direction of Castle Peak. He was followed by a woman, Tam Fung Lin, who was also on the pavement. These two persons were then unknown to each other.

4. While these two persons were on the pavement they were struck from behind by a motor-cycle driven by the defendant. They were knocked down and the plaintiff sustained serious injuries. I will deal with his injuries later in this judgment.

5. The plaintiff in his evidence said he was taken completely by surprise. He was employed at that time as a watchman in a factory which was close by. Indeed he was about to pass a side entrance to that factory when the accident occurred. He was off duty and was returning to his quarters at the factory having been to a cinema and had something to eat.

6. The plaintiff said that he was very familiar with that area and traversed it daily. The road there is straight. The weather was fine. There were street lights further along the road and he saw no sand on the surface of the road. He remembers seeing no traffic on the road coming in the opposite direction. And he did not see the motor-cycle until he was hit. The accident occurred at a place near to where Castle Peak Road ceases being a dual carriage way and becomes a single carriage way having a single white line in the centre of the road.

7. The plaintiff said he was on the pavement itself when he was hit. He had not reached the side entrance to the factory across which his path lay. A plan of the scene of the accident was agreed between the parties and exhibited to the court at the trial.

8. His evidence was corroborated by Tam Fung Lin. This witness as I have said, was following the plaintiff on the same side of the road. She was also on the pavement. She heard the sound of a motor vehicle. Turning to look she saw two motor-cycles, coming in the same direction as she was going. We now know that the first motor-cycle was driven by the defendant and that he had a passenger on his pillion.

9. Tam Fung Lin said the motor-cycles were going very fast. She saw the first one, the one driven by the defendant, mount the pavement and she was struck, knocked down and injured.

10. She says it was fine at the time and that there was no sand on the road. She is quite familiar with the area because she passes that spot on foot daily.

11. A third witness was called who was also walking along the pavement behind the other two. He is also familiar with the spot and he confirmed that it was a clear night and that the surface of the road was clean.

12. The plaintiff and his witnesses gave their evidence in a straight forward manner. There was no attempt at exaggeration. In particular the plaintiff struck me as being both truthful and accurate.

13. If a person is struck by a motor vehicle while he is walking on the pavement, the driver of that motor vehicle is prima facie guilty of negligence. This was not disputed in this case. But the defendant's case is that through a combination of circumstances the accident with which we are dealing was inevitable and that he is not to blame.

14. The defendant was the driver of the offending motor-cycle. On the pillion he was carrying as a passenger Yeung Yiu Lung. They are both young men. And had met causally at Tsuen Wan earlier in the evening. After some refreshment they decided to go for a joy ride on the defendant's motor-cycle which was a light machine down Castle Peak Road.

15. The defendant only received his driving licence on the day of the accident. He said he had held a learner's licence for some six months before this. He also said he had carried pillion passengers before. However it must be admitted that he was a driver with but little experience.

16. His evidence was that he was only travelling at about 25 miles per hour and when he arrived at that part of Castle Peak Road where it becomes a single carriage way he reduced his speed to about 20 m.p.h. A dog ran out from the pavement to his left hand side so he braked and swerved to his left to avoid it. There was loose sand on the road and this caused the motor bicycle to skid and he lost control and mounted the pavements. He said that there was a truck coming in the opposite direction on the other side of the road to his right. Hence he did not swerve to his right. He did not see any other traffic on the road at that time.

17. He also said that when he went into the skid he and his passenger were thrown off the motor bicycle and both were injured.

18. The defendant said he did not notice anybody on the pavement.

19. The pillion passenger also gave evidence and he also said he saw the dog came out from the side. He said the defendant swerved left and right and so avoided it. There was sand on the road. He was thrown off the motor bicycle and severely injured.

20. The defendant and the pillion passenger were both taken to hospital with the plaintiff and Tam Fung Lin by ambulance immediately after the accident.

21. The road at the scene of the accident is 48 feet wide excluding the pavements. The motor-cycle was 2 1/2 feet wide. There was no other traffic on the half of the road on which the defendant was driving. In my opinion there was ample room for him to manoeuvre round a dog which he said he first saw some 10 feet off, if he had been driving with proper care and attention.

22. The evidence about the dog is shadowy indeed. It was not of course seen by the plaintiff nor by Tam Fung Lin since it passed behind them. No questions about the dog were put to the third witness called on behalf of the plaintiff. Moreover the pillion passenger says he saw the dog near the spot where the road becomes a single carriage way. If the agreed plan of the scene which was exhibited is at all accurate there is a considerable distance from where the scrape marks are shown.

23. There was a direct conflict of evidence as to the sand on the road. From the evidence of the blood stains shown on the agreed plan it appears that the victim of the accident ended up in or close to the opening to the side entrance to the factory, at the spot where a person using the pavement would cross it. There is evidence that in that entrance there was sand and stones. There is a conflict of evidence as to the whereabouts of a concrete mixer. The plaintiff and his witness say it was inside the factory premises where it was being used in connexion with building work: the defendant and his witness say it was in the side entrance to the factory. The pillion passenger said he saw this concrete mixer together with a Road Up sign in the side entrance before the accident occurred. "Just before we reached the end of the dual carriage way" he said. No other witness mentioned the Road Up sign. I think that it is more than probable that seeing the familiar sign of materials necessary for road repair the defendant and his witness jumped to the conclusion that sand on the road had contributed to the accident. The defendant at first attributed the skid to sand on the road, later he said this "I don't know why there was a skid. I don't know what the reason for the skid was. I have not considered this". This is not surprising considering the injuries he and his passenger sustained and the length of time which has passed since the accident happened.

24. When the evidence of the plaintiff and his witness conflicts with that of the defendant and his witness, I much prefer the former to the latter.

25. The plaintiff was very familiar with that part of Castle Peak Road and familiar with it as a pedestrian and a watchman. He said the U.S.D. authorities sweep the road daily and there was no sand on the road at the relevant time. And I am prepared to believe this. I think the sight of the articles in or near the side entrance as seen by the defendant and his witness led to his inaccurate recollection that there was sand in the road as I have already said.

26. In my view therefore this is a clear case of negligent driving resulting in injuries inter alios to the plaintiff who is entitled to damages.

27. The plaintiff who was 42 at the time of the accident suffered concession and abrasions to his forehead, face and left knee. There was a compound fracture to his right leg which necessitated no less than 3 operations. He was in hospital from 5th March until 1st October 1964 and attended as an out-patient for about one year more. The accident has resulted in permanent injury, the right leg being now 1/2" shorter than the left. There is a certain degree of limping and his right ankle is stiff. He suffers pain if he stands or walks for any length of time, and he is not so stable as he was before.

28. At the time of the accident the plaintiff was employed as a watchman at $280 per month with quarters for himself but not for his family. His employers determined his employment the day following the accident. He remained out of employment until October 1967 when he secured his present position as a shroff in a Restaurant at about $380 per month. He performs his present duties sitting down.

29. The plaintiff claims $5,880 for loss of wages for 1 year and 9 months from the date of the accident. This is for the period during which he was unfit for work by reason of the accident and not for the whole period of his unemployment. I think he is entitled to this sum. He also claims $900 as special damages for extra food. I do not think that this sum is recoverable. He was in hospital at the time and the food was not ordered for him by his doctor. There is no claim for any hospital or medical expenses since the plaintiff was not charged anything for this.

30. Taking into consideration the injuries suffered by the plaintiff and the degree of permanent incapacity which he is now suffering from I think the correct sum to award as general damages is $15,000. Taking into consideration that quarters were provided for him at his old job there is no evidence that the plaintiff has suffered a loss of earning capacity and I did not take this into consideration when arriving at the above sum.

31. Adding the 2 sums together we arrive at $20,880. There will be judgment for the plaintiff for that amount with costs.

Date 23rd September, 1968.

Representation:

Wesley Wong (T.M. Chow & Co.) for Plaintiff.

Sanguinetti (Deacons) for Defendant.