Cheung Kam-cheung v. Siu Chick-por and Another

HCA000335/1977

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Coram: Cons J.

Date of Judgment: 27 October 1978

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JUDGMENT

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1. On the evening of the 1st August 1975 an accident occurred on the main road between Tai Po and Fanling. At the point in question that road is about 6 ½ metres wide and carries one lane of traffic in each direction. Independent witnesses saw a minibus swerve violently to its right across the opposite traffic lane, mount the pavement and crash into a tree on the far side. A private car coming the other way was unable to stop in time and ran into the side of the minibus. The plaintiff boy was pulled from the narrow angle left between the two vehicles. He was severely injured in the legs and pelvis.

2. That was just over three years ago. Last week in evidence the boy told me how the accident occurred. He said that he was walking quietly along the edge of the road on the left-hand side and less than one foot from the kerb. He suddenly heard the noise of braking, turned his head to look and was immediately knocked down. He knew no more until he woke up in hospital. At that point of the road there is no made-up pavement. There is a small earth pathway passing through the undergrowth at the side of the road. The boy was not using that path because he said it was uneven and difficult to walk on.

3. With every respect I find that a very improbable story. It is hardly likely that a driver would execute what one witness called "a panic swerve" to avoid a person that close to the kerb, even if the driver had not seen that person until the very last moment. Likewise in those circumstances I would not expect the boy to have been dragged right across the road. I would have expected him to be knocked into the undergrowth.

4. The boy gave a very different story at the time. There is a statement taken by a police sergeant which has been put before me as part of the agreed bundle of documents (AB 32). In that statement the boy says that he rushed out across the road making for a lavatory on the other side in answer to an urgent call of nature; that he saw the minibus very far away and travelling at a very fast speed, and that he was knocked down after running out two paces into the road.

5. He says now that he cannot remember ever making that statement. That is not surprising. It purports to have been taken in hospital only a few hours after the accident, when the boy would certainly have been in shock and very probably under the influence of analgesics. His name appears in the form of a signature at the foot of the document, although he disputed in evidence that this was in fact his signature. His manner made me doubt his evidence in this respect. Even so, when taking that statement into consideration, I also take into account the circumstances in which it was made.

6. Looking at the matter overall I find that for some reason the boy did move out into the road. It may have been to cross to the lavatory, but there is no evidence that such a lavatory even existed. It may have been for some other reason. Or he may not have intended to cross the road at all. It does not matter. If he had looked before he moved out he must have seen that the minibus was dangerously close. He cannot have looked until it was too late. He was thirteen years of age at the time. However at that age he should have known to look before stepping out.

7. On the other hand I find that the driver of the minibus was also careless. The accident occurred at dusk, a time when visibility is notoriously difficult. In addition the road appears on the photographs to be heavily shadowed by trees and it has, as I have said, no proper pavement. Both independent witnesses were driving vehicles with dipped head-lamps, yet the minibus driver was using only his side lights. That has three effects. Firstly, the sketch AB 3 is consistent with the boy's being hit where he says he was and where he indicated on the photograph AB 22. There was no evidence to show how far up the road his home was but that photograph and AB 26 indicate dense undergrowth for some distance before the place of the accident. It seems likely therefore that the boy had been walking along the road for some distance before he moved out. In that case if the driver of the minibus had been using dipped head-lamps he should have noticed the boy before that moment and have been able to give some audible warning of his approach. Secondly, the beam of the lamps themselves would have given some indication to the boy that a vehicle was close at hand. Thirdly, it is far more difficult to assess at night the speed and distance of a vehicle which carries only side lights. This is particularly so where the side lights are carried high up on the vehicle, as they were upon this minibus. It is easy then to mistake them for lights carried low on a vehicle a much greater distance away. I am satisfied that the minibus driver should have anticipated the possibility of pedestrians in that dark restricted area and for the reasons I have just set out ought to have put his head-lamps on. He was negligent not to do so. I find that he and the boy were equally to blame for the accident and should therefore each bear half the responsibility.

8. I turn then to the question of damages. First the special damages. Counsel for the plaintiff has put forward suggestions which come to a total of $1,536. It is a modest total and counsel for the defence takes exception only to the loss of the earnings by the father on the occasions when he visited his son in hospital. Counsel queried other causes for this loss. However I am satisfied that there is sufficient evidence to establish in this respect the small amount now claimed.

9. As to general damages the plaintiff boy was very severely injured. His left leg was crushed and most of the skin scraped off. The fibula was broken at the lower end and the ankle dislocated. His right thigh was fractured and so was his pelvis. The urethra was ruptured. He was detained in hospital for six months. He must have had a very uncomfortable time. He had two operations into the bladder and two skin grafts. The latter were not successful and he had to be readmitted for a further skin graft six months after his first discharge. He now has appalling scars on his legs. This position cannot improve and may perhaps get worse leading to other problems. He has been advised to have further plastic surgery which may help to avoid these problems. His right leg is one inch shorter than the left, although compensated to some extent by the injuries to the pelvis. The left leg is stiff and causes discomfort when bending. He feels pain when walking for long distances. The rupture of the urethra has left permanent weakness there. He will need dilatation by a skilled surgeon every three months for the rest of his life. Urination is more frequent than normal and there may be some disturbance of sexual activities. I have come to the conclusion that damages for pain and suffering and loss of amenities should be $80,000. I have done so to some extent by comparison with awards in this jurisdiction for the most terrible of all injuries, that is to be turned into a paraplegic with no loss of brain function. For this state in a forty-six-year-old man a recent award was $125,000: Chan Yi-keung v. Chu Jau-choy⁽¹⁾. But I have been more influenced by the award of $70,000 in Choi Ching-kit v. Lau Ngok and The China Motor Bus Co. Ltd.⁽²⁾. The plaintiff there was twenty-four years of age. His leg injuries were similar to the present although the skin grafting seems to have taken a little longer. There were no injuries to the urethra. Instead there were severe head injuries which left the plaintiff with no Sense of smell, with complete deafness in one ear and partial deafness in the other.

10. A further $18,000 is necessary to cover the cost of the recommended plastic surgery. This is the top figure of the range indicated in the medical report. It may be that the surgery will not in fact cost quite that much. Any balance may be kept in hand to cover other medical expenses that may well arise in future.

11. Only loss of earning capacity remains. I find it impossible to approach this systematically. There are too many unknown factors. I know the plaintiff's medical situation. I know that he is two years behind in his schooling. I know from my own observation that he is an intelligent and quick-witted boy but I am not told if he is likely to have the academic or technical ability to carry on to higher levels. If he does, his earning power will be unaffected by his disabilities. Again I have no idea where his inclinations lie. He appears to come from a humble home. His father is a carpenter. It was suggested that I calculate future loss by reference to earnings in that trade but it does not necessarily follow that the plaintiff would have followed in his father's foot-steps. He has several elder brothers. I assume they are now at work. I was not told what occupations they practise. Doing as best I can in the circumstances I think the proper compensation under this head would be $30,000.

12. Judgment is therefore entered for the plaintiff in the sums of $768 special damages and $64,000 general damages, being 50 per cent of what would have been awarded upon full liability. Interest shall be payable at the rate of 3 per cent upon the special damages from the date of the accident until today. I make no award of interest in respect of the general damages. My reasons for taking this course were set out recently in the judgment of Man For-yung v. Ma Shing-man ⁽³⁾. It is not necessary to repeat those reasons here.

Representation:

Mr. F. Eddis (Fairbairn, Kwok & Wang) for the plaintiff.

Mr. K. Bokhary (Johnson, Stokes & Master) for the defendants.

(1) (unreported) High Court Action No. 2887 of 1977, decided June, this year.

(2) (unreported) High Court Action No. 2057 of 1976, judgment delivered in May, 1977.

(3) High Court Action No. 181 of 1978