Lo Shau Chun v. Yuen Chuk Leung

HCA000937/1978

Coram: Zimmern, J.

Date of Judgment: 27th October, 1978.

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JUDGMENT

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1. In this case the Plaintiff, an inhabitant of the village of Choi Yuen in Wo Hop Shek in the New Territories near the 20 milestone on Tai Po Road was minded to cross Tai Po Road from east to west in August of 1976 late in the afternoon. She was then 71 years of age and she had with her a metal cart containing some cloth bags which she was to push home and do some work on them. She told the Court that she was on the pavement of the road with the cart on the road, a cart which she said measured 8 feet in length when out of the blue the Defendant's car swerved from the other side of the road hit the cart which in turn hit her and she suffered injuries for which she now claims damages.

2. The second witness called for the Plaintiff one Madam Ip Yee a kaifong of the Plaintiff told the Court that at the time of the accident she was directly opposite the Plaintiff on the other side of the road and she saw the whole thing. She said that the Plaintiff was on the pavement on the other side of the road pushing a cart which was on the road. The cart she said was 4 feet long and again out of the blue the Defendant's car on her side of the road swerved onto the Plaintiff's cart which in turn knocked the Plaintiff down. Both these witnesses said the car was travelling towards Fanling which would be on this witness's side of the road. The third witness called for the Plaitniff was the Plaintiff's son who said he was then at home and he saw his mother on the pavement with the cart when he suddenly heard a bang and then quickly another bang. When he looked after the first bang his mother was lying on the road. Having heard these three witnesses I have no doubt in my mind and I say without hesitation that not one of them has the slightest regard for the truth and as far as the accident is concerned, I accept that the Plaintiff was injured by the cart she was pushing on Tai Po Road that afternoon by reason of the Defendant's car colliding into that cart. A Police officer produced a sketch plan of Tai Po Road and it can be clearly seen that towards Fanling there is a bend on the road. Marked on the sketch is a railing after the bend and by the side of the railing one can see a spot marked "broken light glasses". It is the evidence of both the Plaintiff and the second witness and third witness that the Defendant had after colliding with the Plaintiff's cart collided with the railings. The Defendant gave evidence and may I say at once I was impressed with his integrity and the manner in which he gave his evidence. He was not evasive when on many occasions when asked both in examination-in-chief and cross examination questions he just said it happened in 1976 and I can't remember. His version of the case was he was driving towards Fanling a part of the road he well knew because he drove on it every day and as he was turning the bend he saw the Plaintiff pushing a cart and she suddenly rushed. He took evasive action by sounding the horn, braking and swerving his car. By swerving there was a glancing blow against the railing and he swept out again as he hit the Plaintiff's cart which in turn hit the Plaintiff. I accept his evidence and having said that to my mind there could be no doubt the Defendant was negligent. He was driving onto a bend. He said he was travelling at 25 to 30 miles an hour. He obviously had not had kept a proper look out for what was ahead. If he had kept a proper look out he ought to have been able to avoid the Plaintiff. He did say he saw the Plaintiff coming and he could not explain why he could not avoid the accident. I therefore find as a fact that the Defendant was negligent and is liable in damages. The Defendant has claimed contributory negligence. Just as a driver has a duty of care on the road to keep a proper look out there is equally a duty for a pedestrian even be she be a 71 year old woman. She took the chance of trying to cross this major road in the New Territories just immediately beyond a bend. She ought to have seen the approach of this car towards Fanling. She ought not to have rushed across which I find she was trying to do no doubt to beat this car. I find that she contributed to her own damage the question is to what extent. I think that the Defendant was far more blameworthy. He was driving a car round a bend and a car has been described as a legal weapon. I assess contributory negligence at 30%.

3. Now I come to damages. As far as special is concerned items 2, 4, 5, 6, 7 have been agreed totalling $1,378. I award $500 for item 3 and for item 8 I award $500. This brings the total to $2,378. As far as general damages are concerned she suffered very shortly a fractured wrist and fractured tibia and fibula that is fractures in the lower leg. She was taken to Queen Elizabeth Hospital immediately after the accident where she was for 101 days and in that time her leg was under plaster all the time. Her wrist was under plaster for a period of 6 weeks. She has now regained the use of her hand and her leg although movement of her leg is slightly limited and she walked with a limp. For pain, suffering and loss of amenities I award the sum of $15,000. I award this sum because not only was there a fracture of a leg but there was also a fracture of a wrist. Therefore general damages come to $15,000 and special damages come to $2,378. There is 30% contributory negligence.

4. Judgment for the Plaintiff with costs in the sum of $12,164.60 with interest at 4% per annum from 19th August 1976 to date on the sum of $1,664.60 and at 8% per annum from 1st April 1978 on the sum of $10,500.

Representation:

Brian L. de Souza (John Ip & Co.) for the Plaintiff

A.R. Suffiad (H.A. Hoosenally & Co.) for the Defendant