Ko Sun Wah v. Ma Mo and Another
Read the full judgment text of HCA 1521/1977 on BabelCite. This High Court CFI judgment was delivered on 1 March 1978.
1. In this case the plaintiff claims damages against the defendants for personal injuries sustained through the negligent driving of the first defendant of a car bearing registration number AU 283 owned by the second defendant.
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HCA001521/1977
Coram: Zimmern, J. Date of Judgment: 1 March 1978 ----------------- JUDGMENT ----------------- 1. In this case the plaintiff claims damages against the defendants for personal injuries sustained through the negligent driving of the first defendant of a car bearing registration number AU 283 owned by the second defendant. 2. Liability: On 22nd August, 1974, a fine and dry day at about 12.45 p.m. the plaintiff, a learner driver, was driving his motorcycle along Shing Ho Road near Sha Tin Playground towards Tai Po Road when the first defendant driving AU 283 suddenly emerged from a "no through road" on the plaintiff's near side, cut across his path and the front wheel of his motorcycle collided with the front of AU 283. He was thrown off the motorcycle and suffered leg injuries. 3. The first defendant was summoned for careless driving before a magistrate, pleaded guilty and admitted the following outline of facts:-
4. The first defendant told the court that the facts were not true and that he admitted them because he was a busy man and did not want to waste time at the Magistracy. The true version was, so he said, he had turned into the "no through road" to have lunch in his car with a colleague and after lunch, trying to re-enter Shing Ho Road to turn right, his view was blocked by a big lorry unloading goods on Shing Ho Road immediately to his right near the junction of the two roads. He accordingly entered Shing Ho Road very slowly. When the front of his car had reached the broken-white traffic lines on the middle of the road - a two-way traffic road - he saw the motor cycle a hundred odd feet away going over the broken-white line to pass the stationary lorry. He halted his car and the motorcycle collided with him. He agreed that the traffic on Shing Ho Road had the right of way. His colleague in the front seat next to him suffered a cut forehead. 5. There is little in substance between his version in the witness box and the version he admitted at the Magistracy. 6. The plaintiff in his statement to the police three days after the accident mentioned the lorry but told the court he could not remember it. He said he was driving at twenty-odd miles per hour along the middle of his side of Shing Ho Road when about 20 yards away he saw the car entering Shing Ho Road and instead of stopping drove on to the road. He swerved to his right in an attempt to avoid a collision but was unsuccessful. 7. The first defendant's colleague in the car, Lee Wai Tong, told the court he was seventeen at the time of the accident and that when the car was stationary he rose from his seat to pick up a newspaper in front of him when a motorcycle suddenly appeared, collided with the car and the impact threw him forward and he cut his forehead on the rear-view mirror. I do not accept his evidence. It is far more probable that his cut was sustained by the sudden braking of the car throwing him forward. 8. On the evidence and the clear admission of the first defendant that he tried to enter a major motor road at right angles without a view of oncoming traffic, I find the first defendant wholly to blame for the accident and his defence of contributory negligence fails. Damages: Following the accident the plaintiff was admitted to Queen Elizabeth Hospital where on examination there were
X-ray revealed fracture shaft left tibia and fibula and fracture left os calcis. The wound was cleaned and sutured and the fractures reduced and immobilized in plaster. He was discharged on 8th October, 1974 and last follow-up on 14th March, 1975 showed that the wound was healed and he could walk and squat without difficulty. He was examined in May 1976 by Dr. R.G.M. Wedderburn whose report was produced by consent but Dr. Wedderburn was not called. Much of the report is, as it necessarily must be, based on the hearsay of the plaintiff. For example he wrote:-
Yet the medical report from the hospital said he could walk and squat without difficulty in March 1975. Dr. Wedderburn reported that the tibia and fibula had united in good alignment and the muscles of the left leg had recovered well without any wasting. By reason of his ankle injury he can flex the left ankle less than he can the right and, in his words "he has lost 25o of the movement of flexion of the right ankle." His left leg is completely load-bearing though he walks with a slight limp not noticeable by me in court in 1978. The left leg is ½ inch shorter than the right. 9. Prior to the accident, he worked for about a year ending July 1974 for Lee Sang Electricians and Plumbers on a day to day basis doing odd jobs such as installing appliances, fixing fuses and plumbings. He had gone through some training as an electrician and plumber. The proprietor, Wong Wai Sum, told the court that in 1974 he paid the plaintiff $50 per day for about 25 days per month. During the year the plaintiff did not have to work on scaffolds though sometimes he had to work on ladders. He worked mostly on the floor. Since 1976 for this type of labour he has paid $60 per day still the prevailing rate. I accept his evidence. 10. About a month before the accident he quitted Lee Sang to freelance because a friend of his wanted him to fix the electricity and plumbing in his friend's home. He earned about the same money though during this month he took on work at construction sites which entailed his climbing scaffolds. Since his injury and recovery he now finds he cannot climb scaffolds and Dr. Wedderburn has reported that it would be dangerous for him to do so. He said he started work again in June 1975 in a friend's factory making moulds. He did not try to go back to his old work in view of his injuries. He could not remember how much he earned, perhaps a few hundred a month, then through three leading questions it was less than $1,000 more than $500 then about $700. He worked less than a year, then changed a few jobs, fibre worker, metal worker at about $1,000 per month, then eventually a waiter in a nightclub at $1,300 per month without tips and he is still so employed. On this evidence, I granted counsel for the plaintiff application to amend the Statement of Claim under special damages so far as is relevant for this aspect of the case as follows:-
11. The damages for loss of earnings and capacity in personal injury cases of working people invariably form an important part of each and every such case. The burden of proof is on the plaintiff. His evidence on this aspect of the case is so nebulous and haphazard that I am, on balance, unable to accept that the loss of earnings he claims to have suffered, if suffered at all, was attributable to his incapacity. His meanderings through the labour market was of his own volition. His reason for not going back to his old work was because he could not, after the accident, work on scaffolds. Yet for a whole year with Lee Sang he never had to work on scaffolds. 12. He has suffered a permanent disability by reason of the accident and in his own line of country he has suffered and will suffer a limitation. I assess this at $150 per month. Counsel for the defendants conceded the loss of $12,500 claimed under particulars of special damage 4(c), $96 for medical expenses and $300 for travelling expenses. I award loss of earning capacity at $150 per month from mid-June 1973 to date of trial, i.e. 32 months which comes to $4,800. Under general damages, I award $12,000 for pain and suffering and loss of amenities. For loss of earning capacity the plaintiff was born in November 1949. The annual loss comes to $1,800 and a multiplier of 14 is warranted. The sum under this head comes to $25,200. Special damages come to $17,696 and general damages $37,200 totalling $54,896. 13. There will be judgment against the defendants in the sum of $34,896 with costs to be taxed in accordance with Legal Aid Rules. The sum of $17,696 to carry interest at the rate of 4% per annum from 22nd August, 1974 to to-day. Representation: William Waung (Ip, Ku & Stoppa) for plaintiff. Robert Tang (Gallant Y.T. Ho) for defendants. |