Choi Ching Kit v. Lau Ngok and Anotehr
Read the full judgment text of HCA 2057/1976 on BabelCite. This High Court CFI judgment.
1. Soon after midnight on the morning of 5th October, 1973 the Plaintiff Choi Ching Kit then about 24 years of age was minded to cross King's Road from north to south near Mount Parker Road. In the process of crossing he collided with a single decker motor bus No. AC4750 driven by the 1st Defendant Lau Ngok as agent and servant of the 2nd Defendant, China Motor Bus Co., Ltd., which owned the bus, whereby the Plaintiff suffered severe personal injuries. Mr. Wright for both Defendants with refresh
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HCA002057/1976 IN THE SUPREME COURT OF HONG KONG HIGH COURT ACTION NO. 2057 OF 1976 -----------------
----------------- Coram: Zimmern, J. Date of Judgment: 13th May, 1977. ----------------- JUDGMENT ----------------- 1. Soon after midnight on the morning of 5th October, 1973 the Plaintiff Choi Ching Kit then about 24 years of age was minded to cross King's Road from north to south near Mount Parker Road. In the process of crossing he collided with a single decker motor bus No. AC4750 driven by the 1st Defendant Lau Ngok as agent and servant of the 2nd Defendant, China Motor Bus Co., Ltd., which owned the bus, whereby the Plaintiff suffered severe personal injuries. Mr. Wright for both Defendants with refreshing frankness admitted negligence on part of the 1st Defendant and contended that this was a case of contributory negligence which had been pleaded. Mr. Miu, for the Plaintiff, in his closing was similarly frank in admitting his client was also negligent after he, his client, had said "I was partially wrong" under cross-examination. I shall, nevertheless, have to review the evidence in order to apportion the blame attributable to the Plaintiff for the loss and damage he has suffered. 2. King's Road is a major carriageway on the northern side of Hong Kong Island and trams to and from the town of Shaukiwan run on lines laid on the road. In the vicinity of the spot where the Plaintiff tried to cross King's Road, it is 64'8" in width. The tram lines are laid on the crown of the road so that trams pass to and from in close proximity to one another. There is a stud crossing on the road for pedestrians. On the northern side of the road there is a tram platform near the lines which serves the east bound tram traffic. It is partly covered and the uncovered part ends at the western end of the stud crossing. Immediately across the crossing is a traffic island. It is clear that the whole platform also serves to stop eastbound motor traffic from bearing right on to the rails though this obstruction in no way affects the right of a motorist to travel over the rails. Exhibits 3 and 5 are sketches which show the layout described and Ex.4 consists of 4 photographs which show the locus in quo. 3. It is common ground that on the night of the accident the weather was good and the road dry. The Plaintiff in his chief said that before getting on to the stud crossing from the northern pavement he checked the traffic and did not see any coming vehicle and that was why he crossed. During the crossing he said he checked again with the same result and when about two-thirds across the road he was suddenly hit by a vehicle and knew nothing until he regained consciousness about a week later. Before he was hit he neither heard a horn being sounded nor braking of any vehicle. He also said he had arrived at the spot where he intended to cross by taxi in the company of a Mr. Lam and there they met a Mr. Ip Chuen who just happened to be there. 4. Under cross-examination Mr. Wright confronted Plaintiff with a statement (Ex.6) which he had made to the police on 14th October, 1973. The relevant part of his statement reads:
5. He said he does not remember the statement as he was then seriously ill and he does not remember whether he had written it. He further denied most of the contents of the statement and maintained he was knocked down on the west bound tram lines. However he admitted he had signed the statement after writing in his own hand the words in Chinese translated "I have read the statement and it was clear". 6. The Plaintiff called three witnesses namely Ip Fook Chuen, Wong Wah Sun and Lam Hau Chiu who each said he was there at the time of the accident. Not one actually Saw the collison. I am satisfied that these witnesses were called to booster the Plaintiff's allegations that 1) the 1st Defendant had not sounded his horn 2) the bus was not lit. Having seen and heard them I completely reject their evidence. 7. The 1st Defendant driver gave evidence. He said he had been employed by the 2nd Defendant as bus driver for 4 years and is still so employed. Previously to that he had 4 years' experience in driving lorries and private cars. On the night in question he was driving the bus from Central to Chai Wan. There were two conductors on board. The bus was normally lit inside and the headlights were on dipped. At the time of the accident there were about 15 passengers aboard. When approaching the locus in quo and driving on the carriageway on the near side he noticed mini-buses in front of him. As there was no traffic on his right, he signalled and bore right on to the tram lines. He also said the mini-buses were stationary unloading and taking on passengers and when he got to the tram platform and towards the end of it there were about 5 of them stationary there. He was travelling at about 20 m.p.h. on 3rd gear. No one was crossing the road when suddenly he saw a Chinese male run out between two mini-buses over the traffic island from north to south. The pedestrian was not looking his direction. He immediately applied his brakes and swerved right. The pedestrian who was the Plaintiff collided with the bus near its front near side mudguard. The witness further said he did not have time to sound his horn and that the street lights were on. Further the Plaintiff never stopped running, of course until he was hit. When he got off the bus the Plaintiff was lying on a spot he marked with a dot on Ex.3 which corresponds with a patch marked "blood" on the police sketch plan Ex.5. The spot is just off the southern side of the island on the near tram line for east bound traffic. He was not shakened under cross-examination. At about 3 o'clock the same morning, he made a statement to the police, the translation of which is Ex.13. It is consistent with his testimony save that in the former he stated that there were 2 to 3 mini-buses stationed in front of the stud crossing and he only, when asked to do so, depicted on Ex.3 a mini-bus over the stud crossing and another in front, i.e. east of the stud crossing. In passing, I mention now that Mr. Miu made much of this both in his cross-examination of the witness and in his final submission but in my opinion this in no way discredits the evidence of the witness. One of the two conductors on the bus Ho Cheuk was called. He said he was standing in the front looking towards east and had a good view. His evidence of the accident substantially confirms that of the driver. Both the driver and this witness said there were tyre marks of a few feet at the rear of the bus. Such marks are not shown on the sketch plan Ex.5 and P.C. 9825 Lee Yuk Chuen who had prepared the sketch and was called by the Plaintiff said there was no tyre marks. As can be seen on the sketch plan Ex.5 the bus after the accident stopped near the crown of the road facing slightly south of east with its rear over the west side of the stud crossing and its near front 17 feet diagonally in front of the blood patch. Findings 8. If what the Plaintiff has asserted is true i.e. he had crossed two-thirds of King's Road before he was hit, he would have been hit by a west bound vehicle. He was not. His evidence of the manner in which he crossed the road is so manifestly untrue that I completely reject it. I accept the evidence of the driver and the conductor. They were both impressive and frank. The driver's evidence is supported by his statement to the police made in the early hours of the morning after the accident and further supported by the position of the bus and the blood patch shown in the sketch plan Ex.5. It is further supported by the Plaintiff's own statement to the police made days after the driver had made his. I repeat part of the Plaintiff's statement:
I do not accept the Plaintiff's denial of the truth of his own statement. Having said all this I nevertheless find the driver, driving as agent and servant of the bus owner, the 2nd Defendant, guilty of negligence. He was driving on the off side of the east bound carriageway pass a tram platform and approaching a stud crossing. There were stationary mini-buses on the near side of the carriageway unloading and taking on passengers. He ought to have foreseen that some pedestrians might attempt to cross the road over the stud crossing. He ought to have known that not all pedestrians act reasonably but the driver did see the Plaintiff 18 to 20 feet away running without heed or regard for vehicular traffic on the road. He could not assume that the Plaintiff would stop at the traffic island to let him pass. In the premises the 1st Defendant's inability to brake or to swerve the bus, though he tried both, in sufficient time to avoid collison with the Plaintiff constitutes negligence and I so find. Contributory Negligence 9. That the Plaintiff acted unreasonably with complete disregard for traffic that might be on the road and his own safety cannot be doubted. He knew or ought to have known that King's Road bears a heavy vehicular traffic and that the off side carriageway for east bound traffic is no less a carriageway for vehicles albeit tram lines are laid on it. That he might have started off from the northern pavement or just alighted from a mini-bus I care not. He well might have found the carriageway north of the tram platform safe for crossing by reason of the stationary mini-buses but it is clear that he did not have the slightest heed or regard for traffic over the tram lines. There were sanctuaries for him to check such traffic i.e. the tram platform, the traffic island, and the stud crossing between them. He failed to use any of them for if he had he could not have overlooked the on coming bus in that straight stretch of lit road. He acted most unreasonably and carelessly and I assess his own contribution to the damage sustained by himself to be 60%. Injuries 10. The Plaintiff suffered serious injuries and was brought unconscious to Queen Mary Hospital via Casualty Department of Tang Shiu Kin Hospital. He was found to be suffering from concussion, multiple facial and scalp lacerations, fractured base of skull, compound fracture left tibia and fibula, fracture of right tibia with lacerations. He arrived in very poor condition and a tracheostomy was performed to facilitate breathing. He was given temporary treatment by the Orthopaedic Unit and 12 days after the accident a close reduction of the right tibia fracture was done. One month after admission a debridement of the wound of the left leg was done followed by skin grafting to both legs ten days later. In December 1973 and January 1974 two more skin grafting operations were done. In December 1975 the fracture of the left tibia and fibula were manipulated twice under anaesthesia before a satisfactory reduction was obtained. Both legs were immobilised in long leg plaster casts. He was discharged to Lai Chi Kok Hospital for convalescence on 21st March, 1974 and readmitted on 11th July, 1974 for re-assessment then discharged to Sandy Bay Convalescent Home. He was again re-admitted on 27th August, 1974 and subsequently discharged home on 4th September, 1974 to have out-patient physiotherapy. At that time his left tibia and fibula fracture was already well united. He was thus continuously in one hospital or another as an in-patient from 5th October, 1973 to 4th September, 1974, a total of 11 months. He has made good recovery from his head injury but it has left permanent disabilities. 11. Dr. Lun Chi Kan, Ear, Nose and Throat Consultant at Queen Mary Hospital called by the Plaintiff said he saw the Plaintiff on 11th October, 1976. He was found to have total loss of smell and total deafness of his right ear. There was a 30% loss of hearing of his left ear. Dr. Lun further said with 30% loss for usual conversational and working conditions his left ear is functioning normally. Dr. Hunter, a neurologist in private practice called by the Plaintiff said the Plaintiff's main impairment is his limb disability. His mental impairment is minimal. Dr. Richard Poon Kwok Ming said he saw the Plaintiff on 31st August, 1976 and made a report dated 8th September, 1976. He said on the orthopaedic side the Plaintiff's recovery is average. Dr. Edmund Cheung called for the Defence said after the injuries he has made very good recovery. He further said he could be employed. The Plaintiff still complains of numbness on radial side of right forearm, but both Dr. Cheung and Dr. Hunter agree that this does not affect his ability to write. He can now walk unaided but with a slight limp. An adjustment of one of the heels of his shoes would help. He has quite terrible scars on both legs and the left thigh. Damages 12. The Plaintiff in his Statement of Claim claims 10 heads under special damages. Mr. Wright for the Defence agreed items 1 to 7 as claimed. They total $1,792.50. The 8th item for $11,614.90 has been agreed at $3,800. On balance I accept the evidence that the Plaintiff took an acupuncture cure to relieve pain and the fee comes to $1,300. This leaves item 10 being loss of salary at the rate of $1,120 per month. The parties at the hearing agreed to a sum of $800 per month for 43 months, that is $34,400. Special damages then comes to $41,292.50. Coming to general damages, there can be no doubt that he has suffered severs pain and loss of amenities of life. Little evidence was led on Plaintiff's mode of living prior to the accident. He had almost graduated from secondary school. He reads and writes and knows simple book-keeping. He had been employed by Tai Loy Company, dealers in spirits and tinned goods as a clerk for a couple of years and did some night work for a travel agency. It consisted of keeping records, collecting bills, taking orders and such like work. He has suffered impairment to his legs. He has lost his sense of smell. He is deaf in one ear. That he can hear normally in one ear, as Dr. Cheung said he could, was confirmed by the manner in which he listened to and answered questions in the witness box. Dr. Hunter's evidence that his mental impairment was minimal was again evident. He answered questions quickly and clearly though without much regard for the truth. 13. I award $70,000 for his pain, suffering and loss of amenities. I now turn to loss of furture earnings. He was employed as a clerk but I doubt if his employment which involved taking orders for spirits and tinned goods was quite as sedentary as the term implies. Some standing manual work was obviously involved. With his sort of education, he could have, if so minded, before the accident gone in for standing manual work which he would now with his legs impaired find difficult. He has lost that capacity. He can of course carry on doing sedentary work but I do not think he would be worth as much as he was in the labour market prior to his injuries. By agreement he was earning $800 per month in 1973. I know nothing of his future prospects. I assess his loss of capacity and earning at $250 per month i.e. $3,000 per year. Mr. Wright rightly suggested a multiplier of 15 to which Mr. Miu agreed. That gives a sum of $45,000 which with the sum of $70,000 for pain and suffering and loss of amenities come to $115,000 for general damages.
14. The Defendants are liable to pay the Plaintiff 40% of this sum, that is to say, $62,517. There will be judgment for the Plaintiff in the sum of $62,517 with interests at 4% per annum on the sum of $16,517 from 5th October, 1973 and at 8% per annum on the sum of $28,000 from the date of service of the writ both to date of judgment. Costs to be taxed in accordance with the Legal Aid Regulations. Payment within 2 weeks of service of sealed order.
Representation: Miu (H.A. Hoosenally & Co.) for Plaintiff. Wright (Ngan and Wong) for Defendants. |