Mak Kin-mui v. Chan Hoi-ming and Another
Read the full judgment text of HCA 2823/1974 on BabelCite. This High Court CFI judgment.
1. This is the Plaintiff's claim for personal injuries received in a traffic accident which occurred at about 3 p.m. on 22.12.72 near the 10 ½ milestone, Taipo Road, New Territories.
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION CASE NO. 2823 OF 1974 -----------------
----------------- Coram: Mr. Commissioner Yang in Court. Date of Judgment: 3rd April, 1975 ----------------- JUDGMENT ----------------- Running down action - for general damages see page 4. 1. This is the Plaintiff's claim for personal injuries received in a traffic accident which occurred at about 3 p.m. on 22.12.72 near the 10 ½ milestone, Taipo Road, New Territories. THE ACCIDENT 2. At the time and on the day in question, the Plaintiff and her friends were walking along Taipo Road in a westerly direction towards Shatin. She was hit by a car coming towards her in the east-bound carriageway. There was, at the place where she was knocked down, a piece of vacant ground (described as the "sandy portion" at the trial) abutting the eastbound carriageway. Running alongside the edge of the sandy portion is a kerb. Between the kerb and the tarmac surface of the carriageway is a strip of land which runs along the length of that part of Taipo Road (described as the "gutter" at the trial). Looking at the photographs (Exs. D1 A-E), it would appear that the kerb is about six inches in width and the gutter is about one foot in width. 3. According to the Plaintiff's evidence, she was, immediately prior to the accident, walking abreast with two friends on the sandy portion, she being closest to and "about one foot from the road edge". Miss LAU Ka-po was on her right and on Miss Lau's right was another friend. The Plaintiff was not paying particular attention to the vehicular traffic because, as she tells the Court, she was on the sandy portion. She was engaged in a conversation with yet another friend, Miss KWONG Ching-mei, who was walking two or three feet in front of her. The Plaintiff first saw the car that knocked her down when it was about ten feet in front of her. The next thing she knew was that she was hit. Miss Kwong says in evidence that as she was talking with the Plaintiff, she suddenly heard a noise, "as if something was coming quickly". She says, "As I heard this noise, I instinctively moved to my right." Then she heard the sound of impact behind her. On turning round she saw that both the Plaintiff and Miss Lau had fallen onto the sandy ground, about three or four feet from the gutter. Miss Kwong did not see how the Plaintiff was hit by the car. 4. The main issue in this action is whether the Plaintiff was on the sandy portion when the collision occurred. Her evidence is that she was. The driver of the car in question, the First Defendant, however says that he saw a number of pedestrians, some walking on the sandy portion and some on the gutter. It is common ground that on the day and at the time in question the First Defendant was driving the Second Defendant's private car bearing registration number AD 2862 along Taipo Road in an easterly direction towards Taipo. It is also clear from the evidence that the eastbound carriageway at that part of Taipo Road is 10 ½ feet in width. From the point of collision to a point some 300 feet to the west the road is straight. There is a gentle bend some 40 feet to the east of the point of collision. The location of collision may be pinpointed: about 20 feet to its west is a tree and about 38 feet to its east is a railing, near Fire Hydrant Number 565 (see Ex. P2). As the First Defendant was approaching the place of the accident he was driving at about 30 m.p.h. He first saw the group of pedestrians when he was 30 to 40 yards in front of them. He then reduced his speed to 25 m.p.h. He was at the time about two feet from the edge of sandy portion, i.e., about one and a half feet from the kerb, or six inches from the gutter. His car was about five feet in width. He did not know how the accident occurred. The first moment he became aware of a collision was when he heard the sound of impact coming from the nearside front of his car. Then he braked and brought the car to a stop on the carriageway just behind the railing. 5. It was a fine day and the road was dry. Visibility was good. There were no cars in front of the First Defendant at the time, and he did not swerve his car as he approached the scene of accident. 6. On the balance of probabilities I find that the Plaintiff must have been walking on the gutter when the collision took place. It is highly unlikely that, within a distance of 38 feet, a driver would have mounted the sandy portion or come so close to it so as to hit a pedestrian walking there and then turned back onto the carriage-way. In my judgment, the Plaintiff was probably so absorbed in her conversation with Miss Kwong that she, without being conscious of it, wandered onto the gutter from the sandy portion. I think her memory on that part of her evidence is defective. 7. I now must deal with the question of identification. Neither the Plaintiff nor Miss Kwong identifies the First Defendant or the offending vehicle in their evidence, and the First Defendant in his evidence has not admitted to hitting the Plaintiff though he does agree that he was involved in a traffic accident at the relevant time and place. By their Defence, the Defendants admit that on the date and at the time in question the said vehicle was involved in a collision with "a pedestrian" on Taipo Road. They also plead that the said collision was caused or contributed to by the negligence of the Plaintiff. Mr. William Waung, counsel for the Defendants, sees fit to argue that there is no identification of the driver of the vehicle which hit the Plaintiff. If I understood him correctly, he argues that on the pleadings the Defendants admit to collision with "a pedestrian" only, and that the Plaintiff was responsible for the collision with "a pedestrian". He seems to have overlooked the Particulars of Negligence, which shows that the Defendants were referring to the Plaintiff as the victim of the collision in question. Paragraph 4 of the Defence reads:
PARTICULARS OF NEGLIGENCE
8. On the pleadings and on the balance of probabilities, I am of the view that defence counsel's contention has no merits whatsoever. I find as a fact that the First Defendant was the driver of the car which collided with the Plaintiff. THE LIABILITIES 9. My judgment is that the accident was caused partly by the First Defendant's negligent driving and partly by the Plaintiff's negligence. The First Defendant was guilty of negligent driving in being too close to the kerb and in failing to take appropriate steps to avoid hitting the Plaintiff. Though he first saw the pedestrians some 30 to 40 yards away, the fact that he was completely ignorant of the manner in which the accident occurred indicates that he also failed to keep a proper lookout when his car was near the Plaintiff. I also find that there was contributory negligence on the part of the Plaintiff in that she was walking on the gutter and failed to notice the traffic coming towards her. In the circumstances of the case, I find the First Defendant 90 percent liable and the Plaintiff ten percent liable. The Second Defendant is of course liable to the same extent as the First Defendant. GENERAL DAMAGES 10. The Plaintiff is a lady of 29 years of age and single. She suffered a fracture of the right tibia and fibula, and a much more serious fracture of the left pelvis. There was also a relatively minor injury to the scalp. The right leg is now healed and she has no disability of that leg. There is a scar on the scalp which is entirely obscured by her hair. The injuries to the left pelvis may be best explained by way of diagrams:
It will be seen that because of the displacement of the sacro-iliac joint and the acetabulum (i.e., socket of the hip) her left leg, which is in fact of the same length as the right leg, appears to be shorter, and for practical purposes it is one inch shorter. She therefore walks with a slight limp. Owing to the gross displacement of the acetabulum, she has a marked limitation of movement of the left leg at the hip joint. The displacement also causes a reduction in the transverse diameter in the pelvis. The direct effect of that is that normal delivery of a child would be impossible. She would have to have a Caesarian Section and she should be limited to three such pregnancies. Another result of the displacement is her inability with the movements of her left hip and this will render sexual intercourse difficult though not impossible. Sexual intercourse in the "normal" or "conventional" position is impossible because she is unable to abduct her left leg at all. The adduction of the left leg is limited. This disability naturally curtails the enjoyment of sexual intercourse and may well have an adverse effect on her marital relations. Indeed her chances of marriage may well be adversely affected by those injuries. 11. According to the medical report (Ex. P1):
12. In addition to what is stated in the report, the medical evidence is that a mild degree of osteo-arthritis has already set in and it will become progressively worse. She will be able to do her daily chores, but she will need to sit down more often, and lie down twice a day for about half an hour each time. She can walk or stand for quite a long period (say two or three hours) but it will be painful and she will quickly become tired. In the course of years she will find it more and more difficult to board or alight from public transport, and to negotiate steps. 13. There is a 14 percent impairment of the whole body, and the impairment will increase to 20 percent in 15 years because the degree in her movement of the left leg will decrease. It will be noted here that impairment is not synonymous with disability. In medical terms, disability is related to a person's earning capacity, but impairment affects and is common to all people irrespective of one's earning capacity. 14. Before the accident, she used to play badmington and table tennis a few times each month, but cannot now play these games. She still swims and goes on picnic if no walking is involved. 15. On the issue of pain, the medical report states, "The fracture of the right Tibia and Fibula was treated by a plaster case which enclosed the whole leg, this was changed to a below knee plaster and the plaster was removed before she left hospital. She was in hospital for 110 days and was able to walk with one walking stick on discharge and she used the stick for 2 months. She now walks with a slight limp and she reached this stage of walking 6 months from the accident." The Plaintiff was in a great deal of pain for the first fortnight after the accident, diminishing over a period of four weeks. For four or five months after that she still had pains. She was examined in March this year by Dr. Wedderburn for the purpose of preparing the medical report, and she struck the doctor as one whose resolution was good and who had not felt sorry for herself nor exaggerated her discomfort. My impression of her is exactly the same as the doctor's, and I am much impressed by her admirable courage and cheerfulness. 16. Immediately prior to the accident, she was a teacher at Wellington College and her salary was $1,596 per month. If she had continued to teach in that College, she would be earning $1,676 between 1.9.73 to 31.8.74, and $1,756 per month from 1.9.74 to 31.8.75. After she had stopped working for nine months she was again employed. The medical evidence, which I accept, is that the period of nine months was reasonable. She has since 1.10.73 been employed as a trainee superintendent in the Hong Kong Telephone Co. Ltd. Her initial salary was $1,290 per month with a $100 allowance. From 1.1.74 her salary was increased to $1,485 per month with a $100 allowance, and from 1.1.75 to $1,740 per month but without an allowance. It is expected that in October this year she will qualify as a superintendent with a salary of $2,500 per month. There were therefore some loss of earnings. However there will be no loss in future earnings. 17. Now the amount of damages awarded by this Court, no matter how substantial, cannot completely compensate the Plaintiff for her injuries. In this connexion, I take into consideration her present and future impairment, loss of amenities, the pain she has suffered, is suffering, and will suffer, her limitation in sexual activities, her difficulty in childbirth, and reduced chances of marriage. A substantial sum of compensation is obviously called for, and I assess general damage at $40,000. SPECIAL DAMAGES 18. I now come to the special damages. 19. The claim of $8,127 for hospital fees is agreed. 20. There is a claim for $2,500 for the fees for two bonesetters (Exs. P3 A-M) who treated the Plaintiff between 21.4.73 and 24.7.73. I accept Dr. Wedderburn's evidence that there was a psycological advantage for the Plaintiff to go to the bonesetters though not much physical benefit could be derived from their treatment. The Chinese have considerable faith in herbalists and bonesetters, indeed the Plaintiff says in evidence, which I accept, that she felt an improvement after seeing the bonesetters. I would accordingly allow this item. 21. Then there is a claim for $2,000 for special food, consisting mainly of swallow's nest soup, chicken and calf's sinews, consumed over a period of three months from January 1974. Dr. Wedderburn says in evidence, which I accept, that whilst such food was not medically necessary, they were of benefit psychologically because most Chinese consider the consumption of such food a part of the treatment. He does not think $2,000 excessive in the circumstances of this case. The usual type of special food consists of snakehead fish soup, chicken and calf's sinews. I do not know if swallow's nest soup is generally considered by Chinese as necessary. Dr. Wedderburn seems to think so and there is no evidence to the contrary. I would allow this item also. 22. Whilst the Plaintiff was in hospital her mother visited her by taxi every day, at $4.20 per single journey. The Plaintiff was in hospital for 110 days. Mr. William Waung argues that travelling by taxi was an extravagance and the journeys should have been taken by bus. This is in my opinion too harsh an attitude to take. I see no reason why the mother should not visit her daughter, who was seriously injured, in the manner she did, I have no hesitation in allowing this item. 23. Loss of income from 1.1.73 to 31.8.73 came to $12,768 being $1,596 per month for eight months. For the month of September, 1973, she would have earned $1,676, so the loss for that month was $1,676. The period of nine months was reasonable having regard to the extent of the Plaintiff's injuries. The total loss for the nine months would be $14,444. I therefore allow $14,444 under this head. 24. Loss of income from 1.10.73 (when she joined the Hong Kong Telephone Co. Ltd. at $1,390 per month) to 31.12.73 was $286 per month. The total loss for that period was therefore $858. From 1.1.74 to 31.12.74, she was getting $1,585 per month from her present employers. If she had stayed on at Wellington College, from 1.1.74 to 31.8.74 her salary would be $1,676 per month, and from 1.9.74 to 31.12.74 her salary would be $1,756 per month. Her loss in 1974 would therefore be $1,412. Her present salary from 1.1.75 has been $1,740 per month. If she had stayed on at Wellington College, her salary would have been $1,756 per month. So for the first three months of 1975 her loss of income was $16 per month, making a loss of $48 for three months. The total loss from 1.10.73 to 31.3.75 is therefore $2,318, which I allow. 25. The total special damages are therefore as follows:
26. I assess special damage at $30,289. JUDGMENT 27. The general and special damages come to $70,289. As the Defendants are 90 percent liable, I give judgment for the Plaintiff for $63,260.10, being ten percent less than the total damages assessed. Costs to the Plaintiff.
Representation: Mr. S.D.M. Donnelly (Gordon Hampton & Winter) for Plaintiff. Mr. William Waung (Johnson, Stokes & Master) for both Defendants. Running down action - for general damages see page 4. |
