Tse Chuen Kan v. Tai Kai Ping and Another

HCA003187/1975

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 3187 OF 1975

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Coram: Li, J.

Date of Judgment: 30th September, 1975 at 10.35 a.m.

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JUDGMENT

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1. On the 24th December, 1971 at about 9.15 p.m. a bus driven by the 1st defendant in this Action knocked down the plaintiff pinning the left foot of the plaintiff under the front of the nearside wheel of the bus near the junction between Soy Street and Nathan Road, Kowloon. As a result was extensive injury was caused to the bone of the left foot and amputation just below the knee was necessary.

2. The plaintiff's case is that the 1st defendant drove the bus negligently by failing to keep a proper lookout driving too fast failed to give accurate warning of his approach failed to apply the break in time so as to avoid collision, driving too close to the pavement and failing to swerve or manoeuvre the bus in such a way so as to avoid the accident.

3. To these allegations the defendants join issue with the plaintiff alleging that the whole accident was caused by the sole negligence of the plaintiff himself. I have heard the evidence on the question of liability from the plaintiff who is his sole witness on this question. According to the plaintiff, on that occasion he tried to catch a public light bus to go home in the vicinity of the scene of the accident. He was running out from the pavement to the curb to catch the public light bus which did not stop for him because a set of traffic lights immediately in front of the public light bus were turning amber. The public light bus rushed the amber light, and that's why it did not stop. Having failed to catch this bus, the plaintiff then turned round facing the direction towards Tsimshatsui with both feet in the gutter. Then he said he managed to turn round with one foot on the pavement and the other foot in the gutter. He was immediately knocked down by the 1st defendant's bus. As a result his left foot was pinned down by the front of the nearside wheel of the bus and he suffered injuries. The rest of his evidence are details as to the extent of the injury.

4. Pausing here, it appears that the plaintiff can give no account as to how the injury or the accident was caused. All he can tell me is that immediately prior to the accident he heard nothing, no swerve, no warning sound; not even the screeching of brakes. The very moment he realised there was a bus he was already knocked down. He gave several versions as to his positions and direction. There is no doubt that as a witness he is thoroughly confused. In the end, when I asked him to demonstrate outside this Court building where there was a pavement for him to step on and off, he demonstrated in such a way that he was walking with both feet in the gutter for a couple of steps with his back towards the bus. He said he was in fact knocked down when he was in such a position. This is quite different from the version he gave in Court. In any event his evidence has failed to substantiate any allegation in his statement of claim in that the bus driver failed to keep a proper lookout or was driving too fast or failed to give adequate warning or failed to apply the breakes in time or driving too close to the pavement. However, there is evidence that the bus, immediately after the accident, was about two feet away from the pavement. But the plaintiff's version is not the only evidence or the only account as to how the accident happened.

5. The bus driver, the 1st defendant in his evidence, said that on that particular occasion his bus was at first in the centre lane of Nathan Road, driving in the direction of the Tsimshatsui area. Both the centre lane and the fast lane - that is the outside lane - were blocked by traffic, but the inner lane was open. He took care to see whether there was any traffic from behind or in front of him in the inner lane. Seeing that the inner lane was clear, he swerved his bus slowly in second gear at a spped of about ten miles an hour to the inner lane. When he had turned the bus partially to the inner lane he was at an angle towards the pavement. He saw a few young boys rushed out from the pavement. He at once applied his brake because there was no chance and no time for him to give any warning. It was too late. There was one boy who was knocked down and his foot was pinned down by the wheel. Now we know that boy was the plaintiff. Immediately action was taken to help the boy to send him on the ambulence. That is the sum total of the evidence as to how the accident happened.

6. Between the two versions of that - the one confused witness for the plaintiff and the clear evidence given by the bus driver, I am inclined to accept - and indeed I should be compelled to accept - that version given by the bus driver. That is not the only reason why I say I am compelled to accept the version of the bus driver. A few weeks after the accident the plaintiff was asked to make a statement to a police constable. The statement has been accepted as Exhibit 5 in these proceedings. The statement was given on the 27th January, 1972, approximately a month after the accident, in which the plaintiff told the police officer:

"After I had walked out a little bit, suddenly someone bumped me from behind so that I was thrown out to the road. At this very moment, a bus crashed upon me all of a sudden. My left foot then became trapped under the left front wheel of the bus. Later a policeman arrived, he ordered the bus to move backward and he carried me to the pavement."

This statement admittedly was made only one month after the accident in the Kwong Wah Hospital, and while the plaintiff was not long after having gone through an operation. But the account was straight forward and clear. The statement was read back to the plaintiff when he signed this statement. This clearly indicates that probably the whole accident was caused neither by the fault of the 1st defendant, nor by the fault of the plaintiff. Someone pushed him from behind. He was bumped from behind and he rushed forward a little bit in the unfortunate moment when the bus driver was turning into the inner lane at a time when the road was clear.

7. As far as the road condition is concerned it was a three-lane traffic road. Although Mr. Asome contended that despite the width of the road as being roughly 36 feet, there was no reason to sub-divide it into equal proportions as approximately about 11 to 12 feet each lane. One must admit the fact that the bus is a fairly clumsy vehicle. It is eight feet wide. On the road there were two lanes of traffic - the centre lane and the outer lane. To decide how wide each lane should be is entirely a matter of conjecture. All I can say is that having regard to the circumstances, it is not itself negligent for the bus driver to drive as near as two feet from the curb of the pavement.

8. While I have sympathy with the plaintiff that he has suffered some very severe injuries, yet I have to say that on the balance of probability he has failed to prove his case that there was any negligence on the part of the 1st defendant. This would be sufficient indeed to dispose of this action. However if my findings are wrong and I have to consider the quantum of danages. In this respect I am greatly indebted to learned counsel for both parties who make the task easier for me. Having cited certain authorities and they express general agreement as to the measure of general damages. I feel that for an amputation below the knee the sum of $45,000 is appropriate. As to the loss of earnings, there is evidence that the plaintiff was earning $450 per month immediately prior to the accident. He was a young man of 19 at the time of the accident and now he is going to be 23. I feel in the circumstances that a multiple of 18 is appropriate, and that the figure of $150 per month is also appropriate, having regard to Mr. Wedderburn's evidence as to the degree of disability. Using this multiple for the figure of 150 we arrive at the accurate calculation of Mr. Asome to the sum of $32,400 for loss of future earning. I also accept the evidence that for the whole of 1972, in that year the plaintiff was not in a fit condition to work and therefore he should have $5,400 for the loss of earnings for that year. I also accept the evidence that the blood transfusion cost $460. Damage to clothing is $140 and travelling expenses approximately $200. As to nourishing food, this has been a matter of conflicting views as far as different cases are concerned. For my part, I say that although in the strict sense such nourishing food may not be taken into consideration unless the doctor orders it. However this has become a habit of life and a part of life for people either sick or injured and hospitalised in this part of the world. One may say that even though it is not ordered by the doctor it has some effect in boosting up the morale of the patient to help him sooner on the road to recovery. When a son has had his leg amputated it is quite reasonable for the mother to go to see him every day. That is part of the loss and out of pocket expenses. Her claim is not too extravagant in saying that for two or three solid months she has been spending about $10 a day going to see her son and giving him some soup or some nourishing food. This was necessary because the rice supplied in the hospital was just not suitable for her son because of his stomach trouble. Taking all in all that she claimed $2,000 in the form of nourishing food and travelling expenses, I find that a sum of $1,500 for nourishing food is reasonable. For fear of making mistakes in my calculations because I am not half as good a mathematician, I will just leave the matters at that. However for reasons given I would have to say that I have to dismiss the Action.

9. The Action is dismissed with costs to the defendants. The plaintiff's own costs according to Legal Aid Regulations.

Representation: