Wong Wing-ho and Another v. Cheung Chun-nin

HCA002047/1975

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 2047 OF 1975

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Coram: Cons, J.

Date of Judgment: 25th February 1976

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JUDGMENT

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1. This action arises from a traffic accident which occurred on the Ho Tung Bridge by the 33½ milestone, Castle Peak Road, in the New Territories. There are several matters where the parties do not agree but the basic issue is whether a cyclist turned suddenly across the path of an overtaking car, or whether that cyclist was struck by the car while pursuing a proper course close to the left hand kerb.

2. Four witnesses gave evidence as to the circumstances of the accident. The first was the cyclist himself, then a boy of 17 years. He is a well educated boy and gave his evidence clearly. I have no doubt that he is also an intelligent boy. His story is that he was cycling along some two to three feet from the left hand kerb; in the rear mirror attached to the handlebars of his bicycle he noticed a car coming up very fast behind him; he pulled in further to his left, to about one to two feet from the kerb, but was nevertheless struck directly from behind.

3. His evidence was generally confirmed by that of a Mr. Heung Kam-kui, who was the driver of a car coming from the opposite direction. He pulled off the road to avoid the defendant's car, which had come to rest on the wrong side, alighted and rendered what assistance he could to the injured boy until the police and the ambulance came. He said he saw the accident take place and made known this fact to the police who first arrived on the scene. They would have been officers of the New Territories Emergency Unit. Mr. Heung did not wait for the officer from the Accident Enquiry Office of the Traffic Division to come. He says the officers already there told him to leave as nothing had happened to his own car. Before he did so however, they asked for and were given, Mr. Heung's name and address. Curiously enough, they did not pass these on to the traffic officer when he did come, nor mention the existence of an eye witness, but it must be accepted that there are possible explanations other than that Mr. Heung is now not telling the complete truth.

4. For the defence evidence was given by the driver of the car, who is the defendant, and by his sister, who was his passenger at the time. With every respect to them they are not persons of great intelligence. Neither can they have received much education. Some of their evidence, when reduced to manuscript, does not read well. Yet at the time it did not give me the impression of dishonesty. From my observation of the witnesses alone I would have preferred on balance their evidence to that called for the plaintiff.

5. Apart from my observation of the witnesses there is little in this case to assist me. The traffic sergeant who attended the scene and who drew the sketch which has been agreed, has received certain training in the evaluation of matters found at the scene of accidents. He could find nothing in this instance which would positively indicate the position of the impact. I can do no better. At one stage I thought that perhaps the skid marks on the wrong side of the road pointed more to the defendant's version. But counsel for the plaintiff convinced me that it is possible their position is also consistent with the version put forward by the plaintiff. However two other matters deserve mention. The first is the open nature of the area. The road there is straight and the place where the accident actually occurred is a bridge with a pavement of 15 feet in width extending from the left of the road to an iron fence, presumably over water. There can be no trees overhead to cause shadows and the light generally is agreed to have been good. A cyclist by the kerb would have presented a clear figure. If he were there and the defendant had not seen him until the very last moment it could have only been due to some complete and utter disregard by the defendant of his obligations as a driver. On the other hand it is accepted that just on the other side of the bridge the 1st plaintiff would have needed to turn to his right across the road in order to reach his home where he was going, and it is by no means unknown for young boys to take short cuts. These matters are not conclusive proof in themselves but they do indicate to my mind, quite apart from the view I take of the witnesses, that the inherent probabilities of the situation are also more in favour of the defence.

6. I am satisfied that the accident occurred in the way described to me by the defendant and his sister, that there was no opportunity for the defendant to avoid it and that no negligence of any kind has been proved against him. The plaintiff's claim must therefore fail.

7. It is right that I should assess damages in case I should be in error. The 1st plaintiff was seriously injured in the accident. There was a fracture of the 2nd lumbar vertebra which caused temporary paralysis from the waist down. There was also a partial rupture of the urethra which later caused an urethral fistula to develop. Fortunately he is now almost completely recovered. All that remains is some weakness in the back which prevents him from lifting heavy weights and pain comes after prolonged exercise, such as basket-ball. There is some chance, although not much, of trouble occurring in the urethra, which if it does will require extended treatment. There is a much higher possibility of osteoarthritis than would be usual. Loss of amenities is slight and I do not think there will be any loss of future earnings. He is not a boy who would otherwise have found his metier in a physically robust occupation. But he has suffered considerable pain and discomfort. He was in hospital for over five months and the doctor in charge of the unit which treated him is of opinion that injury of this kind produces the greatest suffering known to mankind. There would also be for a while the uncertainty of not knowing whether he would recover. Under the general heading of pain and suffering and loss of amenities I would have awarded the sum of $15,000.

8. I would have accepted as reasonable and as proved the special damages claimed, with the exception of the school fees and the claim for tonic food. Proof of the former obviously did not come up to expectation. As to the latter while I appreciate that the comments of the Full Court in Mui Ling-Kwan and another v. Wong Yin-wah and others⁽¹⁾ have been criticised⁽²⁾ they do seem to establish that, except perhaps in cases involving very small amounts, some form of expert evidence is necessary and certainly is so in the case of patients who are confined to hospital. None was called in the present instance. Indeed there was not even satisfactory evidence as to the amount of money spent.

9. For these reasons judgment is entered for the defendant with costs.

Representation:

Wesley Wong (T.S. Tong & Co.) for plaintiffs.

Alan Hoo (F. Zimmern & Co.) for defendant.

(1) [1973] H.K.L.R. 465

(2) 4 H.K.L.J. 79