Lui Yuk Tai v. Anthony Kevin Mcloughlin

HCA003528/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO.3528 OF 1973

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Coram: Briggs, C.J.

Date of Judgment: 11th February, 1976.

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JUDGMENT

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1. The plaintiff is a woman of 45 years lately employed as an amah. The defendant is a Detective Senior Inspector in the Royal Hong Kong Police Force.

2. On July 4th, 1971, at about 9 p.m. an accident occurred in Jockey Club Road, Fanling, when the plaintiff was knocked down by a private car driven by the defendant. The plaintiff received severe injuries and this is an action brought to recover damages from the defendant.

3. The accident, as I have said, occurred in July 1971. The writ was not issued until November 20th, 1973, two years and more after the accident. The trial took place on February 6th and 9th, 1976 - which is over four and a half years from the date of the accident.

4. No explanation was given for these long delays and the result must be that the evidence of the plaintiff and the defendant and his witness - who were the only witnesses giving evidence as to the circumstances of the accident - is weakened by the effluxion of time.

5. Be that as it may, the account of the accident given by the plaintiff is very different from that given by the defendant and his witness.

6. The plaintiff said she had gone to Kowloon in order to purchase a particular type of noodles. She returned to Fanling where she was living in the house of her employer, Pang Chi Man, a school-teacher, by a single-decker bus belonging to the Kowloon Motor Bus Company. She alighted from the bus at the bus-stop in Jockey Club Road, which is some fifty yards up that road from the roundabout which is situated immediately in front of the entrance to the Fanling Magistracy. The plaintiff said that it was about 9 p.m. when she alighted carrying the noodles she had purchased in a bag. She saw the bus leave and then, having looked to her left and right and finding there was no traffic she stepped off the kerb to cross the road. She did this in order to reach the entrance to a lane on the other side of the road: this lane would take her in the direction of her employer's residence.

7. She was knocked down and rendered unconscious. And she regained consciousness in a hospital.

8. The plaintiff said she stepped off the kerb. She demonstrated how far she moved by taking two short steps. The court visited the scene of the accident and the plaintiff repeated this demonstration. But she also said in her examination-in-chief that she did not know how far from the kerb she had gone when she was struck: and again, that she had not quite reached the centre of the road. From the sketch map made immediately after the accident by a police officer, we know that the road at the spot is 23 feet wide. There is a broken white line running down the centre and visibility would appear to be excellent in both directions.

9. The plaintiff is an unsophisticated person who is illiterate. I had the impression that she honestly believed what she said in her evidence but that she really only knew that she was on the road and was struck and rendered unconscious. For example, she told the court that she did not even know from what direction she was hit, nor what it was that hit her; she did not see what it was that struck her. My note of part of her cross-examination - a cross-examination which was conducted in a modest manner - reads: "All I remember is stepping from the pavement and being struck by something." However, she denied that she had crossed over the centre of the road.

10. The defendant, at the time of the accident was stationed at the Fanling Police Depot, the Officers' Mess of which is situated about 600 yards down Jockey Club Road away from the Fanling Magistracy.

11. On the evening in question he was driving his sports car and was on his way to the Police Training School at Aberdeen where he was to report for a course of study in the Chinese language. He therefore had some baggage with him. He was accompanied by a Mr. Tynan, an Inspector of Police in the Royal Hong Kong Police Force. He was also destined to pursue the same course.

12. The two officers packed up the belongings they would need at Aberdeen, had a meal and left by car. The defendant was driving. Mr. Tynan was sitting by his side.

13. Rather under 100 yards from the bus-stop coming towards Fanling Magistracy, is a bend in the road. The court noticed, when visiting the scene of the accident, that this was not a bend at all difficult to manoeuvre. The defendant was used to his car and knew the road well.

14. He said that when he rounded the bend he noticed a public light bus stationary on the other side of the road facing in his direction. He saw no other traffic, vehicular or pedestrian, on the road. At the time, he was travelling at about 30 miles per hour and was in top gear. He changed down to third gear and decelerated because he was approaching the roundabout. The public light bus had its headlights full on. As the front of the car of the defendant passed the rear of the public light bus he saw a shadow momentarily. Immediately there was an impact to the front right headlight area of his car and a second impact on the right door of the cat. The defendant noticed that the result of this was that his car veered to the right. He corrected this and braked and stopped.

15. He found that the car had collided with the plaintiff. The plaintiff ended up to the right of the defendant with her head lying towards the kerb from which she said she had just stepped out. Her head was about 8" from the kerb and her body lay diagonally towards the centre of the road but lying far short of the centre line of the road.

16. The public light bus had begun to move and the evidence of the defendant was that the plaintiff stepped out from the back of the bus as it moved off. By the time the defendant had stopped his car and alighted, the public light bus had progressed towards the bend from which the defendant had come.

17. There was a distance of 26 feet from the nearest part of the defendant's car to the plaintiff as she lay in the road.

18. The defendant said that he saw no Kowloon Motor Bus in the area at all. And he placed the point of impact some 20 feet nearer to the Fanling Magistracy than the spot pointed out by the plaintiff. This is in agreement with the sketch plan. He also said that he was driving in the centre of his half of the road with dipped headlights. He put the time at 9.27 p.m. exactly.

19. Mr. Tynan, the passenger of the defendant also gave evidence. He corroborated that given by the defendant and described how he saw the plaintiff (as he now knows her to be) step out from behind the public light bus when the defendant's car came level with the rear of the public light bus. He described the plaintiff as "a shadow but only a shadow". He could not have said whether it was a man or a woman he saw. He was emphatic that the defendant's car remained on the correct side of the road the whole time and did not cross the centre line of the road.

20. Both the defendant and his passenger are police officers who, of course, are trained to observe details. They gave their evidence fairly, and I believe them to be witnesses of truth. When the evidence is in conflict with that of the plaintiff, I accept their evidence in preference to that of the plaintiff. On the balance of probabilities I think that the plaintiff was the author of her own misfortunes. She stepped from behind a public light bus into the road without taking care to see that the road was clear.

21. I do not accept her version that she waited for the bus to leave, then looked both ways and finding both ways clear, proceeded to cross. She must have seen the car of the defendant if she had done that and if her story was the correct one.

22. In the event, therefore, I do not think that the defendant was liable for the accident. And there must be judgment in his favour.

23. In case this matter goes to a higher court, I will now assess the amount of damages which I would have awarded had I found that the defendant was wholly to blame for the accident.

24. The plaintiff was 40 years old at the time of the accident. She was employed as an amah and lived in with her accommodation and food provided for. As a result of the accident she is virtually a one-armed woman. She has lost her job and is living on public subsistence. Her left arm is useless and it has been suggested to her that it be amputated. This operation she refuses to have performed. But it is possible that if the circulation in that arm deteriorates this will have to be done. In that event, there will be no chance of the fitting of an artificial limb. The shoulder girdle has been so badly damaged that such a limb could not be effectively useful to her.

25. The condition of her arm is described in the medical reports which have been exhibited as a "flail arm". Most of the time, the plaintiff supports her left, her flail arm, with her right. This is because she suffers an uncomfortable sensation in the left arm if it is allowed to drag.

26. It was suggested that she could still do certain tasks normally performed by an amah. Dr. Nicholson did not agree with this view. Nor does the plaintiff herself. She says she is quite unable to work. It is true that she might if she placed the flail arm in a sling, manage to do a little cleaning. But I do not see how she could look after children, make beds, wash and iron, or cook. The number of jobs open to her is very limited indeed. And it is true to say that she has not tried to secure employment. She has trouble in performing many quite minor tasks of every day, such as sewing on a button, and indeed needs help in dressing and undressing.

27. The plaintiff suffered other injuries. Her left and right legs were fractured and she suffered injuries to her head, and she suffered a considerable amount of pain and suffering. She was hospitalized for a long time and still, as I have said, experiences, if not pain at least disquieting sensations in her damaged arm. I was told that the condition of the arm will not improve and that even if there was an amputation, it is probable she would still feel the same degree of pain in the "phantom limb". She also still has some pain in her left leg.

28. I would have awarded the sums claimed as special damages in paragraphs (b), (c) and (f) in the Statement of Claim, i.e. $420.

29. To these I would have added a sum for loss of earnings. The plaintiff was earning $450 per month and was paid double wages at Chinese New Year. She was also provided with free accommodation.

30. In her statement of claim the plaintiff puts her real wage at $650 per month and I think that is a fair estimate. For loss of earnings under the head of 'special damages'. I would therefore have awarded the sum claimed, $18,200.

31. The total for special damages therefore would have come to $18,620 on which interest would have been awarded at 4% up to the date of the trial.

32. In addition, for general damages, i.e. for loss of amenities, loss of future earnings and for pain and suffering, I would have awarded $97,650. This assumes a multiplier of 10 and takes into consideration that the payment would be a lump sum payment, inflation and what is usually called the vicissitudes of life. There would be 8% interest on this sum as from the date of the issue of the writ.

33. But all this is academic. There will be judgment for the defendant with costs. The costs of the plaintiff are to be taxed on the legal aid scale.

Representation:

Asome (D.L.A.) for Plaintiff.

Donnelly (G. Hampton & Winter) for Defendant.