Kwan Yuk-lan v. Kwan Sing-ho

HCA000718/1970

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 718 OF 1970

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Coram: Hon. Cons, J. in Court.

Date of Judgment: 31st July, 1974.

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JUDGMENT

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1. The accident which gives rise to this claim took place in Boundary Street early one morning some five years ago. The plaintiff was then a woman in her middle thirties. That morning she had been with her daughter, a girl aged 16 or 17 years, her small dog and the shampoo boy, employed at her own hairdressing shop. They had just finished their morning exercises in the garden of Yau Yat Chuen. I do not know where they then intended to go but it is obvious that to reach wherever it was it was necessary to cross Boundary Street. The shampoo boy took the dog and went straight over. The plaintiff and her daughter did what the boy ought to have done, they walked a little way up the street to its junction with Tai Hang Tung Road. At this point there is a studded pedestrian crossing controlled by a traffic constable on a pagoda. The two of them made use of the crossing and crossed safely as far as the road island in the middle, beneath the pagoda. From there it was necessary to traverse two lanes of traffic to reach the pavement and follow the shampoo boy and the dog who by this time, by reason of their short cut directly across the road, were a little way ahead. The first of those two lanes of traffic was designed generally for traffic to turn right into Tai Hang Tung Road. To do so it must of course cross the traffic flowing in the other direction along Boundary Street, hence the need for the traffic constable on the pagoda. At that moment, two or three vehicles were stationary in that first lane waiting to turn, and for the constable's signal that it was proper for them to do so. He had not yet given that signal and was allowing the remainder of the traffic to flow in both directions along Boundary Street, in particular the second lane that the plaintiff was about to cross. As she did so she was hit by the defendant's motorcar.

2. This recital of facts is based upon the evidence of the traffic constable and shampoo boy; the injuries received by the plaintiff are such that she is now quite incapable of giving evidence herself. At the moment before the collision the constable was facing in the opposite direction but he turned quickly upon hearing the sound of violent braking and was in time to see the plaintiff actually struck by the car, thrown into the air, and on to its bonnet. From there she fell to the road at one side. The shampoo boy also turned and saw the plaintiff as she was in the air.

3. Two persons who should have seen not only the actual collision but the events giving rise to it have not been called as witnesses, that is, the plaintiff's daughter and the defendant who was driving the car. I am told the daughter is now married and living in Canada. No reason is given for the defendant's absence. There is thus little or no evidence of the precise manner in which the defendant drove. The constable at first said he was travelling at 20 to 30 miles per hour but appeared to accept in cross-examination that it was 20 miles per hour and quite normal in speed. But it is difficult to see how he could form a reliable opinion when he did not see the car until after it had started to brake hard. However I do not think the actual speed in miles per hour is important, the facts of the collision speak for themselves. The defendant must have seen the plaintiff because he braked before he struck her. She must also have been to some extent in front of him other wise she would not have been thrown on to the bonnet. The question is, should he have been able to stop?

4. The circumstances contain three factors to be considered. Firstly, the plaintiff was on a studded crossing; secondly, there were stationary vehicles to one side; and thirdly, there was a constable controlling the traffic. The studs of the crossing do not in themselves confer any rights upon the pedestrian but they do indicate to motorists that it is likely that pedestrians will cross the road at that point. Motorists should exercise particular care when approaching them: R. v. CHIANG Shu-cheong⁽¹⁾. The effect of the stationary vehicles is similar. Pedestrians are likely to appear from behind them without warning. It may be a careless practice but it is a common one. Paragraph 23 of the Highway Code enjoins drivers to be on their watch. Stationary vehicles will normally be found on the left or near side of the road and parked. Even greater care will be necessary where, as in this case, they are stationary in the centre of the road and before a crossing. There is then every likelihood that the pedestrian may misread the situation and conclude that they have stopped for his or her benefit. In the circumstances the defendant here should have been taking especial care. He is of course not liable to ensure the plaintiff against her own folly. She should not dash madly into his path. But on the evidence I have heard I do not think the plaintiff did dash madly into his path. I am satisfied that as far as speed is concerned she walked normally. For her to have done otherwise would have been inconsistent with her ironically careful conduct in going along to the junction rather than to follow the boy and the dog straight across. The actual point of impact indicated by the traffic constable was well into the defendant's driving lane, that is, the plaintiff would have been visible to him for quite an appreciable time. That he did not stop indicates he was either paying insufficient attention or driving too fast in the particular circumstances, or perhaps both.

5. It may be said that his liability is negatived by the signal of the constable in his favour. I do not think this is so. The Court of Appeal in England has said that a favourable traffic light is not necessarily conclusive, and that each case must nevertheless be decided upon its own particular facts. This was said in the case of Davis v. Hassan⁽²⁾. In this Colony, the case of Edwards v. Hong Kong Tramways⁽³⁾ has shown that it is possible to act in direct and positive obedience to a police direction and yet still be guilty of negligence. The facts of that case were particularly unusual but that does not distract from the principle. Police directions are naturally a matter to be considered but only in conjunction with the other circumstances. In the present instance I am satisfied that the defendant approached the crossing without giving sufficient attention to the possibility that someone might be using it.

6. I am satisfied also that the plaintiff was to some extent responsible. Although the defendant was driving negligently, there is nothing to indicate that he was driving wildly and I cannot conceive how the plaintiff can have got herself into the position in which she was struck without some degree of negligence on her part.

7. I have not found it easy to apportion the responsibility between the two of them. Previous cases depend so much upon their own individual facts that they offer little help. I have also been particularly aware that I should not be influenced by the disastrous effect that the accident has had upon the plaintiff and her immediate family in comparison with the defendant, whom, I assume received no injury at all. After much consideration I have come to the conclusion that the responsibility should be apportioned as to one-third to the plaintiff and two-thirds to the defendant.

8. The only claim for special damages made in this case is for replacement staff and charges for doing what the plaintiff did before her injury, that is in relation to her ownership of the Wing Lai Barber Shop. It has been suggested that this aspect of her case is not true and that she was, if anything, little more than just the "boss's wife", the boss being her husband, and that she helped out as best she could only when the shop was heavily pressed with business. To some extent this suggestion appears to have been accepted by the shampoo boy but having seen the husband and heard his evidence, I am satisfied that indeed the plaintiff was the owner; and that although naturally she would have worked harder when the shop was busy, as a general practice she was still personally responsible for the financial matters, for the laundry of the towels, barber's gowns and the like, and assisted in the shampooing of ladies' hair. Since her incapacity one of the staff already in the shop has looked after the books as a personal favour to the husband for the almost nominal sum of $150 per month, and the laundry has been sent out at a cost of $50 per month. The husband's evidence at the very end of cross-examination appears to contradict itself with regard to the engagement of an additional shampoo boy. However I am satisfied that this confusion can be explained by the continual strain to which the husband must have been subjected for the last five years and which is now clearly reflected in him, a strain aggravated by the need to recount all the disastrous details in this Court. It seems to me more than likely that additional staff would have been required to replace the plaintiff and I am satisfied that one person was so engaged. The writ limits the wages paid in this respect to $360 per month. Together with the laundry charges the extra expenses, therefore, amount to $560 per month. The period in question was fifteen months and the total recoverable under this head was $8,400.

9. The plaintiff's loss in this respect has continued and will continue into the future but it would be unrealistic to work from the same figure that I have just mentioned. Shampoo boys now command wages in the neighbourhood of $700 per month and the staff member looking after the books cannot be expected to continue his friendly gesture ad infinitum. I would estimate the current expenses to be somewhere in the region of $1,200 per month. I appreciate that these are not wages that the plaintiff will lose. They are instead the value of services that previously she was able to render to herself as owner of the firm. But as such they give some indication of her earning capacity. And at that rate, that capacity is well in excess of that of the plaintiff in the case of LEE Pui-kee v. NG Chak-tong⁽⁴⁾, one of the cases to which I was referred for comparison with regard to general damages. The effect of the accident upon the plaintiff is also much greater than it was in that earlier case. There the plaintiff was a tailor aged 53. He suffered minor broken bones which healed well, but the gravamen of his injuries was mental. He was described as being as though he had suffered a serious stroke, and at the same time lost complete interest in his life and family. Unfortunately proper medical evidence as to the future was lacking in that case and the award of $70,000, which was awarded as general damages, was given by comparison with a still earlier case which was not too dissimilar, and then confirmed by a rough check against the loss of wages that would have been awarded had it been a fatal accident. It should be noted also that the plaintiff was coherent and able to give evidence in detail as to his own accident.

10. I was also referred to another case, WONG Yin-wah and Another v. HUNG Ping-wan and Others⁽⁵⁾. In that case the plaintiff was a man of 39 years. He suffered a fractured skull and had to undergo an emergency operation which left him with three deep indentations in his forehead. In addition, a fractured nasal bone had deprived him of his sense of smell, and there was deterioration of his memory and of his eyesight. He also received multiple abrasions to other parts of his body. The sum total of these injuries was to induce a severe change of his personality for the worse and to leave him with what the doctor assessed at that time to be a 5% risk of epilepsy. He had however made a remarkable recovery by the time the case was heard, and the award of damages for pain and suffering and the change of personality was substantially in respect of what had occurred in the four years previously. On appeal matters fell to be considered which do not concern me here. It is sufficient to note that, in effect, an award of $62,000 for this aspect was not disturbed.

11. In neither of these cases did the personality deterioration even approach what has taken place in the present instance. From being a normal, hardworking business woman and mother the plaintiff is now little more than a mobile cabbage. Among the agreed medical reports are two by Dr. Hunter, a neurosurgeon. The first is in great detail and was compiled a little over two years after the accident, the second was written last July. The doctor also gave evidence before me. I do not propose to go into the details of those reports or the evidence, it is sufficient to give a short, general picture. Mentally I would now describe the plaintiff as a simpleton. She is almost completely deaf and has impaired vision, and she suffers from a continual and involuntary upward movement of her eyes, which is a condition closely associated with epilepsy, to which she will also now always be prone. Last year she suffered two severe attacks. It is possible to reduce the chances of further attacks by perpetual medication. On the other hand her nature is now such that she cannot be relied upon to take this regularly. Physically, she has to some extent lost control of her left side and can get about only with difficulty. She requires constant attention but not necessarily of professional standing. No substantial improvement can be expected in the future.

12. In these circumstances, and taking into account the financial consideration that I mentioned earlier, the award of general damages should be $150,000. Both sets of damages will of course need to be discounted with regard to the contributory negligence that I have already mentioned. The plaintiff is to have her costs of the action and these should be taxed in accordance with the Legal Aid rules.

Representation:

M. Asome (Director of Legal Aid) for plaintiff.

R. Tang (K.B. Chau & Co.) for defendant.

(1) [1962] H.K.L.R. 595 at 599

(2) 7th ed. Bingham's Motor Claims Cases 111

(3) [1972] H.K.L.R. 500

(4) O.J.A. 1429 of 1973

(5) Civil Appeal No.6 of 1973