Lee Pui-kee v. Ng Chak-tong

HCA001429/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1429 OF 1973

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Coram: Cons, J., in Court.

Date of Judgment: 10 January 1974

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JUDGMENT

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1. The plaintiff in this action is, or rather was, a tailor now 53 years of age. I amend the tense because since the accident two years ago he has not sewed one single stitch. The site of the accident was King's Road, North Point, at a cross-roads made by the intersection of Fortress Hill Road on the one side and Power Street on the other. On each side, that is in King's Road, there is a studded pedestrian crossing. It was at the further crossing, as the defendant was driving his taxi, that the plaintiff was knocked down.

2. King's Road at this point must be a wide road. The agreed sketch plan shows two lanes of traffic in each direction separated by two sets of tram lines. Pedestrians using the studded crossings have a long way to walk, but at either edge of the tram lines they may take shelter from possible traffic in a small refuge created by traffic islands placed each side of the crossing. Some of the islands also serve to support the lights controlling the traffic at the cross-roads. There are no special lights to advise pedestrians.

3. The plaintiff started off from the left hand pavement and reached the traffic islands in safety. His evidence is that he continued on to the first set of tram lines and was immediately knocked into by the taxi. He claims he was within the confines of the studded crossing. The defendant contends that it was further on, level with the further island. He suggests that the plaintiff leaned out from the island, rather than walked, sufficiently far to be struck by the wind-screen of the taxi.

4. These were the only two witnesses called as to the facts of the incident and it is difficult to decide which is the more reliable. The bulk of the plaintiff's evidence-in-chief was mere assent to statement made by his counsel and although at times in cross-examination he gave good coherent answers at other times he contradicted himself and gave answers which tended to lend support to the defence. The defendant himself made a good impression in the box but his integrity is open to doubt in view of the statement that he made to the police and which has been put in by consent as Exhibit 3. What he now puts forward as suggestion he seems then to have stated as certain fact. In some part this may be mere inability to express himself clearly, but that is not sufficient to explain his clear assertions in both statements that he saw the plaintiff actually standing upon the island. In the latter statement of the two he was even able to specify the direction in which the plaintiff was facing. If he was correct in this the plaintiff must have gone backwards into the taxi.

5. The position of the plaintiff after the accident was partially upon the road and partially upon the island. This could indicate that this was the point of impact, but a person does not necessarily fall at the precise spot where he is hit and I derive no assistance from this particular fact. Nor do I think it material for any other reason whether the accident occurred technically within the crossing or at the island just to the side of it. Crossings of this nature are an indication to the motorist that he should take particular care for pedestrians in that area. That particular duty does not cease at the very moment the bumper of his car passes the further row of studs.

6. There is nothing in the evidence to indicate that the taxi was moving at an excessive speed. It is true that it did not stop until approximately 50 feet past the further island which according to the illustrations in the Highway Code would indicate a speed of 30 miles per hour, but if the taxi were in fact accelerating away from a stationary position on the other side of the cross-roads its momentum would be greater than when running at a steady speed. Furthermore the sudden shattering of the wind-screen would be more stupifying to the driver than the normal appreciation of danger and the "thinking distance" could be expected to exceed what is allowed for in the Highway Code. I think the most probable explanation of the accident was that the plaintiff having set out from the pavement when the road was empty failed to observe that the traffic lights were in the act of changing, or had indeed just changed to allow traffic to proceed along King's Road. He then blithely pursued his way across the tram lines without giving any though to the possibility of motor traffic in the area and walked directly into the taxi. The plaintiff was, of course, at fault in not paying attention to the traffic at that point, and he must at least be partially responsible for the accident.

7. The question then is whether or not the defendant was also negligent. He was not driving at a speed which would have been excessive on an open road, but he was not on an open road. He was proceeding through a narrow gap with pedestrians waiting in a group very close to his left hand side. Looking at the sketch the gap does not appear to be as narrow as the defendant makes out. It can certainly take two trams. Perhaps part of it was already occupied. But whether from force or from choice the defendant went exceedingly close to those waiting pedestrians. It is obvious that one might at any moment step, or perhaps be accidentally pushed onto the road. In those circumstances it was incumbent on him to proceed with the utmost caution, certainly not to accelerate. The defendant says that he sounded his horn. I have some doubts as to this, but even if it be true, it would not by itself relieve him from the care otherwise required.

8. Then there is another matter to be considered. The defendant was not forced to take his taxi through that narrow gap. There was ample road way to the other side of the island. He may, of course, use whatever part of the road he thinks fit, but he is not entitled to ignore the greater risks that in certain circumstances may be imposed upon one particular part of the road in comparison with others. He attempted to explain his choice by the need to take his passengers to their destination, which is a turning to the right further along King's Road. He did not say how much further along King's Road, but it is clear from the sketch that he could, if he had wished, have taken the island on its left, that is on the same side as one would normally do, and then pull across to the centre without any danger whatever to those waiting pedestrians. I am satisfied that he also was negligent. In the circumstances. I am satisfied that he also was negligent. In the circumstances I think he was two-thirds responsible and the plaintiff one-third.

9. The plaintiff suffered two kinds of injury. Firstly, there is the purely physical, namely, a broken ankle and rib. These have healed well leaving no permanent disability and account for only a small part of the final award. Secondly, although physical in origin in the form of concussion there is mental injury of some severity. A medical Board before whom the plaintiff appeared two months age noted the symptoms as slurring of speech, clumsiness of the right hand and loss of mental alertness. The report of the Board is short and apart from the technical details of the treatment gives no more information than that I have already mentioned. In addition one of the members of the Board gave evidence, a doctor who, in the past, has had some experience of neurosurgery and felt himself competent to express an opinion in this field. The Board did not make a long or detailed examination of the plaintiff and seems to have placed a good deal of reliance upon information given by his wife, but as soon as one sees and deals with the plaintiff that cursory approach is understandable. To the layman he is the typical example of a person who has suffered seriously from what is commonly known as a stroke. Control of his right hand and control of his speech is clearly very difficult for him. His wife also speaks of incontinence in the home and complete loss of interest in life or his family. He has probably twice attempted suicide. He feels himself unable to pursue gainful employment of any kind and although since the accident his wife has introduced him to employment, he was unable to carry it out. The doctor considers him incapable of anything except the most simple of everyday tasks. From my own observation of the plaintiff. I think the doctor takes an unduly pessimistic stand, but nevertheless it is clear that even for very simple work an employer would only take him on as a last resort. For all practical purposes he is at the moment unemployable. Whether he will remain so for any length of time is extremely difficult to say. Doctor Chan did not expect any improvement, yet was constrained to admit that perhaps the plaintiff should be recalled for further treatment. I would have preferred a prognosis from someone currently practising and experienced in this particular field of medicine. But without that evidence I have to make do as best I can. In a not too dissimilar case (LEE Kut-mui v. CHEUNG Tak-lung, O.J. Action 794 of 1969) save that the plaintiff's earning power was slightly lower, damages were assessed in the sum of $60,000. By comparison a fair amount in the present instance would be $70,000. As a rough check upon this figure I have caused calculations to be made which show that invested at 7% and withdrawing the sum of $8,400 annually from interest and capital as necessary the fund would be exhausted in 13 years. This is 3 years longer than the multiplier I would have applied had this been a fatal accident case, but the damages must also include some element for loss of amenity and pain and suffering. I should add that I appreciate 7% is a somewhat lower rate than can currently be safely obtained, but the present high rates cannot be expected to continue. There should be added to this figure the sum of $4,900 to represent loss of wages from the date of the accident to the issue of the writ.

10. I turn now to a very interesting aspect of this case. Since the accident the plaintiff and his family have been in receipt of assistance from the Social Welfare Department. The question is then whether this amount should be deducted from the assessed damages. It is not the first time that this question has come before me. In CHAN Shiu-nin and TANG Kam-ho v. The Kowloon Motor Bus Co. (1933) Ltd. O.J. Action 1499 of 1973, where the plaintiff also received similar payments, I said I thought that the court had no power to make any such deduction. I still adhere to that view. In that case only a small amount was involved and counsel chose not to argue the point. In the present case the sum is greater, in round figures, $7,500. With increased emphasis upon social welfare the point is likely to become of importance in yet further cases. It still has not been properly argued before me, but in case it may be thought desirable to go further it is right that I should set out the reasons for my decision.

11. When a person is injured in an accident it frequently happens that although he loses wages which he would otherwise have earned, he receives benefits which he would not otherwise have received, such as a disability pension, insurance monies and the like. For most kinds of benefit the question whether such sums should be deducted from the damages awarded has been settled by legislation or high judicial authority. The kind with which I have to deal is an exception. Indeed in the most important case in this field -Parry v. Cleaver [1970] A.C. 1-two of the learned law lords deliberately ignored it (Lord Reid at p.19 and Lord Wilberforce at p.39). There have, however, been decisions at first instance. In Eldridge v. Videtta (1964) 108 Sol. J. Veale, J. refused to deduct payments granted by way of National Assistance Benefit, which I take to be similar in kind to those made by our Social Welfare Department. The learned judge observed that no authority had been shown to him which would justify the deduction and he felt that it would be wrong in principle. It is a very short report and does not indicate whether he had been referred to the case of The British Transport Commission v. Gourley [1956] A.C. 185. In that case the House of Lords confirmed the principle that damages should compensate for net loss alone. It was mentioned in a similar case a few months later, that is, Foxley v. Olton [1965] 2 Q.B. 306. Again no deduction was made. John Stephenson, J., followed the earlier case and felt himself able to disregard the Gourley principle because of the discretionary nature of the payment. It should be noted, however, that this decision was made before the law lords in Parry v. Cleaver had unanimously agreed that the discretion to pay or withhold is not a material feature when considering whether to deduct or not.

12. In Parsons v. B.N.M. Laboratories Ltd. [1964] 1 Q.B. 95, a case of wrongful dismissal, the plaintiff had received certain monies by way of unemployment benefits. The Court of Appeal held that these should be taken into account in assessing the actual loss. The learned judge in Foxley was satisfied that this did not conflict with his own decision but Lord Reid in Parry v. Cleaver found it difficult to draw a distinction between unemployment benefit and national assistance (in p.19). He added, however, that there were other considerations. He did not specify what these were, but there may perhaps be a hint in the comment earlier in his judgment that

"it may be thought that Parliament did not intend (public welfare) to be for the benefit of the wrongdoer."

It was partly this thought that inclined me to the conclusion that Foxley is still good law. I have also been influenced by the consideration that such a conclusion seems in conformity with the long established decision of the House of Lords in the Liesbosch v. S.S. Edison [1933] A.C. 449. In that case the defendant was held not liable for losses incurred solely because of the plaintiff's lack of means. It should follow that he ought not to benefit from the same cause. It is true that the defendant is entitled to take the plaintiff as he finds him but this maxim must not be taken to extremes (Lord Pearce in Parry v. Cleaver at p.35). Moreover at the time that the defendant found the plaintiff the plaintiff was not lacking in money, he had a steady job and a reasonable salary. The poverty came later.

One final point remains. I have been asked by counsel to award interest on the damages in accordance with s.30A of the Supreme Court Ordinance. That section is in similar terms to s.3(1) of the Law Reform (Miscellaneous Provisions) Act 1934 in England. Despite the discretionary powers there conferred it was the practice of the English courts, and it still is here, not to award interest in personal injury cases. By the Administration of Justice Act 1969 discretion was removed in England and awards of interest are now mandatory where damages exceed a certain figure, unless there are special reasons otherwise. Similar legislation exists in this Colony in item No. 1 on the Schedule of the Law Reform (Miscellaneous Amendments) Ordinance, Cap. 350. However, by s. 1(2) it is specifically provided that this legislation is not to come into effect until such date as may be appointed by the Governor in the Gazette. There must be some deliberate reason for this delay and therefore unless and until such date is appointed I think it would be wrong for me to depart from the usual practice.

Representation:

William Waung (Helen A. Lo & Co.) for the plaintiff.

Robert Tang (H.H. Lau & W.S. Lo) for the defendant.