Chan Shiu Nin v. Tang Kam Ho and Another

HCA001499/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1499 OF 1973

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Coram: Cons, J. in Court.

Date of Judgment: 22nd November, 1973.

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JUDGMENT

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1. This action arises from an accident which occurred in Shanghai Street, Kowloon on the 1st March 1971 in which the Plaintiff was knocked down and injured by an omnibus belonging to the 2nd Defendant Company and was driven on its behalf by the 1st Defendant.

2. The Plaintiff is aged 60 years and has been blind for approximately the last 10 years. He told me that on the day of the accident he had been sent from the Rehabilitation Centre in Kwun Tong where he was employed as a plastic worker to the Jockey Club Clinic in Yaumati for an X-ray examination. After this had been done, he left the clinic accompanied by his wife intending to take a bus to his home in Tung Tau Chuen. He and his wife did not know which bus they needed or where was the appropriate stop, but asked information from the passers-by. Eventually they learned that they needed to cross Shanghai Street, a busy road with traffic running one way only from North to South, and they chose to do so at a spot just South of Man Ming Lane. There would seem to be no particular reason for that choice. There was no crossing, island, traffic lights or other aid for pedestrians. The Plaintiff demonstrated to me how he had crossed, taking his wife's arm with his left hand and holding up his blind stick horizontally with his right. He said he had taken 6 or 7 paces and almost reached the middle of the road when he was struck from the right hand side, spun round and knocked to the ground. He found himself underneath the front of the bus with his right arm imprisoned by one of front wheels, he remained in this position until eventually an ambulance arrived and took him to the Kwong Wah Hospital.

3. The Plaintiff's wife also gave evidence, but she took the matter no further. It is difficult to say whether she is a person of a simple intellect or was completely bemused by the strange formality of court proceedings. In either event, I derived no assistance whatsoever from her evidence.

4. The 1st Defendant, the bus driver, gave a different version. He said that he was driving down the street at a speed of 8 to 10 miles per hour, jammed hard in to the left hand side of the road by the press of he avy traffic in the other 2 lanes to his right. He put the left side of the bus at approximately 5" to 6" from the left hand kerb. At that particular point the verandah of the building on the left is supported by a pillar which, although there was no express evidence on the point, I take to extend to the very edge of the pavement. From behind this pillar the Plaintiff rushed out into his path and although the driver braked immediately he was unable stop in time. He could not swerve to his right because of the other vehicles there. The Plaintiff, he said, was alone and was not carrying a blind stick. This was in the possession of the wife, who was still on the pavement after he had alighted from the bus following the accident.

5. In general, I prefer the evidence of the Plaintiff to that of the bus driver. Firstly I find it hard to believe, having seen the Plaintiff move around the court, that he would 'rush' anywhere. I appreciate that under pressure of cross-examination the driver amended his phrase to 'stepped out all of a sudden', but even suddenness is not in keeping with what I have observed. In addition I think it unlikely that in a neighbourhood which was then fairly strange to him the Plaintiff would deliberately break physical contact with his wife, and in particular leave in her possession an article so important to his progress as his blind stick.

6. Secondly, and more importantly, the only independent evidence which I have is more consistent with that of the Plaintiff. I refer to the sketch drawn by the police constable who arrived later at the scene. The Plaintiff had already been taken away but the bus had not been moved. The sketch shows clearly that the bus had not been jammed hard into the left of the road. After the impact the nearest point at the front was was 4' 4" from the kerb. It was at an angle, with the rearmost part 5' 4", away indicating that prior to the impact the bus was probably even further out.

7. Counsel for the Plaintiff suggested that if a blind man with a blind stick and accompanied by his wife is knocked down by a vehicle this is prima facie evidence of negligence on the part of the driver. I do not think the law goes this far. An accident is prima facie evidence of negligence on the part of somebody. But apart from that it must depend on the circumstances of each case. In this instance I would think the Plaintiff had advanced 5 to 6 feet into the road. Before leaving the side his presence would be obscured from the driver of the bus by the verandah pillar. It would take him at least 3 seconds to reach the point at which he was struck. I say at least 3 seconds but I think it more likely from his demonstration in Court that he would take 4 or perhaps 5. But even at 3 seconds and allowing the bus driver the upper limit of the speed that he mentioned, i.e. 10 miles per hour, the Plaintiff would have been visible first at a distance of approximately 45'. The stopping distances given in the Highway Code, which are slightly more generous than those set out in Bingham Motor Claims Cases, seventh edition at page 106 do not go down as far as 10 miles per hour. But it is easy by simple mathematics to extend the figures. The result is 10' 'thinking distance' and 5' 'braking distance'. The Code warns that vehicles other than private cars or small vans will need twice that distance, although this would seem a very rough judgement. I can see no reason why the 'thinking distance' should vary according to the type of vehicle concerned. Even so this would give a 30' total whereas in fact 45' was not enough. I can only conclude that the driver was not maintaining the proper lookout.

8. On the other hand, if it is proper to treat the Plaintiff and his wife as one unit, it is clear that here also was a failure to keep a proper lookout. A motor bus 45' away is not something that can be easily overlooked. The wife was obviously not paying attention when they set out to cross the road. I think the responsibility is equally divided. The greater responsibility of the driver as such vis a vis pedestrians is offset by the greater responsibility imposed where a person is elderly and blind and thus lacks the mobility of a normal individual.

9. A medical report has been agreed showing that the Plaintiff sustained a fracture of his right arm leaving him with some considerable disability. He is no longer able to do the work he did before, the wages for which are agreed at $75 per month. It is not surprising that in his circumstances he cannot find other work. He spent ten weeks in hospital. I would assess damages for loss of amenities and pain and suffering at $8,000 and for loss of capacity to carn in the future at $3,600. The loss of wages since the accident is $2,250. The wife also worked before the accident, but since then has had to give up in order to look after her husband. The medical evidence supports in the necessity for this. Unfortunately the evidence was extremely vague as to how much she had been able to earn. However I do not think it could have been less than half of the amount earned by her husband and I would award on this account half of the last 2 mentioned sums.

10. I appreciate that since the accident the Plaintiff and his wife have been in receipt of benefit from the Social Welfare Department, the total of which exceeded what they could have earned. This is not an easy or well settled point of the law, but subject to any argument that counsel might like to place before me, I do not think I have power to allow for such benefit in assessing damages under this head.

11. The plaintiff also claims special damages of $195.70 in respect of consultation fees for a chinese herbal doctor, X-ray fees, medicines and drugs, tonics and fares to hospital. No details were given of the last mentioned item; the X-rays do not appear to have been necessary. Tonics and special foods are now governed by Wong Yiu Wah v. Hung Ping Kwan Civ. App. 6 of 1973 which requires proof of their suitability. No such proof was adduced, but apart from this their cost was not borne by the Plaintiff in this instance. The plaintiff said he had receipts to support the fees paid to the herbal doctor, but they were not produced. In the circumstances I do not think I can allow them. Replacement of damaged clothes was pleaded at $194. There was evidence to support this.

12. The total of damages as thus assessed would therefore be $13,400 general and $3,569 special.

13. There remain one, or perhaps two, questions to be considered. First, is it proper to treat the Plaintiff and his wife as one unit with regard to contributory negligence, or to use the old phrase, is he identified with his wife in her negligence. Oliver v. Birmingham Omnibus Co. (1933) 1 K.B. 35 would indicate that he is not, in particular the remarks of McNaghten J. in the middle of Page 41. If that is so then I must ignore the negligence of the wife and give consideration to whether the Plaintiff was himself and in his own conduct negligent, and if so, to what extent. Before doing so or pronouncing final judgment Counsel will have the opportunity of addressing the Court as was promised at the last hearing and I would be grateful for any assistance they find themselves able to give me.

(1. After hearing Counsel) I am grateful for the assistance of Counsel in this particular matter which I have not found easy to decide. Put simply the husband in this case may recover his damages in full despite the negligence of his wife unless she is his "servant or agent". Counsel for the plaintiff suggests that this is not a question of agency at all and that this matter should be approached from a different direction. He accepts the authority of what I might call the "car cases" but says that the present circumstances do not fall within then. He raised the interesting possibility of a blind man being led into danger by his guide dog. I prefer to leave that event until it should a rise and confine myself to what happened in the present instance. With respect to Counsel I think the present does fall within those cases. I have tried hard but I cannot distinguish between a request to drive a car on someone's behalf and a request to see that someone across the road. There may be a distinction with regard to children who are too young to be capable of instructing servants or agents or persons of completely unsounded mind, but that is not the case here. The Plaintiff apart from his blindness is adult and sensible.

14. It then becomes purely a question of fact whether in the circumstances the plaintiff's wife was his servant. Clearly one does not approach this matter from a commercial aspect. The test to be applied would I think be, was the person said to be the agent doing something at the instance or on the request of the principal and for the benefit of the principal, whether or not the agent also benefited. Control, or the right to control, is also a matter mentioned by Hilberry J. in the Lampert Case.⁽¹⁾ I would not suggest that under modern law a husband has a right to control over his wife in any sense, but it is clear that in this particular marriage, the husband was in fact the dominant personality. I have no doubt, from the way in which he took charge of his wife when they were showing to me in Court the manner in which they crossed the road on that occasion, that at all times when the two of them are abroad together in the street, the husband is actively in control of their progress in every respect except that he relies on his wife to warn him of dangers that he would not himself notice by reason of his blindness. This would have been the position for many years and although it was probable that it was not at his express request that his wife accompanied him that day to the clinic and would have accompanied him home afterwards, that request must be implied from conduct. Apart from this it was solely for his personal benefit in the form of an X-ray examination that that trip was made at all.

15. In the circumstances I have come reluctantly - although with a reluctance that is based purely on sympathetic grounds - to the conclusion that the degree of negligence of the wife must be set against the damages of the husband. I had been asked to report separately the degree to which I find him himself negligent. It would be proper that I should do so if I considered him to be negligent at all. But I do not. The negligence suggested is failure to make use of pedestrian crossings or traffic lights which existed somewhere in Shanghai Street. It may have been wiser to make use of those facilities but I am not satisfied that the failure to do so is negligent in itself. It was not failure to use the crossings that caused the damage, but failure to notice the approach of the motor bus. To this end the Plaintiff relied quite properly upon his wife.

16. I will not weary you by reading out that part of my judgment which you have already seen, but I now formally incorporate it with what I have just said and enter judgment accordingly for the total sum of $16,696 which sum shall be reduced by 50% on account of contributory negligence. The Plaintiff is to have his costs against the both defendants and to be taxed in accordance with the Legal Aid Scheme.

Representation:

GOODBODY (GORDEN GAMPTON & WINTER) FOR PLAINTIFF

MILLS-OWENS (JOHNSON, STOKES & MASTER) FOR DEFENDANT

(1) (1954) 2 All E.R. 719.