Lam Shui Tsin v. James Tong

HCA002048/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 2048 OF 1973

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Coram: Briggs, C.J.

Date of Judgment: 11 February 1974

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JUDGMENT

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1. This action arises out of a traffic accident which occurred as long ago as the 20th April, 1971. On that date, at about 3.40 p.m. in the afternoon the plaintiff and his son crossed a studded pedestrian crossing in Chung On Street, Tsuen Wan. This pedestrian crossing is close to where Sha Tsui Road Crosses Chung On Street. At this cross-roads there are railings erected on the pavement to prevent pedestrians from leaving the pavement at the area of the cross-roads. These railings are erected on each of the four parts of the cross-roads. They are iron railings and consist of uprights joined by two horizontal bars. They stop short of the pedestrian crossing to which I have referred above. The railings are erected so as to leave a few inches of the pavement outside the railings, that is to say on the road side of the railings. It is, therefore, possible to stand on part of the pavement which is outside the railings, on the roadside of the railings.

2. On the day and time in question the plaintiff and his son intended to cross Chung On Street and having crossed that street to turn to their right to go down Chung On Street towards Yeung Uk Road which was where they were living at the time. The son of the plaintiff crossed successfully. The plaintiff crossed to the further side of Chung On Street and stood outside the railings but on the pavement. He had his back to Chung On Street and was facing towards the shop on the corner, the Tai Cheung Watch Company. The defendant was driving a one and a half ton truck down Sha Tsui Road at the time. He turned round the corner of Sha Tsui Road and Chung On Street into Chung On Street and as his truck passed the plaintiff he, the plaintiff, was crushed between the body of the vehicle and the iron railings.

3. I heard evidence as to this accident both from the plaintiff and from the defendant. Both parties agree that the plaintiff was standing on the kerb of the pavement outside the railings but they differ as to the exact spot at which the plaintiff was standing. The plaintiff says he was standing just one pace from the end of the railings in Chung On Street. The defendant says that he was standing two or three paces further towards the cross-roads.

4. The question I have to decide is whether the plaintiff was negligent in allowing himself to be in that position. I have no hesitation in saying that I consider that he was negligent. It is not an offence under the Road Traffic Ordinance or the Road Traffic Regulations for a person to stand in that position. But it is obvious that the whole purpose of erecting railings in such a position is to prevent persons from leaving the pavement at the cross-roads. The reason why there is a small space of the pavement which is on the roadside of the railings is to allow for vehicles to come very close to the pavement and not to come in contact with the railings. The body of a lorry, for example, is wider than the space between its two back wheels and the railings are erected in this manner to allow for that. The portion of the pavement which is outside the railings is not intended for the use of pedestrians. They have no business to be elsewhere than inside the pedestrian railings.

5. The plaintiff said that the only reason he was standing where he was was that there were very many people using the pavement at the time. There may have been many people using the pavement but I do not think that that is a reason for not getting behind the railings on to the pavement in safety which is what he should have done.

6. The second question is whether the defendant was negligent in driving round the corner as he did. The plaintiff said that he did not see the lorry coming, he had his back to the road. The defendant said he was familiar with that cross-roads and was aware of the studded pedestrian crossing. When he turned the corner he saw no person on the road in front of him. He said that he did not notice any person standing where the plaintiff said he was. The first he knew of the accident was when he heard a cry from the plaintiff and noticed that the body of his lorry, not the cab, had crushed the plaintiff against the railings. He immediately reversed his vehicle a few inches and went to the assistance of the plaintiff. The son of the plaintiff did not see the accident happen; again, he heard his father's cry and also went to his assistance. The defendant said that just before he negotiated the corner he changed down from third to second gear; he was travelling about six miles an hour and was travelling in the nearside lane of traffic. As he negotiated the corner he saw no people in the road but there were people on the pavement. He said that he did notice some people were starting to cross Chung On Street. But that they were on the side of the street further away from him. There was nobody crossing or on the street to his front.

7. The question I have to decide is whether the defendant was in any way to blame for the accident, if he owed a duty of care to the plaintiff in the circumstances of this case. I reserved judgment in the case to see whether there were any reported decisions with similar facts. I can find none. Many highways have railings down the centre of the road. Sometimes a pedestrian jumps over such railings in order to cross the road. Though such a pedestrian is obviously in the wrong a driver using the road must avoid him if he sees him in the road. But I do not think a driver must drive with one eye as it were on the railings to ensure that no one jumps over them.

8. I do not think that the defendant was to blame for the accident in any way. His duty was to keep a proper look out in the road, and to see that it was safe to travel down the road and that is what he did. He also had the duty to ensure that no one was using the crossing. This he did. I do not think he had a duty to pay attention to what or who was on the pavement or to look to see whether anyone was in a place where a person should not be, namely, outside the railings on the edge of the road. He was keeping a look out down the road to see that no one was starting to cross on the pedestrian crossing. He was looking forwards. I do not think he can be blamed for not looking sideways as he proceeded along the road. If the plaintiff had not been outside the railings there would have been plenty of room for the vehicle, driven by the defendant, to have passed without touching the railings. If that were not the case the plaintiff would not be alive today.

9. In my view, the accident was wholly due to the negligence of the plaintiff and he cannot succeed in his claim. The action is therefore dismissed with costs.

10. Although I have stated that the plaintiff cannot succeed in this action there is a possibility that there will be an appeal so I will now deal with the question of damages; the figures I give are those which I would have awarded had the plaintiff succeeded in his claim and the defendant had failed to prove any contributory negligence on the plaintiff's part.

11. The plaintiff was crushed between the back part of the lorry of the defendant and the railings against which he was standing. He suffered injuries to his lower abdomen and over his back. When he was examined in hospital it was found that there was a perforation of the little intestine and there was considerable bruising to his back and of his lower abdomen. There was no bone damage done to his spine.

12. The date of the accident was the 20th April, 1971; the operation was performed on the same date and the plaintiff quickly recovered. The plaintiff developed a chest infection which necessitated treatment. I understand from the evidence of Dr. Pang that this is not an uncommon result of abdominal surgery. He was treated for both the chest infection and for his postoperative condition and was discharged from hospital on the 30th April, 1971. According to Dr. Pang, by that time both his abdominal and chest condition had recovered. He attended a clinic three times as an out patient, once on the 13th May, the second time on the 15th July and the third time on the 30th September, 1971. Dr. Pang said that there were no signs of adhesions at that time and the intestine was functioning normally. There was, however, a slight residual pain in the scar caused by the operation. Dr. Pang made his report on the 14th August, 1971 in which he stated all these facts and added that in his view no permanent disability was likely to result. However, before that date the plaintiff had visited Dr. A.C. da Roza who examined him on May 25th, 1971, that is during the period in which the plaintiff was being treated as an out-patient. Dr. da Roza stated that there was evidence of degenerative changes in the plaintiff's spine. He said that the plaintiff had not regained his pre-accident weight. He also said it was possible that adhesions within the abdomen might arise in future causing pain at a later stage and he mentioned that the degenerative changes in the spine might be aggravated by the injury.

13. The plaintiff went to a Chinese herbalist and underwent a cure between the 3rd and 28th May, 1971. This was during the period in which the plaintiff was being treated as an out patient of the Queen Elizabeth Hospital. The herbalist's name is LAM Chun Hing and he gave evidence. He said that by the 28th May the plaintiff had fully recovered. Indeed he was quite emphatic about this.

14. The plaintiff himself in his evidence denied that he has completely recovered even now. He said he disagreed with the evidence in the report of Dr. da Roza when he said that he found degenerative changes to his spine. He said that he still suffered as a result of the accident. He said that he was sixteen pounds lighter today than he was before the accident and he said that he suffers still from pain both to his back and in his abdomen. The pain comes about every ten days, especially if the weather changes and it is particularly apparent when he undertakes any heavy work or lifts any heavy weight.

15. We have, therefore, the strange position of the plaintiff calling evidence from two doctors and a herbalist to the effect that he was virtually cured, yet he himself gives evidence contradicting those reports. The plaintiff was not a very convincing witness in the witness box and I formed the opinion that he exaggerated his condition.

16. I will now deal with the items of special damages.

17. Counsel for the defendant said that he did not dispute the first eight items particularized as special damages. This comes to $555.

18. The ninth item is for consultation fees and medicine charges in respect of the Chinese bone herbalist. The bone herbalist, LAM Chun Hing gave evidence. It was clear that he did not consult the hospital from which the plaintiff had come and it is also clear that his expenses were incurred while the plaintiff was still under treatment at the Queen Elizabeth Hospital as an out patient. In these circumstances I do not think that this sum is recoverable.

19. Item 10 concerns extra nourishment. The sum of $3,000 is claimed. During the first month $50 a day is claimed; for the following two months $25 per day is claimed. Mr. Lam said that he only treated the plaintiff for 26 days. It is normal for persons in Hong Kong to take extra nourishment after they have had an accident, but if they seek to saddle a defendant in a case for payment of such extra nourishment it must be a reasonable amount. $50 per day is not a reasonable amount in my opinion, and I was not convinced it was necessary to continue extra nourishment for a further two months at the rate of $25 per day.

20. The plaintiff told me that he earned $900 per month immediately preceding the accident. He also said that he reckoned he could feed himself at that time on $60 per month. He estimated that, at present, this would cost him about $180 per month. Just to mention these figures show how exaggerated this claim for extra nourishment is. I will allow $800 for this item.

21. The eleventh item of special damages concerns loss of earnings. The plaintiff did no work for five months after the 1st May which was the day after his discharge from hospital. He first took a job on the 1st October and this job lasted until the 30th April, 1972. He was earning $500 less per month, save that he did receive his meals at his new job. From the 1st May, 1972 he was employed as a factory worker in the Wing Kei Knitting Factory at $600 per month until July 1973. He is now working at the Lam Kei Grocery Store at a wage of $500 per month and again he is provided with all his meals except breakfast. In my view the plaintiff should have started work after the accident sooner than he did. Taking that into consideration and making allowance for his receiving his meals while employed at the grocery store I would award $10,600 for loss of past earnings. This brings the total of special damages to $11,955.

22. I will now deal with loss of future earnings and general damages. Before the accident the plaintiff was a pneumatic driller. That work then commanded a wage of $900 per month. But there is evidence before me that now the wages would be very much more, even as much as $1,500 to $1,800 per month. He is now earning $500 per month with free meals. I will take a figure of $660 to represent his wages. To arrive at an appropriate figure I will take a multiplier of seven. Allowance must be made for the pain and suffering the plaintiff has undergone. And I must take into consideration the ordinary vicissitudes of life and the fact that there will be a lump sum payment. Bearing all this in mind the sum I would award is $28,560. The total sum of damages, therefore, I would have awarded had the claim succeeded and had there been proved no contributory negligence on his part would have been $40,515.

Representation:

P. Woo (H.M. So & Co.) for the Plaintiff

P. Fung (Chan & Ho) for the Defendant.