Jenny Riddell v. Lui Kwong Hong and Another

HCA002406/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO.2406 OF 1972

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Coram: Briggs, C.J.

Date of Judgment: 27th June 1974

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JUDGMENT

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1. This action arises out of a traffic accident which occurred on the 10th July, 1972. On that date at about 6 p.m. the plaintiff, a married woman aged about 40, was crossing a pedestrian crossing, which is a studded crossing, in Leighton Road where that road joins Morrison Hill Road, when a taxi, driven by the first defendant, struck her causing her injury. The plaintiff alleges in her statement of claim that the accident was solely due to the negligent driving of the first defendant. The first defendant denies liability and pleads the contributory negligence of the plaintiff.

2. The scene of the accident is the junction of Leighton Road and Morrison Hill Road immediately outside the Kingsburg Restaurant. At that spot there are two lines of traffic going along Morrison Hill Road into Leighton Road and one line of traffic which carries a tram track for traffic proceeding from Leighton Road into Morrison Hill Road. There is a safety island which is triangular in shape in the middle of the junction, from which a pedestrian studded crossing runs crossing Leighton Road towards the front entrance of the Kingsburg Restaurant. We are not here concerned with two other lines of traffic coming from Leigh on Road into Morrison Hill Road. These run behind the safety island as one faces the Kingsburg Restaurant, and turn into Queen's Road East.

3. The plaintiff's case is that she was on the safety island facing the Kingsburg Restaurant. Immediately in front of her, therefore, was a single lane for traffic travelling from her right to her left. This traffic lane carries the tram track as I have already said. Beyond that single lane of traffic there were two lanes of traffic travelling from her left to her right. She said she intended to go to the Kingsburg Restaurant. Before leaving the safety island she said she looked to her right then to her left then to her right again. She saw nothing coming from her right hand side when she looked either on the first occasion or on the second occasion. She therefore began to cross the road slowly. She took three or four steps when the taxi collided with her. It hit her on her thigh and it had come from her right hand side. At the time the plaintiff said that the road was in good condition and it was dry.

4. The defendant said that he was driving his taxi down Leighton Road intending to go to the Tang Shiu Kin Hospital. He intended to go to the Casualty Ward of that Hospital which is situated in Wanchai. His route therefore was down Leighton Road bearing to his right into Morrison Hill Road and then on to Wanchai Road. Before reaching the junction of Morrison Hill Road and Leighton Road he was stopped in Leighton Road by red traffic lights. There was no other vehicle in front of him and from where he was stopped he could clearly see the safety island. His route would take him to his right hand side of the safety island along the lane of traffic in Leighton Road which carries the tram track. When the lights turned green he said he moved forward to continue on his way. When he started he saw several people standing on the safety island. He automatically slightly decreased his speed, and as he continued he saw a Chinese woman (who was, of course, the plaintiff), step out from the island. When she stepped off the island she was (and I quote) about "a few feet away from my taxi". He added that she was too close for him to avoid her and so a collision occurred. The first defendant said that he both sounded his horn and applied his brake the moment he saw the woman take a few steps in the road but he could not do anything else to avoid the accident. The defendant admitted that he did not swerve to his right and said that he did not do this because of the two lanes of traffic coming towards him in the opposite direction.

5. The plaintiff said that she did not hear any sound of a horn or brakes or even of the oncoming vehicle.

6. The court paid a visit to the scene of the accident and it is abundantly clear that anyone standing on the safety island where the plaintiff said she was standing could quite clearly see any traffic coming from the right hand side. There was no obstruction between the safety island and that part of the road near to the traffic lights where the first defendant said he stopped. The defendant's evidence was that he was the first car in his line of traffic when he stopped at the traffic lights. It is also clear from a view of the scene that the traffic line bearing the tram track is nearly ten feet wide. A sketch map of the scene of the accident drawn on the spot by a sergeant of police and signed by the first defendant as being correct in detail, shows that the front part of the taxi was 3 feet 8 inches from the kerb of the safety island. The part of the taxi that came in contact with the plaintiff was the nearside bumper of the taxi, near to the headlight.

7. I do not think that the plaintiff used proper care in attempting to cross to the Kingsburg Restaurant. If she had taken a proper look-out she must have seen the oncoming vehicle. On the other hand, I think the first defendant could have swerved to his right. There was room for him to manoeuvre within the lane of traffic in which he was travelling and this he did not do. I therefore find that both parties were to blame for the accident. However, I am satisfied from the evidence that by far the greater blame attach to the plaintiff than to the defendant. Indeed I think that the culpability of the first defendant was very minor. I assess their culpability at 85% to the plaintiff and 15% to the first defendant.

8. The plaintiff was severely injured. She suffered severe bruises and swelling of her right upper thigh and there was a comminuated sub-trochanteric fracture of her right femur. She was first admitted into the Tang Shiu Kin Hospital which is quite close to the scene of the accident. She was transferred on the same evening to the Matilda Hospital. An operation was performed for the reduction of the fracture and the insertion of a pin and plate on July 13th, 1972. She was discharged from hospital on the 4th August, 1972 but continued to attend the Matilda Hospital for out-patient physiotherapy. She progressed well until November of that year when things began to go wrong. A second operation was performed in June 1973 and the plate was removed and a new plate inserted together with an onlay bone graft. She was discharged from hospital on the 6th July, 1973. At two different periods, namely, after each of the operations, the plaintiff had to use crutches and later sticks to assist her to move about. She was unable to continue her employment and had to employ a servant to do her housework. Physiotherapy continued after the second operation until October 1973. The surgeon who attended the plaintiff gave evidence in court and said that as a result of her injuries she has a significant shortening of the right leg. The plaintiff complains of difficulty in climbing stairs and she walks with a limp. Her right leg is ¾ shorter than her left and she has not got full flexion of her right hip or right knee, the former being limited by 20% and the latter by 25%. The surgeon also said that she will require a further operation next year for the removal of the plate from the right femur. He said that in his opinion she has "a disability of 35%" which will be permanent.

9. The plaintiff, at the time of the accident, was employed as a sales representative in a wine merchant's. She was paid $800 a month and earned on an average $500 per month as commission. She left this employement in December 1973. During the period from the date of the accident to December 1973, her firm continued to pay her salary but she earned no commission. The plaintiff claims as special damages the sum of $50,328. This sum has not really been challenged by counsel for the defendant and there is evidence that the medical expenses which make up by far the greater proportion of the sum claimed were incurred either on the plaintiff's behalf or by the plaintiff herself. The sum includes medical expenses, loss of earnings, charges paid for domestic help and certain travelling expenses. loss of earnings, charges paid for domestic help and certain travelling expenses. I accept that $50,328 is a proper sum for those claims. To this sum must be added the sum of $4,500 which the surgeon said will be the probable cost of the future operation which he considers to be necessary. The plaintiff also suffered considerable pain over a long period of time and indeed still suffers to some extent. She suffers when the weather changes, when she sits down for a long time or when she climbs a staircase or takes a big step. I will award the sum of $10,000 for this.

10. There is also the question of her permanent disability. It was not suggested that she could not earn her living in the future. She told the court with great candour that she thought that she could have resumed work as from January 1974, though she has not done so.

11. There is no question here of the shortening of the expectation of life of the plaintiff. When the surgeon assessed her permanent disability by 35% he was making use of the scales which are referred to in the Workmen's Compensation Ordinance. In this case the scales are not helpful. They deal with the loss of earning capacity, and are here irrelevant in that the plaintiff told the court that she would welcome work of a nature similar to that in which she was employed prior to the accident. But some allowance must be made for what is usually termed 'loss of amenities'. The correct sum to award under this head in my view is $15,000. All these sums add up to $79,828 and the plaintiff is entitled to recover 15% which comes to $11,974.20. The second defendant is the owner of the taxi driven by the first defendant. And there will be judgment against both defendants for that sum. The plaintiff is to have her costs.

Representation:

P. Fung (Feter Mo & Co.) for Plaintiff.

M. Asome (H.A. Hoosonally & Co.) for both defendants.