Kong Chan v. Ng Chun Yan

HCA001582/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1582 OF 1968

-----------------

Coram: Williams, J.

Date of Judgment: 1 May 1969

-----------------

JUDGMENT

-----------------

1. The plaintiff claims damages for injuries received in a motor accident and for pecuniary losses which he alleges that he suffered in consequence of that injury.

2. He states that on the 23rd of May, 1968 about 8.30 p.m. he was crossing Laichikok Road at the junction with Fat Cheung Street when he was struck by the defendant's car, which was being driven by the defendant. The defendant does not deny the accident or that he was driving.

3. There is a sketch plan Exhibit P.2, prepared by a police constable, plaintiff witness No.2, showing that Laichikok Road runs south to north and carries three lanes of traffic in either direction. Down the centre of Laichikok Road is a barrier about 3 feet high.

4. Crossing Laichikok Road at right-angles near to the scene of the accident is Fat Cheung Street, which runs east/west across Laichikok Road. The plaintiff's evidence is that he was Walking along Laichikok Road in a northerly direction, i.e. on his right hand side of the road, towards Fat Cheung Street intending to cross Laichikok Road when he reached the junction with Fat Cheung Street. At that intersection there is a studded crossing leading over Laichikok Road. He says he stepped on to the crossing and was one third to two thirds of the way towards the barrier in the centre of the road when he noticed the defendants car approaching him at a fast speed from a southerly direction. He alleges that the car struck him, that he felt some pain and lost consciousness, and it was not until the following day that he recovered consciousness in the hospital. He says that his leg was broken as a result of that accident, and having regard to the fact that he was taken to the hospital, that he felt some pain, and from other evidence I believe that his leg was broken. The plaintiff was unable to say just where he was lying in Laichikok Road after the accident. In fact only one person was able to give any evidence at all as to where the plaintiff was lying after the accident and that person is the defendant.

5. The writ was filed on the 12th December 1968 and the plaintiff must have instructed his solicitors prior to that date, and it is possible that the ambulance man who took him away from Laichikok Road to the hospital, and the policeman who had picked him up, might have been able to say just where the defendant had been lying, if of course they had been traced. I am not suggesting that no proper inquiry was made. It may well be that the plaintiff or his solicitors made such enquiries without any success, but what I am emphasising is that there is only one person who has given evidence as to where the plaintiff was found and that is the defendant. The constable, P.W. 2, who took measurements at the scene says that the defendant agreed to those measurements appearing in this sketch plan, Exhibit P2. It shows the defendant's car, A.C.3175 in the centre of the lane facing towards the south, that is in the opposite direction to which the plaintiff had been walking.

6. The pavement in Laichikok Road along which the plaintiff had been walking was on the defendant's near-side. Adjacent to the defendant's car, and on the inside lane, that is along the pavement edge there was a stationary motor lorry, A.E. 7665. Behind the motor lorry, A.E. 7665 appeared the dotted outline of another motor vehicle which the constable, P.W.2, says the defendant informed him was there at the time of the accident but it had been moved by the time the constable, P.W.2, arrived at the scene. The plaintiff also had been removed by the time P.W.2, the constable, arrived. The rear of the motor lorry, A.E. 7665 and the rear of the defendant's car are 60 feet beyond the studded crossing which the plaintiff says he was using when the defendant's car struck him.

7. The defendant seems to think that it was his front near-side bumper which hit the plaintiff-at least he says it was only the near front bumper which showed any sing of damage. According to the defendant, when he got out of his car he found the plaintiff behind it, in the proximity of the rear near-side. Just how far behind the car the plaintiff was lying is not clear, but apparently not very far - maybe a yard or two yards behind the car. It is fairly obvious that the car had not passed over the plaintiff after it struck him. Now if, as the plaintiff says, he was on the pedestrian crossing when the car hit him, then it must have travelled 60 feet after it struck him, which would be rather a long way for the defendant to travel after hitting the plaintiff if he had seen him before the accident occurred. Had he seen the plaintiff prior to striking him, the defendant would have at once put into motion those thinking and acting processes which would bring the car to a halt. Hence the defendant's stopping distance would have been considerably over 60 feet from the time he saw the plaintiff, if in fact he had seen him before the accident. Now if one accepts the defendant's evidence that his speed, when he first saw the plaintiff was 25 miles an hour, then Mr. Woo, counsel for the plaintiff, estimates that the defendant would have required about 60 feet in which to stop. Therefore, if the plaintiff had been at the crossing when the defendant first saw him, I would have expected the defendant to have halted at a distance of less than 60 feet beyond the crossing provided his brakes were working reasonably. If the plaintiff was on the crossing when the defendant hit him, then the plaintiff must have been carried, or knocked, or both for a distance of 60 feet from the point of impact if the defendant is truthful as to where the plaintiff was picked up. I would have expected the plaintiff's injuries to be more numerous and more serious than simply a broken leg, that is if he had been carried 60 feet by the car.

8. On that view of the evidence I find it somewhat difficult to accept that the plaintiff was on the crossing when the defendant's car hit him. The defendant says that as he approached the junction with Fat Cheung Street he saw no one on the crossing. He had slowed down to about 20 miles an hour and began to accelerate and change into a higher gear. It was then that he saw the plaintiff ahead of him and he applied his brake and swerved. He says he was unable to avoid the plaintiff. The defendant was unable to state at what point the plaintiff stepped from the pavement on to the road, but he denies that the plaintiff was on the crossing when he approached it. He says that the plaintiff was about 15 feet ahead of him when he first saw him. Just how accurate the estimate of 15 feet is one cannot really determine. I fail to see how there can be an estimate; it is probably no more than a mere guess on the defendant's part. The evidence is that visibility was poor at the time of the accident, it had been raining earlier that evening, and it was drizzling, so I am told, at the time of the accident. There is no evidence as to whether the defendant had his head-lamps on at the time of the accident. I feel that it is quite possible that the defendant was more than 15 feet from the plaintiff when he first saw him. If his near-side bumper struck the plaintiff, the latter fell clear of the car as it passed him. If the defendant's version is true then the car came to rest something more than a car's length beyond the point of impact, and of course the defendant was already trying to stop.

9. The defendant appeared to be truthful and his evidence is consistent, as far as I am able to judge, with the injury received by the plaintiff. It indicates to me that the plaintiff received a glancing blow from a car which was not going fast. Without evidence from the plaintiff as to where he was lying in the road after the accident occurred, I cannot be satisfied that he was on the studded crossing when he was knocked down, or that the defendant was travelling fast.

10. It is of course for the plaintiff to prove the negligence. It is argued that he would not cross the road at a point where he would have to climb over the barrier, which he would have to do if he was crossing the road at the point where the defendant says that he picked him up. However, people in Hong Kong do that very thing everyday. It is a common sight in Hong Kong to see people climbing over the barrier that are erected in the centre of the road. Whether the plaintiff would do so is a matter for conjecture, which can scarcely be regarded as evidence of a convincing nature in a case of this kind. Consequently I accept the defendant's version and I find that the plaintiff was not on the crossing when he was struck. I find that he was crossing almost at the point where the defendant says he picked him up. I find that the defendant had no reasonable opportunity of avoiding the plaintiff. I find that the defendant was not negligent, and I give judgment for the defendant with costs. The plaintiff's claim for damages is dismissed. Had I found for the plaintiff I would have estimated the damages as follows.

11. The special damages in regard to loss of earnings at $505.- a month are claimed from the 1st December. However, the evidence of the plaintiff's employer, P.W.3, in referring to Exhibit P.3, a document terminating the plaintiff's employment, shows that the plaintiff received a month's salary on the 30th November in lieu of a month's notice, so in effect his employment terminated on the 31st December. Therefore his loss of earnings did not commence until the 1st of January, 1969 and has continued to date, that is up to this month of April, and the loss in that respect would be four months at $505.- which is $2,020.

12. A further sum is claimed for loss of the plaintiff's wife's earning at $360.- per month on the ground that she had to stay away from work to nurse and care for the plaintiff, who is alleged to have been immobilised by his injury. To what extent it was necessary for the wife to remain completely away from her work from May, when the accident happened right up to the present date is not clear from the evidence. When the plaintiff was knocked down he was taken to Queen Elizabeth Hospital. Whilst he was in the hospital he would not need his wife's nursing, but unfortunately there is no evidence to show how long he was in the hospital - whether it was a week, a month, six weeks or what, no one knows, at least from evidence that appears in court. Now why did the wife have to stay away from her work for six months? I find it hard to accept that such a period was necessary because her husband had broken a leg. He had not broken his thigh but broken his leg, and the only medical evidence is that of Dr. Yeung, the first witness called by the plaintiff. He first saw the plaintiff on the 19th of September, which was about four months after the accident had occurred, and the evidence he gave is that having x-rayed the leg he saw that the fracture had not properly healed and so he immobilised the leg by putting it into plaster. It would seem from that evidence that on the 19th of September, 1968, the plaintiff's leg was not immobilised, otherwise the doctor would not have had to immobilise it. In those circumstances I am bound to wonder what had been happening in the four months before the plaintiff went to Dr. Yeung at Queen Elizabeth Hospital. If his leg had ever been in plaster after the accident, for how long was it in plaster? When was the plaster removed? Why was it removed? Was it removed on medical advice? Did the plaintiff between May and the 19th of September attend the Queen Elizabeth Hospital or any other hospital as an out-patient until discharged as fit and well? Following that discharge, if he was ever discharged, did he later find that he was not cured and again seek their help? It is quite possible that he stopped attending Queen Elizabeth Hospital without being discharged (if that is the hospital he had attended) and before he was cured, and turned his attention to a herbalist/bone setter. The plaintiff says that he employed a herbalist/bone setter, but he says that was in addition to the hospital treatment. Whether it was in addition to hospital treatment and received at the same time I do not know. Just what was the position? I wonder why there has been no evidence at all concerning the medical treatment during the four months immediately following the injury. It is difficult to imagine that the hospital would discharge the patient before his fracture had healed, especially when four months later when he went along to see them they did in fact put it right, as far as it could be put right of course. This is the plaintiff's case, and it is the plaintiff who is claiming these special damages. It is for him to show that because of the injury he was as physically helpless as he alleges and that through no fault of his own he was immobilised for such a long period.

13. The plaintiff's wife in that connection said in chief that the leg was in plaster for three months. Later when cross-examined by Mr. Sakrani, she said that it was in plaster for two months, and I take it that she was referring to the period just after the accident. She said with regard to her employment, that she had had a stand-in doing her job for two months when for some reason the stand-in left that employment, and the plaintiff's wife resumed her job for a period of ten days. In her evidence in chief she said that at the end of that time her employer left the Colony and she had no job. It is apparent that, whether her husband had been injured or not, the wife's employer would have left Hong Kong and she would have had, to find another job. How long she would have been out of work is anyone's guess. I am by no means satisfied that the wife had to remain from her work for six months. I have some mis-givings as to the necessity for her to remain away from work even for two months but I am prepared to allow that period, which would put her loss of earnings at $360.- per month at $720. In making that estimate I bear in mind that when her employer left the Colony the plaintiff's wife would have been given a month's notice or a month's pay in lieu, which would fall within the period over which she claims to have been nursing her husband. There is no evidence on this rather pertinent aspect.

14. Medical expenses are claimed at $2,400, for which there is very little or no support except as to $240, which I allow. There is a big claim for extra food and nourishment but there is no evidence that it was ordered by medical advisers or that it was ever in fact obtained and consumed. I must say that I am not impressed by the claims for special damages, and I would have assessed them at $2,020 loss of earnings of the plaintiff plus $720.- loss of wife's earning plus $240.- medical expenses, giving a total of $3,180.

15. With regard to future earnings, some difficulty arises because of the plaintiff's age. He is 59 years of age and he is a cook. It is a difficult age at which to find fresh employment, although it is apparent that his employer would have retained him until he was 65 years of age, and that gives a period of six years earning capacity which the plaintiff had ahead of him at the time of the accident. If he ceased work at the age of 65, he would thereafter perhaps have received a periodical payment at the pleasure of his employer which I found somewhat nebulous to take into account because I do not know how much of it would be paid, nor for how long it would have been paid nor in fact whether the employer would have exercised that favour towards the plaintiff.

16. Now since his disability is put at 15% by the doctor, I feel that I must take into account the probability of the plaintiff obtaining some employment during the next six years, and therefore, I would reduce the multiplier on that ground; but again it should be increased because his pay would not have stayed at $505.- a month, but he would have received an annual increment up to the time he was 65 when it would have been $600.- a month or thereabouts.

17. Having regard to the fact that a lump-sum payment would be paid and to the plaintiff's age, there would have to be some reduction in the multiplier. I would have used a multiplier of 4 so that general damages would be, in regard to the loss of employment, four times his annual wage of $6,000 giving $24,000. For the pain and suffering and disfigurement caused by a limp, I would allow a further $2,000. As to loss of amenities, loss of enjoyment as a result of the injury due to inability, to take part in certain recreations that he took part in before and so forth, there is no evidence and so I am not able to take such matters into account.

18. So the total damages that I would have awarded him would be,

1st May, 1969.

Representation:

Judgment delivered and covered by Court Reporter.