Law Sai Leung v. Ho Chai Man and Another

HCA008498/1983

Action No. 8498 of 1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: The Hon. Mr. Justice Hunter

Dates of Hearing: 21 - 24 January 1985

Date of Delivery of Judgment: 6 February 1985

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JUDGMENT

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1. In this case the plaintiff claims damages for personal injuries suffered by him in an accident on the afternoon of 16th April 1982 when one of the 2nd defendant's buses severely crushed his right foot.

2. The material facts as I find them are these. On this Friday afternoon the plaintiff walked south east down Station Lane to its junction with Ma Tau Wei Road. He wished at this point to turn left into Ma Tau Wei Road and to join the stream of pedestrians walking in a north-easterly direction along its western pavement. Two one-way streams of traffic meet at this T junction. Ma Tau Wei Road itself has two carriage-ways each 8 metres wide, and the junction affects only the traffic proceeding north east in the western carriage-way. Station Lane is also 8 metres wide, and the one-way working takes traffic up to Ma Tau Wei Road where it has to turn left. So a pedestrian wishing to walk in the plaintiff's direction had two classes of road traffic to consider, namely the traffic in Ma Tau Wei Road itself proceeding in the same direction as himself: and that in Station Lane which he had to cross. Broken white lines now marked the extremities of the pavement lines in this carriage-way, so that both pedestrians and motorists know the area for which they both "compete". These lines did not then exist, but for convenience I shall refer to this part of the carriage-way as "the area".

3. The plaintiff considered both streams of traffic when he reached the corner of the two carriage-ways. Congestion had brought both to a halt. Amongst the traffic in Ma Tau Wei Road was the 2nd defendant's bus. It had not then reached the junction. In Station Lane itself the area was blocked by two stationary cars waiting to turn into Ma Tau Wei Road. Both were stationary in a position which I am sure was very similar to that shown in photograph No. 8 on page 17 of P.1, with the fronts of both vehicles projecting about a foot beyond the area and into the carriage-way of Ma Tau Wei Road itself.

4. This seemed to the plaintiff to be a convenient moment to cross Station Lane. Like two other pedestrians in front of him, he chose to walk in front of but close to the two stationary cars. This must have taken them and him into, but no more than about two feet into, the Ma Tau Wei carriage-way. As he passed in front of the first car the plaintiff realised that the traffic in Ma Tau Wei Road to his right was starting to move again. He glanced round and saw the 2nd defendant's bus behind him. He continued to walk forward and when he was in front of the second stationary car he was struck by this bus, the front near side wheel of which passed over his right foot. At the point of impact a blood stain was left in the road. This was about half a metre or 20 inches into the Ma Tau Wei carriage-way.

5. These findings are based upon the plaintiff's account of the accident which I accept. I heard no other. All I know from the 1st defendant, the 2nd defendant's driver, is that in a statement to the Police made later that afternoon he admitted that he never at any time saw the plaintiff. I found the plaintiff's account credible, despite some contradictions between it and his statement to the Police, which was made when he was still effected by pain, and probably pain-killers, shortly after his second operation.

6. On these findings it is plain that the 1st defendant was negligent. The problems of pedestrians at junctions like these are notorious. He must have known that these arose at this point on his route, and that pedestrians there were very likely to behave precisely as the plaintiff and the other two pedestrians behaved. He had amply opportunity of seeing and ought to have seen the plaintiff in front of him. Had he done so it would have been very simple to have avoided him.

7. Then it is alleged that the plaintiff was guilty of contributory negligence. I share the reluctance of the Court of Appeal in England to find contributory negligence in favour of a party who calls no evidence, Chapman v. Copeland (1966) 110 SJ 569. To succeed here I think the defendants would have to show contributory negligence either on the plaintiff's evidence alone, or by what Salmon L.J. there called an "unassailable inference". Both approaches fail. To say that it was negligent for the plaintiff to start to cross Station Lane by a route which just took him into the carriage-way of Ma Tau Wei Road, would involve asserting that this was exclusive to vehicles. This is contrary to Parkinson v. Parkinson (1973) RTR 193, 196, and untenable in Hong Kong conditions. Having regard to the fact that he ought to have been plainly visible to all relevant traffic, and that he was walking very close to the stationary cars, it is equally impossible in my view to say that this manoeuvre became negligent when he continued walking after realising the traffic in Ma Tau Wei Road was about to start. The various inferences I was invited to draw were more fanciful than unassailable.

8. In my judgment therefore the defendants are 100% responsible for the plaintiff's injury.

Quantum

9. There is no issue between the doctors. Dr. Wedderburn in his report of 29th March 1983 and Dr. Horsfall in his report of 18th October 1984 described the plaintiff's condition in detail and it is sufficient for me to summarise. The tyre crushed the outer half of the plaintiff's right foot. He underwent three operations. The first was to remove the damaged tissue. This included the whole of the fourth and fifth toes, and the metatarsal of the third toe. The second and third operations were skin grafts. Visually it looks as though a large bite has been taken out of this foot. It is much narrowed leaving only two effective toes. There is very little movement in the foot or the ankle. In percentage terms Dr. Wedderburn puts the impairment of the whole man at 16%, and Dr. Horsfall at 18%. Running, and the pre-accident games the plaintiff enjoyed, are out. He can walk, but with a limp consistent with the weakness and lack of flexibility in the foot. He is liable to get pain and cramps after prolonged use. He cannot do the sort of things which involve putting a particular strain on the foot, for example climbing ladders or carrying heavy weights.

10. When considering pain suffering and loss of amenity the differences between counsel were also narrow. Attention was focused upon the recent decision in Chan Wai Tong v. Li Ping Sum in both the Privy Council and the Court of Appeal (not yet reported). The relevant effects of this decision are that the Privy Council:-

11. I agree with counsel that the effect of this decision is to encourage a marginal increase in the level of awards in Hong Kong. I also agree with Deputy Judge O'Dea that these guideline figures require further updating for inflation since October 1983, Cheung Yuk Chug v. Mitsui Construction Company Limited No. 12597 of 1982. It is difficult to criticise Mr. Aiken's suggested uplift of 10%.

12. In my judgment the plaintiff's injuries lie at or about the lower end of the" serious" category in Lee Ting Lam. My award under this head is $95,000.

13. The inadequacy of the evidence and the plaintiff's conduct make the estimation of the plaintiff's loss of earnings and the diminution of his earning capacity substantially the most difficult part of the case.

14. The problem starts with his pre-accident earnings. The plaintiff came to Hong Kong in 1980, having served a three year apprenticeship in carpentry in China. After initially working for a roofing contractor, he joined three others who could be described as jobbing sub-contractors for decoration and joinery work. In the pleadings, and by informal answers to interrogatories, the plaintiff said that he earned an average of $3,500 a month as an employed jobbing carpenter, working on average 25 days a month, plus some 15 evenings a month working on a cooked food stall. On these figures his carpentry earning rate had to be less than $140 a day. In evidence he said that he was a partner in the business on a job by job basis sharing the job profits, and that his time was charged at $160 a day. Jobs were not always available and less, and sometimes much less than 25 days a month, were worked. In support of this alleged average figure no evidence was called from any of the partners; no document of any sort was produced; and no calculation showing the basis or derivation of this average of any sort was put forward. In these very unsatisfactory circumstances I do not think it is right to take the plaintiff as earning before this accident more than $3,000 which was then about the basic carpenter's wage for a 26 day month.

15. The effect of these injuries upon the plaintiff's earnings and earning capacity is even more difficult to assess. I have had no practical guidance. The doctors were agreed that the plaintiff was fit to resume some light work about 12 months after the accident. But the plaintiff in fact did no work until he started to hawk vegetables near his home in November 1984. Both before that date and since he has made very little effort to get a job more commensurate with his true skills. In his mind he seemed to give up his old trade when he sold the bulk of his tools some time in 1983. He seems to have done little more than ask his friends about available jobs. Unwisely I think he has not sought the help of the selection placement service of the Labour Department.

16. If the plaintiff thinks that he can never return to his old trade, my belief is that he is wrong. I accept that his pre-accident employment is not open to him because that involved climbing ladders and carrying weights. Building sites as a whole are probably excluded for the same reason. But I feel sure that he could have obtained, and could now obtain employment, in a carpentry workshop or factory as a skilled man. I accept that this would not be easy and may well involve more than one try before a satisfactory job is found. What I do not accept is that he has now excluded completely from his old trade.

17. The problem was illustrated by the evidence led relating to a workshop in Taipo. Last December the defendants arranged for the plaintiff to be interviewed for a job by the workshop manager Mr. Chung. This workshop employed three masters and no apprentices or assistants; and the masters were expected themselves to carry heavy plywood sheets, and their finished products both to the showroom and/or to the buyer's destination. As Mr. Chung himself quickly realised this made the job unsuitable for the plaintiff. He wants a job where he is free to exploit his skills, but relieved of carrying responsibilities. This points perhaps to a larger shop where apprentices or unskilled men are employed. The basic monthly rate for a carpenter is still about $3,000. The market is competitive and the plaintiff would be forced by his disability to accept some discount from this. That is his loss of earnings. In addition his earning capacity is affected, because his greater difficulty in finding and keeping a job increases his unemployment risk. These are the two factors I have to take into account and attempt to quantify.

18. I have had no evidence from the trade: only the doctors have expressed any opinion at all. From his considerable experience in this field Dr. Wedderburn expressed the opinion that the injuries he saw were calculated to produce a 25% loss of earnings in a man in the plaintiff's trade. Dr. Horsfall disagreed and equated this loss with his impairment percentage. But the two concepts are quite different. The Taipo evidence underlined this difference, and I think fended to show that Dr. Wedderburn's estimate was realistic and at least not excessive. I can only strive for a figure which seems fair to both parties and to be reasonably realistic. My best answer I think is to accept this 25% estimate as the best guide to the total of both elements loss of earnings and diminution of earning capacity. On this basis I assess these now at $9,000 a year.

19. The best assessments I can make under these heads are accordingly:-

20. Three items of special damage pleaded in paragraph 5 of the Statement of Claim remain to be considered namely:-

21. It follows in my opinion that there must be judgment for the plaintiff in the total sum of $290,018.10. Of this $95,000 will carry interest at 2% from 7th July 1983 to today. The special damages which on my calculations total $69,018.10 will carry interest at half the judgment rate from 16th April 1982 to today.

Representation:

N. Aiken instructed by D.L.A. for Plaintiff.

N. Pirie instructed by M/s Munro & Co. for Defendants.