Cheung Ping Kwai and Others v. Leung Shing and Another

HCA005055/1979

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Coram: Hon, Mr. Justice in Mayo in Court

Date: 10 June 1982

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JUDGMENT

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Background

1. The plaintiff who was aged to at the time of this accident is suing by his father as next friend. He is suing in respect of an accident which occurred late in the evening on the 20th November, 1996. The plaintiff and his father were returning home in the father's van along the Kwai Chung Road in an easterly direction. The road is a major road having four lines of traffic in each direction. It was not possible to utilize the inner lane as repair or maintenance work was being undertaken on it and there ware various signs and other impedimenta on the near side lane preventing motorists from using it. Unexpectedly, the engine of the van stopped. The vehicle came to a halt and first the plaintiff's father and then the plaintiff got out of the van and attempted to push it to the side of the road into the near side Lane. While they were attempting to go this a motor bus owned by the second defendant and driven by the 1st defendant came up behind the van and hit the plaintiff and the rear part of the van.

Liability

2. The plaintiff claimed that the accident was caused as a result of the negligent driving of the 1st defendant. Particulars of the negligence claim were as follows:

The defendants denied the alleged negligence. They claimed that the plaintiff had himself caused the accident or been guilty of contributory negligence. Particulars of the alleged negligence or contributory negligence were as follows :

Mr. Mullins who was representing the defendants conceded that the 1st defendant had been convicted of the offence of careless driving in the Kwun Tong Magistracy and that the conviction related to this accident.

3. The plaintiff gave evidence of the circumstances surrounding the accident. He said that he had been travelling in his father's van along the Kwai Chung Road on the late evening of 20th November 1976. His father's van came to a halt and his father got out and attempted to push the van to the side of the road. He could see that his father was experiencing difficulty and he climbed out and went to the rear of the van and pushed it in an endeavour to assist his father. They pushed the car for a minute of two and several cars passed them. Then he remembered hearing the sound of a bus and looking around and seeing that it was coming towards him. He was very frightened. The next thing he realised was that the bus had hit him and the van and he fell to the road. He was in a semi-conscious condition. He remembered trying to get up and being unable to do so. His next clear recollection ion was regaining consciousness in hospital.

4. Mr. CHEUNG Fan Fung, the plaintiff's father, also gave evidence. His evidence was very similar to that of his son. He did however emphasize that he left the small lights on the van on after it came to a stop and also he activated the left indicator which gave a flashing light. He said that he was pushing the van at the front of the vehicle next to the steering wheel so that he could steer it off the road when conditions permitted. He did not hear the scund of the bus approaching and the first thing he knew was the impact of the bus hitting his van. He immediately went to the rear of the vehicle to ascertain whether his son was alright and found him lying on the road. He picked him up in his arms and removed him to the side of the road.

5. No evidence was given on behalf of the defence. It is therefore necessary for me to consider the question of liability on the basis of the evidence given by the plaintiff and his father and the sketch plan which was produced as an agreed item of evidence. I regret that the sketch plan does not provide a great deal of assistance. However, I found both the plaintiff and his father to be excellent witnesses. I accent that the accident occurred in the manner described by them. Neither of them attempted to make any assessment of the speed of the bus prior to impact. I do not however think that this treats a problem. There can be no doubt that the driver of a vehicle should be able to bring it to c halt within the range of his vision. I believe the plaintiff's father's evidence that the lights of the van were operating at the time of the accident. I also accept their evidence that street lights were burning at the time although understandably there is no accurate evidence of the exact amount of illumination there 'would have been. Be that as it may the 1st defendant should have been able to see the van and should have teen able either to stop in sufficient time or to take appropriate avoiding action to prevent the accident. The fact that he was convicted of careless driving bears out this contention I accept Mr. Lee's submission on behalf of the plaintiff that the burden of proof is reversed where a party is making a claim against a motorist and he is convicted of careless or dangerous driving in respect of the accident. It would also appear that the 1st defendant was not keeping a sufficient or proper look out. For the reasons I have given I am satisfied that the plaintiff has proved the negligence of the 1st defendant and accordingly the vicarious liability of the 2nd defendant.

6. I will now consider the question of contributory negligence. I must admit that this does occasion me some difficulty as a result of the failure of the 1st defendant or any other party on behalf of the defendants to give evidence. I am satisfied that it was not negligent of either the plaintiff or his father to attempt to push the van off the the carriage way. Had they failed to take this action a much graver hazard may have existed. No fault can be attached to the plaintiff's father in respect of his conduct. His only capacity in these proceedings is to be the next friend of his son. No claim has been made against him for contributory negligence as he has not been joined in the proceedings as a third party. Certainly no blame can attach to the plaintiff. He was only aged 10 at the time of the accident and all he attempted to do was to assist iris father. Having considered all the relevant evidence I find that the defendants have not established that the plaintiff is guilty of any contributory negligence.

Quantum

7. The plaintiff and his father gave evidence in this connecting. Having heard both of their evidence I am satisfied that the plaintiff has made a courageous endeavour to make the best of his life following this very serious accident. The plaintiff gave evidence .that his academic performance was better prior to the accident than it was subsequently. If there is a difference I find it is only a marginal one. It is notoriously difficult to make any accurate assessment of the intellectual capacity of a very young person. It would appear from the plaintiff's evidence that prior to the accident he was approximately half way up his form in examination results. It is common ground that he lost a year as a result of the medical treatment he was receiving. Now he is in the bottom quarter of his class. It is however necessary to take cognisance of the fact that he is now in a different school and different standards may prevail. In considering his future prospects I think that the best yardstick to adopt is the academic performance of other members of his family. Both his elder sisters have done quite well. The eldest has obtained a job as a kindergarten teacher and the younger sister has got c clerical job which commands a salary of approximately $l,200 per month. I think that there is every reason to suppose that the plaintiff will do sufficiently well in his studies to enable him to obtain clerical work or its equivalent. I am though doubtful whether his aspirations to become either a doctor or a solicitor are ever likely to be fulfilled. I regret that this view would have been the same whether or not this accident had occurred. I say this in the knowledge of the enormous amount of competition which exists in obtaining places at the University in the popular disciplines.

8. I read with interest the agreed medical report prepared by Dr. wedderburn. This report seems to me to set out the position particularly well. It is evident to me that the plaintiff has courageously striven to overcome the great handicap which he suffers and will continue to suffer throughout his life. His leg was amputated below the knee and fortunately a prosthesis has been attached which enables the plaintiff to walk and move around with a minimum of difficulty. Notwithstanding with this it is obvious that the plaintiff has suffered a great deal of pain and suffering. Due to the fact that he is still a growing boy, now aged 15, it has been necessary to have repeated operations to adjust to the prosthesis and to accommodate his growth. It will be necessary for him to undergo another operation in the not too distant future.

9. The case of Lee Ting Lan v. Leung Kam Ming⁽¹⁾ was cited tome in support of the proposition that awards can be categorised into four separate categories in ascending order to assist in determining the amount of awards. I regret that in a case of this nature such categorization does not seem to me to be of much assistance. The reason I give for this observation is that there is such a multiplicity of situations which can arise in particular cases that it is impossible to accommodate them within broadbands as indicated by the Court of Appeal. For example, it is impossible to consider a case inhere part of a person's leg has been amputated as being in any way similar for a middle-aged or elderly victim on the one part and a child on the other. The child has its life before it. In the present case I accept the evidence that the plaintiff enjoyed outdoor activities including sport. It is clear that however courageous he may be he will be in no way capable of deriving the enjoyment from these pursuits he would have been able to achieve if this accident had not occurred. It id also very clear in the context of the amenities of life he would have been able to enjoy or the quality of life that he can look forward to that the options open to him will in many respects be strictly cincumscribed. For example, there could be no question of his being able to pursue a career in one of the disciplined services. Taking everything into account I assess damages for pain and suffering and loss of amenities of life at $90,000. This award will include any possible loss of future earnings. For the reasons I have given earlier I do not think that it is likely that there will in fact be any loss of future earnings. It seems more relevant to me to consider this in the context of less of amenities of life rather than in the context of loss of future earning. In any event, with the paucity of information available it is not open to me to adopt a similar approach to that adopted by Barker, J. as ho then was in the case of Leung Kam Ming v. Lee Ting Lan⁽²⁾. I do not have available to me sufficient information to enable me to adopt a multiplicand in the way he did.

10. All of the special damages have been agreed with the exception of the claim for nourishment and special foods. I am satisfied that the approach adopted by Roberts C.J. in Yu Ki v. Chin kit lan and another⁽³⁾ is the correct one. There is no evidence that any duly qualified person either in Western medicine or Chinese medicine ever gave advice that it would be beneficial for the plaintiff to receive the "nourishing" foods which have been referred to in the evidence. It can however be seen from the receipts which have been produced to the court that monies have been expended in this connection. By adopting a similar approach to that suggested by Roberts C.J. I propose allowing a nominal sum to cover the food which was furnished to the plaintiff while h wad receiving treatment at the Princess Margaret Hospital and the Lady Trench Rehabilitation Centre. The amount of $6,500 which has been claimed in respect of this item will be reduced to $2,000. The amended figure claimed in respect of special damages is $9,798.30 and as I have stated this will be reduced by :4,500 thus making a total of $5,298.30.

11. I will hear the parties as to what interest is to be payable on the awards I have made and on the question of costs and on the manner in which the sums I have awarded will be invested by the court as is required by the provisions contained in Order 80 of the Rules of the Supreme Court.

(1)    1980 H.K.L.R. 657

(2)    1980 H.K.L.J. Vol. to No. 2 235

(3)    1981 H.K.L.R. 419

Representation:

Mr. C. Y. Lee (John Ip & Co.) for Plaintiff

Mr. Mullins (Deacons) for Defendant

Special Damages corrected: $10,448.30 less $4,500 = $5948.30