Lee Loy v. Wong Lee Kwong and Another

HCA000231/1979

Coram: Mr. Commissioner Bewley

Date of Judgment: 26 November 1979

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

JUDGMENT

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

1. This is a running down action in which the plaintiff claims damages for personal injuries. It is admitted by the defence that the plaintiff was involved in a collision with a cart and 2nd defendant's vehicle, driven by 1st defendant.

2. On 19th May, 1977, between 5-6 p.m., the plaintiff Madam LEE Loy was pushing her handcart from her hawker stall in Shatin Pass Road to a lamppost just around the corner in Lung Cheung Road, where she intended to collect some baskets. The cart was 2' wide, 4' long and 12" high, with metal handles. She was walking on a pavement, which, as she approached her destination, narrowed to a width of 2-3' by reason of some Mass Transit Railway work. Near the lamppost her path was obstructed by a table. The baskets were in a pile on the pavement just beyond the lamppost. For these reasons she was unable to take the handcart right up to the baskets. Here also was a pedestrian road crossing, governed by traffic lights, but only a few people were waiting to cross.

3. Intending to leave her cart on the nearside of the lamppost and to walk, via the gutter, to the pile of baskets a few feet beyond it, she stepped down into the road. At this point she looked round at the traffic and saw a large vehicle approaching. She immediately regained the pavement and stood in front of the handcart beside the lamppost.

4. The plaintiff does not know what hit her, but she fell to the ground and was later taken to hospital, where it was found that she had fractures of the tibia and fibula of both legs.

5. The defence called no evidence, and the only other witness to the accident was a Mr. YU Chun-ling, who was driving a coach behind 1st defendant's coach. The latter had overtaken him shortly before the junction with Shatin Pass Road and had taken station ahead of him in the middle lane. The nearside lane was for turning left into Shatin Pass Road only. On crossing the junction, the three lanes became two and a slight inclination to the left was demanded of drivers in the middle and outside lanes.

6. As they came to the junction, the lights were green and both vehicles crossed without stopping. Mr. YU estimates his speed as 10-20 miles per hour and that of the defendant's coach as 15-20 miles per hour. He called it a moderate speed and observed that the two lanes on the Lion Rock side of the junction were narrower than usual.

7. Mr. YU's evidence concerning the accident was contradictory. He first said that he saw the accident and that the nearside rear of the coach hit the cart. But the impression I gained from his evidence as a whole was that he did not see the actual impact. He heard a noise and merely formed the impression that the rear of the coach had struck the cart. Indeed, if this is what happened, one would not expect Mr. YU, following at a normal distance, to have observed the impact, since the wheels of a coach are some distance from the rear and he was sitting on the off-side of his vehicle.

8. Nevertheless, such a hypothesis is consistent with what PC 10477 told the Magistrates Court on 1st November, 1977, when 1st defendant was acquitted of careless driving. The record of that case is an agreed document. The police constable, who visited the scene of the accident the same evening and inspected the vehicle, said there were slight scratches at the left rear of the coach just above the wheel. He did not make a note of this at the time and does not recollect having told the magistrate about it. Nevertheless it is in the record and I accept that the scratches were there.

9. The police constable confirms that the pavement at that point was only 2½' wide and that the lanes in the road were narrower than usual. He added that the road surface itself was slightly uneven.

10. There is no reason to believe that any of the witnesses are not telling the truth about the circumstances of the accident. I accept the plaintiff's account of what happened, so far as it goes. It follows that she herself was on the pavement at the time of the accident. There is no evidence that the coach touched or mounted the pavement on which the plaintiff was standing. Indeed it cannot have done so, since she suffered no injuries apart from the fractures of the lower legs. But in what position was the cart? I do not believe that the plaintiff intended to take it around the outside of the lamppost. There was no point in doing so; the baskets were only feet away and, quite apart from the danger involved, it would have involved an unnecessary and troublesome manoeuvre.

11. The only satisfactory solution is that a handle was jutting out into the roadway and that this was struck by the coach, causing the cart itself in turn to strike the plaintiff in mid-calf. This is consistent with the scratches on the coach and the fact that the plaintiff was standing in front of the cart. But in this case would not the cart have been struck by the front part of the bus. I think not necessarily so. If the driver of the coach saw the jutting handle, he would have realised the danger and tried to take avoiding action. The only other possibility is that the plaintiff moved the cart as the bus was passing. However she had no reason to do so and, indeed, she was standing at the end of the cart away from the handles. In my judgment there is only one explanation that fits the facts and I so find.

12. The question is whether there is negligence involved and, if so, by whom. The principles involved in this type of situation were outlined by McMullin J. in Lam Shui-tsin v. James Fong⁽¹⁾:

" The limits of the respective privileges and obligations of motorists and pedestrians in relation to the proper use of the highway are nevertheless fairly clearly established by the amalgam of custom, decided authority and common sense which represents the common law upon the subject. There is no doubt that the pavement is, under normal conditions, primarily the preserve of the pedestrian; it is a special zone of security provided for him by the highway authority where he may expect to pass unmolested by vehicular traffic. The carriageway, under normal conditions, is intended primarily for the passage of vehicles and it is the zone specially designed to provide for their greater speed, size, and destructive propensity. It is these very general propositions which underlie the many decisions of the courts in which damage done to a pedestrian by a vehicle which mounts the pavement where he is standing is regarded in the light of the principle, res ipsa loquitur. But neither the pedestrian nor the motorist enjoys an exclusive property in his zone of predominant right. Thus, even where no guard-rail borders the pavement, a pedestrian may, without ipso facto committing an offence, walk upon the carriageway; nor, is there any absolute prohibition upon a motorist encroaching upon the pavement. In practice such encroachment does occur frequently when cars are parked with a wing overhanging the pavement. In every case the act falls to be judged by reference to the practical necessities of the situation at large which must, however, be read in the light of the general principle that, for their mutual security (and other things being equal) the pedestrian should keep to the pavement and the motorist to the carriageway. The tort of negligence, as it applies to the use of the highway, and leaving aside specific statutory provisions, does not readily accommodate itself to the notion of absolute right or absolute prohibition in relation to special types of situation or special classes of person. The Highway Code itself is predicated upon a continuum of interlocking and mutual rights and obligations embracing all road users and is therefore not accommodating to the notion of "outlawed" persons or "outlawed" situations. Thus, it is of interest to note that the first two rules in the Code (which are addressed specifically to the pedestrian) are in the following terms:-

The second of those admonitions certainly does not seem to support the suggestion that a pedestrian walking within the physical limits of his own special zone of safety is relieved from any further duty of care. To my mind, it recognises the possibility, amongst others, that, even when conducting his own affairs within the physical limits of the pavement itself, he may yet be guilty of some degree of negligence if he fails to watch out for his own safety by anticipating either that some part of his own person or belongings may intrude upon the carriageway or that some part of a passing vehicle may intrude upon his space above the pavement."

13. The validity of these observations is not reduced by virtue of the fact that it was, on the question of contributory negligence by the pedestrian, a dissenting judgment.

14. If 1st defendant had been driving farther from the kerb, the accident would not have happened. But there were not many people waiting to cross the road, the lanes were narrower than usual at this point and he was driving a large vehicle. It seems to me that driving close to the kerb in these circumstances is not in itself evidence of negligence. But the question of speed is important. If 1st defendant was travelling at 20 miles per hour, was this too fast? Should he, realising that he had to travel very close to the kerb, on which there was a woman with a cart and other pedestrians, have braked and reduced his speed? I should have thought not: 20 miles per hour is a very modest speed.

15. The problem must be looked at from another angle. The driver of a vehicle, who sees, or ought to have seen, an obstruction projecting from the pavement into the road, has a duty to avoid it. This is common case. Whether in this case the obstruction, namely the projection of the cart handle, was so obvious that an attentive driver ought to have seen it, and whether he had time and space in which to avoid it, are difficult questions of fact.

16. The crux of the matter is, how soon before the impact did the plaintiff put the cart down with the handle jutting out? After doing so, she stepped off the pavement, walked round the cart, reached the lamppost and looked back in time to see the coach. This would probably have taken her about five seconds. At 15-20 miles per hour, the coach would have been 100-150' away when this happened. If 1st defendant had been paying attention, he should have seen the cart handle in time to take avoiding action. Driving conditions were good, the road was straight - in fact 1st defendant was approaching the plaintiff at a slight angle which would have improved his view of the cart - and there was nothing to block his view. If there had been a vehicle on his right, which prevented him pulling out sufficiently to miss the cart, he should have attempted to stop his vehicle, which at that speed he could have succeeded in doing in time to avoid the collision. On the facts, he would appear to have seen the danger only at the last moment and swerved to avoid it.

17. For these reasons I find that 1st defendant did not take proper care and was negligent. The plaintiff, of course, was also negligent in failing to ensure that her cart was not interfering with the flow of traffic and, to this extent, she may be said to have brought the accident upon herself. I would apportion fault in her at 25%.

18. I turn now to the question of damages.

19. The plaintiff, who is now 44, was conscious when she was admitted to Queen Elizabeth Hospital. She was found to have (1) a closed fracture of the right tibia and fibula (2) a compound comminuted fracture of the left tibia and fibula. The fractures on the right leg united well and subsequently gave no trouble. This leg is now normal. The left leg fractures however did not unite. A bone graft was performed in November, 1977, and this was successful. The fractures united well and the plaintiff was discharged on 5th May, 1978, after nearly a year in hospital.

20. According to a medical board held on 24th October, 1979, there is residual pain, swelling and stiffness of the left ankle. The plaintiff walks with a limp and has difficulty in squatting. In addition, the left leg is 1 c.m. shorter than the right. The board assessed the plaintiff's permanent disability at 5%.

21. Dr. Wedderburn, in a report also dated 24th October, 1979, puts her degree of impairment at 8% and her disability, from an earning point of view, at at least 15%. He reports that she used two sticks for several weeks after her discharge from hospital and one stick until September this year. He found that flexion of the left ankle was limited to 95^o, which means she cannot form a right angle between her leg and foot, which in turn causes difficulty in walking. I myself noticed, that while she seemed steady enough on her feet, she walked to the witness box with a pronounced limp, which may have been exaggerated for the Court's benefit. She did not complain after standing for two hours in the witness box. Bearing these matters in mind, particularly the lengthy period in hospital, with all that that must have entailed, and having regard to the authorities cited to me by counsel, I award under the head of pain and suffering and loss of amenities the sum of $25,000.00

22. The plaintiff claims damages for loss of earnings at the rate of $2,000.00 per month from 19th May, 1977, to date and continuing. Her circumstances at the time of the accident were unusual. She was living with her four children - but not her husband - on a small vegetable plot in Fanling, which she rented in 1972 for five years, with the prospect of a renewal of the tenancy by mutual agreement. On this she grew vegetables for sale. At first she sold them locally, but soon realized that a greater profit was to be made by taking them to Kowloon and hawking them for sale in the street. She left home early in the morning and returned to Fanling in the afternoon or evening. She admits that she always hawked in the same place and that she did not have a licence. When she did not have enough vegetables of her own to hawk, she bought some from her neighbours.

23. The plaintiff says she earned $2,000.00 plus per month before the accident. She supported her children and occasionally received financial help from her husband. If she had had to sell her vegetables locally, her income would have been only $1,000.00 plus. She admitted that, but for the accident, she would have continued to hawk and, in fact, would have extended her hawking activities and spent less time farming.

24. Since the accident the plaintiff has done no work at all. She says she cannot stand for long, is unsafe walking in crowds and is not sufficiently mobile to evade the attentions of the police anti-hawker squad. She cannot squat and, in any case, farming involves work which is now too heavy for her. She has surrendered the farm and lives with her husband and family in Wong Tai Sin.

25. So far as her pre-trial loss of earnings is concerned, it is necessary firstly to discount her earnings as a hawker. The reasons for this are fully set out in the judgment of Briggs C.J. in TAM Choi v. HO Wai-hing & Kowloon Motor Bus (1933) Ltd.⁽²⁾, with which I respectfully agree. Unlicensed hawking is an illegal activity, in respect of which damages cannot be recovered.

26. Counsel invites me to award damages for loss of earnings only up to 26th May, 1978, which is the date on the sick leave chit. I note that this is the date on which the plaintiff was asked to return for further examination. The chit does not say when she would be 'fit to resume duty'. I take the view that, while she was only able to get about with the help of a stick, she was not in a position to earn her living in farming, hawking or even working in a factory.

27. If she had not had the accident, she would have continued to live at Fanling and I think I am entitled to assume that a further tenancy agreement would have been negotiated. Allowing for the ups and downs of vegetable farming and the fact that, usually, the harder one works the greater the reward, I award a sum of $1,000.00 per month in respect of loss of earnings from 19th May, 1977, until 18th September, 1979, that is to say $16,000.00.

28. The plaintiff has no clear idea about what she is going to do now. She hopes to resume work, but rules out farming as too burdensome. She also rules out hawking, because she lacks the agility to escape the police. I agree that, with her disability, farming is out of the question. She can neither squat to plant and weed, nor do the heavy work associated with raising crops and taking them to market. It is not just a matter of watering and waiting as suggested by counsel.

29. It is open to her to seek work in a factory, which would probably bring in approximately $800.00 per month. She has apparently never done such work before, but I see no reason why she should not start now. It is also possible that she will continue to hawk vegetables, in spite of the difficulties she has mentioned. If she finds the pressures of illegal hawking too much, she can take refuge in a hawker permitted area. In either event, she will have to buy everything she sells and her profits are again, I think, unlikely to be greater than $800 per month.

30. In assessing loss of future earnings, therefore, I consider that a sum of $200 per month is reasonable. The plaintiff is 44 and otherwise in good health. In the circumstances, taking into account the vicissitudes of life and the award of a lump sum, I select a multiplier of 8, which gives a sum of $19,200.00

31. This leaves the smaller items of special damage. The cost of follow-up treatment in hospital is agreed at $200.00. The loss of the cart, which was never seen again, and the damage to the plaintiff's clothes are proved and I allow $150.00 and $30 damages respectively for these items.

32. General damages for pain and suffering and loss of amenities, plus loss of future earnings, amount to $44,200.00. Special damages total $16,380.00. Both sums must be reduced by 25% by virtue of the plaintiff's contributory negligence. There will thus be judgment against both defendants in the sum of $45,435.00 with costs.

33. I award interest on the damages for pain and suffering etc. at the rate of 8% from the date of the issue of the writ and on the special damages at 4% from the date of the accident.

Representation:

Mr. Sparrow (Poon & Sum) for plaintiff.

Mr. Edward Chan (Gallant Y.T. Ho & Co.) for defendants.

(1) H.K.L.R. 1974 357 at 364-5

(2) OJA 2997/73