Lam Mei Lan v. Leung Yuk and Others

HCA000676/1979

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Coram: Mr. Commissioner Lee, Q.C.

Date of Judgment: 8 December 1979

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JUDGMENT

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1. On 17th June 1978 at about 9 a.m. the plaintiff Lam Mei Lan, then aged 4½ years, was travelling in a public light bus bearing registration No. AW2078 in the company of her adult cousin Madam Lam Chuen Mui. The PLB was then being driven by the 2nd defendant Mr. Cheung Wai Sum as servant or agent of the 1st defendant, Mr. Leung Yuk, the owner of the PLB. At the material time the PLB was travelling along Pak Sha Wan Road towards Pak Sha Wan in Chai Wan. Madam Lam had with her 2 buckets of plastic materials, each weighing about 10. lbs., which she had taken from a factory in order to work at home.

2. Earlier that morning, she had met the young plaintiff and her mother at that factory. The young plaintiff had obtained her mother's permission to go to Madam Lam's home to play with her own son. And hence Madam Lam and the young plaintiff took the PLB in question in order to go home.

3. When the PLB was outside Block 19 of the Estate in the Pak Sha Wan area, she told the driver, the 2nd defendant, to stop so that she could get off the PLB. The 2nd defendant did so, and Madam Lam then assisted the young plaintiff to alight from the PLB by half lifting her, while Madam Lam herself remained on board the PLB.

4. The above facts are not in dispute. But what happened thereafter is in issue.

5. According to Madam Lam (PW1), at that particular point where the PLB stopped, there was a pavement on the right side of the road. The left side of the road was fenced off. Between the fence and the road was a ditch of about 2 to 3 feet in depth. Further away from the fence was what was described as a "low wall" made of concrete. This "low wall" was in fact a concrete bank of about 10 inches wide and about I foot high and it formed the edge of the roadway. It is common ground that this road was extremely bumpy and was at that point of time not covered with tarmac. According to Madam Lam, the PLB stopped at a spot marked "X" shown in Exhibit B-1 and a similar "X" shown in Exhibit B-2. These exhibits are photographs taken by the 2nd defendant himself and show the same spot from opposite directions. These photographs are agreed between all the parties.

6. According to Madam Lam, the PLB stopped at a distance of about 2 feet from the low bank. When she had assisted the young plaintiff to the ground, she told the child not to go away but to wait for her. According to Madam Lam, the plaintiff then stood about half a foot away from the nearside of the PLB near its front wheel. She then turned back to collect her 2 buckets, holding one bucket with each hand. She demonstrated to the Court how she alighted from the PLB:- She let her left hand and the bucket out first while putting her left foot on the rather high step of the PLB. She then brought her right foot on to the same step before putting her left foot down on the ground. She then brought her right foot on the ground with the right hand carrying the other bucket coming out last from the PLB. Just as she was putting her right foot on the ground, the PLB drove off. And as her right arm had not completely emerged from the doorway of the PLB, it was brushed against by the PLB as it was being driven off. As she was alighting from the PLB in the way she had described, she had a glimpse of the young plaintiff and saw that she was standing at the same spot that she had placed her shortly before. She said that the PLB had a folding door which had not closed when it was being driven off. Immediately after her right arm was brushed against by the PLB, she could not see her cousin, but she later saw her rolling underneath the PLB just behind the 2 front wheels. After the PLB had travelled a distance of about 2 car lengths, she saw the young plaintiff roll out. The PLB did not stop. Madam Lam immediately ran up to the young plaintiff and lifted her up in her arms, and she saw that her head was covered with blood and mud. The young plaintiff was conscious at that time and was crying "Mother, mother". Madam Lam asked a male pedestrian nearby to chase after the PLB. After some time the PLB returned and the driver took Madam Lam and the young plaintiff to Chai Wan Clinic. The young plaintiff was subsequently transferred to the Tang Shiu Kin Hospital at its Casualty Department.

7. She told the Court that if the PLB had not been driven away so abruptly, she would have moved one step away from the PLB after alighting from it, and she would then ask the young plaintiff to hold onto the handle of one of her buckets. They would then wait for the PLB to drive off before crossing the road together. She said that she was prevented to do that because the PLB had been driven off so abruptly.

8. The 2nd defendant gave a different version in his evidence. He said that whereas on the right side of the road in the direction of Pak Sha Wan there was a pavement and a fence further to the right, there was no fence, ditch or low bank on the left side at the date of the accident. He said that the left side of the road sloped down so that pedestrians could walk or stand on the slope although he could not drive a car on it. He further said that further to the left were a few wooden huts. According to the photographs which he took, Exhibits B-1 and B-2, there can be seen a fence and a low bank on the left side of the road although the ditch is not readily apparent. He said that he only took those photographs "about 1 odd month after the accident" when he found out that workmen would soon cover up the road surface with tarmac. It was then that he was advised by some fellow drivers of the same route to take some photographs of the scene of the accident to preserve the actual conditions of the road at the date of the accident. According to him, he stopped the PLB at the request of Madam Lam. He said that he knew that Madam Lam was accompanying a young girl and that she had also 2 buckets of things with her. He acknowledged that he had to be more careful since he knew that this woman had a young child with her as well as the 2 buckets. He did not see how the child alighted from the PLB as after collecting 50 cents from the woman passenger he had turned back to put the money into a box which was placed in the front part of the PLB. He then turned to his left and saw the woman passenger alight in the same manner that was described by Madam Lam herself. He denied, however, driving off in the manner suggested by Madam Lam; but said that he had waited until he saw the woman passenger in full view from the rear view mirror installed at the nearside front of the PLB; and he said that she was about 1½ feet from the side of his vehicle carrying the 2 buckets. He then looked at the rear view mirror installed at the offside front of his PLB as well as the rear view mirror installed inside the vehicle. As he looked in turn at these 3 rear mirrors, he saw nothing other than the woman passenger. He then started off with the 2nd gear. He told the Court that he had been taught to start a PLB at the 2nd gear. He said that he drove very slowly because the road surface was very uneven and that furthermore there was a bend in the road. He estimated his speed to be not exceeding 5 or 6 m.p.h. He said that after he had driven to the terminus of that particular route at Pak Sha Wan; there was no passenger there; so he made a U-turn and drove back along the same road in the opposite direction. When he got to near Block 52 of the same Estate which was about one-third of a mile away from the place of the accident, he saw a Chinese male running towards him saying: "There is a girl at Block 19 who has been injured and is now bleeding". At the suggestion of this Chinese male, he immediately drove back to the place where he had earlier allowed the woman passenger and the girl to alight, stopping at the opposite side of the road, and saw that the young girl was covered all over with blood. He then took them to a clinic at the request of the woman passenger. On their way, he saw a police officer and he reported the matter to him.

9. The 2nd defendant said that he did not realise that there was any accident at all until he saw this Chinese male outside Block 52. Both Madam Lam and the 2nd defendant agreed that Madam Lam had travelled by the same PLB on previous occasions. Indeed, according to Madam Lam, that was the only occasion that the 2nd defendant had driven off so abruptly, although on the previous occasions she had also travelled with the young plaintiff.

10. On this conflict of evidence, I have no hestitation in preferring the evidence of Madam Lam to that of the 2nd defendant. I find as a fact that on the day in question there was in fact a fence, a ditch and a low bank to the left side of the road where the PLB had stopped. I make this finding because I do not accept the explanation given by the 2nd defendant that he had only been discussing this accident with his fellow drivers until long after the accident. As Mr. Mayne, Counsel for the plaintiff, had pointed out, the PLB was taken by the police for inspection almost immediately after the accident, and therefore he must have reported the accident to the 1st defendant who was the owner of the PLB; and he must also have told the other driver who was to driver the same PLB in the next shift, there being 2 shift drivers according to the 2nd defendant. And since he said that the necessity to have photographs taken to show the conditions of the road at the date of the accident was made apparent to him during such a discussion with his fellow drivers, he must have taken these photographs either on the same day of the accident or within a very few days thereafter. He further said that the wooden huts to the left of the road had been demolished to make room for road construction before the fence, ditch and low bank were constructed, and yet he did not take these photographs until after the demolition of the wooden huts and after the construction of a fence, ditch and low bank. I do not find his explanations convincing. Furthermore, as pointed out by Miss Chua, Counsel for the 3rd party, Madam Lam Chuen Mui, Madam Lam lived there and had to walk in that vicinity practically everyday whereas the 2nd defendant only drove through the area. It was therefore more likely that Madam Lam would know that area better.

11. I further find as a fact that when the PLB stopped at the material time, it was about 2 feet away from the low bank. Madam Lam had said that she did not see fit to put the young plaintiff on this low bank because it was only about 10 inches wide and she was afraid that the young plaintiff might fall into the ditch which was immediately behind it. I also agree with Mr. Mayne that any reasonable adult in the position of Madam Lam would not like to place the young child too far away since there is always a natural tendency in such a child to wander about. The farther a child is away from an adult, the more difficult it is to ensure that it would not wander away. At any rate, there was simply not much room for this girl to be put, there being only a distance of 2 feet between the nearside of the PLB and the low bank.

12. I further find as a fact that the 2nd defendant did drive away his PLB in the manner as described by Madam Lam, who struck me as a reliable witness although she appeared to be rather argumentative and guarded at times. I make this finding because it is obvious that the 2nd defendant had not paid full attention to Madam Lam and the young plaintiff alighting from his PLB. In the statement he gave to the police on the same morning of the accident, he said 3 times that he did not know who alighted from his PLB first, and that all he saw was that the adult passenger had 2 buckets of sundry articles. This statement was produced to the Court as Exhibit E, and the certified translation as E(1). In this statement, he said that he did not see the child alight, nor did he see the child at all before he drove off. As pointed out by Mr. Mayne, if he had been keeping a proper lookout because Madam Lam was travelling with a young child and was carrying 2 rather heavy buckets, he ought to have seen both of them alight from the PLB. Indeed, as pointed out by Mr. Mayne, since the 2nd defendant did not see the young plaintiff get off his PLB nor did he subsequently see her from any of the 3 rear view mirrors, the young plaintiff could still be inside the PLB when it was being driven off!

13. There is no direct evidence as to what brought the young plaintiff from where she was last seen by Madam Lam, that is, about ½  ft. from the nearside front wheel of the PLB to the later position of being under the PLB. Mr. Ho suggested that the young plaintiff must have wandered away to a position which was immediately in front of the left front light of the PLB. Mr. Ho pointed out that if she had occupied such a position, she would not have been visible to the driver. The PLB in question had been inspected by me in the presence of Counsel for all the parties concerned, and I agree that there is a rather large area which would represent "the blind spot" for the driver while occupying the driver's seat. But such a theory is inconsistent with the evidence of Madam Lam who said that just as she was alighting from the PLB with the 2 buckets in her 2 hands, she caught a glimpse of the young plaintiff who was still occupying the same position as before, namely, just about ½ ft. in front of the front nearside wheel of the PLB. She was equally adamant that the young plaintiff had not moved at all.

14. Now on the 2nd defendant's version of facts, and on Mr. Ho's theory, it would mean that just as the PLB was driven off, Madam Lam could not see the young plaintiff and yet she just stood there with her 2 buckets, doing nothing. The inherent improbability of such a situation is obvious, and I reject it.

15. Bearing in mind the evidence of Madam Lam on this aspect of the case which I accept, I think the only explanation for the accident was that the young plaintiff must have been unintentionally knocked down by the bucket which was being carried by Madam Lam in her right hand as the PLB was being driven away abruptly brushing the back of her right arm and thereby causing the bucket to come forward in the direction of the young plaintiff.

16. This, I think, is a much more plausible inference to draw than the theory suggested by Mr. Ho which is not supported by evidence. Indeed, according to the 2nd defendant, he did not hear or feel anything which would suggest to him that there had been a collision with any part of his vehicle. I understand from his evidence that if the front part of his PLB had collided with the young plaintiff as suggested by his Counsel, he would have noticed it. But if the young plaintiff had been knocked down by the bucket as I think had happened, she would not have come into contact with the front part of the PLB, but with its side or the nearside front wheel. In that case, it would have been much more difficult for the driver to notice it, particularly bearing in mind that the road surface was extremely bumpy. Madam Lam might not notice it either.

17. On this finding of fact, there is no doubt in my mind that the driver was negligent in that he had failed to discharge the duty of care which he clearly owed to both Madam Lam and the young plaintiff, his passengers. He should have allowed ample time for both passengers to alight properly from his PLB. And since he knew that Madam Lam was carrying 2 buckets of rather heavy articles, and had a very young child to look after at the same time, he must have known that he should allow them sufficient time to collect themselves after alighting from his PLB before it would be safe for him to drive off. His negligent act in driving off so abruptly caused the accident. And I hold both defendants liable to the plaintiff in damages because of their negligence.

18. Mr. Mayne further pointed out that even on the 2nd defendant's version of fact, which I have rejected, and even accepting the theory propounded by Mr. Ho on behalf of the defendants, there was still negligence on the part of the driver. He submitted that since the driver knew that the adult passenger had to look after a young child, as well as to carry 2 rather heavy buckets from the PLB, and since he knew or ought to have known that there was a rather large "blind spot" where a young child could not be seen by him from where he was sitting, the duty of care which was owed to these passengers was not discharged by the driver by merely giving the adult passenger sufficient time to get off the PLB without taking any step to ascertain that the young child was in fact in a safe position before driving off. Mr. Mayne submitted, and I agree with him, that a child of such a young age has always a tendency to wander about. The possibility of this young child wandering to the front of the PLB should have been forseeable to the driver and such a possibility is to be reasonably expected in the actual circumstances of the case. Mr. Ho submitted that the driver had done all that was reasonably expected of him to do in the circumstances; but Mr. Mayne's answer is that the driver should have at least asked Madam Lam whether everything was all right or whether the girl was in a safe position before driving off. Such a step would involve minimal delay on his part, and was something which the driver should have done. I agree with this submission; and hold that even on the version of fact given by the 2nd defendant, the duty of care which he owed to the young plaintiff was not discharged by simply giving ample time to Madam Lam to alight when the 2nd defendant himself had admitted that he could not see the young plaintiff in any of the 3 rear view mirrors, and yet he knew that the girl must be somewhere near his PLB. I therefore hold that even if I was wrong in my previous finding that the 2nd defendant had driven off the PLB before Madam Lam had properly alighted from it, the 2nd defendant was still guilty of negligence in failing to discharge his duty of care to the plaintiff.

19. I will now deal with damages.

20. There are altogether 3 medical reports produced to the Court, and they have all been agreed by Counsel for the various parties concerned. The first report was from Dr. Lam Ho Shing who examined the young plaintiff at 10:13 a.m. on the day of the accident at the Casualty Department of Tang Shiu Kin Hospital. The report was produced as Exhibit A. This report shows that the young plaintiff had sustained the following injuries on examination:-

21. She was later treated of these injuries and was then transferred to Queen Mary Hospital.

22. Two further reports from Dr. Pang Wing-luk dated respectively 24th January 1979 and 27th November 1979 were also produced by consent as Exhibits C-1 and C-2 respectively.

23. According to the first of these 2 reports, Exhibit C-1, the young plaintiff was transferred from Tang Shiu Kin Hospital to Queen Mary Hospital where she stayed for 6 days before undergoing rehabilitation treatment at Sandy Bay for the ensuing month.

24. Dr. Pang gave evidence, and his evidence and his 2 reports can be summarised as follows:-

25. The medical evidence has been agreed and the defendants have not called any evidence to the contrary. I have no hesitation in accepting the above facts as true.

26. Madam Lam described the young plaintiff before the accident as "cute and bright"; and the plaintiff's mother (PW3) described her as an "obedient and quiet girl" before the accident.

27. Although the mother's evidence is exaggerated in certain parts, which is only to be expected when a mother gives evidence on behalf of an injuried child, I am satisfied that the young plaintiff is suffering from memory impairment. According to the mother, she has to take a long time to do her homework and she has to be helped by her elder sister. The mother also said that the young plaintiff is no longer obedient after the accident, and when she was asked what she meant by that, she said that "the plaintiff is now very forgetful about things that she was told to do and that she had to be told repeatedly before she would carry out her instructions". It is very unfortunate that this disability of the young plaintiff should be interpreted as disobedience on her part. I am afraid that her parents' inability to understand her will cause unnecessary but unavoidable unhappiness and frustration to the young plaintiff when she grows older.

28. The young plaintiff is the youngest of 5 children in a very closely knit family. The eldest child, a girl of 20, is now working, with a monthly income of $800.00. The 2nd child, a boy of 18, is now serving apprenticeship and is only making a few hundred dollars per month. The other children of the family are all attending school. The mother impressed me as a very responsible parent and she told me that she wanted to give the best education to all her children so long as she could afford it. Her husband, unfortunately, had an accident to one of his fingers which has affected his income, which is now only $1,000.00 a month. The plaintiff's mother has to collect work from a factory in order to help out.

29. It is now the practice for the Court to split the award for general damages into 2 heads: firstly, for pain and suffering and loss of amenities; and secondly, for loss of future earnings. The case of Leung Chi Ming v. So Ki Yim H.C. Action No. 433 of 1976 was cited to me. This was a decision by Leonard, J. There are a number of similarities between that case and the instant one. But the permanent disabilities of the plaintiff in that case are somewhat more serious than those of the plaintiff in this case. Leonard, J. awarded $60,000.00 for pain, suffering and loss of amenities, of which $40,000.00 was awarded on the ground that as the infant boy grows older he would appreciate that had it not been for the accident he would have had a much fuller and rewarding life. There is little difference in this case as far as that aspect is concerned, because when the plaintiff grows older she will appreciate the loss that has been brought about by this accident. She is bound to feel lonely and depressed, particularly when her parents do not understand her conditions. She will think of what she might have been compared to what she will be. This frustration can only be described as painful. There is, of course, the loss of prospects of marriage because of her condition. Having regard to Leung Chi Ming v. So Ki Yim H.C. Action No. 433 of 1976 and Harris v. Harris (1973) Lloyd's L.R. 445, I consider an award of $55,000.00 is appropriate under this head, taking into account the change in the value of money in recent years.

30. As to loss of future earnings, Mr. Ho submitted that even without the accident, the plaintiff coming from her particular family background would be most unlikely to go to a university and that she is more likely to seek employment even as a teenager without finishing her secondary education. I do not think so. As Mr. Mayne quite correctly pointed out, she, being the youngest girl of a closely knit family, has the advantage of receiving the best education because she could be supported and educated by the joint effort of not only her parents but also her elder brothers and sisters. There is also evidence that the young plaintiff is the brightest child in the family. I am reminded by Mr. Mayne that inspite of her present handicap, she is doing well in her studies, the obvious suggestion being that she would have done even better without it. There is no doubt in my mind that but for the accident, she will most definitely complete her secondary education. At this date and age, it is not difficult for an intelligent and studious gitl like the plaintiff to get scholarships which would then enable her to complete even a university education. Whereas I cannot rule out a university education, I must say that the likelihood of the plaintiff being given such an education is not high. Counsel for all the parties agree that the most that a factory worker can earn is $1,000.00 a month and that an average secretary would make $2,000.00 a month. The diminution of her future income brought about by this accident is therefore at least $1,000.00 per month. In deciding what multiplier should be used, I bear in mind that it will be quite many years before the plaintiff will be earning any income; that she will be subject to the normal vicissitudes of life; that she might not be a career woman; that she might have got married and had children of her own which may prevent her from having any income at all or an income of that scale; and that she will be given a lump sum. All these considerations tend to reduce what is otherwise a normal working life of at least 35 years. But on the other hand, I must take into account the galloping inflation that has been with us for some time. For these reasons, I consider that the correct multiplier to adopt is "10". In coming to this decision I have taken into account the case of Leung Chi Ming v. So Ki Yim, supra; and Harris v. Harris, supra. This works out to be $120,000.00 for loss of future earnings.

31. Mr. Ho urged me not to use the formula adopted in these 2 cases cited above, but asked me to pluck a global figure from the air, as it were, as was done by Zimmern, J. in H.C. Action No. 2500 of 1977 Lau Kai Tai v. Tsang Chor Chau & another 1979 H.K.L.J. 195. But I think that case is distinguishable on its facts from the instant one because there, Zimmern, J. said quite expressly that he did not think the plaintiff "would lose any prospective earnings. To me what he has lost is perhaps chances of certain careers and employment and for that loss I award him a lump sum of $40,000.00". In a case where the Court takes the view that a plaintiff will not or has not suffered any loss of prospective earnings, it would clearly be wrong to adopt the formula of assessment as in Harris v. Harris, supra. and Leung Chi Ming's Case, supra.; and that the only award would be either for loss of complete freedom in the choice of work as in Lau Kai Tai's Case or for a "handicap in the labour market" as discussed in the Law Lectures for Practitioners 1978 published by the Hong Kong Law Journal Ltd. at page 110 et seq. In the light of the concession from Counsel of the diminution of her future income, I feel that the approach adopted in Leung Chi Ming's Case and Harris v. Harris is the proper one to take in this case. Had I relied on my instinct to pluck a global figure from the air, as urged upon me by Mr. Ho, I would have picked a figure somewhere between $100,000.00 and $150,000.00.

32. The special damages claimed are only $50.00 being damage to clothing; and they are agreed. I think Mr. Ho is right in submitting that the medical fees of $1,500.00 should come out of the costs of this action.

33. By consent of the parties, the 3rd party claim was tried at the same time as the claim of the plaintiff against the defendants and I am invited by Counsel for all the parties to arrive at a determination on the 3rd party claim at the same time.

34. In the light of my finding of facts, I absolve the 3rd party from any blame whatsoever.

35. As for interest, my attention is drawn to the judgment of the Court of Appeal in Leung Chat-nui v. Chau King-wai and another Civil Appeal No 13 of 1978; where an infant plaintiff was injured in a traffic accident which occurred on 9th June 1974. That was a case where the learned District Judge refused to award any interest for general damages of $3,500.00 and the Director of Legal Aid instructed 2 Leading Counsel to appeal against the decision, clearly because he felt that it involved at matter of great public importance. The appeal was allowed by the Court of Appeal on 24th January 1979. At the end of the judgment, the Court of Appeal said:-

"The next point that was canvassed before us was: what rate of interest should such damages attract? Various propositions were put forward before the court. It is enough to say that we are not here laying down any hard and fast rule. For the purposes of the present appeal, we think that the right rate of interest is 7%. And that interest is payable from the date of the issue of the writ until judgment. After judgment, of course, so long as that judgment remains unsatisfied, it will attract interest at the rate of 8% as a judgment debt (see Order 42 rule 1(4) and section 49 of the Supreme Court Ordinance)."

36. I was urged by Mr. Ho not to award interest at a rate which is higher than 8% per annum. Now there is no magic in the rate of 8% per annum except that for judgment debts, "the rate of interest shall be 8% per annum" (Order 42, rule 1(4) of the Rules of the Supreme Court). There is nothing in our Rules which sets an upper limit for interest rate beyond which the Court has no jurisdiction to award for general damages in a running down action. Indeed, section 48(4) of the Supreme Court Ordinance which enjoins the Court to award interest on damages in respect of personal injuries provides that such rate should be "what the Court considers appropriate".

37. Counsel for all the parties agreed that I should consult this morning's Business News published by the South China Morning Post. The following rates of interest are offered by one of the leading finance companies in Hong Kong. They are as follows:-

38. I understand that the current rate of interest on a savings account is 9½% per annum, free of interest tax; and that for land sold by the Government at auctions, if the purchase price is paid by instalments, the Government charges interest at the rate of 10% per annum. My duty is to award interest at a rate which is realistic, and I feel that I should take cognizance of the fact that interest rates have shot up within this year at an unprecedented scale. If the Court of Appeal in Leung Chai-nui's Case thought that 7% per annum was the right one to adopt in January 1979, the appropriate rate of interest now is 10% per annum. The plaintiff waives interest on the special damages of $50.00.

39. There will therefore be judgment for the plaintiff in the sum of $175,050.00 with interest on $55,000.00 at the rate of 10% per annum from the date of the service of the writ until judgment; and the said sum of $175,050.00 will carry interest at the rate of 8% per annum from today's date until payment. The 3rd party claim is dismissed; and the defendants are to pay the costs of the plaintiff and the 3rd party. And I order that the costs of the plaintiff and the 3rd party be taxed pursuant to Regulation 15 of the Legal Aid Regulations.

Representation:

Mr. Ronald Mayne (Rowdget W. Young & Co.) for plaintiff;

Mr. B.K. Ho (Kenneth K.C. Wong & Co.) for both defendats; and

Miss F. Chua (Lau, Wong & Chan) for 3rd party.