Sonia Gordon Daswaney v. Chian Motor Bus Co Ltd and Another

HCMP001399/1978

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Coram: Li, J.

Date of Judgment: 25 January 1979

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JUDGMENT

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1. On the 8th August, 1975, a bus owned by the 1st defendant and driven by the second defendant collided with the plaintiff, a girl then five years of age, causing her severe injuries. This traffic accident occurred on the westbound lane of Bonham Road about a hundred yards west of what is known as the Nethersole Hospital. It was a bus lane. The plaintiff was knocked down on a spot about 2 feet from the pavement of the southern side of that road, as she was crossing from the centre of the road towards that pavement. Any westbound vehicle travelling along that part of the road at the Nethersole Hospital would find a straight stretch of the road for about a hundred yards and should have a clear vision and clear view of that distance. Immediately prior to the accident, the 2nd defendant was driving his bus at a speed of about 18 to 20 miles an hour. The westbound lane had no vehicle in front of the said bus. These facts are common ground and are not in dispute.

2. The plaintiff's case, despite the allegations set out in the particulars of negligence in the Statement of Claim, is that the 2nd defendant did not keep a proper look-out and that he was driving at an excessive speed. By their defence, the defendants deny negligence and allege contributory negligence - in that the plaintiff failed to keep a proper look-out, ran across the road into the path of the bus without giving the 2nd defendant reasonable opportunity to avoid the collision, ran across the road after a companion so that the 2nd defendant was impeded in his effort to avoid the said collision and attempted to race ahead of the said bus instead of stopping. Paragraph 5 of the defence alleges, as an alternative, that the collision was caused or contributed by the negligence of the infant. It is alleged that plaintiff's companion, an elder Indian boy, dashed across the road into the path of the said bus thereby encouraging the plaintiff to follow and impeding the efforts of the 2nd defendant to avoid the said collision.

3. At the hearing, learned counsel for the defence has not addressed me on the question whether a child of five can be held contributorily negligent. He rather relies on the fact that the collision was caused by a situation created by the plaintiff which the 2nd defendant could not reasonably have avoided. On this point, the facts are practically identical with those in the case of HO Kwai-loy v. LEUNG Tin-hong and another in (1978) HKLR p.74. In that case, Mr. Justice Huggins said at page 74,

4. Having regard to her age, I hold that the plaintiff in this case, was not contributorily negligent. If there was any contributorily negligent, it was that of Haresh, her brother, the elder Indian boy, who is not a party to this action. No argument has been raised whether Haresh's negligence could be fixed on the plaintiff.

5. In the circumstances, I am inclined to consider the question of liability only on the basis whether the collison was caused by a situation created by the plaintiff in such a way that the 2nd defendant could not be expected reasonably to avoid the accident. The issue of liability is whether the 2nd defendant was negligent or that the 2nd defendant, having regard to the facts as I find, could not reasonably be expected to avoid the accident.

6. The plaintiff's evidence is that at the material time the plaintiff's brother Haresh, then a boy of 11 years old, left home at No. 40 Bonham Road to a confectioner's store at No. 38 Bonham Road to buy some soft drinks. The plaintiff and her cousin Asha, another young girl, followed him without the boy's knowledge. Both the said store and the plaintiff's home were situated on the south side of Bonham Road. Haresh could not obtain the type of soft drinks he wanted, so he crossed Bonham Road to the pavement on the north side to another store. When he reached the pavement on the north side, he realised the plaintiff was following him to the centre of the road. He called out to her to go back. She turned back from the centre of the road. At that stage, Haresh had a glimpse of the 2nd defendant's bus travelling along the westbound lane. He watched helpless when the 2nd defendant's bus collided with his sister, the plaintiff, just before she returned to the pavement on the south side. The said evidence is hardly challenged. I find Haresh an honest witness. I do not find his statement to the police - Exhibit 6, distorting in any way. He was confused by the expression 'eastbound' or 'westbound'. In any event, the statement was typed by his father following his description of the events.

7. Soon after the accident the 2nd defendant made a statement to the police in Exhibit 3. He said that he was driving the bus along Bonham Road to Pokfield Road, i.e. westbound. Then he said

In reply to certain questions after that statement the following records appear. It is in question and answer form, and I propose to read them in full.

Pausing at this stage, I observe that the whole context of the statement indicates that Haresh and the plaintiff were running across Bonham Road from the north pavement to the pavement on the south side with Haresh about 10 feet ahead of the plaintiff, running in a rather oblique way because Haresh was supposed to be 35 feet away whereas the plaintiff was only 20 feet away from the bus. It also indicates that the 2nd defendant first saw them running in that way and in such direction when his bus was near to 38 Bonham Road about 35 feet away from them. That explains why he failed to avoid the young girl because the 2nd defendant was impeded by the presence of Haresh and that it was impossible to avoid that collision. This would be in accord with his defence. However, it does not explain why he did not see the children earlier because he had a clear view of that road for 100 yards ahead of him before he reached No. 38 Bonham Road.

8. The 2nd defendant gives evidence. He says that immediately before the accident, he did not see anyone on the road. When he was 30 or 40 feet away from the point of collision, he saw two children running across the road from left to right. He at once applied the brake. The plaintiff doubled back from the centre of the road. Pausing here, I must observe that this version is at variance from his statement to the police so far as the direction of the children's crossing is concerned. The only point of identity is that he first observed them running out when his bus was only about 30 - 40 feet away from them.

9. Having heard the evidence, I find Haresh and the plaintiff did not run out to the road as alleged by the defendant. Haresh denied that he dashed across the road in cross-examination. I further find that Haresh reached the pavement on the northside and the plaintiff reached the centre of the road without any mishap. The accident occurred when the plaintiff doubled back across the westbound lane in obedience to her brother's backing. In crossing over, Haresh could not afford to dash out because he had to look out for the traffic on the eastbound lane. There was a blind corner to the west of the store at 38 Bonham Road. It I accept the contents of the 2nd defendant's statement in Exhibit 3, that he did not observe the plaintiff on the road until she doubled back from across the centre of the road, the 2nd defendant was clearly not keeping a proper look-out. After all, he had a clear view of a hundred yards ahead of him from the point of collision. He should have noticed young children on the road during the plaintiff's first crossing. I do not accept the 2nd defendant's evidence to the extent that he first noticed the children running out acorss the road from south to north when his bus was only 30-40 feet away from them. Had that been so, Haresh would have noticed the bus before he crossed over. After all, a double-decker bus is a big vehicle and makes quite a noise at 30 or 40 feet away. The highway code was referred to me. Sub-section 4 of Section 7 of the Road Traffic Ordinance provides this:

10. As I have been referred to the highway code and the stopping and reaction distances are published in the highway code, I may be allowed to refer to them as to the inference to be drawn in one way or in another. In this respect, an ordinary vehicle, not a bus, would require some 20 feet as a reation distance when the vehicle is travelling at 20 m.p.h. Had the bus been so near to these two children, when the 2nd defendant first saw them, probably it would have run over both Haresh and the plaintiff on their first crossing from the southern pavement to the northern pavement.

11. For the aforesaid reasons, I find that the 2nd defendant must have seen the children crossing the road from the pavement on the south side towards the pavement on the north side when his bus was much farther away than 30 or 40 feet from the point of collision. I also find that he did not make an immediate effort to take sufficient steps to reduce speed so as to avoid the probable danger arising from the situation on the assumption that the children would have continued their course and cleared his path. When he saw the plaintiff turned back it was too late to avoid the collision because he had not reduced speed. In other words, the 2nd defendant, seeing young children ahead of him on the road, did not see fit to reduce speed to prepare for an emergency. The westbound bus lane in that part of the Bonham Road is barely 3.3 metres wide (see Exhibit 2). Having regard to the width of the raod and the size of the bus that was driven by the 2nd defendant, I am of the opinion that in the circumstances even a speed of 18 - 20 m.p.h. was excessive. I find that the impossible situation to avoid the collision was caused or created by inadequate precaution taken by the 2nd defendant, an experienced driver, rather than the plaintiff, a child of five. I find the 2nd defendant negligent and is 100% to blame.

12. Paragraph 108 of the highway code reads:

13. This case is quite distinguishable on the facts from the case of Moore v Pryner (1975) Road Traffic Reports p.127. In that case, there was an obstruction by the side of the road in the form of a coach and the child injured was found running out from the front of that coach onto the road. In the present case, I find the plaintiff and Haresh did not dash out or run out and that there was no obstruction on the road albeit a narrow road. The 2nd defendant gave two totally different versions as to the direction of the route taken by the children. In his statement, he said the plaintiff ran across the road from the right of his bus when he first saw her. In the witness box, he said that she had run from the left of his bus to the centre of the road and doubled back running from the right in front of his bus to the left. I find his inconsistent statements are attempts merely to put the blame on the children in order to cover his own failure to exercise reasonable care in the circumstances.

14. I now come to the question of quantum of damages. As a result of the accident, the plaintiff suffered extensive injuries - a broken left arm, a degloving injury of the left calf and the back of left knee and a fractured skull. She was hospitalised from the 8th August, 1975 until the 10th October, 1975. During that period, she had to go through several surgical operations and two skin graftings. It is not necessary to set out each item in the list of particulars of her injuries and sufferings which, as learned counsel for the defence rightly commented, nearly exhausted the alphabet. Suffice it to say that her pain and sufferings must be severe during hospitalisation. But she recovered faily well physically in the circumstances. It could have been worse. However, she is badly scarred for life. From Exhibit 4A - F, pictures taken by Dr. Nicolson who examined her, she had a very extensive scar on her left arm both above and below her elbow. The contour of her left arm is grossly distorted. She has a spiral scar by the inner side of her left leg running up to above the back of her knee. In the opinion of Dr. Nicolson these scars can never be completely repaired by cosmetic surgery. He suggests, however, that in later years, if she feels strongly about the scars, she might undergo cosmetic surgery involving further skin grafting or transplant as set out in his report in Exhibit 5. Even this may give only a 40% to 50% improvement on the scars. But it also means disfiguring another part of her body from which skin will have to be taken for grafting. In any event, the process will take a few stages of surgical operations to be staggered out for years. The total costs would be in the region of $28,500 as estimated at the present day scale. Mr. Paul YUE, a specialist surgeon, who examined the plaintiff at the request of the defendants agrees that the scars are very bad. He doubts the wisdom, however, of having further cosmetic surgery in view of the uncertain results and the risk of further disfigurement of other parts of the body. Anyway, this is a problem that will arise only in a few years' time.

15. At the moment, the plaintiff is found to be a cheerful girl and an extrovert. However, she has shown signs of some anxiety about the look of her arm - particularly when her young friends cruelly make nasty remarks about it. Whether, as she grows up, she will accept the adverse position in life happily or be seriously affected by it or want to have a cosmetic surgery is a matter of conjecture. I can only judge the situation on the assumption that she is a reasonable person having normal reactions. It does not require too much of imagination to understand that as she grows up to be a teenager, she will feel more and more embarrassed about her disfigurement no matter how brave she is. The scars are unsightly. For the rest of her life, she will not be able to wear the sort of garment young girls like to wear - particularly a bikini - or take part in sports without revealing her scars and distorted arm. In other words, having gone through the pains and sufferings during hospitalisation, she now faces the loss of amenities and disfigurement for life. I am not inclined to speculate whether she would want a costly cosmetic surgery in the future. I accept that it is only a possibility. I rather assess a lump sum for pain and suffering, loss of amenities and for her disfigurement. In this connection, I take into consideration of her probable mental embarrassment for the distorted arm.

16. Counsel for both parties refer me to a list of cases in Kemp & Kemp. In Browley v Reed Paper Bound Ltd., in 1978, a man of 23 was awarded six hundred pounds for a bad disfigurement. The other cases were decided in the early seventies. One of my own decisions has been cited. In the case of POON Lui-ming v LI Chi-shing (deceased), 1978 HKLJ p.110, a girl of 17 disfigured as a result of a motor accident, was awarded $27,000. However, the scar she had was not half as had as those of the plaintiff in the present case. I have checked the records of that case and I remember, on refreshing my memory with the records that most of Miss Poon's scars were quite well healed and could be well concealed if she chose to wear a certain style of her hair. Her appearance was not affected. By comparison, the injuries suffered by the young man in Browley's case is closer in line with the present case. I will then use these two cases and adopt them as a guide, particularly in the Browley's case. It must be remembered in Browley's case, the victim was a man of 23.

17. Taking all into consideration, I am of the opinion that a lump sum figure for general damages, for pain and suffering and disfigurement of $65,000 is a fair sum. For this reason, judgment in the sum of $65,000 will be awarded to the plaintiff and I think the cost will follow the events. In addition to this $780 for special damages, should be added, giving a total of $65,780 in damages. Interest on special damages at 4% per annum to run from date of accident. Interest on general damages at the rate of 6% per annum to run from date of issue of the writ. The special damages to be paid out of court on payment in to the plaintiff's father. As to the general damages $2,000 only is justified to be paid out to the plaintiff's father for the use of the plaintiff. The balance should be invested by the Registrar. There will be a stay of judgment 14 days.

Representation:

Bokhary (Hooserally & Co.) for plaintiff

Eddis (Ngau & Wong) for defendants