Wan Shui Yee v. Wong Ying Tak and Another

HCA006920/1980

BETWEEN

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Coram: Hon. Hunter, J. in Court

Date: 22 April 1982

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JUDGMENT

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1. On the 15th of March 1979, at about 6.55 in the evening, the plaintiff was crossing the Cheung Sha Wan Road, opposite to Kowloon. Technical School, when she was knocked down by a motor-cycle driven by the first defendant as the agent of the second defendant. She now claims damages in respect of that incident. Two things are at least common ground. The first is that on the 15th of November 1979 the first defendant pleaded guilty to a charge of careless driving before the North Kowloon Magistrate. The effect of that in my judgment is, that it gives rise to a statutory presumption of negligence against this defendant. That I believe to be the effect of Section 62 of Cap. 8, the Evidence Ordinance as construed in the case of Chan v. Chung which was No: 10 of 1980 before the Hong Kong Court of Appeal, the transcript of which has been put before me. The effect of this plea is that prima facie the first defendant is guilty of negligence unless he proves the contrary. In order to prove the contrary what he has to do is two things, first of all is to show upon the totality of the evidence that he was not in fact negligent; and secondly to explain his plea of guilty, to explain why he made that admission and to give some good grounds to enable the Court to treat that admission as something of little value. It follows that I cannot accept the submission that was put to me by Mr. Mumford on behalf of the defence that if it can be said that he pleaded guilty simply to save time, that is really the end of this plea.

2. The second piece of common ground on the facts is the place of the collision. There is a plan before me which shows that Cheung Sha Wan Road at this point is a dual carriage-way road with a fence dividing the two carriages doom the middle, and at this point a gap in that force which encourages pedestrians to cross at that point. Each of the carriage-ways is 10 metres wide, i.e. just over 30 feet. The collision took place in the near side carriage-way which was closest to the plaintiff. It is common ground between her and the first defendant that the collision took place more or less in the centre of that carriage-way. The plaintiff said she thought she got just past the centre, that she was something like 16 feet into the road; the first defendant put her just slightly short of the centre. So given or toke a foot or so the plaintiff had successfully negotiated about 15 feet of this carriage-way. She is a woman of modest height and shall I say I hope without offence generous proportions. She was walking, she said, with long strides We had a good deal of the usual running down Mathe-matics. Mr. Mumford sought to persuade me that this plaintiff could have reached this point in the carriage-way in something like a second or two. In my judgment that is really totally unreal when one seat the lady in question. One knows how people cross roads. They do not cross roads precisely at right angles or anything as precise as that. For this lady to have covered something of the order of 15 feet would have taken her several of her long paces and would have taken her, in my judgment, several seconds. The significance of that is that she would have been crossing to that point for some appreciable time. When she reached that point, in front of her there was an empty carriage-way 10 feet wide, behind her there was an empty carriage-way 10 feet wide. There was no other traffic to interfere with this motor-cycle; and no physical impediment on visibility. There would therefore have been ample room for him to pass in safety either in front or behind her. Unfortunately he did nothing of the sort and instead he struck out. Just putting those two facts together, the position of the collision and the plea of guilty, makes it pretty clear in my judgment that this defendant has no prospect whatever of discharging the onus of proof which is upon him that he was not negligent. Really the only issue that I have had to consider is whether this plaintiff was guilty of contributing negligence.

3. I then turn to the defendant's explanation as given in the witness box. I emphasise that this was given in chief. What he said as I wrote it down was this. Having described how he stopped at the traffic lights on the way back down the road, he said that he was first away from the traffic lights, and that the people behind him were moving after he left. He then went on: "when I was about 10 fact away from the collision spot I saw a woman walking in the middle lane". He then pointed across the Court from the witness box to the window and said she was somewhere "about the window there." In fairness to his estimated distance the window is probably nearer 20 feet than 10 feet and probably somewhere between 15 and 20 feet away. "I saw the woman walking hurriedly in quick paces. She was already in the middle lane". A little later on he said "I did not see how she got to the middle tape, when I first saw her she was there in the middle lane. "He then went on to describe certain things which he said he did and she did after that moment. Of that evidence I am only able to believe and accept two things. The first is that ha said he could see the expression of fear on the woman's face when she turned and realised how close he was, and second that everything from that moment all happened "in a lightening moment". I have no doubt that those two remarks are wholly true. But I totally reject his account of having sounded his horn once or possibly twice; of the lady having turned round or tried to turn round oral go back; that he had turned to the left to try and avoid her; and that at he would have avoided nor if she had not stepped back into his path. I regard that all as a desperate ex post facto, explanation, to try and give him some sort of excuse for this accident.

4. The plain fact of the matter in my judgment, on that story, is that if he had reached the point 15 feet or thereabouts from this woman without seeing her, and then sees her for the first time, a collision at that point was inevitable. There was nothing he could do to avoid her; and still less was there anything that she could do to avoid him if her attention was drawn to his presence by the sounding of the horn. The whole cause of the trouble is that he got himself into that position without seeing her before. It seems to me transparently obvious on those simple facts that he was not driving and keeping a proper look out first of all, and secondly that if the lighting condition which existed impaired his visibility, he was driving too fast having regard to those prevailing conditions. On those two grounds alone I am satisfied that he was negligent and that he was solely to blame for this accident.

5. What I think in fact happened was that the plaintiff does this journey every day Prom her work - home. She must know this crossing extremely well and she must recognise that she has to be careful crossing what is no doubt a busy dual carriage-way road. Somewhere up to the right from her, in fact the north of her, from the point where she chose to cross, to the north of the Kowloon Technical School, there are some traffic lights. Unfortunately I was not given any reliable figure of the distance away because the plan before me does not go that far. Neither of the witnesses who gave evidenco are any more reliable than anyone else in giving estimates of distance. The probability is that the traffic lights are something between 75 and 100 yards upstream from he Kowloon Technical School. I have no doubt the plaintiff was well aware that if the traffic lights there were holding up the traffic in that line, that half of the road, it is safe for her to cross. When she approached the pavement on the evening in question that is what she saw, the traffic being held by the lights on her right. I think it probably that as shy was bout to cross or as she started to cross, the lights changed. From that moment onward it is plain that the defendant made sure that he got away quickly from those lights and that he was the first away. Again nothing would have happened and would have been no danger at all because he could have passed so conveniently and so easily behind her on this carriage-way, if he had been keeping a proper look out and if he had seen her to a very much earlier point of time. He was riding 150 c.c. vesper. He says he accelerated up to 20 or 25 miles an hour. I am convinced in my mind that is under estimate. Anyone driving a machine of that power knows perfectly well that from a standing start at traffic lights, if you are intent, as he obviously was, to get away first, you can accelerate to a rather higher speed than 20 or 25 miles an hour in a very short space of tune indeed. Looking at this from the defendant's s point of view it vas due to a mixture of impatience and inexperience. He has only been driving for five months and any experienced motorist would, I think, have told him that dusk, something in the order of 6.55 in the evening is one of the most dangerous times to drive. It is the time when, as he said, the street lighting appears least effective. It is the time when he was having to adjust to the fading daylight and to the take over of street lighting and the lighting of his own not or cycle. It is the time when oncoming traffic, or the lights from oncoming traffic, appear to be the most dazzling, very often whether they are driving with their headlights up or whether their headlights are dipped. It is quite obvious that this was one of the matters of which he was complaining and which affected his vision. It is a point he made not very long after the event at the Magistrate's Court. It was in this context that he gave an answer in cross-examination which perhaps illustrated his approach to driving and his driving experience generally. He was asked was it right that he has been dazzled about the oncoming lights and the answer was "yes'". The next question was "What did you do about it?" There was then a very long pause indeed before the answer came out to this effect. "The speed remained unchanged. I proceeded even when my eyes were dazzled". He was then reminded of the passage in the highway code about slowing down or stopping if dazzled. He said he must have forgotten that In other words he was a young man, perhaps carried away by the power of the motor cycle under him. He got away quickly but was inexperienced in driving in those conditions. The lighting ray well have been poor. He may yell have had difficulty in adjusting his eyes to the road way He may well have been dazzled. He simply took no notice of these restrictions at all and went blindly on until to his horror he found, only some 15 feet away from him, a woman crossing the road. By the time he saw her it was far too late to do anything about it. Upon liability I have no doubt whatever that this is a case where the defendant is wholly responsible for this accident.

6. Turning to quantum the plaintiff suffered two nasty fractures of the right tibia and fibula. It is unnecessary for me to go through the two reports from Dr. Wedderburn which are before me, which set out the whole account of her injuries and which showed drat she is left with a major degree of permanent disability. It is unnecessary for me to do so because the general damages for pain and suffering had been agreed at the sum of $35,000, which in my opinion is a modest, estimate. So I can turn, first of all, to the heads of special damages claimed. Of these the first claim is now for a sum of $500 for special food. This to some extent has beer, put before me as nominal and conventional. I have no doubt at all that sums of money in excess of $500 were in fact spent on various tonics, which were taken to the hospital by her son, in which she had confidence, and which she thought were doing her good. Therefore that is sufficient reason for the Court to allow a modest sun in respect the expenditure upon them. Under that head I have no hesitation in allowing the sum claimed which is $500. There is very little argument about the next claim which was $50 for the damage to her watch. The next two items are agreed. The first at $660 and the second at $1,270. Item (e) in the particulars is travelling expenses to the hospital incurred by her son and are claimed for the 254 days she was in hospital at a figure of $18 a day. In evidence the son described the visits to me and said that in fact the taxi Earns were costing him in the order of $32 a day. He also made it clear that in fact he did not go every day and towards the end of her treatment and in the last two shorter periods of treatment he was going every other day only. I have been invited, as it were, to re-do the calculation upon the basis that it was costing $32 a day; and by allowing discount for every other day towards the end of the periods of treatment to award something over $7,000 instead of $4,572 claimed by amendment at the first day of hearing. I cannot believe that this approach is right. If these particulars of special damage are amended as this one was at the day of hearing, and then sought to be re-amended again at the end to bring it in line wits the evidence, then the pleading is serving no sort of useful purpose at all and no defendant knows where he is. In my judgment if pleadings are to serve a useful purpose so that defendants know what the claim is, then they have got to be looked at with Borne care and you cannot just treat them in a cavalier way if the evidence at the hearing, particularly on a figure like this, appears to support a higher figure. My first conclusion here is that the plaintiff is bound by the pleading and by the claim of $18 a day. I would add that I am very far from sure that claim is necessarily wrong because I find it very difficult to believe that when this claim was calculated and considered shortly after the event, it was wrong by a margin of very nearly 50%. I think that in trying to recon struct these taxi fares now and arriving at a figure of $32, the son is much more likely to be using current taxi fares, the 1981/82 taxi fares rather than 1979 taxi fares. I think that the figure of $18 is probably more nearly correct in any event. The claim calculated on that basis for the whole period is $4,572. I am satisfied that this is too high because he was not there every day towards the end. It is impossible to do more than a very rough estimate in a situation like this and I think that if I award under this head a total sum of $4,000 I am getting about as close to it as I can.

7. The last figure of special damage again is virtually agreed. It is based upon loss of earnings from the 16th of March 1979 to the date of the hearing claimed as a figure of $650 a month. That figure is supported by the documentary evidence before me and is accepted by the defence. That is just over 37 months at $650. On my calculation it is $24,050. Because it is nearer 37½ than 37 months I throw it another $300 and I propose it under this head to award $24,350. That with the total special todate which I make 6,480 gives a total award by way of special damages of $30,380. I hope that someone is checking these figures as I go along.

8. I now turn to the future loss of earnings claim, the other half of the general damages award. I am in an unusual position of neither having a clear starting date or clear finishing date. First of all the lady's age is uncertain. According to her identification card she is of the order of 59. That is almost certainly understated. I agree with the submission made that the best evidence before me is to be found in Dr. Wedderburn's report. In his assessment she is in her early 60's. I am going to proceed upon the basis here that she is now aged somewhere between 62 and 63. She was doing a job which she had bad for some time and which she was able to do, and to work overtime, without any undue physical strain. She was hoping to go on doing the job as long as she could and into her 70's. Judging from her state of health at the time this is something which I believe was within her capacity physically. My assessment of her, having seen in the box, is that she would have gone on working so long as she was physically capable. Therefore I think that she would still have now prospects of working for another 7 or 8 years, realistic prospects. It was suggested that she had a 10-year expectation but I think that that is putt in it a little high. It may have come to 10 years, one cannot be sure, but I think probably 7 or 8 is certainly a reasonable prospect. I believe that in those circumstances an appropriate multiplier to take in her case is a figure of 5.

9. As far as a multiplicand is concerned, it is plain that if she was working now she will be earning more than $650. Some figures were put before me which showed that the current rate she might be earning with her present employers was appreciably higher than the rate that was inforce as far as she was concerned at the time of the accident. The concern does not seem to have any general wages level. It was all down on the basis of individuals and reassessed apparently twice a year. Two figures have been put before me here. The defence invite me to take a figure of $900 for the future. The plaintiff herself invites me to take a figure of $945 which is a calculation founded on the estimate given by her employers and based upon the number of days she appears to have been working on an average before the accident. But it also assumes the ability to go on working a high level of overtime. At her age I believe this is unrealistic and that the safer figure to take, and the fairer figure to take, is the figure of $900 a month. If that is my multiplicand and applying to that my multiplier of 5 gives one an award under this head of $54,000. In my judgment there should be  judgment for the plaintiff for $119,830.

Representation:

Mr. Thomas Lai, instructed by Vincent Lo & Co. for Plaintiff.

Mr. E.C. Mumford, instructed by Edmund W.H. Chow & Co. for both Defendants.