Chna Yiu Sun v. Yip Kim Cheung and Others

HCA002306A/1986

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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

BETWEEN

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

Coram: Hon. Ryan, J. in Court

Dates of hearing: 20 - 24 November and 20 December 1989

Date of delivery of judgment: 2 February 1990

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

JUDGMENT

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

1. On the 28th December 1983 at about l p.m., the Plaintiff was a front seat passenger in a private motor vehicle CX6046 owned by the 2nd Defendant and driven by the let Defendant. The 2nd Defendant was seated in the rear of the vehicle with two other persons.  The five men were all at that time employed by Arts Decoration Design Company, an interior decoration company. They were out for a joy ride, while waiting for their employer to arrive with their wages. The vehicle was being driven along Ting Kwok Road when the 1st Defendant lost control of the car which eventually crashed into a lamp post on the pavement. The Plaintiff sustained injuries in respect of which he now seeks damages.

2. The 1st Defendant gave evidence of the group having had lunch together and then deciding to go for a ride in the 2nd Defendant's car. The 2nd Defendant, having drunk some beer, asked the 1st Defendant to drive. The car was travelling in the outer lane of the two lane carriageway in Ting Kwok Road at a speed of approximately 55 m.p.h. The speed limit in that area is 50 k.p.h. (about 30 m.p.h.). The 1st Defendant was aware that he was travelling in excess of that limit. Near to the Calsberg Brewery, the inner lane of Ting Kwok Road merges with the outer lane. As the car approached this merging point the 1st Defendant slowed to about 50 m.p.h. being then aware that the lanes merged and the area was less safe.

3. A taxi CZ9070 owned and driven by the 3rd Defendant then overtook the private car in the inner lane and cut suddenly into the outer lane in front of the private car.The 1st Defendant was taken by surprise by this manoeuvre and immediately applied the brakes and took avoiding action by swerving to the right and then to the left. The car went out of control and smashed into a lamp post on the pavement adjacent to the inner lane.

4. The 1st Defendant was not able to say if there had been any contact between the two vehicles. At the time of the accident, the 1st Defendant had held a licence for less than two years and did not own a car. He had been past the area where the accident occurred prior to the 28th December 1983 but was not aware that the lanes merged at that point. The weather was clear and the road dry.

5. The Statement of Chu Kwok Cheong, one of the passengers, was admitted into evidence by consent.He stated that he saw an NT taxi in the inner lane side by side with  the private car, that the taxi cut in front of the private car, a crash sound was heard and the private car went out of control and smashed into the lamp post.

6. The Plaintiff and the 2nd Defendant were both knocked unconscious and now cannot remember any of the incidents immediately prior to the accident.

7. The 3rd Defendant gave evidence of driving two customers in his taxi along Ting Kwok Road in the inner lane at approximately 40 m.p.h.. He was aware that at the end of a straight section of road measuring approximately 250 metres, the inner lane of Ting Kwok Road merges with the outer lane. After travelling for approximately 230 metres he moved his taxi from the inner lane into the outer lane. Before doing so, he says he looked into the rear view mirror and saw a private car at a distance behind his vehicle travelling in the inner lane. He described the car as being a very small spot in the road behind him. He then put on his indicator and accelerated to cross to the outer lane. This did not involve a sudden swerving movement. Having completed this manoeuvre, he travelled in the outer lane for "40 lengths of a five seater taxi". When he heard a bang, he looked at the rear view mirror and saw the private car run into the lamppost. He stopped his taxi with a view to giving assistance, not he says because of any involvement in the accident but because he saw this as his duty as a citizen. He walked back to the scene of the accident and saw that the occupants of the private car had been injured. He therefore ran back to his taxi and made a report to the taxi depot. He then returned to the scene and in due course the police and ambulance personnel arrived. The car he had seen in the rear view mirror before he moved into the outer lane was the one which had collided with the lamp post. It is his evidence that he did not know how it came to go out of control. The police did not examine the taxi until February 1984 and at that date there were no signs of damage. The 3rd Defendant states that he did not have any repairs done to the vehicle from the 28th of December 1983 to the date of inspection.

8. It is not in dispute that immediately prior to the accident the only vehicles travelling along Ting Kwok Road toward the merger point were the private car driven by the 1st Defendant and the taxi driven by the 3rd Defendant.

9. Having seen and heard the witnesses, I am satisfied that neither the 1st Defendant nor the 3rd Defendant are giving a totally true account of what took place on that day. They have tailored their evidence in an attempt to exonerate themselves from any blame for the accident.

10. In his statement to the police on the 11th February 1984, the 1st Defendant stated that the taxi was in the left (inner) lane about six to seven feet from the near side front corner of the private car travelling quite fast, that the taxi suddenly accelerated and swerved into the lane in front of the private car. There is no reference to the taxi having overtaken the private car in the inner lane before cutting into the outer lane. When questioned about this, the 2nd Defendant said he was describing the taxi as six to seven feet behind his vehicle and that it was the police officer who told him to describe it in relation to the near side front corner of the vehicle. I reject this explanation. I accept the evidence of the 3rd Defendant that he was travelling in the inner lane and that he was aware of the merger of the two lanes in Ting Kwok Road. I do not accept the evidence of the 1st Defendant that the taxi overtook the private car in the inner lane and then cut in front of the private car. I am satisfied that the private car was at all times leading up to the accident travelling in the outer lane and was not at any time ahead of the taxi.

11. There is no doubt in my mind that the accident occurred because of two factors. First, the 3rd Defendant being aware that he had to move into the outer lane because of a merger of the two lanes did not first ensure that the outer lane was clear before proceeding to change lanes. He was aware that the private car was approaching from behind and clearly made a gross error in judgment in moving into the outer lane without checking again the position of that on-coming vehicle. Secondly, the 2nd Defendant was driving at a speed in excess of the speed limit and one which was too fast for the circumstances. He says he slowed it to about 50 m.p.h. as he was approaching the lane merger. I am satisfied that he was aware of the presence of the taxi in the inner lane ahead of his private vehicle and that at that point in time he was aware of the merger of the two lanes. He did not make sufficient allowance for the possibility of the taxi moving from the inner lane to the outer lane at the merger point.

12. In Berrill v. Road Haulage Executive [1952] 2 Ll.L.R. 490 at 492, Slade J. in paraphrasing the words of Lord Uthwatt in London Passenger Transport Board v. Upson [1949] A.C. 155 expressed the matter in this way:-

13. In travelling at a high speed approaching a merger of lanes with a taxi travelling at a slower speed in the inner lane, the movement of the taxi into the outer lane albeit negligently was a possibility that the 1st Defendant should have at least anticipated and taken more care about.

14. The principal cause of the accident was the negligence of the 3rd Defendant in not ensuring that the outer lane was clear before changing lanes, but the 1st Defendant did contribute to the accident by approaching the taxi in the area of the merging lanes at too high a speed.

15. I apportion the blame as follows; the 3rd Defendant 80% responsible, the 1st and 2nd Defendants 20% responsible.

Quantum of damages

16. At the time of the accident Arts Decoration Design Company employed the Plaintiff as a master mason. He was retained as a permanent casual worker, meaning that while he was employed permanently by the company he worked and was paid on a daily basis.The company carried out interior decoration work which was almost always required to be completed as quickly as poossible. He worked on average 26 to 27 days each month plus overtime work equivalent to a further 7 days.

17. As a master mason the Plaintiff was required to do plastering, laying of tiles and floorslabs and painting work when needed.

18. As a result of the accident, he sustained concussion, fractures of the right tibia and fibula, fracture of the left femur, fracture of the pelvis, lacerations to the face and haemorrhage at the macular area of the right eye. The fractures were treated by bone plates and screws and traction. He was hospitalized from the 28th of December 1983 to the 6th of July 1984. For about two months thereafter he had to use two crutches and attend physiotherapy. He now suffers from a 3/8th shortening of the left femur, distortion and abnormality of the pelvis, weakness in the right shoulder and hand and a 80% visual disability in the right eye.

19. He says that as a result of the injuries he has sustained he is no longer able to get employment as a master mason on a full time basis. The loss of power in the right shoulder and hand prevent him from operating efficiently as a plasterer and/or a painter. His inability now to squat for long periods prevents him from laying tiles and floorslabs at the pace required. He cannot work comfortably on ladders and scaffolding which further reduces his effectiveness. The situation is further complicated by his reduced vision. He has now only very blurred sight in his right eye. He no longer works for interior decoration companies as the pace of work required is beyond his reduced ability. He says quite fairly that he is relucant to approach contracting friends for interior decoration works as he knows that he would be a burden to those friends. He presently works on average 15 days per month at a daily wage less than the wage paid to master masons. He is employed to do remedial work as he cannot work at the pace nor sustain the hours of the master mason. In the mason trade, work is obtained by word of mouth, amongst friends and connections. The Plaintiff is either rung by friends who have remedial work available for him or he makes calls to such friends.

20. Dr David Lee examined the plaintiff and confirmed his physical disabilities. He was of the view that the weakness in the right hand and shoulder were probably the result of damage to the spinal cord consequential upon the head injury which the plaintiff sustained in the accident. He considered the injuries were such as to reduce the plaintiff's ability to stand or squat for more than short periods, that he would be at risk using ladders or scaffolding. The injuries would cause pain and tiredness.

21. Dr R.G.M. Wedderburn examined the plaintiff on the 10th May, 1985 and confirmed the injuries already referred to. He however found the left and right hand grips to be almost similar and gut the impairment, as a result of post concussional symptons, at not more than 1%. Dr Lee on 2nd, July 1987 found a substantial difference between the left and the right hands, the latter being very much weaker. He was satisfied that the plaintiff had made a genuine attempt at the tests and I accept that.

22. The Plaintiff impressed me as being a very honest man he genuinely would like to be able to work in the way and for the hours that he used to be able to do prior to the accident. He did not try to overstate the extent of his injuries nor the pain that he now suffers, and I am satisfied that he is in no way a malingerer. He has been fortunate to have good friends in the bade who have given him work within his capabilities when this is available. The Defendants suggested that he could do more to mitigate his damages by more actively seeking work. Given the nature of the means of obtaining work to which I have referred, the work capability limitations from which I accept he now suffers, and his obvious willingness to do all the work, that he can get, I am satisfied he has and is still doing all he can to get as much work as possible.

23. The parties have agreed the following figures:

24. From this pre-trial loss of wages there has to be deducted the wages which the Plaintiff has earned or as claimed by the Defendants could have earned. He actually earned in this period $210,200.00. For the reasons stated above, I am satisfied that this is the figure to be deducted. This gives a net pre-trial loss of earnings of $385,545.00.

25. In respect of the post-trial period, the parties agreed upon a multiplier of 13 years. I am satisfied that the multiplicant should be based on the Plaintiff's current daily rate of earnings : $320.00 × 15 (being the average number of days upon which he can work). The post-trial loss is therefore :

26. $400.00 (master mason's rate) × 26 days = $10,400.00

27. $10,400.00 - $4,800.00 ($320.00 × 15) = $5,600.00 (monthly loss of wages).

28. $5,600.00 × 12 (months) × 13 (years) = $873,600.00.

29. The parties also agreed miscellaneous special damages of $3,010.00.

30. There will be judgment for the Plaintiff against the Defendants in respect of these damages.

31. There will be interest at the rate of 2% on $220,000.00 from the date of sevice of the writ until judgment. There will be interest at the rate of 5.4% on the sum of $388,555.00 from the date of the accident until judgment.

32. There will be an order nisi that the Defendants pay the Plaintiff's costs, such order to become absolute unless application is made within 14 days.

33. There will be a general liberty to apply. As agreed the 3rd Party proceedings will be adjourned to a date to be fixed.

Representation:

Miss Selina Lau, inst'd by Ng Lie Lai & Chan for Plaintiff

Mr Ronald Mayne inst'd by Y.T. Chan & Co.  for 1st & 2nd Defendants

Mr Patrick Lim, inst'd by K.Y. Woo & Co. for 3rd Defendant

Mr Eric Waley, inst'd by Gallant Y.T. Ho & Co. for 3rd Party