Ho Shui Sau v. Tam Ming Sun and Another

HCA003511/1982

BETWEEN

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Coram: Hon. Power, J.

Date of Hearing: 29 & 30 May 1984

Date of Delivery of Judgment: 6 August 1984

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JUDGMENT

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1. In this matter the Plaintiff, Madam Ho Shui Sau, who is presently 76 years of age, is suing the 1st Defendant, Tam Ming Sun, who drove a public light bus BH2516 which came into collision with her while she was crossing Tokwawan Road where it forms an intersection with Lok Shan Road at 9.50 a.m. on the 28th of January 1980. She also sues the 2nd Defendant, Choi Chin Lung, the owner of the public light bus. She alleges that the accident was caused by the negligence of the 1st Defendant who was the servant or agent of the 2nd Defendant and that she suffered severe injuries in the accident and has permanent disability resulting therefrom. At the time of the accident she was 72 years of age.

Liability

2. When the Plaintiff came to give evidence, all that she was able to say was that she saw other pedestrians crossing and so she stepped out onto the road and crossed. She said she did not pay attention but that when she saw other people crossing the road she just followed behind them. She said that she did not see any public light bus coming towards her. She was, when cross- examined, unable to give any more particulars as to the accident. The Plaintiff in her statement to the police, which was tendered, said that when she stepped onto the road she suddenly saw a public light bus approaching on her right-hand side which knocked her down. She said, however, that she did not look before starting to cross the road but only saw other people crossing the road and followed them. Her evidence, then, was that she followed some other people who were crossing the road and that she did not look to see if there were any vehicles coming.

3. She called a Madam Ho Wai Yung who said that she was seated in the middle of the bus, two rows behind the driver. She said that the public light bus was travelling at a moderate speed and that as it approached the intersection she saw 4 to 5 pedestrians crossing the road in quick paces. She said that there was no pedestrian crossing at the intersection and that these pedestrians had been walking up the middle of Lok Shan Road prior to coming to the intersection. She said that they were 10 or 10 odd feet away from the public light bus when she first saw them. The witness then said that after the 4 or 5 pen pedestrians had crossed the road, she saw an old lady was crossing the road who was, at that time, 4 to 5 feet from the public light bus and was approaching the centre of the road. She said that the old lady appeared to notice the oncoming public light bus and that she stepped back. She later qualified this by saying that the old lady had turned around but had not stepped back and at that moment, the public light bus had reached her. She said that she felt the public light bus reduce speed and swerve to the right and that prior to that she had felt no reduction of speed and she did not, at any time, hear a horn being sounded. She said that the near-side front of the public light bus struck the old lady.

4. In her cross-examination she said that when she had earlier said that there was no pedestrian crossing she had meant that there was no zebra crossing. She said that there was a stud crossing on the side of the intersection opposite to that which the public light bus was approaching. In a sketch which she drew, Exhibit 7, she placed the point of the accident on the intersection at about the point where the public light bus would have entered the intersection.

5. Having been shown the police sketch (B21) which shows a stud crossing on the side of the intersection which the public light bus was approaching, she changed her evidence saying that there must be two stud crossings. She then said that the 4 or 5 men and the old lady had been crossing on the stud crossing shown on B21.

6. The witness was clearly unreliable as to the position of the stud crossing and I do not feel that any reliance can be placed upon her evidence as to the place where the pedestrians were crossing the road. In fact, she finally agreed with the cross-examiner that it is possible that she did not recall correctly as it was a long time ago.

7. The 1st Defendant gave evidence saying that at 9.50 a.m. on the 28th January 1980, he was driving his public light bus in the middle lane along Tokwawan Road towards Hung Hom. He said that he was travelling at about 20 to 30 m.p.h. when approaching the intersection with Lok Shan Road and that he was familiar with the intersection which has traffic lights and only one stud crossing which is situated on the side of the intersection which tie was approaching. He said that he saw that the traffic light was green and that no one was on the crossing. He said that he had decelerated as he was approaching the crossing to a speed of about 20 m.p.h. but that he had then accelerated to a speed of 20 odd to 30 m.p.h. to continue on. He said that he did not see pedestrians crossing the intersection at anytime and that lie was aware that the pavement on the far side of the intersection was guarded with railing to prevent pedestrians stepping onto the roadway. He said that when the front of his public light bus was past the stud crossing and protruding onto the junction, he noticed that there was a person, who, it is clear, was the Plaintiff, crossing the road hastily in the lane in which he was travelling. If this evidence is correct the public light bus would have been about 25 feet from the Plaintiff at that time. He said that he sounded his horn and pressed very sharply with great force onto his brake.

8. Given that there would have been some reaction time, this version of events is consistent with the brake marks which were shown on the police sketch (B21). He said that, as the Plaintiff continued to cross, he swerved to one side to avoid her and was, at that time; unaware that his vehicle had struck her.

9. The marks put on the police sketch (B21) by the witness indicated that he would have been about 15 feet from the Plaintiff when he first saw her.

10. The witness had pleaded guilty at the North Kowloon Magistracy on lath July 1980 to a charge of careless driving arising out of the incident. He said, however, that he did not consider that he was in anyway careless and that he had pleaded guilty because he felt that if he did so he would not be inconvenienced by having to appear in Court again. He said that he explained the situation to the Magistrate after he pleaded guilty and was given an absolute discharge with no conviction to be recorded. As I was able to make positive findings as to the negligence of the parties based upon the evidence the fact of this plea was not, in the outcome, of any real materiality.

11. He said, under cross-examination, that when he first saw the lady, she had passed the inner lane and was in the middle lane walking in hasty paces. He said that she would then have been about 10 odd feet from the public light bus. However, the marks which he placed on B21 indicate that the distance would have been greater than this. He agreed that he had told the police that he was 3 feet from the pedestrian when he first saw her but said that he was unable to distinguish feet and other units. I must say that I am satisfied to accept that he was considerably more than 3 feet from the pedestrian when he saw her.

12. The defence called a Mr. Wong Wai Kwong, who said that he was a passenger on the public light bus on the date in question and was seated at the left hand front next to the driver. He said that the vehicle was travelling at a moderate speed and, after refreshing his memory from his statement, he said that the traffic light was been. He said that he saw an old lady when he was about 50 to 60 feet away from her who stepped onto the road surface and started to cross the road. He said he did not see any people in front of her and that she was crossing the road with hasty paces. He said that he was about to draw the attention of the driver to the lady but before he did the driver said something indicating he had seen the lady and swerved to the right. He said that he did not notice the public light bus strike the lady. The marks placed by this witness on the police sketch indicated that the public light bus was a little more than 40' from the Plaintiff when he first raw her. The witness said that he did not remember hearing the sounding of a horn.

13. Under cross-examination he said that when he first saw the old lady, she had already stepped onto the road but had not reached the middle of the carriageway. He added, She was just starting to cross'. He said that he formed the impression from the way the old lady was facing that she was unaware of the presence of the public light bus.

14. I am satisfied that, at the time when the public light bus driven by 1st Defendant was close to the intersection, the Plaintiff, without looking, proceeded to cross Tokwawan Road at a place where there was no stud crossing and where the footpath was enclosed by railings placed there to prevent pedestrians from stepping onto the roadway. The Plaintiff was plainly negligent. She was crossing the roadway at a position where she should not have been and she was not keeping any real lookout. The only question for me to determine is whether there was some degree of negligence on the part of the driver.

15. The witness Madam Ho, upon whom not too much reliance can be placed, said that she first saw the Plaintiff when she was 4 to 5 feet from the public light bus and she said that she was already then in the path of the public light bus. The evidence of the driver indicated that he was 15 to 25 feet from the Plaintiff when he first saw her and the evidence of the witness Wong Wai Kwong indicated that she was about 40 to 50 feet away when he first saw her. It is clear that Mr. Wong was the first person to notice the Plaintiff. The 1st Defendant, I am satisfied, should have noticed the Plaintiff shortly before he did. However, I have to bear in mind that the driver had to pay attention to the junction as a whole and that he would, quite properly, not have been directing his attention particularly towards the corner from which the old lady was crossing on which rails were erected to prevent pedestrians from stepping onto the roadway. Nonetheless I am satisfied that the driver's lookout was to some extent defective and that, if he had been keeping a proper lookout, he would have seen the old lady slightly before he did. Had he done so, he would have been in a position to brake and take evasive action at a slightly earlier time and might have been able to avoid the incident altogether.

16. I also bear in mind the considerations relating to driver negligence referred to in Baker v. Willoughly⁽¹⁾ at 490. However, given the clear negligence of tae Plaintiff, in failing to keep any proper lookout at all and in stepping onto the road into the path of a moving vehicle from a position where she should not have been, I am satisfied that there was a slight degree only of negligence on the part of the driver and I apportion the blame at 85% to the Plaintiff and 15% to the 1st Defendant.

17. It was pleaded that the 1st Defendant was drilling as servant or agent of the 2nd Defendant. There was no evidence to that effect placed before me. There was, however, in the bundle a Transport Department Certificate of Particulars showing that on the day in question the and Defendant was the owner of the public light bus and the 2nd Defendant, who did not appear at the trial, had through Deacons, his then solicitors, filed a defence admitting the agency of the 1st Defendant. I am Satisfied, therefore, that the 1st Defendant was, on the day in question, the agent of the 2nd Defendant.

Damages

18. As between the 1st Defendant and the Plaintiff, the following items of special damages were agreed:-

19. There is sufficient evidence, I am satisfied, to establish those claims against the 2nd Defendant in the same amounts.

20. The special damages which fall for determination are:-

I do not accept that the Plaintiff was being paid $500 a month salary by a daughter. I am not satisfied upon the evidence that any such salary was ever paid. It seems to me What was happening in this case was what happens in most such cases, that is, that the mother was living with her daughter and assisting her and was treated as part of the household and was supported from the income earned by her daughter without any special payment being made to her.

21. As to the travelling expenses, I am satisfied that it was extravagant, in of the circumstances, for the daughter to have taken a taxi every day to the hospital. Clearly, on some occasions, that may have been necessary and I think it is reasonable to allow $1,500 on this head.

22. The Plaintiff suffered severe injuries which were set out in a memorandum from Dr. C.C. Li, the Medical Superintendent at Queen Elizabeth Hospital. He described them as follows:-

23. He said that she was treated with surgical toileting and suturing of all lacerated wounds and that on the 23rd May, an operation was performed on her left leg for the equinous deformity of the left ankle. He suggested that the permanent disability would be a deformity of the left leg and ankle and that walking inconvenience would be expected due to this injury.

24. A report of Dr. Tory Loy on the 10th January 1984 stated that he found that the Plaintiff was suffering from pain on movement of the left knee and that the left ankle was fixed in equinous deformity and that she had pain in that ankle and that the right ankle was also stiff. The doctor said the X-Ray showed old fractures in both legs and that the bone texture indicated diminished use. He said that the clinical picture was compatible with her report to him that she was unable to walk without the aid of a crutch, that she was unable to stand for more than 3 to 4 minutes and that she was virtually housebound. He said that the left leg was of little value to her as far as mobility was concerned and that it was, sometimes, a nuisance due to parathesia and pain. He said her physical condition could be considered permanent and that she had a total 60% disability. She was 72 at the time of the accident and is now 76. She clearly suffered grave injuries and has continuing pain and disability.

25. When considering general damages, I take into account that she will, because of her age, not be called on to endure these injuries for any great number of years. I am satisfied that her injuries fall within the substantial injury category referred to in Lee Ting Lam v. Leung Pam Ming⁽²⁾ at 660. I have been guided by the indications as to quantum given in that case but have adjusted the amounts suggested upwards because of inflation. The Plaintiff is entitled to 15% of Special Damages of $5,391 and General Damages of $100,000. This gives her, Special Damages of $809 and General Damages of $15,000. I award interest at rate of 7% on Special Damages from the date of accident to the date of this decision and at rate of 2% on the General Damages from date of the writ to date of this decision. Defendants are to pay Plaintiff's coats to be taxed. Costs of Plaintiff and 1st Defendant are to be taxed in accordance with Legal Aid Regulations. I am satisfied that the injuries for pain and suffering and permanent disability should be fixed at $100,000.

(1)    (1970) A.C, 467.

(2)    (1980) H.K.L.R. 657

Representation:

Mr. H.Y. Wong (Chan and Chuk) for Plaintiff.

Mr. Mohan Bharwaney (Cheng Yeung & Co.) for 1st Defendant. 2nd Defendant absent.