Chow Wai Ting v. Li Ka Wah and Another
Read the full judgment text of HCA 1530/1978 on BabelCite. This High Court CFI judgment was delivered on 16 January 1979.
1. In this case the plaintiff, a minor, by her mother and next friend claims damages against the defendants as driver and owner of a taxi respectively for injuries and loss sustained and suffered by her when she was struck and knocked down by the taxi on the night of 5th June, 1976 at about 11 p.m. She was then 16 years of age.
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HCA001530/1978
Coram: Zimmern, J. Date of Judgment: 16 January 1979 ----------------- JUDGMENT ----------------- 1. In this case the plaintiff, a minor, by her mother and next friend claims damages against the defendants as driver and owner of a taxi respectively for injuries and loss sustained and suffered by her when she was struck and knocked down by the taxi on the night of 5th June, 1976 at about 11 p.m. She was then 16 years of age. Liability 2. It is agreed between the parties that she was knocked down on that date, at that time when she was crossing Chatham Road near Shek Tong Street. Her version of the incident is that she was that evening homeward bound. It was drizzling. When she arrived at the controlled crossing at the junction of Chatham Road and Ma Tau Wei Road she saw pedestrians walking on the crossing in front of her. The traffic light was in her favour and there was no oncoming traffic. She followed the pedestrians and when she was about to step on the traffic island a vehicle knocked her down. She was not carrying an umbrella. She was walking faster than normal but was not running. 3. The defendant driver's version was that he was driving along Chatham Road on the fast lane (the off side lane). When he arrived at the controlled crossing, the traffic lights were in his favour he proceeded and after passing the crossing a girl suddenly ran in front of his vehicle. There was no pedestrian on the crossing and no traffic on his left. He was charged with dangerous driving before a Magistrate's Court and convicted of careless driving. 4. Chatham Road is a major carriageway with 3 traffic lanes on each side at that spot. The defendant driver had himself said he was travelling on the fast lane with no traffic on his left. If he had kept any proper look out irrespective of whether the traffic lights were in his favour or not he ought to have seen the approach of the girl crossing such a wide road and brake or steer in sufficient time to avoid the accident. He failed to do so and was undoubtedly negligent. As for the plaintiff even if I were to accept the totality of her evidence which I do not as she was caught telling an untruth about her employment, there was also a duty on her as a pedestrian to keep a proper look out. According to her own evidence she did not see the taxi before it was almost on her. By reason that she was within a few feet of the safety of the island her contribution to her own damage was small. Nevertheless she did so contribute. I think counsel for defendants was right when he suggested a figure of 10% and I so find. Injuries 5. The plaintiff was admitted into Queen Elizabeth Hospital where examination reviewed
6. The medical reports do not show this but she claims to have suffered a nasty cut on her right elbow and she showed the court the resultant scar. This I accept. 7. The femoral fracture was temporarily immobilised with bilateral skin traction. Operative fixation by pinning of the neck fracture was performed on 19th June, 1976. She was put on well-leg traction for her pelvis injury which was taken off on 30th July, 1976. 8. Non-weight bearing exercises with crutches were allowed on 11th August, 1976 and she was transferred to Margaret Trench Rehabilitation Centre for physiotheraphy and discharged on 16th October, 1976 walking normally with normal muscle power and joint movement. 9. After discharge she appeared at the out patient department intermittently and complained of progressive right hip pain on each visit. X-Ray of the right hip showed avascular necrosis of the head of the right femur. She was treated conservatively with analgesics. 10. Dr. Wedderburn examined the plaintiff in January 1978 and by his report dated 25th January 1978 said:
11. He examined the plaintiff again on 1st November, 1978 and on 2nd November, 1978 reported:
12. He told the Court that the operation would cost about $12,000 plus a contingency cost of $1,000 for blood transfusion if found necessary. He said for the operation she will have to be hospitalized for 3 weeks followed up by 2 to 3 months of post physiotherapy. An average person would not be able to return to work till after 6 months. He said in her present position she would not be able to indulge in any sport which require standing, running or walking. She can do only sedentary work. With the operation she has a 95% chance of regaining normality. 13. The plaintiff desires to have the operation as soon as possible and her mother has given her consent. All this I accept. Damages 14. The parties agreed on 3 items of special damages pleaded in the amended Statement of Claim namely
Counsel for the plaintiff said he was not pursuing the item for nutritious food and this leaves loss of wages to be assessed under special damages. 15. At the time of the accident the plaintiff said she was a trained garment worker working for Wing Fung Company on piece time basis earning thirty odd dollars a day. She would work 28 days a month and 6 days a week which of course is not mathematically sound. The proprietor of Wing Fung Co. (Queensland) was called and he said he employed the plaintiff from 25th May 1976 to 31st May 1976 on piece time basis and paid her $206.85 i.e. an average of $34.35 per day. She was not in his employ on the date of the accident as she did not return to work after receiving her pay. He rate of pay was in common with other garment factories. Piece time workers usually work six days a week and he was prepared to re-employ her. The plaintiff had said prior to that employment she had worked in another garment factory but could not remember its name. I have no idea of the plaintiff's circumstances at home. I accept that she is a trained garment worker and capable of earning $35 per day, 6 days a week; but capacity for and inclination to work are two different things. Up to the date of the accident the only record of continuous employment is 6 days besides her own evidence which I have commented on. She was not at work from 1st to the night of 5th June. It was said she was ill but then she a 16 year was out on that drizzling night. On the totality of her evidence, on her inability to remember her earnings or some of the names of her employers and not least of all on her demeanour I have come to the conclusion that she would work only when circumstances required and she allowed herself generous time off. I estimate and find her income to be $700 per month. She was in hospital all told for over 4 months and allowing for another month and a half to be back to normal her total loss of earnings from 5th June to 4th December 1976 would be $700 x 6 i.e. $4,200. Her avascular necrosis condition developed earlier than originally prognosed and I accept that she suffered pain thereby which became progressively severe. Even though she was treated with analgesics I accept she could not go back to her old work which required leg movement to work the sewing machine. She tried other work such as being a salesgirl at $600 per month but up to the date of trial had not had continuous employment. This I do not attribute to disclination to work but to her physical condition. She has claimed $180 per month and this I grant her. Her partial loss of earnings up to date of trial comes to 24½ months at $180 per month i.e. $4,410. Special damages therefore come to
As for general damages I award her $32,000 for pain, suffering and loss of amenities which includes the compensation for her disfigurement of thigh and elbow. There will be future pecuniary losses. First from the date of trial to the time she gets on to the operating table say 2 months at $180 per month then second a total loss of $700 per month for 6 months thereafter giving a total of $4,560. She is also given $13,000 for the cost of the operation. 16. General damages therefore come to $32,000 + $4,560 + $13,000 i.e. $49,560. Less 10% for contributory negligence the figure comes to $44,604. There will be judgment with costs for the plaintiff in the sum of $52,587 with interests at 8 per cent per annum on the sum of $7,983 from the date of writ to date of judgment. 17. I direct that all the monies above referred to shall be paid to the Director of Legal Aid to enable the charge in his favour to be discharged and the balance thereafter paid to the Registrar who shall in his absolute discretion have authority to make such payments of both capital and interest of the monies invested by him for the maintenance, and medical expenses of the plaintiff. The balance (if any) of monies held by the Registrar shall be payable to the plaintiff on the attainment of her majority. 18. Order for payment out of $18,000.00 to be paid to the Director of Legal Aid. Plaintiff's costs to be taxed in accordance with Legal Aid Rule that part of the proceeding in the District Court to be taxed on the upper District Court scales. Representation: William Lane (W.K. Lore & Co.) for Plaintiff. Raymond Leung (W.S. Lo & Co.) for Defendant. |