Chung Nam v. Szeto Tak-cheung
Read the full judgment text of HCA 3344/1978 on BabelCite. This High Court CFI judgment was delivered on 21 September 1979.
1. This is a running down action in which the plaintiff claims damages for personal injuries arising out of a traffic accident on 17th March, 1976.
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HCA003344/1978
----------------- Coram: Mr. Commissioner Bewley Date of Judgment: 21 September 1979 ----------------- JUDGMENT ----------------- 1. This is a running down action in which the plaintiff claims damages for personal injuries arising out of a traffic accident on 17th March, 1976. 2. The plaintiff, a man of 50, was crossing Shaukiwan Road on foot from north to south at the junction of Tai Hong Street when he was struck by a motor cycle ridden by the defendant. It was 7.00 p.m. and the street lights were lit, the weather was fine and traffic was normal. The plaintiff says he was on a stud-crossing but, according to the Highways Division of the Public Works Department, prior to 3rd February, 1978 'a crossing was situated at the ....... location without studs and signal control'. It is difficult to know what this means. It seems probable, at any rate, that this was a spot where, though perhaps not an official crossing, pedestrians were accustomed to cross. 3. From the ordnance survey map it appears that there are two eastbound lanes of traffic and this is confirmed by the defendant. There are also double tram tracks and a tram stop for eastbound trams, which terminates 10 metres from the junction. 4. The only witnesses were the parties themselves. The plaintiff is illiterate and had difficulty in expressing himself, but, though there is one aspect of it which cannot be true of the two versions his is much the more probable. 5. According to the plaintiff he left his place of work in nearby Tai On Building and walked to Shaukiwan Road, intending to follow his usual route home. Before crossing the road he looked to his right and saw an approaching public light bus. He allowed it to pass, looked to his right again and, seeing that nothing was coming proceeded to cross the road. 6. He was looking straight ahead and never saw or heard the defendant's motor cycle, which, after he had taken 4 or 5 paces, struck him and knocked him to the ground. He was unable to move because his leg was broken, but before he was taken to hospital he gave a statement to a police officer at the scene of the accident. 7. The defendant, likewise, says he never saw the plaintiff until it was too late to take avoiding action. He was in the offside lane and travelling at a speed of approximately 30 miles per hour. His headlight was on. There was a public light bus 2 - 3 vehicle lengths ahead of him, but in the nearside lane. 8. Approaching Tai Hong Street, the public light bus slowed and travelled for 2 - 3 vehicle lengths at about 5 miles per hour as it solicited passengers. The defendant also slowed and remained behind the public light bus in case the latter should suddenly swing out into his lane. The public light bus in fact did not stop or perform any unusual manoeuvre. When the defendant saw that it was proceeding ahead normally, he also increased speed again and at this point was about 3 feet behind the public light bus, but in the offside lane. 9. Suddenly he saw a man darting out from in front of the public light bus. He was unable to avoid the plaintiff, who ran into the left side of his motor cycle, knocking the handlebars to the right. The defendant also fell to the ground and was injured. He later told the police that he had applied his footbrake for an emergency stop. 10. The defendant is unable to explain satisfactorily why, when he saw the public light bus slowing down, he did not proceed to overtake it. He could have done so perfectly safely with no change in speed or direction. His reply, when asked why he also slowed down, that if no passenger boarded the public light bus it might swerve to its right into his lane, was arrant nonsense. There was no possible threat from the public light bus at that point; it was slowing down and, from a position 2 - 3 vehicle lengths behind, the defendant would have been past in a moment. In no circumstances would he be likely to have reduced speed to 5 miles per hour and remained behind the other vehicle. 11. The second factor which leads me to disbelieve the defendant is his allegation that the plaintiff crossed in front of the public light bus. It is conceivable that a pedestrian would cross in such wise as a public light bus pulled towards the kerb looking for passengers and was travelling at walking pace e.g. 4-5 miles per hour. But I do not believe that anyone in his senses would attempt the manoeuvre suggested by the defendant. 12. Besides, I was impressed with the plaintiff's description of how he let the public light bus pass before he began to cross. There is no doubt, since both parties agree on the point, that there was a public light bus. It was natural to let it pass before attempting to cross. I am satisfied that this is something which has remained in the plaintiff's recollection and that he is telling the truth about it. 13. A motor cycle is much more difficult to see than a public light bus and it is possible that, either the plaintiff did not again look to his right after the public light bus had passed, or he did not looked sufficiently carefully before he started to cross the road. There is no doubt that, had he paid more attention to oncoming traffic, before he left the pavement, he must have seen the approaching motor cycle. It is clear from the map that this is a long, straight road, and the weather was good. 14. The plaintiff's error was compounded, on his own admission, by his failure to look to his right as he was crossing the road. Again, had he done so, he must have seen the motor cycle and have been able to take avoiding action. Instead he crossed looking straight ahead. 15. I find therefore that, at the critical moment, the plaintiff and the defendant had an unobstructed view of each other and that, had each been paying proper attention, he would have seen the other and been able to avoid an accident. Both were negligent and the question is what percentage of blame should be apportioned to each. 16. I bear in mind that there was a tram stop at the junction and, even if there was no tram about to stop there, this was a place where pedestrians were likely to be found in the road. I think, in all the circumstances, the defendant was going too fast. 17. The plaintiff, on the other hand, by his stupidity in not paying attention to approaching traffic, brought the accident upon himself. I consider that he was 40% to blame. 18. Damages for pain and suffering and loss of amenities are agreed at $15,000. The plaintiff claims general damages for loss of earning capacity. Items of special damage include tonic food and nourishment, medicine, travelling expenses (also agreed at $43) and loss of earnings from 17th March, 1977 to 17th September 1978. 19. The plaintiff suffered fractures of the left tibia and fibula. He was in and out of hospital until 8th November, 1977, when he was discharged from Sandy Bay on crutches. He then attended at the physiotherapy clinic in Kennedy Road three times a week for five months, after which he was able to walk without the help of a stick. According to Dr. Wedderburn, who examined him on 14th July, 1978 and again on 1st June, 1979, he still has some discomfort after standing for a long time and he feels pain in his ankle after walking for half an hour. I noted however that he stood in the witness-box without complaint throughout his evidence, which lasted over two hours. 20. He is able to flex his ankle almost normally, but his left leg has been shortened by a half inch and the lower leg from three inches above the ankle is angulated inwards by 16% which affects the mechanics of walking. Dr. Wedderburn states that he is incapable of doing heavy manual work and assesses impairment at 9% and his permanent disability at 10%. 21. The plaintiff has received no education or special training. Before the accident he was employed as a deliverer of L.P. gas cylinders. This was heavy work, as he had to carry the cylinders on his shoulders. He will obviously never be able to do this again. His pay was $880 per month plus double pay at the end of the year. According to him, his colleagues in that job retired at the age of 57 or 58, when they found it too difficult to carry heavy loads. 22. The plaintiff did not look for a job while he was attending the physiotherapy clinic. He could not walk very well and he was instructed to do exercises by himself in the park on the days when he did not attend the clinic. There is a doctor's certificate in evidence, which states that sick leave until 8th April,1978, is recommended. 23. In January, 1978, the plaintiff began to receive financial assistance at the rate of $200 per month from the Social Welfare Department, which ceased at the end of the year. It was not until 8th December, 1978, that he got another job. This was as an odd job worker in a canteen in Yau Tong Bay at a wage of $700 per month. To get to work, however, the plaintiff found that he had to get up at 5.00 a.m. and travel for two hours. He first told the court that he gave up this job after three months because of the inconvenience and then added that another reason was that he was in pain while working. According to Dr. Wedderburn, he gave up this job solely because of the difficulty of getting to and from work. The plaintiff admits he told Dr. Wedderburn the reason for quitting and I am satisfied that this was the only reason. 24. The plaintiff looked for another job through the media of the newspapers and friends but did not succeed until 15th June, 1979, when he was employed at Wah Fu Estate as an odd job worker earning $800 per month. This job involved the delivery of goods and he found, after one month, that his leg became swollen and painful after long periods of standing. On 15th July, 1979, therefore he resigned. He is currently still looking for work. It was suggested to him that he should do light work at home for factories, but he maintains that the only work he knows how to do is that of an odd job worker, watchman or the like. He also finds it painful to sit for long periods. 25. It is trite law that the defendant must take the plaintiff as he finds him. The latter is an illiterate man of 50 who possesses no skills of any kind. He is going to find considerable difficulty in finding suitable employment. In this connection I have the utmost sympathy for his unwillingness to attempt plastic work etc., about which he knows nothing. 26. I think it is inevitable that there will be periods when he is out of work. This must be balanced against spells of employment when he can expect to earn $700 - 800 per month. In these circumstances I consider a multiplicand of $300 to be reasonable. 27. The plaintiff is apparently in good health and, but for his accident, could have expected to continue carrying gas cylinders etc. until his late fifties. Making allowance for the exigencies of life, therefore, I adopt a multiplier of 7. Taking the end of year double pay into account, I assess damages for loss of earning capacity in the sum of $27,300. 28. So far as the plaintiff's past loss of earnings are concerned, I feel he was remiss in not looking for a job much sooner. He was no doubt nicely cushioned by the $200 per month from the Social Welfare Department, but in my judgment there was no reason why he should not have started to look for work in April, 1978. Nor, in the absence of a more convenient place of work, should he have left the job in Yau Tong Bay. To this extent the plaintiff has failed to mitigate his damages. I limit the award of special damages under this head to the period 17th March,1977, to 16th May, 1978, at the rate of $880 per month. This, I calculate, gives a sum, including the extra month's pay at Chinese New Year, of $13,200. I respectfully agree with the decision of Cons, J. in LEE Pui-kee v. NG Chak-tong(1) in which he held that sums received from the Social Welfare Department should not be deducted from assessed damages. 29. That leaves the question of medicine and special food. The plaintiff's evidence is that he mixed Chinese herbs with chicken and pork, after seeing other patients in hospital doing the same. There has been no evidence that the herbs or food were prescribed for the plaintiff or that they proved beneficial. Recently Garcia, J. in WONG Ting v. YUEN Hing-kwan(2) disallowed a claim for special food, in the absence of evidence from a qualified person that it had any nutritional or healing value so far as the plaintiff was concerned. 30. In the Full Court case of MUI Ling-kwan v. WONG Yin-wah(3) Briggs, C.J. said that the courts almost invariably allowed a reasonable claim for extra nourishment, but it must be proved that it was suitable to assist the recovery of the injured person. In the same case, McMullin, J. went further and said:
Further on he says:
31. In the present case there has been a total absence of such evidence. Nor can I say that the food was of "noted nutritional worth". The same principle must apply a fortiori to the herbs and other medicine purchased by the plaintiff, for which receipts have been exhibited. For these reasons I disallow the claim in respect of these items. 32. Making the necessary adjustment for the plaintiff's contributory negligence, I assess general damages at $25,380 and special damages at $7,946. There will be judgment for the plaintiff accordingly with costs. 33. I award interest on $9,000, being damages for pain and suffering and loss of amenities, at the rate of 7% per annum from the date of the issue of the writ until trial and on the special damages at the rate of 4% per annum from the date of the accident until judgment, except in the case of the $43 travelling expenses, when the effective date should be 8th November 1977. 34. Sums to be paid to the Director of Legal Aid within 14 days. Costs to be taxed under the Legal Aid Regulations.
Representation: (1) O.J. Action No. 1429 of 1973. (2) O.J. Action No. 727 of 1977. (3) (1973) H.K.L.R. 465. |