Chan Yi-keung v. Chu Jau-choy and Another

Case No.HCA 2887/1977

Court

High Court CFI

Date15 Jun 1978

Judge—

Case Document

100%Judiciary

HCA002887/1977

IN THE HIGH COURT

	1977 No. 2887
	(Civil)

BETWEEN
	CHAN Yi-keung alias CHAN Keung	Plaintiff
	and
	CHU Jau-choy	1st Defendant
	Wing Lee Public Cars Co. Ltd.	2nd Defendant

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Coram: Leonard, J.

Date of Judgment: 15 June 1978

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JUDGMENT

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1. The plaintiff's claim is for damages for negligence.

2. It was his case that he was on 25th April 1976, prior to the accident, riding his motor cycle along Castle Peak Road, a major road, towards Kowloon from Tsuen Wan. He had stopped at the junction of Wo Yee Hop Road, a minor road, which formed a T-junction with Castle Peak Road on his left, in order to allow traffic coming from Kowloon and turning right into Wo Yee Hop Road to cross in front of him. It having done so, he started up again and was crossing in front of the junction when a car AX 3075 driven by the first defendant came from Wo Yee Hop Road and, when turning to its right across Castle Peak Road towards Tsuen Wan, collided with the rear of his motor cycle causing him to fall and sustain serious injuries.

3. It was the first defendant's case that he had stopped at the junction of Wo Yee Hop Road, that his car had not prior, to the plaintiff's falling from his cycle, actually entered into Castle Peak Road, that his car had not struck the plaintiff's cycle and that for some inexplicable reason the plaintiff had fallen from his cycle, which was then travelling at considerable speed, after the cycle had passed in front of the first defendant and was well to his left; that he, (considering that the plaintiff's misfortune was none of his business!) then continued into and partially across Tsuen Wan Road intending to turn right towards Tsuen Wan; but that he was stopped by persons whom he variously described as "people who ran towards me", "pedestrians" and "other motor cyclists who were friends of the plaintiff's". He said he actually saw the plaintiff falling while his (the first defendant's) car was stationary at the junction, before he moved out of the minor road and that at the time of the fall the plaintiff had already passed from in front of him.

4. The first defendant had pleaded guilty to a charge of negligent driving arising out of the incident and had admitted the truth of a summary of facts in the following terms:

"	At 1730 hours on 25-4-1976 (Sunday), deft. was driving a Public car AX 3075 along Wo Yi Hop Road in the direction of Castle Peak Road from Lei Muk Road. On reaching the T-junction with Castle Peak Road, he turned right into the Tsuen Wan Bound of Castle Peak Road, but his vehicle collided with a motor cycle AZ 3194 travelling along the Kowloon bound of Castle Peak Road. As a result, the motor cycle fell down and its rider was seriously injured.
	2. The accident location was a T-junction of a two-way carriageway. At the exit of Wo Yi Hop Road, there was a 'Slow' Sign. Weather at that time was fine, and road was in good condition. There was speed limit.
	3. Deft. stated that he has no idea what caused the motor cycle fall down. He saw it lying on the ground when he was in the road intersection. However, the whole incident was seen by a Mr. KOK Ming-kuen, who was riding another motor cycle following the victim. He revealed that the public car failed to slow down nor stopped at the junction but pulled out and turned right. When he reached the front of the motor cycle, his public car (the offside front corner) hit the motor cycle. As deft., when emerging out onto a major road, failed to give precedence to traffic there, he is thus summonsed."

5. He claimed that he had done so "for convenience" and prevaricated as to whether he had admitted that he had been involved in the collision. I found him an utterly unreliable witness not only on this matter but throughout his evidence. Indeed he did not even appear to be anxious that his lies should be believed.

6. The only other evidence as to negligence consisted of two plans of the site of the accident prepared by the traffic office and put in by consent.

7. These plans were inconsistent with the evidence of both the plaintiff and the first defendant. They were inconsistent in that they showed what were called "scruff marks" on the road it being implicit in the drawing that these "scruff marks" were made by the motor cycle after it had fallen. The "scruff marks" were shown as having commenced at a point some yards before the cycle would have been hit by the car if the plaintiff's story was true and many yards before the cycle would have fallen if the first defendant's story was true. The exact nature of these "scruff marks" was never explained nor were the questions as to whether they in part consisted of brake marks or their precise nature canvassed. There was no evidence as to the accuracy of the plans or the nature or freshness on the road of the "scruff marks". To that extent the plans were unhelpful. It was clear from the plans that, immediately before entering the junction the plaintiff was travelling up a slope on a straight major road with the minor road on his left while the first defendant was while on the minor road coming down a slope intending to turn to the right towards Tsuen Wan. Traffic coming from Kowloon and intending to turn right into the minor road was accommodated by a lane apparently painted on the road.

8. I was quite convinced by the manner in which the plaintiff gave his evidence that he believed in its truth and his evidence and the general circumstances persuaded me that he had stopped to allow traffic coming from Kowloon to cross in front of him into the minor road and had thereafter continued, as he was fully entitled to do in exercise of his right of way, across the mouth of the minor road when his rear wheel was hit by the first defendant's car which had come out of the minor road without ensuring that it was safe to do so. It was urged on me with some force that he should have anticipated some such foolishness on the part of the first defendant and that he was guilty of contributory negligence in failing to do so. While I would accept that a driver exercising absolute care might have stopped to ensure that no harm would come to him by the possible stupidity of a driver failing to give way to him on the major road I could not accept that any failure on his part was such that, when compared to the manifest negligence of the first defendant it could be said to have contributed in any substantial way to the damage suffered by the plaintiff. I therefore held that the plaintiff was not guilty of contributory negligence.

9. The injuries suffered by the plaintiff were extreme. He had fractures of 8th, 9th and 10th ribs and of the 11th thoracix vetebra and suffered from a crushed spinal cord resulting in total paralysis and loss of feeling from the waist down. He was in hospital for 10 months is permanently unfit for any work, is permanently confined to bed or a wheel chair, cannot dress, bathe or clean himself, will always have to wear a urine bag and has no control over bladder or bowel function. He will need constant attention and has lost his normal expectation of life of say 22 years (he is now 46) and has an expectation of about 15 years. He will probably suffer urinary infections and chest infections. His education has been such that it is unlikely that he will find himself able to adapt himself to any productive work as hitherto he has been a lorry driver.

10. It is a future sufficiently bleak to daunt the most courageous but I was most taken with his resigned yet cheerful and factual approach to his problems. I saw no signs of self-pity although he must be fully aware of all he has lost including his loss of expectation of life. It is really quite impossible to regard any sum of money as adequate to recompense him for what he has lost but I must do my best to do justice between the parties in money terms. Counsel very properly were not in any serious dispute as to the amounts to be awarded under the various heads. I award the following amounts:

(a)	For pain and suffering and loss of amenities (including knowledge of loss of expectation of life	$125,000
(b)	To ascertain loss of earnings I agree with counsel that a multiplier of 10 is appropriate. His salary prior to the accident was $1,300 p.m. This gives a total of	156,000
(c)	The value of help required. This help is at present provided by his wife and it is right that it should be. But her help may not be always available and professional help of the kind required would probably be unobtainable and if obtainable be most expensive. A figure of $500 per month has been suggested. I think this is too low but having regard to the danger of failing to do justice in monetary terms to the defendants I reluctantly accept it. Again using a multiplier of 10 I reach a total under this head of	60,000
(d)	The future cost of medical appliances necessitated by his condition have been agreed at $200 per month using the same multiplier this comes to	24,000
(e)	Special damages have been agreed at	40,000
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		$405,000
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11. It has been suggested to me by counsel for the defendant that any award I made for loss of expectation of life should be in the sum of $5,000 and counsel for the plaintiff has not demurred. In fatal cases the conventional sum under this head is now $10,000 and I understand that Cons, J. has awarded $8,000 in a personal injuries case. I must confess that I have difficulty in understanding why there should be a separate head of damages for loss of expectation of life in non-fatal cases (other than cases in which the plaintiff has by his injuries been deprived of realization of his loss which are to some extent akin to fatal cases). The loss decreases the period over which the loss of amenities must be borne Knowledge of the loss is a different thing for it may result in mental suffering and should therefore be included in the general head of pain, suffering and loss of amenities. I consider that I should not make a separate award for loss of expectation in this case because of the danger of overlapping. I have considered the possibility of suffering as a result of knowledge of it in my award under the general head.

12. It remains for me to deal with the vexed question of interest as I am enjoined to do by section 48(4) of the Supreme Court Ordinance. I have discussed the question whether I should follow Cookson v. Knowles⁽¹⁾ in my judgment in LEUNG Chi-ming v. SO Ki-yim⁽²⁾. Since I wrote the judgment in that case I note from The Times of 25th May 1978 that Cookson v. Knowles⁽¹⁾ has been affirmed in the House of Lords. I am not persuaded by the speeches as they appear from the Report in The Times that I was wrong in my approach. For I have not sought to award interest on future loss. The relevant portion of the speech of Lord Fraser is as follows:

"	The third question related to the principles on which the discretionary power of the court to award interest on the principal sum of damages under the Acts should be exercised. The purpose of awarding interest on damages was to compensate the plaintiff in so far as he had been kept out of money due to him before the award was made.
	The powers and duties of the court in awarding interest on damages were now regulated by section 3(1) of the Law Reform (Miscellaneous Provisions) Act, 1934, and the new subsection LA added by section 22 of the Administration of Justice Act, 1969. The section left a wide measure of discretion to the court, but some guidelines were required so that it might be exercised with reasonable consistency.
"	The Court of Appeal, having split the damages into pre-trial and post-trial, gave interest on the former at half the appropriate rate and no interest on the latter part. In his Lordship's opinion that award of interest was made on correct principles.
	The only argument against it which merited consideration was that interest should have been given on the post-trial as well as the pre-trial damages because the whole sum was due at the date of death and ought in theory to have been paid them. An argument to that effect had prevailed with the majority of the High Court of Australia in Ruby v. Marsh (1975) 132 C.L.R. 642 on a construction of an Act which was broadly similar to the English Act as amended.
	His Lordship would prefer the minority view. The realistic view seemed to be that damages for the period after the date of trial were compensation for a loss of dependency which the Plaintiff had not suffered at that date and she was therefore being compensated for future loss. That part of the compensation ought in theory to be discounted because it was being paid in advance; but theinformation put before the House showed that in the present case it had not been effectually discounted. The realistic view had hitherto prevailed both in England and in Scotland.
	His Lordship was of opinion that the Court of Appeal had rightly awarded interest on the damages in respect of the pre-trial period and rightly declined to award interest on the damages for the post-trial period."

In the instant case I consider it appropriate that interest at 3% per annum should be payable on the special damages of $40,000 from the date of the accident that is 25th April 1976 and on $30,000 (i.e. approximately one quarter of thesum awarded for pain, suffering and loss of amenities which I regard as having been suffered prior to the issue of proceedings) at 6% per annum from the date of the service of the writ.

13. There will be judgment for the sum of $405,000 with interest on $40,000 at 3% from 25th April 1976 and on $30,000 from the date of service of the writ with costs to be taxed in accordance with Legal Aid Regulations (if necessary).

	(P.F.X. Leonard)
	Judge

Representation:

Mr. Francis Eddis (DLA) for Plaintiff

Mr. Charles Ching, Q.C. & Mr. Bokhary (H.A. Hoosenally & Co.) for 1st & 2nd Defendants

(1) (1977) 2 All E.R. 820.

(2) 1976 No. 433.