Lee Hin v. King Te Yung

DCCJ000514/1970

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 514 OF 1970.

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

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

Coram: D. Cons, District Judge.

Date of Judgment: 27 April 1970

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

JUDGMENT

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

1. This case arises from an incident that occurred at about 8.30 in the evening of 9th September last year when the plaintiff, while walking across Chater Road by Statue Square, struck, or was struck, by the defendant's car, which was then travelling along that road. The only substantial difference between the contestants is whether the plaintiff was walking slowly as he says, or running or walking quickly as the defendant alleges. As to this aspect I prefer the evidence of the plaintiff, for the defendant was inclined to hedge when pressed in cross-examination. Even so, the road at this point is straight, limited to traffic in one direction only and some 40 feet in width, excluding car-parking space on either side. I do not know if these were in fact occupied at the time of the incident. But even if they were the plaintiff, had he looked carefully and properly, could not have failed to have observed the defendant's on-coming car, either at the commencement of his crossing or during the 15 odd feet that he traversed before first coming into its path, unless the defendant's car had been travelling at an impossibly high speed. The defendant claims to have been moving at only about 30 miles per hour, and I am inclined to believe him. The length of the skid marks might indicate a higher speed for a car travelling steadily, but they are consonant with the greater momentum generated by sharp acceleration from low speed which would have been the case if the defendant had been forced, as he alleges, to slow down at pedestrain crossing some 60 feet before the point at which he applied his brakes. He likewise cannot have been keeping a proper lookout or he would in his turn have seen the plaintiff in sufficient time to have avoided the accident.

2. It was also suggested that the accident was either wholly or partly the fault of the plaintiff, in that on hearing the defendant brake sharply he turned round in a vain attempt to reach the safety of the side he had just left. It may be that had he remained perfectly stationary he would have avoided injury, but a man cannot be blamed for what is quite a natural reaction when the screech of 60 odd feet of burning rubber is ringing in his ears. Nor do I think there is any merit in the point that he failed to make use of either the studded or zebra pesdestrain crossings some 100 - 130 feet on either side of him. Except within 45 feet of a zebra crossing a pedestrain is entitled to cross a road wherever he wishes; mere failure to make use of crossings provided is not in itself negligence. I am satisfied that in the circumstances of this accident both parties are equally to blame.

3. The question of liability in this action has posed no difficulty. Unfortunately, I cannot say the same with regard to damages. All I have been told as to the extent of the plaintiff's injury is that it occurred to his right leg, a fact which incidentally came out in cross-examination rather than in examination in chief, and that he was detained for 52 days in Queen Mary Hospital, after which he had treatment from a bone-setter to the extent of $80. This last item was pleaded in considerable detail, namely as 30 days' treatment at the rate of $25 per day giving a total claim under this head of $750; yet I am now told that such pleading was the result of a mistake. No evidence at all was adduced to support the special damages claimed in respect of soiled clothing or travelling expenses. A claim for $1.000 special diet and nourishment was supported only by the plaintiff's own words that he spent $8 - $10 in this regard daily for a period of several months after the accident. I was not told of the identity, amount or costs of the items of which it consisted, nor was any medical evidence called as to its necessity. In fact no medical evidence of any kind was called. I am told that attempts to serve a witness summons upon a doctor attached to the Queen Mary Hospital did not meet with success, but I was unable to obtain from the plaintiff's solicitor a coherent account of what actually had been done to this end. His speedy decision to forego the calling of medical evidence leads me to think that it was either too little or too late. From the plaintiff's previous employer I learned that the plaintiff is now unable to stand for a period as long as 10 hours, a period necessary in his old job as a noodle cook. Apart from this I do not know the present extent of his injuries or how they may affect him in the future. It seems he is now unemployed, but whether he is suitable for other employment that does not require standing for long periods, whether he has made any attempt to find such employment, or whether it is likely that attempts will be successful in the future, I have no idea. I do not even know his age.

4. My first instinct in the situation thus created was to enter nominal judgment in favour of the plaintiff, and abandon him to his remedies against his own solicitor. But on reflection I have decided otherwise. My decision is not made out of sympathy for the solicitor, even though I understand that he has been admitted for only six months to practise in this Colony. This might have been some mitigation for his conduct of the case were it not that he has decided to set up practice entirely on his own account, thereby holding himself out to the general and unsuspecting public as competent to represent them in litigation, without the assistance and guidence of more experienced members of his profession. My decision is made out of sympathy for the lay client, who being apparently neither educated nor wealthy might well find difficulty in prosecuting a successful action.

5. Having indicated my decision as to liability in this matter I leave completely open the question of the quantum of damages, and give leave to either side to call or recall such witnesses as they may think fit in this regard, on a date to be fixed by the Registrar of this Court. The costs thrown away by that extra hearing shall in any event be paid personally by the plaintiff's solicitors.

27 APR 1970

Representation:

Woo of K.Y. Woo & Co. for plaintiff.

Yu of Brutton & Stewart for defendant.