Lam Shu Chee v. Ip Koon Hung

HCA002588/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 2588 OF 1973

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Coram: Cons, J.

Date of Judgment: 18 July, 1974.

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JUDGMENT

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1. This is an action for damages for personal injuries suffered when the plaintiff was in collision with the defendant's car as he was crossing King's Road at its junction with Kam Hong Street at about 10 o'clock on the night of the 18th February last year. That junction is controlled by traffic lights and there is a road or safety island separating the tram tracks in the middle from the two-lane carriageways on either side. The defendant's car passed that island along the tram tracks and as it did so the collision occurred.

2. The exact details are not easily discoverable. If I were to accept the evidence of the plaintiff and the lady who is now his wife, it is hard to believe that the collision occurred at all. Both say that they were standing in the centre of the island, that is on the road surface between the two raised portions at either end and protected from on-coming traffic by the portion to their right. That portion, which is said by the plaintiff to be about 4 feet in width across the road, contains a post supporting traffic lights and what appears from the sketch (Exhibit 1) to be a lighted bollard. The plaintiff says that he saw the car some 20 to 30 feet away to his right and that as a result of its approach he stepped backwards. He claims this to be a natural reaction, although why it should be so is not easy to understand. If his evidence is correct there was already a distance of approximately 2 feet between himself and the nearest that the car in its normal course would have passed. It was at that point that he lost consciousness. His wife says that he did not step back. Her evidence is simply that as they stood there the car ran over her big too, that she mentioned this fact to her husband, who however did not reply but either then or later fell to the ground.

3. The defendant is not aware how the accident occurred. He says that when he approached the junction the lights were green in his favour and that he crove straight through, slowing down slightly from 25 to 20 miles per hour because there were people upon the island. As he passed the island he felt, rather than heard, a slight noise or bump, but had no idea that he had been in collision with a pedestrian. He therefore did not stop, but returned immediately to the scene when apprised of the fact by the driver of a following car. The police inspected the defendant's car that evening, and apparently found no marks upon it. But the next morning when it was day light the plaintiff made a further inspection and discovered a slight dent like the hollow of a man's hand about 5 feet from the ground in the middle of the near side body work. He does not think it was there before the previous night.

4. It is suggested that the bump felt by the defendant may have been caused by the car's running over the wife's toe. I think this is unlikely. If the toe was where the wife said it was the car would have had to swerve very violently to reach that point and I am sure if that were the case the wife timid as she was in court, would have observed and recalled this fact. The same applies to the second suggestion that the car bumped over the raised portion of the island. Furthermore, I was very impressed with the manner in which the defendant gave his evidence, and I find that nothing of that nature did occur. I think it most probable that the plaintiff walked into the side of the defendant's car as it was driving past the island with the green lights in his favour. The slight dent confirms this view, but even without it I would have come to the same conclusion.

5. This action is based on negligence and I am satisfied that to some extent the defendant was negligent. He did not pay sufficient attention to the pedestrians as he passed. My note of his evidence merely indicates that at that stage he "did not look at anything, just watched the front." But I have a clear recollection that at some stage he also said that he was then concentrating on the green light on the far side of the Junction. It was also suggested that by itself to drive along tram lines at 20 miles per hour is not safe, but there was no evidence to support this suggestion and I see no reason why it should be so. But it is not enough that negligence should be shown to exist, it must also be shown to have been the cause of the accident. And this the plaintiff has failed to do. The primary, and indeed the only cause of the accident was that the plaintiff, being aware of the presence of the car, walked into the side of it. Most scrupulous attention on the part of the driver could not have avoided the accident in that circumstance.

6. In case I am wrong in this conclusion it is right that I should assess damages. The plaintiff sustained abrasions on the face and fractures involving the right shoulder and the right leg. He was detained in Queen Mary Hospital for 10 days and then transferred to Sandy Bay Convalescent Hospital. He was discharged from that hospital the day after his admission with a long cast on his leg. He removed this cast himself some six weeks later without medical advice or assistance. This was an action of which Dr. Harry Fang, the Orthopaodic Specialist called on his behalf, strongly disapproved. But by sheer good fortune in the particular circumstances of the injury that action had no adverse effect on the plaintiff's recovery. The shoulder has healed with a slight restriction upon the internal turning of the arm, and the leg with shortening and displacement. The plaintiff has a limp when striding out or on prolonged walking and is unable to squat. He is a man of 42 years of age. I would have assessed damages for pain and suffering and loss of amenities at $10,000.

7. The assessment of damages with regard to loss of earnings is not so easy. At the time the plaintiff was a minibus driver. He did not in fact work for a salary but rented the vehicle from its owner and retained the fares collected for himself. He claimed an average of profit of about $2,000 per month in this manner, although he has nothing in the way of accounts or records to substantiate his claim. At the time he was single but he did not file tax returns or pay any tax to the Inland Revenue Department. He says in effect that the department had advised him that his profit was too small to attract tax. I find this difficult to believe. Having had the advantage of seeing him for sometime in the witness box I think it probable he would have minimised his profits for the benefit of that department in the same way that he has probably exaggerated them for mine. I would think the genuine figure is about $1,500 per month.

8. Since the accident the plaintiff has not worked as a minibus driver and the specialist advises against his resuming that occupation or presumably any occupation involving long periods of driving. The difficulty arises because he has not worked at all or apparently made any attempt to find other employment. Up to August last year he was receiving treatment from a bonesetter. In October he attended Sai Ying Pun Polyclinic for a medical examination and it would seem that as a result he received financial assistance from the Social Welfare Department for six months. I am willing to accept therefore that he was restricted for some time. But in March of this year his disability was assessed by Dr. Harry Fang at only 10%, and even during the treatment by the bonesettor he was able to get around and could have performed, according to that gentleman, sedentary tasks. I find it impossible to believe that he was or is now unemployable in any position. On the other hand I have no idea at all how much he might now earn. The matter was not canvassed in evidence in any way. The court should not be left in the position where it can only make a wild guess. It is up to the plaintiff to prove the damage that he has suffered or will suffer. I would therefore have assessed special damages for loss of earning to the date of the writ at $8,250, and as part of the general damages a sum of $4,500 to cover his earnings lost during the gradual recovery from then until the middle of March. But no more.

9. Further claims for special damages were pleaded in respect of hospital fees, special food, travelling expenses to the clinic and travelling expenses to the bonesetter. No evidence was adduced to support any of these claims and I would not have allowed them.

Finally, there is a claim for $6,000 for the bonesetter's fees. This is supported by evidence of the bonesetter himself and his receipted bills, including fares, to a total of $6,240. No explanation is advanced for the discrepancy. According to the receipts treatment was given on 132 occasions, the first 60, by far the most expensive, at the plaintiff's residence. I am asked to accept, I assume, that for the first 60 days the plaintiff was unable to leave that residence, but there is no medical evidence to support this and the plaintiff's own evidence (p.9) suggests that the change over to his visiting the bonesetter was dictated by his financial rather than his physical capabilities. It may also be noted that he managed to proceed satisfactorily to and from Sandy Bay Hospital on the 31st March. Defence counsel has suggested that, as at least at the start of the bonesetter's treatment, the plaintiff was still under the care of the hospital and no attempt was apparently made by the bonesetter to consult that hospital, this court should follow the comments of the learned Chief Justice in Original Jurisdiction Action No. 2048 of 1973 and for these reasons reject the claim. Plaintiff's counsel counters by asking me to await the result of the appeal in that case. I do not think that I should keep the parties to this action waiting. This assessment is not in itself or immediately effective. As I understand the law the plaintiff is entitled to recover all medical expenses reasonably incurred as a result of the injuries. I accept that the plaintiff was genuinely concerned about the state of his leg after his visit to Sandy Bay Hospital on the 31st March and was therefore entitled to take, as it were, as a second opinion, treatment in the form of a Chinese bonesetter. I do not think it reasonable that he should have required that bonesetter to visit him. The treatment also must in itself be reasonable. In this respect there was again a marked absence of evidence. I do not even know what form it took. In any event it seems on the face of it to have lasted an unusually long time. If the leg was sufficiently well healed after six weeks that the plaster could be removed prematurely without further damage, then I would have thought that one month of massage or herbal treatment to assist in general recovery would have been sufficient and reasonable. More than that would be Luxury. I would have allowed only $600 under this head.

Representation:

Miss Maria Tam (Chan & Ho) for plaintiff.

Michael Asome (Johnson, Stokes & Master) for defendant.