Li Woon Kin v. Chow Shuet Chiu and Another

HCA002714/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO.2714 OF 1973

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Coram: Briggs, C.J.

Date of Judgment: 15th February, 1974.

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JUDGMENT

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1. This action arises out of a traffic accident which occurred on the 4th March, 1972, when the plaintiff, an unmarried woman, was knocked down and injured by a taxi driven by the first defendant and owned by the second defendant. When the case was called, the first defendant did not put in an appearance so counsel for the plaintiff called the evidence of a doctor after which the case was put back until the afternoon. Again, when the case came on at 2.30 p.m. on 14th March, 1974, the first defendant did not appear, so the case proceeded without hearing any evidence from the defendant. In his defence, the defendant alleged that the accident was caused by the negligence of the plaintiff or, at least, that her negligence contributed to the accident.

2. The plaintiff gave evidence and she said that at about 11.15 p.m. on the 4th March, 1972, she had finished her work as a tram conductor and was on her way home. A public light bus dropped her in King's Road opposite or almost opposite to the junction of that road with Health Street West in North Point. She said she looked to her right before crossing the road and saw a light, obviously of a vehicle, a considerable distance away. She said she had walked back from where she had alighted from the bus and was using a pedestrian crossing which lies to the east of lamp-post No.302 in King's Road. She says that she was struck by a vehicle which she now knows to be a taxi driven by the first defendant. She was knocked down and rendered unconscious.

3. The only other evidence before the court as to the accident was a sketch map which was drawn about 1 ¾ hours after the accident occurred. One Sergeant Ling Chi was called as a witness to put in this sketch plan. It shows, on its face, a body lying on the ground and a taxi fairly close to that body standing in the road. The front of the taxi is shown as being level with the body and on its nearside. The body is shown to be some feet away from the pedestrian crossing and to its west. That is to say, the plan seems to indicate that the accident occurred while the plaintiff was walking across the road outside the studded crossing. Mr. Ling Chi told the court that when he arrived at the scene the plaintiff had been taken to hospital and the taxi had been moved to the side of the road.

4. He said that another police officer had made chalk marks on the ground to indicate where the body and the taxi were when he, that other police officer, arrived on the scene.

5. Mr. Ling Chi could not assist the court except to say that he had made a plan of some chalk marks that somebody else had made on the road. The plaintiff gave evidence on affirmation and was emphatic that she kept a proper look-out when she crossed the road. She also said that she used the pedestrian crossing. At most, the sketch plan indicates that she may have been mistaken as to her second assertion. It is not enough to prove on the balance of probabilities that the negligence of the plaintiff caused the accident or contributed thereto.

6. There being no defence, therefore, and accepting as I do the story of the plaintiff, the liability of the first defendant for the accident is proved.

7. The plaintiff sustained serious injuries which included a fractured right femur and pelvis. She had other injuries to the right side of her body, to both hands and to her nose. Her face was also damaged. She was admitted to hospital on the night of the accident, namely, 5th March, 1972, and remained there for twelve weeks. She was transferred to a rehabilitation centre as a convalescent and she was there for another eight weeks. She also attended a clinic as an out-patient.

8. She was last examined on the 8th February, 1974 by Dr. K.S. Lee. He stated in court that although the plaintiff had made a good recovery and now has a full range of movement in her right knee, she limps when she walks. The plaintiff still suffers from muscular weakness on her right-hand side. She has some pain in her right hip due to the fractured pelvis and she cannot walk long distances and she finds it difficult to walk uphill. She has pain when she walks for any distance and cannot lie on her right side because her right leg is uncomfortable. She has a shortening of one inch in her right femur bone which was fractured and she limps when she walks.

9. The plaintiff claimed various items of special damages. I will allow $150 for travelling expenses and the sum of $10,500 as loss of earnings already incurred. The plaintiff was, at the time of the accident, earning $500 per month as a tram conductor. She has not worked since, but the medical evidence was that she could have got some sort of work within 18 to 24 months of the accident. I will take a mean figure of 21 months as suggested by counsel for the plaintiff at $500 per month, so the special damages come to $10,650. The other items claimed in the special damages were not seriously pursued.

10. Because of the results of her injuries the plaintiff can no longer work as a tram conductor. She cannot do any work except of a sedentary nature. The plaintiff has attempted to find work on two occasions since the accident. On one occasion she actually did work in an electronics factory for a period of four days. She cannot work in any job which involves standing up but before she became a tram conductor she was a seamstress and although she has a certain amount of pain when she sits down for long periods she says that she would like to have employment but it would have to be employment at some sedentary occupation such as sewing. She said that this sort of employment would probably bring in about $250 to $300 per month. She would lose the difference between a sum within that bracket and $500 per month. At the date of the accident, as I have said, she was 31 years of age, so she has at least 25 years of working life in front of her. I will take as the nett loss of monthly earnings $225 and I will take a multiplier of twelve - this gives a figure of $32,400. There must also be a sum for pain, suffering, shock and disability. There was a considerable amount of pain. I will award $17,500 for this. That makes a total of $49,900. The sum will be paid as a lump sum and I must also take into consideration what is known as the usual vicissitudes of life. I will therefore award $39,920 under these two heads. Adding the total of special damages we reach a figure of $50,570.

11. There will be judgment for the plaintiff against both defendants for $50,570 with costs. This amount is to be paid within 14 days. The plaintiff's costs are to be taxed under the Legal Aid Regulations.

Representation:

D.M. Murphy (Gunston & Chow) assigned for Plaintiff.

John Chau (H.A. Hoosenally & Co.) for Defendants.