Chiang Ngun Por and Another v. V F D Chapman

HCA001155/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1155 OF 1969

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Coram: Pickering, J. in Court

Date of Judgment: 30th September, 1970.

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JUDGMENT

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1. The two plaintiffs are minors now aged 18 and 20 respectively. Through their fathers and next friends they sue the defendant, a senior Inspector of Police, for damages arising out of a traffic accident which occurred in the New Territories on the 8th June 1969, when a bicycle ridden by the first plaintiff and upon which the second plaintiff was a pillion passenger was hit by a car owned and driven by the defendant. Both plaintiffs were knocked unconscious by the impact and both sustained severe injuries. The unfortunate first plaintiff has since the date of the accident contracted meningitis and today, as he testified, has no recollection whatever of the collision or the events immediately preceding it. There is, however, no evidence that the onset of meningitis was in any way attributable to the accident.

2. There is a considerable disparity between the account of the accident given by the second plaintiff and a factory colleague of his on the one hand and that of the defendant on the other hand, and I propose to refer in some detail to the evidence of each of the three.

3. The accident happened at about 9 p.m. when the plaintiffs were travelling along Taipo Road from Fanling in the direction of Kowloon. According to the second plaintiff, when the accident happened, they were turning right into an unpaved road which is not indicated by any sign post on the main road and which leads to Ho Ka Yuen Village. The first plaintiff was riding the bicycle and the second, according to his evidence, was sitting straddle-legged on the pillion. The second plaintiff says that before the commencement of the right turn across the road in the direction of the unpaved road he looked to his rear and saw a small goods lorry about 50 yards behind them; when he faced forward again he saw the first plaintiff also turn to look to the rear; thereafter the first plaintiff made a hand signal indicating that he was going to make a right turn, and the second plaintiff thereupon also stretched out his right hand. The lorry was at that time at a distance which allowed the plaintiffs time to give their signals and make the turn and no other vehicle was visible behind them. The second plaintiff saw no other vehicles between their own bicycle and the lorry. The front and rear lamps of the bicycle were switched on. According to the second plaintiff, the plaintiffs had completed half of the turn towards the unpaved road and had actually crossed the white line running down the middle of the main road when they were knocked down by a car which had come from behind the lorry.

4. The second plaintiff also testified, as did the defendant, that the road runs completely straight in both directions from the scene of the accident and that the straight stretch behind the point at which they made their turn runs for some 500 yards in the direction of Fanling.

5. Mr. MO Fat, a colleague of both plaintiffs in the sense that all three worked in the same furniture factory, said that he had been riding a bicycle behind the plaintiffs all the way from Fanling to the place where the accident happened. He confirmed that the first plaintiff was riding the bicycle, that the second was on the pillion and that the lights of the plaintiffs' bicycle were switched on. Mr. MO said that as they approached the entrance to Ho Ka Yuen Village he saw both plaintiffs signal before turning right and saw their bicycle turn to the right. The witness was then about 20 yards behind the plaintiffs and he says that a lorry was following him. He claims to have looked back and also to have seen the plaintiffs look back before making their turn apparently in order to see if there were other vehicles coming from behind. The witness himself, on looking back, saw a lorry about 30 yards behind him but saw no other vehicle. After the plaintiffs had turned right across the main road in the direction of the approach road to Ho Ka Yuen Village and had got across the white line in the centre of the main road, a car overtook the lorry and ran straight into the plaintiffs' bicycle. This witness, who is not a driver, estimated the speed of the car at roughly 60 miles an hour and said that after the collision the car stopped about 50 yards ahead and the defendant came up to him and spoke to him in Punti asking where there was a telephone. The witness claims to have taken the defendant to a telephone walking to it at a normal pace and denied that the defendant, having ascertained the whereabouts of the telephone, ran to it at top speed.

6. It was put to this witness that he was not in fact on the main road at that time and that he came out of Ho Ka Yuen Village with several other villagers after the accident had occurred. This suggestion he emphatically denied. At one stage the witness agreed that following the arrival of the traffic police he had heard a police officer ask the assembled group of by standing villagers if anybody had seen the accident and agreed that nobody claimed to have done so but subsequently the witness said that he had not heard this question put to the crowd.

7. The defendant said in evidence that the stretch of road on which the accident occurred runs dead straight for slightly over half a mile and estimated that the accident occurred two-thirds of the way along the straight stretch if travelling from Fanling as he was. He described overtaking a heavily laden lorry which was travelling at about 20 miles an hour and completing the overtaking manouevre just at the entry point to the long, straight stretch of road. Prior to overtaking he had dipped his headlights and, after having overtaken, he switched them back to full beam. So far as he could see, the road in front of him was clear for the whole of the straight stretch and he was driving in the centre of the road straddling the broken, white line. About 50 yards or so after overtaking the lorry, his headlights picked up a bicycle some 350 or 400 yards in front and travelling in the same direction; there were two persons on the bicycle and the pillion passenger was sitting side-saddle facing the near side of the road. The defendant said that he did not see any rear light on the bicycle but submitted that the existence of such a light was of little significance since he could clearly see the bicycle in his headlights.

8. Being aware of the bicycle ahead of him and because the road was otherwise completely clear of either pedestrians or vehicles, he continued to drive straddling the middle of the road his intention being to give the bicycle plenty of clearance. As he drew closer the bicycle was being ridden in a steady manner at about a foot or so from the edge of the road. The defendant was positive that neither person on the bicycle either looked to the rear or gave any form of indication of intention to turn; nonetheless as he was about to draw abreast of the bicycle it suddenly made a right turn. The defendant swerved violently to the right in an attempt to avoid a collision but struck the bicycle with the front nearside wing of his car. Having swerved violently to the right just before the impact, the defendant was obliged, immediately after the collision, to swerve equally violently to the left in order to avoid going off the road; this, he said, caused some zigzagging and when he had control of this he brought the vehicle to a halt. The defendant's estimate of his speed at the time was 40 to 45 miles an hour.

9. On running back to the scene of the accident he saw the two plaintiffs, one lying in the centre of the road and another on the verge the main portion of the bicycle and also a front wheel which had become detached were lying in the roadway. At that stage the lorry which the defendant had earlier passed approached and stopped and the defendant asked the driver to park at one side and not to go away at the same time moving the parts of the bicycle to the side of the road. Also at this moment a group of persons came out from Ho Ka Yuen Village which is some 50 to 75 yards off the main road and it was the defendant's evidence that MO Fat was one of these persons. On asking the group in general where the nearest telephone was and being informed that there was a public telephone about 400 yards down the road in the direction of Fanling, the defendant says that he ran there as fast as he could and was unaccompanied. Having dialled 999 and requested assistance he returned to the scene and regulated traffic, noting that despite his admonition to the lorry driver the lorry had gone. Since no attempt appears to have been made to call the driver of the lorry as a witness it would appear that the defendant, although an experienced police officer, failed to note the lorry's registration number. Whilst this was no doubt due to shock and the desire to obtain prompt medical assistance for the plaintiffs, it is unfortunate that a witness whose evidence may have been valuable to the court, is apparently now untraceable.

10. Following the arrival of police and an ambulance the defendant saw a motor-cycle policeman cross to the group of villagers and heard him ask if anybody had seen the accident and the defendant said that at that time MO Fat was one of the persons in front of the group.

11. In cross-examination the defendant said that he was just a few feet behind the plaintiffs' bicycle when it turned to the right and denied a suggestion that he was unable to see the bicycle because the lorry hid it from his view with the result that when he overtook the lorry he suddenly found the bicycle in front of him. He agreed that his car had hit the bicycle with great force and had stopped, according to measurements taken subsequently, 120 feet 8 inches from the scene of the accident. The only bicycle which he had seen was that ridden by the plaintiffs and he had not seen MO Fat riding a bicycle some 20 yards behind them; MO Fat's assertion in this respect was, the defendant claimed, a lie since he did not think that another bicycle would have escaped his observation in the conditions of bright moonlight obtaining. But the defendant agreed that since on his evidence the plaintiffs turned to the right when he was only a few feet from them, they should have been aware of his headlights and the only possible explanation for their apparent unawareness of these lights was the existence of a bright moon; so far as the defendant was concerned, however, the plaintiffs ought to have been aware of the light from his headlights.

12. Leaving aside for the moment the question whether MO Fat was a genuine eye witness or is a perjurer who has come into court to support the plaintiff's claim with a collusive account of the accident, a most important feature of the second plaintiff's evidence is that he says he saw a lorry behind the bicycle on which he and the first plaintiff were riding. Now such a lorry existed for it plays a part in the defendant's evidence - the material difference between the account of the 2nd plaintiff and that of the defendant being as to the distance between the lorry and the plaintiff's bicycle immediately before the impact. The physical presence of the lorry, however, is not in dispute. Now the 2nd plaintiff was aware of the presence of the lorry; it seems to me that he could only have become so aware because he saw it and he could only have seen it by turning his head to look behind him. That is what the 2nd plaintiff says he did and what the defendant says he is positive did not happen. Yet the 2nd plaintiff's awareness of the presence of a lorry which was admittedly there, must in my view constitute proof positive that he did in fact turn his head to look behind him before the right turn was essayed and I accept his evidence on that point without reservation.

13. It being demonstrable that the 2nd plaintiff looked behind him as he said he did, I have no room for disbelieving his further evidence that the 1st plaintiff also looked behind him before commencing his turn and that both plaintiffs gave a hand signal to indicate their intention of turning to the right. I find as a fact that a cautionary look to the rear and the hand signal were executed by both plaintiffs.

14. The 2nd plaintiff says that when be looked behind him he saw no vehicle other than the lorry and the inference must be that this was the view which also presented itself to the 1st plaintiff. Certainly had the defendant's car been "almost abreast of the bicycle", "on the point of overtaking them", "just a few feet behind them" (these are the defendant's phrases) the turn to the right would never have been essayed by the 1st accused and this must be true even if neither plaintiff had ever looked behind him for the defendant's headlights were on full beam and at that range both plaintiffs must have been fully aware of the light and of its implicit message that there was a vehicle so close behind them as to render unsafe any turn to the right across the road at that moment.

15. Moreover, the evidence of the 2nd plaintiff is corroborated by that of MO Fat who says that he was cycling some 20 yards behind the two plaintiffs when they were hit by the defendant's car. He also turned and saw the lorry at a distance which he estimated at 30 yards behind him - which accords with the 2nd plaintiff's estimate of 50 yards behind the bicycle on which he and the 1st plaintiff were travelling. It was put to this witness that he was not on the main road at all at that time but emerged after the accident from Ho Ka Yuen Village with a group of villagers and that his evidence as to being an eye witness was a tissue of lies. Clearly, there are discrepancies in his evidence and if he heard the appeal of the traffic policeman for eye witnesses (which he denies) he did not respond to it. He denied that the defendant removed from the road the two portions of the plaintiff's bicycle after the accident which I am satisfied that the defendant did. It is inconceivable that an experienced police officer would fail to do this for the safety of subsequent traffic in both directions since the two portions of the bicycle respectively littered each side of the carriageway. Again, this witness claimed that he walked with the defendant to the nearest telephone whereas the defendant says that he ran there alone and as fast as he could. But when this was put to the witness he evinced genuine surprise and asked the defendant, in turn, if he was sure that the witness had not walked to the telephone with him saying "You came to me straight from your car and asked me where there was a telephone and we both walked to it." Despite minor inconsistencies in the evidence of MO Fat, I am fully satisfied that he was cycling on the main road and was an eye witness to the accident. It is true that the 2nd defendant said in evidence that when he turned and saw the lorry 50 yards behind himself and the 1st plaintiff, he saw no other vehicle, but a cautionary glance to see if it is safe to effect a right turn concerns itself with vehicles likely to present a danger to such a manoeuvre and it is entirely credible that the existence of a lone cyclist some 20 yards behind would not register since this was no hazard and not the object of the backward glance.

16. It is true also that the defendant failed to see MO Fat's bicycle but I am satisfied that this was because it was obscured from his vision by the lorry. I am convinced that the defendant was travelling fast at the time that and immediately subsequently to overtaking the lorry. The defendant has suggested that because he stopped at a distance of 120 ft. 8 ins. from the point of impact, his speed must, according to the table of overall stopping distances to be found at the back of the Highway Code, have been approximately 40 m.p.h. These overall stopping distances, however, are minimum distances based on the assumption of good weather, broad daylight and good dry roads. In the defendant's case the stopping distance was complicated by a violent swerve to the right, an impact with a bicycle bearing the weight of two youths, a counter-swerve to the left, and subsequent "snaking". Those factors suggest to me that the speed of the defendant's car at the moment of impact was considerably greater than 40 m.p.h.

17. It follows that the defendant is liable in negligence to the plaintiffs and I find no element of contributory negligence on their part.

18. Turning to the quantum of damages, the first plaintiff was in hospital from the date of the accident, the 8th June 1968, to the 18th of October of that same year and again from the 31st of January 1969 to the 18th of June 1969 and he claims loss of earnings as a painter in the sum of $360.00 per month for the whole of this period, that is a total of $4,440.00, and this figure I allow as also the sum of $542.00 representing hospital fees at $2.00 a day for the period of hospitalization. The first plaintiff's father gave evidence of having paid a Chinese herbalist $500.00 and produced receipts for medicines in the sum of $42.60 and these amounts are also allowed. Nothing specific was said in evidence about the cost of repairs to the bicycle which have been claimed at $60.00, but it is apparent that fairly extensive repairs must have been necessary to the bicycle after so severe a collision, and this sum of $60.00 is likewise allowed. Similarly, nothing specific was given in evidence about the cost of damage to the 1st plaintiff's clothing or that of transport to and from the hospital. These two items are claimed in the entirely reasonable figures of $40.00 and $21.00 respectively and are also allowed. The total of special damage allowed in respect of the first plaintiff is therefore $5,645.00.

19. The 2nd plaintiff was in hospital only for some 18 days but was unable to resume work until the 12th of October 1968. He claims loss of earnings as a carver at $360.00 a month from the 8th of June 1968 to the 12th of October 1968 totalling $1,488.00 and hospital fees for 18 days at $2.00 per day and these sums are allowed. An item of $15.00 for medicines has not been proved nor shown to be essential and it is disallowed. Damage to clothing at $20.00 and transport to and from the hospital as an out-patient at $50.00 are further items which are allowed. The total of special damage in respect of the 2nd plaintiff is therefore $1,594.00.

20. There remains the matter of compensation for pain, suffering and shock. According to the medical evidence both plaintiffs suffered great pain. The first plaintiff sustained a compound fracture of the right tibia and fibula and a bilateral fracture of the clavicle. He also suffered some temporary hurt to the brain due to shock which in turn was caused by loss of blood. After his initial discharge from hospital, more than four months after the date of the accident, he had to be re-admitted because his compound wound refused to heal and an operation was then performed for the removal of dead bone from his right tibia. The operation has left severe scarring near his right ankle. On this occasion again he was in hospital for more than four and a half months. The only permanent effect apart from the scarring to the right leg is that he may have pain in the leg during changeable weather.

21. Taking all these matters into consideration I assess damages for pain, suffering and shock in respect of the first plaintiff at $4,000.

22. The second plaintiff suffered a fractured shaft of the right femur and was operated upon three days after the accident when the bone was fixed internally by means of a 10 inch nail placed in the cavity of the bone. The nail remains in his body. He was in hospital for eighteen days and according to the medical evidence following complete recovery from the operation, which would take at least eight weeks, the only permanent effect would be that, like the first plaintiff, he may experience pain at the site of the injury in changeable weather.

23. I assess damages for pain, suffering and shock in respect of the second plaintiff at $1,500.

24. The total damages recoverable by the first plaintiff amount therefore to $9,645.60 and those by the second plaintiff to $3,094. The plaintiffs are entitled to their costs which will be taxed under the Legal Aid Regulations.

Representation:

Henry Hu (Yung Yu Yuen & Co.) for Plaintiffs.

Defendant in person.

Judgment read in Court