Leung Kam Ming v. Lee Ting Lam

HCA000245/1979

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Coram: Barker, J.

Date of Judgment: 17th January, 1980.

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JUDGMENT

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1. In this action the Plaintiff claims damages for personal injuries sustained by him in a road traffic accident on the 29th November, 1977.

2. On that day the Plaintiff who was then 11 years 9 months old, had, with his elder brother LEUNG Kam-Chuen aged 14 years, and a friend LAU Kai-Lok also aged 14 years, been fishing in the sea off Castle Peak Road at or in the vicinity of 10 milestone. When they had finished and were ready to go home, they had to ascend some stone steps, and then cross Castle Peak Road in order to catch a Public Light Bus. The time was about 4.10 p.m. It was light, and the weather was dry. The relevant stretch of road is shown in the agreed photographs P1. The top of the steps is near to the group of men shown in photograph Nos. 1 and 2, and it was the intention of the boys to cross the road and wait for the bus at the place on the right of photograph No. 1 where a man is standing.

3. LEUNG Kam-Chuen came up the steps first, and crossed the road in safety. Next came the Plaintiff, and after him, LAU Kai-Lok. It was whilst the Plaintiff was crossing the road that he was struck by a lorry, photographs of which were produced P4, driven by the Defendant and thereby sustained serious injuries.

4. The three boys gave evidence. There was some conflict in their evidence about precisely what happened at the top before anyone began to cross the road, but this conflict is of no moment and it is unnecessary for me to attempt to resolve it.

5. LAU Kai-Lok, who gave evidence first, said that after LEUNG Kam-Chuen had crossed the road, the Plaintiff looked to his right, then began to cross looking to his front until he reached the centre white line when he paused, turned his head to the left and was struck by the lorry. The Plaintiff's account was that, prior to crossing, he looked to his left and to his right, noticed no traffic coming from either direction, and therefore started to cross. He said that on reaching the centre of the road, he stopped, looked to his right, and there was nothing coming, but that as he was looking to his left and still stationary, he was knocked down. LEUNG Kam-Chuen did not see anything of the accident.

6. The Defendant gave a different version. He said that he was driving his lorry, which was in fact overloaded, though such overloading was in no way causative of the accident, along Castle Peak Road at a little over 30 m.p.h. until he reached the bend when he reduced his speed slightly. In chief, he said that having rounded the bend, he first saw the Plaintiff, at a time when his truck was about 12-13 ft. away, and the Plaintiff was running across the road. He immediately applied his foot and his hand brakes, but was unable to avoid striking the Plaintiff. After the collision, he applied an emergency device to stop the lorry more quickly, but was unable to do so before the Plaintiff was pinned under the front offside wheel. However, in cross-examination, he admitted that he did not see the Plaintiff until a moment before the collision (as was apparent when he marked on the Police Sketch Plan P3 the place where he first saw the Plaintiff and the place where the collision occurred) and that he had not actually seen the Plaintiff running across the road.

7. Finally on the issue of liability the Plaintiff called PC 11626 TING Ching-Lam, the reporting officer, who arrived at the scene of the accident after the Plaintiff had been taken to hospital but before the Defendant's lorry had been moved and he made a sketch plan of the scene P3, and took photographs of the Defendant's lorry, P4. The sketch plan, P3, is not entirely accurate, since it shows the bend much closer to the scene of the accident than it is in reality. However, the officer said in evidence, and I accept, that the positions of the lorry, brake marks and blood are accurately depicted. The brake mark was 11.4 metres long, and the road was just over 7 metres wide. In between the brake marks were pieces of skin, intestine and flesh of the Plaintiff. It was agreed between the parties that the only damage to the Defendant's vehicle was that the lens of the offside front side light was cracked and the offside of the front bumper was bent.

8. At the beginning of his final speech, Counsel for the Defendant realistically conceded that the Defendant was negligent. Clearly he could and should have seen the Plaintiff much earlier than he did, and had he done so he would probably have had time to avoid the collision and also to sound the horn of the lorry, which admittedly he did not do.

9. The only remaining issue on liability was therefore whether any and if so what proportion of contributory negligence is to be attributed to the Plaintiff. He was at the material time 11 years 9 months old and I am satisfied that he was capable of contributory negligence. He candidly admitted that he was at the time of the accident familiar with the precautions he should take when crossing the road e.g. to look both ways, before beginning to cross, to ensure that no vehicle was coming towards him. The question I therefore have to decide is whether the Defendant has proved on the balance of probabilities that the Plaintiff failed to exercise that care for his own safety which is to be expected from a child of like age, intelligence and experience. I have come to the conclusion that the Defendant has satisfied the onus which lies upon him. I find that, before starting to cross the road, the Plaintiff either failed to look to his left at all or, if he did, he did not look properly or sufficiently carefully. Had he done so, he should and would have seen the Defendant's lorry coming and should then have realised that it was unsafe for him to cross. It was urged upon me by Counsel for the Plaintiff that it was a reasonably safe course for the Plaintiff to adopt to walk half way across the road, pause and then look to his left, and in support of this argument Counsel sought to rely on the Defendant's answer that if the Plaintiff had been standing on the white line, that would have been a perfectly safe place for him to stand. I reject this argument. In my judgment what happened was, and I so find, that the Plaintiff began to cross, either without looking at all to his left or without looking sufficiently carefully, walked to a point somewhere near the white line when he became aware of the approach of the Defendant's lorry, at which time he paused, turned to look to his left and was struck. I find that he was not running. It is in these circumstances unnecessary for me to decide whether the Plaintiff paused actually on the white line, as Counsel for the Plaintiff contended, or a short distance over it, as Counsel for the Defendant argued. In the result I am satisfied that there was contributory negligence on the part of the Plaintiff. I am equally satisfied that the major share of the blame must be apportioned to the Defendant. I assess the Plaintiff's contributory negligence at 25%.

10. I turn therefore to the question of damages, which falls to be decided under various heads.

11. First, general damages for pain suffering and loss of amenity. A number of agreed medical reports were placed before me. Notwithstanding this agreement Dr. Wedderburn a surgeon and Dr. Nicolson gave evidence and were of considerable assistance. I also inspected the Plaintiff's scarring. The Plaintiff's injuries were of the ulmost gravity. He had profound surgical shock, his right hip and thigh were crushed, his acetabulum and the head of his right femur were fractured, his lower anterior abdominal wall was ruptured and loops of bowel and urinary bladder were exposed. His right leg had to be amputated by disarticulation of the hip joint; in other words the whole of the femur was removed leaving only the socket of the hip joint in the pelvis. This means that he has no stump to which an artificial leg can be attached and he has to wear a prosthesis, which I saw, which is secured round his trunk by strapping webbing and buckles. He can move this artificial leg only by tilting the pelvis upwards and swinging the pelvis forwards. He is at present using two crutches. Even if he graduates to using sticks his mobility is bound seriously to be impaired. In addition he has to undergo a number of skin graft procedures, in themselves extremely painful processes. Notwithstanding these operations he is left with dreadful scars. These are depicted on the photographs attached to Dr. Nicolson's two reports. There has been some improvement over the years, but nevertheless the scarring is still highly repellent. It would be possible for the Plaintiff to undergo a further plastic surgery operation which probably, though not necessarily, would improve the scarring but only to a limited extent - perhaps 20 - 30%. The cost of such an operation would be approximately $19,000, but it is not certain that the Plaintiff would wish to undergo it. It would be reasonable of him to decline further surgery. This scarring, apart from being so cosmetically disfiguring, has caused problems with the prosthesis, since ulceration has occurred on the right side due to poor fitting and lack of padding. Furthermore I find that the Plaintiff lost his right testicle in the accident.

12. He has suffered phantom limb symptoms, in the form of irritation, itching and formication (that is a feeling of insects on the skin) though these symptoms have now mainly subsided.

13. Before the accident, he played football at school, though not elsewhere and enjoyed walking his dog. He was a normal, active energetic boy not particularly athletic. Clearly he can never indulge in any active pursuits again. On the other hand, many of his pre-accident interests, for example, listening to music reading playing chess he can and still does enjoy. He may well have sexual problems. Dr. Wedderburn testified, and I accept his evidence, that the appearance of his abdomen and leg would repel a normal woman. Clearly his chances of getting married and producing a family are gravely impaired. There is a serious risk that, even if he finds someone who is willing to have sexual relations with him, his ability properly to indulge in such relations will be impaired and less satisfactory than would be the case were he possessed of all his physical faculties and unscarred. Moreover these sexual difficulties may well give rise to psychological problems during and after adolescence. Finally he is likely, because of the abnormality of his posture, to develop spondylitis in his spine. This will not seriously affect him, but by the time he reaches the age of 40 - 45 years, he might have to take an odd day off work.

14. A number of cases were cited to me, where the injuries were to some extent comparable with the present case and I have carefully considered them. But in the end, each case must depend upon its own particular facts. In my judgment, the proper figure for general damages for pain suffering and loss of amenity is $150,000. In arriving at these figures I have taken into account the possibility of further surgery being carried out.

15. The second head of damages is loss of future earning capacity. At the time of the accident the Plaintiff was still very young, and had naturally given no thought as to which kind of work he would do, though his father had ambitions for him to work in an office. At school before the accident, he was slightly better than average. According to his headmaster, LAU Ping-Chung whose evidence I accept, he in effect lost a years at school, and was at first reluctant to return. When he did go back to school, he was teased by his fellow pupils, but this ceased and with help and encouragement from his teachers he has done well, though not as well as he would have done had he not had the accident. The headmaster foresees difficulties when he leaves his present school and goes to a secondary school. There, because of fierce competition and a heavy syllabus, the teachers may not have time to accord him that degree of personal attention, encouragement, and sympathy which he receives at his present school. This could, though not necessarily will, mean that he would not progress beyond Form 3, in which event he would leave school without any examination qualifications, with the consequence that, even if he could get a job, it would be not as good as if he had passed certificate examinations.

16. Once he is cast on the labour market, clearly many kinds of jobs are not open to him. He will be unable to undertake any work involving standing, walking or lifting. In effect he will be unable to carry out any manual work. Moreover, the evidence was, and I accept it, that competition for white collar work is greater than that for blue collar work. Furthermore even though his mental and intellectual capacities are not dulled, employers have an in-built reluctance to employ physically handicapped workmen even for white collar jobs.

17. Thus the position is that from an educational point of view he faces hurdles which he may not be able to surmount and even if he does, he faces difficulties in obtaining employment over and above these confronting a normal person.

18. In my judgment, in these circumstances, there is a serious loss of future earning capacity. It was urged upon me by Counsel for the Defendant that, in assessing this loss, I should not adopt the usual basis of taking a multiplier and multiplicand but should merely pluck a figure out of the air, and he cited to me at least one case where this latter method of assessment had ostensibly been adopted. I say ostensibly deliberately because I cannot think that any Judge would award damages under this head without any process of ratiocination. For my part, I prefer to assess damages under this head by the conventional method, recognising as I do that the multiplicand in particular must lie largely in the realms of speculation - a situation not uncommon in actions of this kind.

19. I deal first with the multiplier. The Plaintiff is still only 13 years of age, and would not, therefore in any event be earning for 3 years. Bearing this in mind, I am of the view that the appropriate multiplier is 13.

20. The quantification of the multiplicand is a matter of extreme difficulty. There was evidence to the effect that on initial offer the wages of a white collar worker would vary between $600 and $800, and those of a blue collar worker between $600 and $1,000. Yet the Plaintiff's elder brother, an apprentice cook, at the age of 16 already earns $1,200 per month, and his father, a cook earns $2,600 per month. But these figures are really of little help because there are no means of forecasting whether or not the Plaintiff would have followed in his father's footsteps or whether for example, accident apart, he would have obtained employment in the much more lucrative building and construction industry. It has further to be borne in mind that, because of his physical disabilities, the Plaintiff may well be faced with increased travelling expenses and with loss of wages due to absence from work. In these circumstances I am of the opinion that a proper multiplicand is $12,000 per year. It follows that the award for future loss of earning capacity is $156,000.

21. Most of the items of Special Damages were agreed. Counsel for the Defendant properly required the claim for special food to be proved, but when the Plaintiff's father gave evidence on this point there was no cross-examination. I therefore find that the special damage is as pleaded in the Re-Amended Statement of Claim, i.e. $5,786.40.

22. There remains the question of the cost of renewal of the prosthesis. According to Dr. Wedderburn's second report which I accept, the Plaintiff will, until he reaches the age of 19, require a new prosthesis probably every year or 18 months, when his remaining leg has ceased growing. Thereafter he will probably require a new prosthesis every 3-4 years. The latest prosthesis cost the Plaintiff or his parent $500, a sum according to Dr. Wedderburn far less than its actual cost. I base my award under this heading on the footing that the Plaintiff will not in the future be called upon to bear the total cost of any prosthesis with which he may have to be fitted and I award $6,000 under this head of damage.

23. The total damages, therefore, on the basis of full liability are $317,786.40. Having regard to my finding as to contributory negligence, I must reduce these damages by one quarter. There will therefore be judgment for the Plaintiff for $238,339.80.

24. There will be interest on $112,500 at 9% from the date of the service of the writ to today's date, 17th January 1980 and interest on $4,339.80 at 4½% from the date of the accident to today's date.

25. The Defendant must pay the Plaintiff's costs to be taxed if not agreed. Order for taxation of the Plaintiff's own costs for the purposes of the Legal Aid Regulations. I certify for two Counsel.

26. I order that $4,339.80 be released to the Director of Legal Aid in part satisfaction. The balance to be brought into Court by the Defendant within 21 days and the Registrar to give directions as to the investment of the money in Court for the benefit of the Plaintiff.

Representation:

K. Bokhary & Miss C. D'A Remedios (D.L.A.) for Plaintiff.

A.R. Suffiad (Peter Mark & Co.) for Defendant