Yu Kam So v. Leung Hee and Another

HCA003505/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 3505 OF 1979

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Coram: Commissioner Mayo in Court

Date of Judgment: 14th July, 1980

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JUDGMENT

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1. The plaintiff, who is a widow aged 70, is making a claim in respect of personal injuries she sustained in an accident which occurred shortly after 7 a.m. in the morning on the 21st August 1978 at the junction of Holy Cross Path and Shaukiwan Road. It is common ground that the plaintiff was knocked down by a minibus owned by the 1st defendant and driven by the 2nd defendant when she was crossing the Shaukiwan Road from the south side to the north side.

2. As is common in cases of this type there were discrepancies between the plaintiff's version of what transpired and the 2nd defendant. Unfortunately there was no independent witness who saw the accident and accordingly it is a matter of particular importance for me to assess the credibility of the plaintiff and the 2nd defendant.

3. The plaintiff gave evidence that she left her home for work in the usual way on the morning in question. She proceeded down Holy Cross Path and on arrival at Shaukiwan Road she followed a group of pedestrians who were crossing the road. When she was on the road she was left behind the other pedestrians as she did not walk as quickly as they were walking. She then noticed on her right about "2 shop spaces" away a public light bus which was proceeding towards Central District in a westerly direction. She then quickened her pace but the public light bus made no attempt to reduce speed and collided with her. After it hit her it did stop and the driver came back to attend to her. She remonstrated with him for colliding with her and she then temporarily lost consciousness. When she came to she remembered a police officer was next to her and he assisted her to move from where she was sitting to the side of the road.

4. The police officer who attended the scene shortly after the accident gave evidence that the public light bus had been moved but another police officer had marked the road with chalk to indicate where the public light bus was after it came to a halt. The position indicated in the plan was in the tram lines in the centre of the road. The plan also shows that the inner lane of Shaukiwan Road is approximately 18 feet in width and the 2 arc-railings on the pavement of Shaukiwan Road on either side of Holy Cross Path designed to prevent pedestrians from crossing the road. The police officer gave evidence that there was no pedestrian crossing in the immediate vicinity of the junction.

5. The 2nd defendant gave a rather different version of the accident. He said that he was driving in the centre lane of Shaukiwan Road in a westerly direction at no more than 20 m.p.h. and when he was approaching the junction of Holy Cross Path a pedestrian suddenly ran out from between 2 vehicles in the inner lane and although he sounded his horn and applied his brakes he was unable to avoid coming into collision with the pedestrian. He said that he could not swerve to his right as there was on coming traffic in the opposite lane. I would observe here that the 2nd defendant made a statement to the police shortly after the accident and did not make reference to there being any vehicles in the nearside lane on his left or of the plaintiff emerging from between 2 cars.

6. I do not fully accept either version of the accident. However where there are conflicts of evidence I generally am more disposed to accept the plaintiff's evidence.

7. I am satisfied that the 2nd defendant was negligent in that he failed to keep a sufficient lookout or slow down enough to avoid colliding with the plaintiff. I regret that I must also come to the conclusion that the plaintiff, even on her own version of the accident, is guilty of a high degree of contributory negligence. She admits attempting to cross a busy road where there is no crossing and also admitted that she did not check that there were no vehicles before she started to cross. She simply followed others. Having considered all the circumstances carefully I apportion liability on the basis the plaintiff was 2/3 to blame for the accident and the 2nd defendant 1/3 to blame.

8. Mr. Lester Kwok who represented both defendants argued that I should held that the 1st defendant who was the owner of the public light bus should not be held vicariously liable for the accident.

9. The 1st defendant gave evidence that he did not consent to the 2nd defendant driving the vehicle on the morning of the accident. He said that a Mr. Hui Kau Ho rented the vehicle from him on a daily basis. $60 was payable for the morning shift and $66 the afternoon shift. A Mr. Lam Chun Leung, with his agreement, worked the afternoon shift. I was satisfied on the evidence given that in effect the 1st defendant delegated the responsibility for the management of the vehicle to Mr. Hui and his only real concern was that he should continue to receive the rental and should not be involved in any problems.

10. Mr. Kwok cited the case of Hewitt & Bonvin¹ in support of his proposition that the 1st defendant could avoid liability. I do not think that the circumstances of this case are in any way parallel with the present situation. Mr. Hui agreed to the 2nd defendant driving the vehicle and this was clearly for the benefit of the 1st defendant as he either did or would have received $60 for the morning shift on the day of the accident. I find therefore that liability has been established for the 1st defendant also.

11. I will now consider the question of quantum. The parties were able to agree the medical evidence. The plaintiff suffered a fracture of the No. 2 lumbar vertebrae. This necessitated hospitalisation for 12 days together with follow up treatment as an outpatient. In the agreed medical report Dr. Wedderburn expressed the view that the plaintiff had suffered a 5% impairment and having regard to her age it was realistic to assume she could not continue with her previous employment as a plastic piece goods worker. Also it is clear that she must have suffered a considerable moment of pain and discomfort and this state of affairs is likely to continue more or less indefinately into the future. Dr. Wedderburn was though of the opinion that the plaintiff had definately exergerated her condition. Taking every thing into account I assess damages for the plaintiff's pain and suffering and loss of amenities at HK$25,000.

12. As regards loss of future earnings there appeared to be a large measure of agreement between the parties as to how such damages should be assessed. A representative of the plaintiff's previous employer gave evidence that the plaintiff's salary of $690 would, if she had continued with her employment, have been increased to $998 p.m. I propose adopting a multiplicand of $850 and having regard to the plaintiff's age and general physical condition I consider a multiplier of 2 to be appropriate. This means that damages for future loss of earnings amount to $20,400.00.

13. The parties were able to agree the three items of special damages referred to in paragraph 3(a), (b) and (c) and I find that the amended amount of loss of earnings up to the date of the issue of the writ have been proved at $8,880.00. Special damages are therefore assessed at $9,610.

14. Both the general damages and the special damages will have to be adjusted to reflect my finding of contributory negligence namely that the plaintiff is only entitled to recover one third of the amounts awarded.

15. Judgment is entered for the plaintiff against both defendants in the sum of $18,336.66.

16. I will hear the parties on the question of costs and any interest to be payable on the amounts awarded.

Representation:

Mr. Alfred Law instructed by Rowdget W. Young & Co. assigned for the Plaintiff.

Mr. Lester Kwok instructed by Johnny T.K. Cheung & Co. for both Defendants.

1 1940 KB 188