Chan Ming v. Leung Chi Yan and Another

HCA003903/1979

Coram: Roberts, C.J.

Date of Judgment: 19th November, 1980.

-----------------

JUDGMENT

-----------------

Preliminary

1. The plaintiff was born in July 1955 and was therefore 23 years old at the time of the accident, which gave rise to this action. He had worked as a western cook for several years and in December 1978 had been for some time employed in that capacity in the Golden Gate or Kam Moon Restaurant in Aberdeen.

2. He was, however, on his way to Shaukiwan to discuss details of an offer of a job which had been made to him in a restaurant in that district when the accident took place. He had alighted from a bus at the stop in Moreton Terrace, in the Causeway Bay area. He walked to the junction of Moreton Terrace and Causeway Road, a little after 7 p.m. on the evening of the 26th December. It was dark but there has been no evidence before me as to the condition of the lighting of the road or as to the condition of the road surface.

3. It is clear from the photographs which have been tendered in evidence, and from the fact that there are three lanes in each direction, that this is a major road. I therefore assume that the lighting would be at least adequate.

4. At the point where Moreton Terrace joins Causeway Road, there are three lanes for motor vehicles in each direction, three going westwards towards Central on the Moreton Terrace side, and three lanes going eastwards, on the far side of Moreton Terrace, in the direction of Shaukiwan.

5. Each of these three-lane carriageways is bordered by a double white line, the effect of which is to prohibit motor vehicles from crossing into the two-way tram lane which lies between the two sets of double-white lines. That tram reserve is itself divided down the middle by a dotted white line.

Plaintiff's evidence

6. The plaintiff gave evidence that, before setting out to cross Causeway Road, he first checked that there was no traffic coming from his right. Having satisfied himself as to this, he set off across Causeway Road in a slightly diagonal direction, intending to take a public light bus to Shaukiwan from the northern side of Causeway Road. According to him, there was a gap in the iron railings which line the north side of that road.

7. He related how he crossed the road at a walking pace and how, as he did so, he looked left and right again. When he looked left, he saw a car in the middle lane of the north carriageway travelling eastwards. He continued across the road until he reached the dotted white line which runs down the middle of the tram reserve.

8. Here he paused, intending to allow the car which he had seen to pass in front of him, and looked to his left again. As he did so, he saw the car approaching fast and swerve suddenly in his direction, across the double white line. In the panic of the moment, although he did not describe it in these words, he turned to his left. Before he could do anything to escape from the path of the oncoming car, he was hit by it on the right-hand side of his body.

9. If the plaintiff is to be believed, this car swung right across from the middle lane of the north-hand Carriageway in Causeway Road, through the outside lane and into the tram reserve. Not unnaturally, he is unable to offer any explanation of the reasons for this.

10. The police sketch, which was produced in evidence, substantiates the plaintiff's story to the extent that it shows that the car which struck the plaintiff came to rest inside the tram reserve with its outside edge on the dotted white line.

11. It is not disputed that the motor vehicle which ran into the plaintiff was owned by the first defendant and driven by the second defendant.

12. Judg has already been entered by the Registrar against the second defendant, the driver, in default of appearance. So far as that defendant is concerned the only issue is as to damages. He has given no evidence. This has left the first defendant in a difficult position, through no fault of his own. As the owner of the vehicle, he would himself not know anything of what occurred at first hand and he has not been able to call any witnesses. I am obliged to reach a conclusion as to the liability for this accident almost entirely on the basis of the plaintiff's evidence.

13. I find the plaintiff to be a reliable witness and I accept the story which he told of what he did, of the precautions which he took, and of how the accident occurred.

Contributory negligence

14. It is necessary, however, to consider, notwithstanding those findings, the degree to which, if at all, the defendant can be said to have contributed to the accident which took place by his own negligence.

15. Before he embarked on the crossing of Causeway Road, he looked to the right. As he crossed towards the centre, he looked left and right again. Having seen, when he looked left, a car approaching from the left, he stopped at the dotted centre line and looked again and saw the car swerve suddenly at him.

16. It is a matter of speculation as to why this occurred. With no evidence before me as to this, I am not prepared to infer that any action by the plaintiff may have had any effect on the swerving of the vehicle. In the circumstances which faced him, the plaintiff had no opportunity to evade a collision with the car.

17. The main submission for the defendant as to the possible contributory negligence of the plaintiff, was that the plaintiff was careless because of the place at which he chose to cross Causeway Road.

18. Counsel for the plaintiff points out that in the defence of the first defendant it is asserted that the plaintiff was negligent in crossing or attempting to cross the road when it was unsafe and dangerous to do so. This, he argues, refers to time and not to place.

19. I agreed with that submission. Counsel for the first defendant sought an amendment, when he had already launched himself into his final address. I thought that this was too late. If this was the basis on which contributory negligence was alleged, it should have been pleaded and evidence led by the defendant as to the availability of safer crossing places within a reasonable distance of Moreton Terrace.

20. The amendment having been refused, this aspect of the defence was not open to the first defendant. Had I taken a different view and permitted the amendment, I would still not have found that the place at which the defendant chose to cross Causeway Road contributed to this accident.

21. It is perhaps the case that the presence along the side of the road of iron railings which are intended to prevent pedestrians from crossing at that point, may entitle a driver to be, to some degree, less vigilant than he would have to be in negotiating a part of the road where pedestrians are to be expected.

22. However, even if that were so, this factor could have had no effect in this case. The plaintiff had brought himself to the tram reserve in the centre of the road. This was an area in which he was entitled to feel safe from the encroachment of motor vehicles, since on both sides of him he was protected by a double white line. The presence of the railings, therefore and the availability of crossings within a reasonable distance, even if they had been established, would not have disposed me to attribute any degree of responsibility for this accident to the plaintiff.

23. My conclusion, therefore, is that this collision was due solely to the negligence of the second defendant who drove the motor vehicle which collided with the plaintiff.

Injuries to plaintiff

24. As a result of this collision the plaintiff sustained various injuries. There were superficial abrasions, bruises, a black eye, and a number of lacerations of the right leg. The only injury of a substantial nature was a fracture of the right tibia. This was broken in an oblique way and has not united perfectly. The tibia has remained bent and angled outwards on the site of the fracture and the right leg is shortened by about ¾ of an inch.

25. As a result of this shortening of the right leg, an abnormal strain has been thrown on the knee and ankle joints, producing pain when weight is put on the leg for any length of time.

26. According to the plaintiff's evidence, which Dr. Wedderburn thought to be genuine, he feels pain in his right heel after standing for about a couple of hours and pain in his knee after about 7 to 8 hours. The plaintiff is considerably overweight and suffers from a congenital deformity of the bones of the heel. This deformity is present in his left leg as well as his injured right leg.

27. These factors have contributed to the effect of the accident. They have accentuated the distortion of the mechanics of walking or standing, which has produced the unnatural pressures which cause these various pains. But they would not themselves have given rise to pain. They do no more than aggravate the consequences of the accident.

28. The plaintiff is wearing a surgical boot, which has been specially constructed for him, though not very long ago. Dr. Wedderburn thinks that this will help.

29. After the accident the plaintiff was taken to the Queen Mary Hospital, where he was detained until the 9th January, 1979, on which date he was transferred to the Sandy Bay Hospital, where he stayed until the end of May 1979.

30. It was not until March 1980 that he felt himself fit enough to attempt to resume work. He said that he did this in order to see whether or not he could work normally. During the next three months or so he worked on a temporary daily basis for Wood's Restaurant, but found that he suffered considerable pain in his leg, whilst carrying out his duties as a cook.

31. In July 1980, he began working again full time because his family was not very well off. After about two weeks, he asked whether he could leave because of the pain in his leg, but was persuaded to stay on by the chief cook, since cooks were said to be very short. He was promised that he could take rests when he wanted to. He therefore stayed until the end of July 1980.

32. It seems clear from the evidence that it is extremely difficult for a cook to operate effectively if he cannot stand for long periods without discomfort or pain. Shifts of anything from 9 to 11 hours are normal in the restaurant business, and all the witnesses who addressed themselves to this question have said that they did not see how a busy cook could do his work properly sitting down.

33. Dr. Wedderburn's view was that the plaintiff could undertake work which involved prolonged standing, so long as he was able to rest, that is to say, take the weight off his feet, for at least 25 percent of the time.

34. Dr. Wedderburn's view was that it was unlikely that the plaintiff would be able to stand for 10 to 12 hours in the foreseeable future and that he would continue to have pain and not be able to return to a 10-12 hour day.

35. He thought that he would be capable of doing the work of an odd-job man so long as he was able to sit from time to time. So far as the plaintiff's longer term future was concerned, he thought that there was a chance that at some time the pain would disappear and that the plaintiff would be able to return to work as a cook, but he did not rate this chance at higher than 20%.

36. I consider that the plaintiff has established, on the balance of probabilities, that as a result of the accident, his ability to earn his living as a cook has been reduced to a point at which his return to it is no more than speculative.

37. I shall assess damages on the basis that the plaintiff has lost the ability to earn his living at the trade for which he was trained and that he must look elsewhere in the labour market. He has had no training for anything else and will be subject to a degree of physical handicap.

Mitigation of damage

38. It was urged on behalf of the defendants that there should be a reduction in damages, because the plaintiff had contributed to his own degree of disability by reason of his failure to complete the physiotherapy treatment which was recommended for him by Dr. Wedderburn in September 1979.

39. This was not pleaded by the defence. Where a plaintiff has established that his injuries were caused by the negligence of a defendant, and that he underwent treatment, which on the face of it was sensible and adequate, it is for the defendant to show that the failure to undertake or persevere with any form of treatment contributed to the medical condition of the plaintiff.

40. I see no evidence that the plaintiff was substantially at fault. Dr. Wedderburn recommended in September 1979 that he should undergo physiotherapy treatment. He thought it would improve the knee condition. He also said that he thought the plaintiff was doing his best to co-operate.

41. In the course of his evidence, Dr. Wedderburn said that if the plaintiff had not been told that he needed to continue the treatment for a longer period, he did not think it surprising that he should have stopped.

42. The plaintiff himself gave a number of slightly different answers to questions which were put to him about the continuance of his treatment. At one point, he said that he stopped the physiotherapy treatment because the nurse told him "That's about it".

43. Elsewhere in his evidence, he says that he stopped because he did not feel any improvement, though he said he would have continued with the treatment if the doctor had advised him to do so.

44. And, finally, he said in re-examination, that he stopped his physiotherapy because he felt no improvement and because the nurse told him that it had almost finished. When he was asked what he understood that to mean, he said that he thought she meant that he could attend for one or two more sessions but he stopped.

45. I think that there was a combination of reasons here. No doubt he was disappointed because the physiotherapy did not seem to be relieving the pain which he felt in his leg. When the nurse told him that there were only one or two more sessions to go. I think that he decided that he would not return for the very end of the treatment. I do not regard this as being unreasonable conduct by the plaintiff.

46. Furthermore, there is no evidence that the breaking off of the physiotherapy treatment, shortly before the end of the course which had been prescribed, has had any effect upon the ability of the plaintiff to return to his work as a cook. There is no evidence that it would have enabled him to return sooner, or as to the effect which that degree of extra treatment might have had on the likelihood of his pain disappearing.

47. I am therefore satisfied that there was no failure on the part of the plaintiff to mitigate the effects of the accident in the way which has been alleged.

Damages

48. I pass now to the question of damages.

49. Special Damages. The first item was for $1,000 for bone setter's fees. Although no receipts were produced for this, the plaintiff estimated that he paid $1,000 in total, and his estimate was not challenged. I am prepared to accept his evidence as to what this form of treatment cost him.

50. I am not called upon to decide the somewhat difficult question of whether an intermittent use of western and oriental medicine in harness would entitle the plaintiff to claim the reimbursement of fees paid for both. The bone-setters charges took place after the discharge of the plaintiff from the Sandy Bay Hospital and before the physiotherapy treatment began.

51. I therefore allow this item.

52. The second item is a claim for $500 for special nourishment. This seems to me to be a reasonable amount in view of the long period which was spent by the plaintiff in hospital and I allow it.

53. The third claim is for travelling expenses. I accept that it was reasonable for the plaintiff's parents to visit him by taxi. I find that visits were made on five days a week at $16 return. These add up to $320 a month, or $1,600 in total, which is the amount claimed. I allow that.

54. Loss of Earnings. I accept the evidence of Mr. So, rather than that of the plaintiff himself. Mr. So being the employer, is in a better position than the plaintiff himself to assess the value of the side benefits which he was proposing to confer on the plaintiff.

55. He assesses the value of food which he provided for his employees at $7-$8 a day. Tea was also provided. He thought $150 a month to be the value of quarters. I value these benefits at $400 a month, making $2,100 a month the total value of the job at which the plaintiff would have worked in Shaukiwan.

56. There was no evidence as to the date on which the new job would have been started by the plaintiff. I will take this as 1st January, 1979. So I allow 18 months for loss of earnings to the end of June 1980 at $2,100 a month which is $37,800. He worked in July and August 1980. I add for loss of earnings from 1st September to the date of judgment a further 2 and two-third months, at the rate of $2,400, which is the rate at which he earned in July/August 1980 (i.e. $6,400). That gives a total of $44,200, from which must be deducted $700 for the odd days on which the plaintiff worked between March and June 1980. That leaves $43,500, plus $280 for surgical boots, giving a total for special damages of $46,880.

57. The interest on this part of the damages would run at 5½% from the 26th December, 1978, to to-day.

58. General damages for pain and suffering and loss of amenities were agreed between the parties at $25,000 and I award this amount.

59. As to the loss of the plaintiff's earning capacity, I have already considered the degree to which the plaintiff's ability to follow his proper trade has been prejudiced. I have found that the plaintiff has discharged the burden which lies on him to show that as a result of the accident he will not be able to return to his work as a cook.

60. To estimate the loss of future earnings, I take the figure of $2,400 a month. From that I deduct the higher figure from his estimate of how much he could earn as an odd-job man, that is to say $800-$1,000. This producing a loss of $1,400 a month, or $16,800 a year.

61. He is now aged 25 and I take the appropriate multiplier as 15. This produces $252,000. The general damages, therefore, amount to $277,000. Interest at 11% should run from the date of service of a writ on the first defendant, which was the 17th October, 1979, until to-day, on the award of $25,000. There is no interest on the award for future loss of earnings.

62. The plaintiff's costs to be taxed in accordance with Legal Aid Regulations.

Representation:

Mumford (Rowdget W. Young & Co.) for Plaintiff

David Yam (W.L. Yuen & Co.) for Defendant