Leung Mui v. Sum Chio-nam
Read the full judgment text of HCA 4242/1978 on BabelCite. This High Court CFI judgment.
1. In this case the Plaintiff, Madam LEUNG Mui, is the daughter and administratrix of the estate of LAI Wong deceased. Letters of administration were granted to her on the 16th March 1979, and she brings this action on behalf of the estate of the deceased under the provisions of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23.
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HCA004242/1978 IN THE SUPREME COURT OF HONG KONG High Court No. 4242 of 1978 -----------------
Coram: Mr. Commissioner Hooper Date of Judgment: 22nd February 1980 ----------------- JUDGMENT ----------------- 1. In this case the Plaintiff, Madam LEUNG Mui, is the daughter and administratrix of the estate of LAI Wong deceased. Letters of administration were granted to her on the 16th March 1979, and she brings this action on behalf of the estate of the deceased under the provisions of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23. 2. It is the Plaintiff's case that at about 7.40 p.m. on the 26th March 1977, her mother, namely LAI Wong deceased, was standing beside the southern kerb of Tung Tau Tsuen Road near its junction with Shatin Pass Road, within the confines of a stud crossing waiting to cross the road from north to the south, when she was struck and knocked to the ground by a goods vehicle, Registration No. BJ 8887 which turned left from Shatin Pass Road. It is the Plaintiff's case that the goods vehicle was at all times owned and driven by the Defendant. She further alleges that the collision was caused by the negligence of the defendant and the usual particulars of negligence are pleaded in the Statement of Claim. It is the Plaintiff's case that her mother suffered severe injuries and pain and her estate has sustained loss and damage and that she died on the 17th January 1979 at Our Lady of Maryknoll Hospital. 3. The defendant in his defence admits that the deceased was struck by the Plaintiff's vehicle on the 26th March 1977 but denys that he was in any way negligent. He further pleads in the alternative that if he was in any way negligent the accident was caused wholly or in part by the negligence of the Plaintiff. 4. It is specifically pleaded in the Plaintiff's Statement of Claim that the defendant was negligent inter alia in failing to heed the presence of the deceased on a stud crossing and/or on the said road. The defendant on the other hand particularises the negligence of the deceased by alleging that she was guilty of
LAIBILITY 5. Three witnesses were called to give evidence on behalf of the Plaintiff, the first being P.C. 12182 who was in charge of the investigation of this accident, the second being LEUNG Mui (the Plaintiff herself who is a newspaper hawker whose stall was on the pavement adjacent to the pedestrian crossing) and the third being a young man CHING Chi-tong (P.W. 3) who is a fruit hawker at a fruit stall which was located next to the stall of the Plaintiff also adjacent to the pedestrian crossing. 6. I found the evidence of P.C. 12182 of very little assistance in this case. Perhaps the only value his evidence had was that he was able to produce a sketch which he had made which set out the general layout of the area where the accident occurred. However his markings on that sketch indicating the position of the vehicle cannot be regarded as evidence because the vehicle had been moved before he drew the sketch and he drew the sketch from markings on the ground made by another policeman who was not called to give evidence. The sketch was not to scale and no measurements were given. He was however able to confirm that there were traffic lights at the junction of Shatin Pass Road and Tung Tau Tsuen Road controlling vehicles turning left from Shatin Pass Road into Tung Tau Tsuen Road. He also testified that there were no pedestrian traffic lights controlling pedestrians wanting to cross Tung Tau Tsuen Road at this junction. He was unable to say whether in fact the pedestrian crossing at this place was a stud crossing. 7. It is in fact common ground in this case that the defendant's vehicle turned left from Shatin Pass Road into Tung Tau Tsuen Road and knocked down the deceased at some point in Tung Tau Tsuen Road. Furthenmore it is clear that whether or not there are any studs in the ground at this place, there is indeed a pedestrian crossing leading from one side of Tung Tau Tsuen Road to the other. I say this because there is a gap in the railings on either side of the road, and there is an island in the middle of the road which has been split into two small islands to enable the pedestrians to walk through to the other side of the road. Furthermore judging by the photographs the road surface appears to have been recently covered, and that may account for the fact that there are no studs which are visible. I do however find as a fact that there is a pedestrian crossing leading from one side of Tung Tau Tsuen Road to the other at this junction. 8. The Plaintiff LEUNG Mui testified that she actually saw the accident take place. She certainly was in a very good position to see it, because she had a newspaper stand which was on the pavement of Tung Tau Tsuen Road immediately adjacent to the opening in the railings which give way to the pedestrian crossing. The position of her new stand can be clearly seen under a big umbrella in the photographs which have been submitted in evidence. She testified that her mother had just walked away from this stall and that she had to cross Tung Tau Tsuen Road walking in a northerly direction to get to her home. She had in fact stepped down from the pavement onto the road and was struck by the front left hand side of the goods vehicle as it came round the corner. She identified the position where the deceased was standing as being approximately that of the woman standing on the road in photograph "J". She maintained that people shouted out to the goods vehicle to stop and that she saw her mother lying on the ground facing the front wheel of the goods vehicle. She maintained that the deceased was lying near the kerb in the sewage channel. When she was asked if her mother was lying partly on the grate, she replied "Yes, lying to the edge." 9. Although it was suggested in cross-examination that the Plaintiff did not actually see what happened she stuck firmly to her evidence that she had seen the accident. She conceded that she had a customer at the time when her mother walked away but maintained that the customer took up the paper himself and put down 30 cents. 10. The third witness for the Plaintiff Mr. CHING Chi-tong, the fruit stall hawker, also substantially confirmed the evidence of the Plaintiff. He did not claim to have seen the whole of the accident but maintained that he saw part of it. He certainly was in a good position to see the accident because his stall was situated right next to that of the Plaintiff. He was at his stall at the time looking towards Tung Tau Tsuen Road. He saw the old lady walk out onto the road, but as it happened to be the time when people finished work so there were one or two people who were behind her and who blocked his view. However soon after that he heard many people shouting at a vehicle to ask it to stop. Immediately after he heard the shout he went out to take a look. By this time the vehicle had not completely stopped. It moved backwards for a short distance and pressed on the old lady's arm and then it went forward for a short distance before it came to a full stop. His evidence as to the position of the old lady on the road confirmed almost precisely the evidence of the Plaintiff. Under cross-examination he disagreed with the defence counsel that the position of the old lady was further into the road and further away from the junction. 11. I formed a good impression of this witness who was an independent witness and who struck me as being fair. He testified that the goods vehicle when it passed by appeared to be travelling at "normal speed." 12. When the defence case was opened I was informed by defence counsel that it would be the defence case that the defendant stopped his goods vehicle at the lights in Shatin Pass Road and then turned left into Tung Tau Tsuen Road. Whilst he was negotiating the bend the left rear side of his vehicle collided with the deceased. I was informed that it was the contention of the defendant that the deceased tried to use the crossing while he was negotiating that bend, but how the accident happened nobody could tell. It will be appreciated that the defence contention on the opening of the defence case appeared to be somewhat different from the alleged particulars of negligence of the Plaintiff as set out in paragraph 3 of the defence, in particular "crossing a road other than at a place provided for such purpose." 13. The defence case as put in opening however was not the only departure from the pleadings which occurred. In his evidence the defendant appeared to go back on what his counsel had said, and maintained that he did not stop at the lights in Shatin Pass Road, but turned directly into Tung Tau Tsuen Road. He further maintained in his evidence that he heard a bang while he was negotiating the bend, and that the bang came, not from the rear of the vehicle, but from the middle of the left hand side of the vehicle. He also testified that after this bang he immediately pulled the hand brake to stop the vehicle and got off to take a look. He then saw the old lady by the side lying on the ground. Her position was four feet from the kerb and about two feet away from the gutter. He maintained that the pencil mark on the sketch represented the position of the old lady in relation to the goods vehicle and the pavement. This put her position very much further into the road and away from the junction than the Plaintiff's evidence. Under cross-examination he appeared to be somewhat confused as to whether his vehicle was nearer the island in the middle of Tung Tau Tsuen Road or whether it was nearer the pavement on the southern side of the road. He admitted under cross-examination that before turning to the left he had not seen the deceased at all. He claimed to be travelling at 10 miles per hour while negotiating the bend and when he was asked specifically as to whether he knew what part of his lorry came into contact with the old woman he replied "The oil tank near to the left wheel on left hand side." and he went on to confirm that he meant the wheel nearer to the front. He agreed that one wheel of his vehicle ran over the arm of the old lady, and agreed that it was in fact the front wheel. He disagreed that his vehicle reversed a bit and went forward a bit. 14. It would appear therefore that the defence version of the events has changed considerably since the time when the defence was originally pleaded. At that time it was apparently the defence case that the old lady was crossing the road at a place other than a crossing. At the opening of the defence case it was that he had stopped at the traffic lights before turning left into Tung Tau Tsuen Road and that the old lady had been struck by the rear left hand side of his goods vehicle. During the actual trial while giving evidence he denied that he had stopped at the traffic lights in Shatin Pass Road, and he conceded that in fact the old lady had been knocked over by the left hand front part of his goods vehicle and that in fact the front wheel had gone over her arm. 15. These changes in the defence version certainly has not done the defence case any good. Taking all things into consideration I accept the version of the Plaintiff that the old lady had not gone far onto the road and was approximately in the position as shown by the lady in photograph "J" and as confirmed by the fruit hawker, and that she was knocked down by the left hand front side of the goods vehicle and that the left hand front wheel did in fact run over the arm of the old lady. I find that there was obvious negligence on the part of the defendant. Whether or not this was a stud crossing, is immaterial. It was a pedestrian crossing, and was quite obviously so. The words of Hogun C.J. (as he then was) in the case of Chiang Shu Cheong and The Queen(1) when referring to pedestrian stud crossings are equally applicable to the facts of the present case.
16. It is clear that the defendant did not approach this crossing with the care required of him. Had he done so he must have seen this old lady who was standing on the road not far from the pavement on the side of the road. I find that the Plaintiff's allegation of negligence has been made out on every count. Having said that I am also of the opinion that there was some contributory negligence on the part of the old lady. Had she used all the care which is required of her, she would undoubtedly have seen the lorry coming round the corner. I do find however that she did not continue walking but remained standing on the road and the probability is that being a very elderly woman she was unable to retrace her steps quickly enough. I find that the defendant was 90% to blame for the accident and that the deceased was 10% to blame. DAMAGES 17. The evidence of the injuries suffered by the deceased is contained in the medical reports which were agreed between the parties. These medical reports confirmed the particulars of injuries set out in the Plaintiff's particulars of claim and indicated that the deceased suffered a badly crushed right forearm. a fractured neck of the left humerous, and a fractured left olecranon process. As a result of these injuries the deceased was admitted on the 26th March 1977 to the Queen Elizabeth Hospital where she remained until 30th July 1977. After the accident she developed shock and suffered a cerebral-vascular haemorrhage causing hemiparesis on the right side. She had her right arm amputated on the night of her admission to the Queen Elizabeth Hospital. The fractures on the left arm were treated conservatively and she achieved a fairly good result and could use her left hand. She was admitted to the Maryknoll Hospital on the 9th of September obviously needing hospital care. At that time should could sit, help herself a certain amount with her left hand and could talk. However about two months after the admission to the Maryknoll Hospital she had a further cerebal haemorrhage which gave her a total paralysis on both sides of her body. She could not talk, could not swallow and was being fed by a tube passed through the nose down to the stomach. Doctor Wedderburn who examined her when she was in this condition was of the opinion that she was just existing and was unaware of her surroundings and probably totally unaware of discomfort, hot, colddor any other sensation. He maintained that from the beginning of December since the second cerebral haemorrhage she needed constant care and attention to keep her rudimentary body functions working, and that the higher aspect of human life was completely missing. He was of the opinion and indeed it appeared to be common ground, that the deceased suffered the cerebral haemorrhages as a result of her accident. Doctor Wedderburn was of the opinion that she probably had little sensation in her right arm and would not suffer from pain as a result of the amputation. This was because of the paralysis on the right side of her body. She would have feeling however on the left arm but this was treated almost certainly in a plastercast and would relieve the pain or most of the pain, but she would have been suffering discomfort. He was of the opinion that by the time the fracture of the humerous and the olecranon was united, in about two months, she would not have any pain in the left arm. 18. Between the 30th of July and 9th September when the deceased was living at home the Plaintiff described her as suffering a lot. She maintained that the deceased was unable to move to eat and all day she was crying. 19. The age of the/deceased at the time of the accident is not precisely known but the Plaintiff gave evidence that she was 78 or 79 at this time. It is common ground that the deceased died on the 17th January 1979 and that from the time that she was admitted into the Maryknoll Hospital on the 9th September 1977 she remained there until the time she died. 20. The following items of special damages are agreed -
In addition to these the Plaintiff claimed loss of earnings from the date of the accident until the date of death. She also claimed Damages for Pain, Suffering and Loss of Amenities and also for Loss of Expectation of Life. LOSS OF EARNINGS 21. The Plaintiff gave evidence which I accept that she paid a wage to her mother of $600 to $700 a month for selling newspapers for her at a stall outside the Wong Tai Sin Temple. I also accept her evidence that her mother was in very good health and find the probability is that but for the accident she would have continued to/work for her daughter for the period from the 27th March 1977 to 17th January 1979. However as the Plaintiff was not completely clear as to the exact amount of wages she paid, I will take it at the smaller end of the scale and find that the average sum was $600 per month. $600 a month for a period of some 22 months works out at $13,200. PAIN, SUFFERING AND LOSS OF AMENITIES 22. There are very few authorities where in the case of a fatal accident damages are awarded under this head. Certainly I have not been referred to any by either of the parties to this case. One such case is however noted very briefly in the Hong Kong Law Journal (1976 Vol. 6 No. 3 at page 392, the case is YEUNG Ping-kuen and Anr. against TSUI Kam-pui and Anr. In that case a woman of 54 was injured in a traffic accident in March 1972 and died as a result of her injuries in November 1973. The Learned Registrar found that she sustained severe injuries and was confined to a hospital bed for approximately 21 months and suffered considerable physical pain and mental suffering for nearly all that time. He awarded damages for pain and suffering and loss of amenities at $50,000. The note does not give details as to precisely what the injuries were. 23. It is clear that in the present case the deceased was severely handicapped for a period of nearly two years before she eventually died as a result of the injuries she received in the accident. Certainly during a lot of this time due to the cerebral haemorrhages which she had she was relieved of a good deal of suffering. She would however have been aware for a considerable period of time until she had the second haemorrhage at the beginning of December, that her right arm had been amputated and that she would no longer be able to do things for herself. She would also have suffered considerable pain and inconvenience. Of course her old age is another factor for consideration. Taking all things into account I award $25,000 for pain, suffering and loss of amenities. LOSS OF EXPECTATION OF LIFE 24. The conventional figure for this now appears to be $10,000. It appears that this figure may be subject to change in the case of very young children and very old persons. Whether it should be reduced depends on the circumstances of the individual case. In the present case although the old lady was very healthy and fit she was of such an old age that I think it a proper case to reduce this conventional figure to $8,000. 25. The amount of special damages is therefore the agreed sum of $13,831 plus the sum which I have found due for loss of earnings of $13,200 which comes to $27,031. The amount of general damages is $25,000 for pain suffering and loss of amenities plus $8,000 for loss of expectation of life which comes to $33,000. These figures will have to be reduced by 10% because of contributory negligence. There will therefore be judgment for the plaintiff in a sum of $54,000 and costs. INTEREST 26. I will hear counsel on this matter.
Representation: Mr. Thomas LAI counsel instructed by the Director of Legal Aid for the Plaintiff. Mr. Thomas P.S. IU instructed by John IP & Co. for the Defendant. (1) 1962 HKLR 595 at 958 |