Leung Yiu Keung v. Tse Fung Ping and Another

HCA004633/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Bewley, J.

Date of Judgment: 6th November, 1980.

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JUDGMENT

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1. This is a running down action. The plaintiff claims damages for injuries received in a traffic accident which took place at the junction of Chung Hau St. and Good Shepherd St. at 7.45 a.m. on 11th November, 1977.

2. He received a severe injury to his right hand, which compelled him to leave his job in a jewellery shop. He is now unable to do either dexterous or heavy manual work.

3. He was riding his motor cycle along Chung Hau St. when he collided with an oil tanker which had emerged from Good Shepherd St. - a minor road - and was turning right into Chung Hau St. across the plaintiff's path. The tanker was owned by the 1st defendant and driven by the 2nd defendant.

4. Driving conditions were good and there was little traffic. As the plaintiff approached the T-junction, he had to negotiate a left hand bend on a rising gradient. According to his evidence-in-chief, he was in third gear, his speed was 26-28 m.p.h. and he was 26-28 yards from the T-junction - he knew the area and was aware of the minor road - when he saw the tanker approaching the junction. It emerged into the main road without stopping. In an unsuccessful attempt to avoid it, the plaintiff braked and swerved to his left, but his motor cycle struck the rear off-side wheel of the tanker.

5. In cross-examination, it transpired that, when the plaintiff said 26-28 yards, he meant only a distance of 8 - 10 yards. He placed himself as being in the bottom left-hand corner of photograph F. When he first saw the tanker, its front was by the traffic sign post - it appears to be a no-entry sign - and 4-5 yards from the white line.

6. The Legal Aid Assistant, Mr. Lai Wing (PW3), who took the photographs, calculated that this point was 50 yards from Good Shepherd St. PC12602 (PW4), who drew the sketches (P3-5), agreed that, if one were riding a motor cycle up the hill, one would not see a vehicle in Good Shepherd St. until one was in photograph F. He estimated the distance to the left-hand corner of this photograph as 70-80 feet. He also estimated that this was the limit of visibility when looking down the hill from the junction. Looking at photograph F itself and using my own judgment, I would say that the police constable's estimate is the most accurate of the three.

7. In May, 1978, the 2nd defendant was prosecuted for careless driving. The solicitor that represented him made a successful submission of no case to answer and he was acquitted. It seems that the reason why the magistrate was unimpressed by the evidence of the plaintiff - the principle prosecution witness - was that he told the Court that, when he first saw the tanker, its rear was touching the double white line: in other words it was already into the main road. But in cross-examination he said that the cab was protruding over the double white line when he first saw it.

8. The plaintiff was cross-examined before me about this evidence. His explanation was that, when he told the magistrate that the rear of the tanker was on the double white line, he was referring to the moment of impact. It is clear from the record of proceedings in the Magistrate's Court that this is not the case.

9. The plaintiff also said in cross-examination in this court that he did not brake when he first saw the tanker, because it had still not reached the white line and he assumed it would stop. It was only when it continued on into the main road without stopping, that he braked and swerved.

10. PC12602 interviewed the plaintiff in hospital and made another sketch (Ex P4), after the plaintiff had told him the position of the vehicles. This sketch puts the front of the tanker in the middle of the main road at the moment of impact and the rear in the centre of the inner of the 3 lanes. When he was asked where the tanker was when he first saw it, he replied that it was already in the junction 6-7' away.

11. It seems, therefore, that the plaintiff has altogether given 4 different versions of where the tanker was when he first saw it:

12. Not much weight can be attached to this evidence.

13. PC12602 also told the Court that, when he reached the scene of the accident, the plaintiff had already been taken away, but the 2nd defendant was present. He examined the tanker and the motor cycle. There was no mark on the tanker, but the motor cycle's headlamp was badly damaged. He did not consider it had been a slow-speed impact. There were no brake marks on the road.

14. The PC asked the 2nd defendant what had happened. The latter said that he made a right turn and then heard the impact. He looked back and saw the motor cycle lying by the rear of his vehicle. At the Traffic Office, the 2nd defendant drew his own sketch (Ex P3), which shows the tanker to have almost completed the turn. In all 3 sketches the point of impact is indicated as being in the middle of the inner lane.

15. The 2nd defendant gave evidence and told the Court that he stopped at the double white line. He looked both ways and saw no traffic. To his right he could see about 50 yards. He put on his right-hand indicator light and began to make a right turn. With a 30 feet vehicle that weighed 12 tons, it was not possible to do so quickly and his speed was 5 m.p.h. In the middle of the road he looked again to his left. There was nothing coming and he continued his turn. He had almost straightened up, when he heard the noise of the collision. This was at least 5 seconds after moving from the double white line. He never saw the motor cycle before the impact.

16. The 2nd defendant was asked in cross-examination why he did not look again to his right before beginning his turn. After repeating what he had first told the Court, he said that he did look to his right for a second time when he began to move into the junction.

17. He was then shown a statement which he had made at the Traffic Office after the accident. In this he had said that he stopped, looked right and left and then made his turn. The defendant maintained that he had told the PC that he twice looked to his right, but he said the PC must have left it out. He himself was in a great hurry to get back to work, so he just glanced at it and signed it.

18. I do not believe the 2nd defendant's evidence about his statement. He clearly did not tell the PC that he had looked twice to his right and I am satisfied that he did not do so. Apart from this, I find him a much more convincing witness than the plaintiff. I believe that his evidence is largely true.

19. The question is whether his failure to look to his right had any bearing on the collision. If it did, he was clearly in breach of a duty of care to the plaintiff. If the accident would have occurred, whether or not he complied with the Highway Code, there may not be a sufficiently proximate relationship to give rise to a duty of care.

20. This is obviously a very dangerous corner. If visibility was really only 80 feet, it means that an oil tanker driver, pulling out at 5 m.p.h. in such a vehicle, no matter how carefully he looks to the right, will always be at risk of a collision with an oncoming vehicle whose driver is not anticipating the manoeuvre.

21. Looking at the photographs and, in particular, those that show the bend with scrub grass and railings between the junction and the bottom of the bend, in my judgment it is possible to see rather more than 80 feet in each direction.

22. The danger of emerging from this side road must have been obvious to the defendant. My conclusion is that had he looked again to the right, before pulling out from his stationary position on the double white line, he would have seen at least the upper part of the plaintiff's body. He knew he was turning into the major road. He was, therefore, negligent and his negligence was a direct cause of the accident.

23. What of the plaintiff's performance? There is no doubt in my mind that it was the principal cause of the accident.

24. It would seem that the plaintiff's speed was not excessive: certainly not more than 40 m.p.h. The lack of brake marks, considering the good road conditions and the new tyres, indicates that little or no attempt to brake was made. If the plaintiff had been speeding, it is probable that his injuries and the damage to his motor-cycle would have been much more serious.

25. The plaintiff was going uphill on a 250 cc motor cycle. The probability is that his speed was not more than 30 m.p.h., which accords with his evidence. That is 44 feet per second. His safe stopping distance would be not much more than 100 feet at this speed. By the time he entered photograph F the plaintiff was less than 2 seconds away from a collision, assuming that the 2nd defendant had already embarked on his turn.

26. In spite of the defendant's failure to look again to the right, it would not have happened, but for the plaintiff's complete lack of awareness as to what was happening ahead of him. He obviously did not see the tanker while it was still in Good Shepherd St. He was proceeding on the basis that, as he was on the main road, he was entitled to assume that nothing would cross his path.

27. This was a mistaken assumption, having regard to the nature of this intersection, with which he was familiar. Even if he did not see the tanker, by the time he entered the left-hand bottom corner of photograph F, there was still time, if not to come to a complete halt, at least to brake and swerve to the left. It seems he did neither. Had he swerved left, there was ample room in the mouth of Good Shepherd St. to avoid the tanker. Instead, any avoiding action was taken at absolutely the last moment, when it was too late. I consider that the plaintiff was 75% to blame for this accident.

28. I turn now to damages. The evidence of Dr. Nicholson, the photographs he took and the various medical reports indicate that the plaintiff has suffered extremely serious deprivation of use of his right hand. He is a right handed person.

29. There is some scarring from the 3 operations that were necessary, but, in a man, cosmetically speaking, this is not too serious a matter. The main problems are (1) he no longer has a firm grip, (2) he cannot close his hand, (3) he has lost the ability properly to pronate or supinate the hand, (4) ulnar drift, which has pulled the tendons out of alignment and which will tend to get worse and probably lead to arthritis, (5) the combined effect of the injury, scarring and splinting has led to contraction of the muscles.

30. The effect of (1) is that he cannot do heavy work. (2), (3), (4) and (5) mean that he can no longer follow his former occupation of a jeweller. In spite of physiotherapy, which was discontinued in August last year, there is little, if any, prospect of further improvement.

31. I have been referred to 5 cases in which the award for pain, suffering and loss of amenities ranged from $18,000 to $25,000. I think some of these are too low and that this plaintiff is in worse case than the victims in those actions.

32. When one considers the pain at the time of the accident - the plaintiff was conscious throughout - the 3 operations, the fact that he has had to wear a surgical glove, or splint, for short periods day and night until fairly recently, plus the prospect of never having the proper use of his hand again - he used to play basketball, bowling and badminton - I do not see how a figure of less than $30,000 can be awarded.

33. The other major item in general damages is loss of earning capacity. The plaintiff was on piece work and, according to him, he earned between $1,100 - $1,800 per month. His employer, Mr. Tam Chum-wah (PW5), said he earned $2,200 per month on average. I think the plaintiff must know more accurately what his income was at the time - at least he is not likely to have understated it - and I accept his average figure of $1,450.

34. Mr. Tam estimated that were he still employed in the jewellery trade today, he would be earning $3,200 - $3,300. In the light of the inflated figure that he gave for the plaintiff's former earnings, I intend to adopt a conservative figure of $2,000 per month.

35. The plaintiff has been working as a packer since the beginning of September this year and is earning $900 per month. He says he cannot get anything better and I believe him. If he had better educational qualifications, he might have a chance of an office job. As it is, this is out of the question. Nor is he candidate for a job in the construction industry, or as a coolie. He is stuck with jobs like packer, watchman, telephone operator, cashier etc. and for people like the plaintiff, they are few and far between. I take $1,000 per month as his present earning capacity, which gives a shortfall of $1,000 per month.

36. The plaintiff is 27 and otherwise in good health. He could have expected to continue in the jewellery trade until his eyesight failed, or old age forced him to give it up. On the other hand, he might have had another motor cycle accident. Having regard to the vicissitudes of life and the lump sum payment, I select a multiplier of 12. This gives a figure of $1,000 x 12 x 12 = $144,000 for loss of earning capacity.

37. Items 2 to 9 of special damage are agreed. They total $1,908.60.

38. Loss of earnings from 11th November, 1977, at $1,800 per month, less $500, when the plaintiff worked in a cooked food stall from 4th September - 2nd October, 1979, is claimed in Item 1.

39. The plaintiff now admits that he also worked as a packer for one month after his second operation on 2nd February, 1979, and earned $900 and that, in addition, he earned $420 sitting in an exhibition model aircraft for 5-6 days.

40. It is submitted by counsel for the defendants that the plaintiff should have looked for work much sooner. The plaintiff defends his position by saying that he had to have physiotherapy 3 days a week. He also had to wear a special glove for an hour or so at a time during the day. It was also suggested he might have worked in the evenings on those days when he did not have physiotherapy.

41. In my judgment this is a counsel of perfection. The plaintiff says he tried to get work, but it was not possible to get a part-time job. Having regard to the physiotherapy and the glove, I think the plaintiff ought not to be penalized for his lack of success. His answer, when asked how he managed to get a job for a month as a packer after his 2nd operation - that his hand was a little better then - was a reasonable one. His last operation was in March this year and he was wearing his surgical glove until August. He finished physiotherapy in August, 1979. He has now got a job, which he intends to keep if he can. I cannot say that he has failed to mitigate his damages.

42. His probable average earnings as a jeweller, between November, 1977 and the date of the trial, would have been $1,675 per month. I calculate special damage under Item 1 as $1,675 x 36 months = $60,300 less $3,120 actually earned = $57,180.

43. The total special damages thus come to $59,088.60. Adding to this general damages of $174,000, one arrives at a figure of $233,088.60. Deducting 75%, by reason of the plaintiff's contributory negligence, I give judgment for the plaintiff for $58,272.15 plus costs. There will be interest on the general damages at 10% per annum and on the special damages at 5% per annum.

Representation:

Mr. Marriner (DLA) for plaintiff.

Mr. Geoffrey Ma (Woo, Kwan, Lee & Lo) for defendants.