Lau Chow Lam v. Fung Mong Yan and Another

HCA004716/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 4716 OF 1979

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Coram: Mr. Commissioner de Basto, Q.C.

Date of Judgment: 31st October, 1980

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JUDGMENT

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1. On the 25th June 1978 the plaintiff was traversing a light-controlled pedestrian crossing at Choi Hung Road ("The Road") from south to north when he was hit by a public light bus driven by the first defendant. It is not in dispute the second defendant was, at the time of the accident, the owner of the minibus.

INJURIES

2. The plaintiff, then aged 44, was admitted to hospital where he was detained for 2½ months. He then used two crutches for two months and ever since then a walking stick. In his report dated the 19th September 1979 Mr. R.G.M. Wedderburn, F.R.C.S. stated that when he examined the plaintiff he saw a number of laceration scars on the face. The plaintiff had had a subtrochanteric fracture of the left femur. This had been operated on by the insertion of a nail in the neck of the femur secured by a plate on the shaft which was fixed with six bone screws. The fracture had firmly united but there had been over-riding of the two fragments resulting in a 3/4 inch shortening of the left leg. There was a loss of internal and external rotation of the legs of 20% each. In Mr. Wedderburn's opinion there was 7% impairment of the whole man. The plaintiff now walks with a limp. Mr. Wedderburn thought the plaintiff's disability greater than his actual impairment and he estimated the plaintiff had a 12% permanent disability. He said the plaintiff would occasionally suffer from aches in the left hip and thigh especially in wet weather and during climatic changes. The surgeon said that the plaintiff is now only fit for light sedentary work with only intermittent standing. Mr. Wedderburn stated that the earliest the plaintiff could have taken a sedentary job would have been seven months after the accident.

ACCIDENT

3. The plaintiff testified that on the 26th June 1978 he was employed as an ironing worker in a garment factory. At about 1 p.m. he left with some co-workers for lunch. He walked in front of the group. The ground was almost dry - it had rained previously. When he reached the pedestrian crossing shown in the sketch plan Exhibit Pp6 he saw the green pedestrian figure "indicating pedestrians could cross" and he started across. When he reached the centre refuge the pedestrian light still showed green so he continued to cross the road. He had just taken two steps when he turned his head to the left and saw a vehicle and at that moment he was hit by that vehicle. He lost consciousness at the time of impact.

4. Mr. Lau Chu Tsai was a worker from another factory who had gone that day to render assistance at the factory where the plaintiff worked. When the plaintiff went for lunch, Mr. Lau and another worker were walking 10 odd yards behind him and were engaged in conversation. He testified the rain had 'ceased already', 'Only a few drops still falling - one could not get wet' but the road was wet - it had rained very heavily that morning. He said he did not see the impact - only the plaintiff lying on the ground. He heard no sound of horns or brakes.

5. The first defendant said he had been driving a minibus since 1969 and he had eight years' driving experience before that. He testified that there were frequent showers that day and that "the road condition" was wet. Before he approached the pedestrian crossing he was travelling at about 28/29 miles per hour. He was driving in the outer lane. When he was a little over a hundred feet away the traffic lights turned green. He said he then reduced his speed to about 24 miles per hour - this was his practice whenever he saw a green traffic light and there was no traffic in front. He said that he adopted that procedure because as soon as traffic lights turned green, on many occasions pedestrians tried to "beat" the red light. He said when his vehicle reached the pedestrian crossing (it was then raining heavily) suddenly someone ran out from his right hand side about 10 odd feet away. Later, still in - chief, he was asked whether he had seen the figure on the pedestrian crossing prior to the accident and he replied "No." He said he was not aware of any pedestrians on the central reservation despite the fact that as the driver of a minibus he was 3 or 4 feet above the level of the road - higher than the driver of the average private car and so was in a better position to see pedestrians. In the Magistrate's Court (the transcript of which was put in evidence by agreement) he gave evidence which contradicted his evidence before this Court on a number of matters. In this Court he was asked whether, after he hit the plaintiff, the bus behind him had stopped at the traffic lights or had carried on and he replied - "the bus stopped at the traffic light for some time". To the Court he denied making that statement. He said he himself stopped the bus because he had to cross the road to make a telephone call. In the Magistrate's Court he said the bus had passed slowly after he stopped.

6. The first defendant said that prior to the accident he had been driving the minibus for six hours from 6 a.m. to the time of the accident (1 p.m.) except for one hour between 10.30 and 11.30 a.m. In the magistrate's Court the first defendant said he first saw the plaintiff when on checking traffic on his left, he glimpsed a shadow on his right and he therefore applied the brakes "abruptly", that he had immediately "braked hard". The first defendant testified before this Court that he had not had sufficient time to brake much less to sound his horn. The first defendant said that there was a heavy shower at the time of the accident and that he had his windscreen wipers switched on. P.C. 10437 testified he drew a rough sketch of the scene of the accident at 1.25 p.m. The road surface was then dry. He took the photographs in evidence about six minutes after he completed the rough sketch. He said there were no brake marks.

7. I thought the first defendant thoroughly unreliable. I attach no weight to his evidence. The plaintiff I thought gave his evidence well and I believe his evidence. I am satisfied that, from the time he started to cross the road until he was hit by the minibus driven by the first defendant, the pedestrian light was in the plaintiff's favour and I infer, as I am entitled to do, that the traffic lights were, during this time, against the first defendant. I am satisfied that the first defendant was solely to blame for this accident. I come now to the quantum of damages.

PAIN, SUFFERING AND LOSS OF AMENITIES

8. I award the plaintiff $35,000 under this head.

BONESETTER'S FEES

9. The plaintiff claims $14,000 under this head. The plaintiff testified he went to a bonesetter about twice a week for 3 odd to 4 months. He said the average cost per visit was $140. Taking the frequency of two visits per week for 3½ months at $140 per visit the fees come to about $4,000. The plaintiff also said that after visiting the bonesetter for 3-4 months he then occasionally visited the bonesetter who then charged him less. The plaintiff was only able to produce four receipts totalling $460-. He said some of the receipts must have been destroyed or mislaid by his wife or children. He asked, "Do you mean to say if I do not produce other receipts I can't be paid?" The plaintiff is illiterate and he has been a factory worker most of his adult life. I would not expect a person of his class and station in life to appreciate the importance of keeping receipts. Before assessing damages under this head I would like to quote Mr. Wedderburn on this matter. The surgeon was asked whether, after the plaintiff's operation, he would have "required" to attend a bonesetter?

I am in complete agreement with those views.

I allow the plaintiff $4,000 as bonesetter's fees.

SPECIAL FOOD

10. The plaintiff said $7,000 was spent on special food. No documents were produced to support this claim but, then again, I would not expect an illiterate man to try to ensure, wherever possible, to obtain and retain receipts for food purchases. I am fully in agreement with the views of McMullin, J. and Li, D. (as they then were) on the question of special food in personal injury cases as set out in the 1973 Hong Kong Law Journal page 335 et seq. Accepting Mr. Wedderburn's evidence as I do I am satisfied the plaintiff was unfit, even for a sedentary job, till 7 months after the accident. I think it likely that during that period, he had traditional foods regarded as beneficial by the local community. I award the plaintiff $3,000 under this head. The hospital charges of $300 and $100 for damaged clothing are not disputed. I award the plaintiff $800 as travelling expenses.

11. For the seven months following the accident the plaintiff incurred a loss of earnings of $9,800.00. In my view, I do not think that after that time the plaintiff made sufficient attempts to find employment. I appreciate that for a period of eight weeks he worked at home "disintegrating" woollen garments for which he was paid, altogether, between $160-$200. The special damages, therefore, total $18,000.00.

12. The plaintiff said he has no intention of retiring - he wants to work. I am satisfied that but for his accident the plaintiff would now be earning $2,000.00 per month as an ironing worker. There is no question of the plaintiff resuming his job as andironing worker, a job which involves continual standing. Mr. Wedderburn said that he thought the plaintiff would find it difficult to learn to work in an electronic factory - people started that type of work when they were considerably younger. Mr. Wedderburn thought the plaintiff could work as a watchman provided he did not have to negotiate more than two floors. He said the plaintiff was a timid man lacking in confidence - that he was not robust. No evidence was adduced as to the earning capacity of a watchman. It is notorious, however, that watchmen, especially those who are elderly and/or partly incapacitated, are badly paid. Having regard to the plaintiff's age and physical condition I estimate his potential earning capacity as $850. per month. His loss of future earnings I estimate, therefore, to be $1,150 per month. I think the appropriate multiplier in this case is ten and I, therefore, award the plaintiff $138,000 for loss of future earnings.

13. There will be judgment for the plaintiff with interest on the sum of $35,000 at 14% from the date of the service of the Writ and on the special damages at the rate of 2% from the date of the accident.

Representation:

Miss M. Yuen instructed by Rowdget W. Young & Co. for plaintiff.

Mr. Ramanathan instructed by Johnson, Stokes & Master for both defendants.