Tam Choi v. Ho Wai Hing and Another

HCA002997/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 2997 OF 1973

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

Coram: Briggs, C.J.

Date of Judgment: 4th February, 1974.

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

JUDGMENT

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

1. This case arises out of an accident which occurred in the evening of the 23rd January, 1972 in Sau Ming Road, Kowloon. The plaintiff, a woman in her mid-forties, was injured in a collision with a double-decker bus driven by the first defendant. The second defendants are the owners of the bus. A sketch plan of the scene of the accident was put in evidence by consent.

2. At the scene of the accident, Sau Ming Road is level and straight, it runs from east to west. It is a highway capable of carrying two lanes of traffic in each direction. A single white line runs down the centre of the road. On the south side of the road is part of the Sau Mau Ping Resettlement Estate. There is a pavement between the road and the blocks of this Estate and there are railings along the pavement to prevent persons from jay-walking. There is an entrance through these railings to Block 20. This is the block in which the plaintiff lives and it is opposite to the entrance of this block that the accident occurred.

3. There are no buildings on the opposite side of Sau Ming Road. There is nothing more than the pavement behind which is a high embankment.

4. The sketch plan shows that at the time of the accident there were four private cars and three motor bicycles parked on the side of the road outside and next to Block 20, that is on the south side of Sau Ming Road. The court visited the site and noticed that not only was there a bus-stop on the north side of the road as depicted in the plan but there was a second bus-stop on the other side, the south side of the road, a little way beyond the entrance to Block 20 to the west. This is for buses travelling westwards. Further to the east, there was a turning or corner into Hiu Kwong Street. On the corner is the Cheung Kee Teahouse. Hiu Kwong Street slopes uphill towards Sau Ming Road.

5. On the day in question, the first defendant was driving on bus route 1A. In the course of this he drove up Hiu Kwong Street, turned to his left in order to continue to the bus stop on the south side of Sau Ming Road to which I have referred above.

6. This accident occurred two years ago and the only evidence, apart from the sketch plan and the site itself, came from the plaintiff and the first defendant themselves. There must have been many persons who witnessed what occurred but no other witnesses have been called.

7. The plaintiff said she intended to cross Sau Ming Road to pick up transport. She was going to accompany a friend, a Mrs. Chu and her husband to a hospital. Mr. and Mrs. Chu had proceeded in front of her and were already across the road and she was catching them up. She left Block 20 and when she was on the pavement in front of that block she looked to her right before proceeding to cross the road. She saw the stationary cars which are shown in the sketch plan. Next to these, but still on the southern half of the road she saw four public light buses which were also stationary. She said they were discharging passengers. She said she also saw a double-decker bus; it was behind the four public light buses, it was about opposite the Cheung Kee Teahouse, namely, it had just come round the corner into Sau Ming Road from Hiu Kwong Street.

8. She reached the centre white line and looked to her left to see whether there was any oncoming traffic; there was none. She said she turned her face towards the right and was about to cross when the right side of her face was struck by the bus. She fell down and received a serious injury to her right leg. Her evidence was that the evening was fine and dry and the road surface was dry.

9. The first defendant tells a very different story. He is an experienced driver and says that he drove his bus up Hiu Kwong Street and turned into Sau Ming Road. He was in third gear and going very slowly. He estimated his speed as being between 15 and 18 miles per hour. In front of him was one public light bus. When this public light bus reached the entrance to Block 20 of the Resettlement Estate, it suddenly braked and stopped. It was then between six and seven feet in front of his bus. He saw no signal from the public light bus but he did notice that a red light showed at the back when it stopped. It was drizzling and the road was wet. He was using his windscreen wipers. immediately he braked his bus and swerved to his right to avoid colliding with the public light bus. Suddenly he saw a person to his left run out from in front of the public light bus, so he braked a second time, hard, and swerved further to the right. However, the bus skidded forward and the person who dashed out, who was of course the plaintiff, came in contact with the outside of the left-hand front wheel of the bus.

10. The first defendant was a frank witness. It was suggested to him that seeing some four public light buses in front of him he deliberately crossed over into the other half of the road to his right in order to overtake them. I do not think that that could have been the case. He was driving on a fixed route and had to stop at a bus stop on his left hand side in Sau Ming Road, which was very close to where the accident occurred. It would have been a difficult and dangerous manoeuvre to have attempted this after overtaking the public light buses. Of course, his evidence was that there was only one such bus but the same applies.

11. The point I have to decide is whether the first defendant was negligent in driving so close to the public light bus in front of him that he had to cross over the white line in the centre of the road to avoid a collision. The road is not a main road and there was no traffic travelling from east to west at that time. There is no reason therefore, prima facie, why the bus should not have driven over the white line provided that care was used. In my view the defendant was driving too close to the public light bus in front of him and it was that which necessitated his actions.

12. The plaintiff was not a very satisfactory witness. A few days after the accident she was interviewed by the police and gave them her version of what had occurred. This was recorded and signed by her. It differs materially from what she said had happened when she gave evidence in court. In particular, in one of her statements to the police, she said there were only two public light buses while in the witness box she said there were four. In the witness box she distinctly said that in crossing the first half of the road she walked in front of the stationary cars which were parked in front of Block 20. A glance at the sketch plan shows that if she had indeed done this she would have had to walk diagonally in an eastern direction, in order to arrive at the point of impact. At the site she pointed out where she crossed the road exactly and she pointed to a spot directly in front of the entrance to Block 20, straight across the road. This would mean that she crossed behind the first parked car, AK 1304. The plaintiff denied that she had given a different story to the police. Counsel referred her to her statements to show that she was an unreliable witness when she said that she kept a proper lookout when she crossed the road. This was the only purpose for which these previous statements to the police were used.

13. I do not think that she did keep a proper lookout and it is noticeable that she collided with the side of the front wheel of the bus. In my view she crossed the road in a negligent manner. Further, by far the greater blame of the accident must be attributed to the plaintiff. She was well aware of the presence of the bus and had a clear view of the position of the traffic before and as she crossed the road. Incidentally, she said in cross-examination that when she arrived at the centre white line in the road she looked to the right as well as to the left and did not see the bus approach. This, of course, is almost incredible for the bus at that moment must have been only a few inches away from her. I estimate that she was 75% to blame for the occurrence, and that the first defendant was 25% to blame.

14. As a result of the accident, the plaintiff suffered injuries to her right leg. Her leg was stripped of its skin cover and her right fibula was broken. It is unnecessary to set out all the particulars as they are in the documents before us. Particularly relevant is the agreed medical report. The date of this trial is the 28th January, 1974 and the date of the medical report is April 10th, 1973. It is, therefore, a report which is nine months' old. It purports to deal with the permanent disability which the plaintiff will suffer as the result of the accident and it states that the plaintiff will have a 25% permanent disability. That may well have been so as at that time. But there was some evidence that the plaintiff has recovered further use of her leg since. It is of the utmost importance that a medical report of this nature be made at a time immediately before the trial. It is difficult for a court to come to a just conclusion as to the permanent disability suffered by the plaintiff unless the report is dated from the latest possible date. In this case, the plaintiff was hospitalized for a considerable time and she suffered a lot of pain. The fracture has now healed and so has the skin injury. This was not so at the date of the report. However, the plaintiff's right leg is now half an inch shorter than her left and she has difficulty in walking and squatting. She has to use a stick when she walks unless she has a companion whose arm she can take. She has been unable to work since the accident.

15. The plaintiff claims the loss of earnings as a hawker of fruit. Her monthly earnings from this source are given at $750 per month in her statement of claim. However, she only claimed $600 per month in court. She admits that she was an unlicensed hawker and even went so far as to give us as one of her complaints that her injury has resulted in the loss of her agility which would make it more difficult to avoid the attentions of the Hawker Control Force in the future. I do not think that the plaintiff can recover damages under this head. It is an offence to hawk goods without a licence under the Hawker By-laws which are made under the Public Health and Urban Services Ordinance. The offence is punishable by a fine or imprisonment. I do not think that a plaintiff in a running-down case can recover damages for the loss of earnings from an illegal activity. I do not think that an unlicensed hawker could sue and recover the price of goods which he has illegally hawked. The contract would be unenforceable. Also, it is against public policy that a person engaged in an illegal activity such a hawking without a licence should benefit from such illegal activity. I will therefore make no award under this head. The plaintiff was also engaged as a relief worker in a garment factory. She claims $3,240 special damages, under this head. I will allow this. I will also allow sums claimed for extra food, damage to clothes and travelling expenses. These come to $1,068. The plaintiff had two children at the time of the accident. She was away from home for five months in hospital and had to obtain nursery care for them; she claims $2,000 for the five months. However, she would have had to feed the children in the event of them remaining at home, so I will only allow $1,000 under this head. So the special damages as listed in the Statement of Claim come to $5,308. The plaintiff is entitled to 25% of this claim $1,327.

16. As to the future loss of earnings, it must be borne in mind that the plaintiff now has a third child who is some three weeks old. She will not be able to go to work for some considerable time as a consequence and in any event could not have worked during the latter part of her pregnancy. Also the plaintiff has not tried to find work. She could not work in a job which required her to stand up or to squat but she could work if it was work that could be done while she was seated.

17. There is a considerable loss of amenities in this case. The plaintiff's injury will make difficulties both as a housewife within her home and when enjoying the company of her family out of doors. She has also had considerable pain and suffering. Taking all these matters into consideration including the loss of future earnings and bearing in mind that the plaintiff will receive a lump sum and remembering the ordinary vicissitudes of life I will award as general damages the sum of $30,400. The plaintiff is entitled to 25% of this which is $7,600. There will be judgment against the first and second defendants for $8,927 with costs. The plaintiff's costs are to be taxed under the Legal Aid Regulations.

Representation: