Lam Kwong v. Wai Sui Piu and Others
Read the full judgment text of HCA 1368/1969 on BabelCite. This High Court CFI judgment.
1. This is an action for damages arising out of injuries sustained by the plaintiff when either he or a cart which he was pushing or both came into collision with a private motor-car owned and driven by the 1st defendant on the 12th November, 1968.
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HCA001368/1969 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 1368 OF 1969 -----------------
----------------- Coram: Pickering, J. in Court. Date of Judgment: 9th September, 1970. ----------------- JUDGMENT ----------------- 1. This is an action for damages arising out of injuries sustained by the plaintiff when either he or a cart which he was pushing or both came into collision with a private motor-car owned and driven by the 1st defendant on the 12th November, 1968. 2. The Statement of Claim recited two collisions, the first between the car owned and driven by the 1st defendant and a car driven by the 2nd defendant and owned by the 3rd defendant; the second collision recited was one between the plaintiff and the motor-car owned and driven by the 1st defendant and it was said to be as a result of this second collision that the plaintiff suffered injuries and loss and damage caused by the negligence of either the 1st defendant or the 2nd defendant or alternatively of both the 1st and 2nd defendants. 3. At the hearing the only evidence as to the actual collision was given by the plaintiff who said that he saw no second car and knew nothing of any collision between two cars. The only collision to which he testified was one between himself and his cart on the one side and a single car on the other. A collision between the 1st defendant's car and the plaintiff's cart was admitted by the 1st defendant upon the pleadings. 4. At the conclusion of the plaintiff's case Mr. Mills-Owens, for the 2nd and 3rd defendants, submitted that there was no evidence against his clients. Whilst agreeing with that proposition. I declined at that stage to go so far as ruling that the 2nd and 3rd defendants had no case to answer since not only the plaintiff, but also, the 1st defendant had pleaded a collision between the 1st defendant's car and that driven by the 2nd defendant and owned by the 3rd. The 1st defendant had also claimed entitlement to contribution from the 2nd and 3rd defendants under the Tortfeasors Ordinance. At that stage defence counsel requested a brief adjournment after which Mr. Arculli, for the 1st defendant intimated that he proposed to call no evidence. Mr. Mills-Owens thereupon applied for the claims against the 2nd and 3rd defendants to be dismissed with costs against the plaintiff on the grounds that neither the plaintiff nor the 1st defendant had adduced any evidence against his clients. Counsel for the plaintiff and for the 1st defendant having intimated that they had nothing to say upon that application, I ruled that the 2nd and 3rd defendants had no case to answer and dismissed the claims against them with costs against the plaintiff whilst reserving the question of possible recovery of those costs or part of them from the 1st defendant. 5. Following the obvious disparity between the Statement of Claim and the evidence in that the former recited two collisions whereas the latter revealed only one, counsel for the 1st defendant dropped a broad hint to Mr. Hu, for the plaintiff, that he might wish to apply for an amendment to the Statement of Claim. Upon Mr. Hu's decision not to apply for any such amendment Mr. Arculli, for the 1st defendant, submitted that it was not open to the court to find in favour of the plaintiff on the basis of evidence which differed in its essentials from the pleadings in the Statement of Claim. 6. When I came to consider the facts of the case it appeared to me that even allowing for the possibility of contributory negligence on the part of the plaintiff the justice of the case demanded that since he had proved that he had been injured by the 1st defendant's car in circumstances which involved negligence on the part of the 1st defendant, the plaintiff should be awarded damages. At that time I was however, in some doubt as to whether it was open to me to award damages to the plaintiff on the basis of evidence which varied markedly from what had been pleaded. Accordingly I requested counsel to address me as to whether there was any reason why the court, in order to do justice between the remaining parties and pin-point the real controversy between them, should not order amendment of the Statement of Claim in such a manner as to plead one collision instead of two. In the result I have decided not to force upon the plaintiff amendments which his counsel, whilst not actually objecting to them, still refrains from requesting and which might have the effect both of lengthening and adding to the costs of the proceedings. I have so decided only because it now appears to me to be possible to do justice to the plaintiff's claim without any such amendments. What he pleaded was a collision between himself and the 1st defendant's car and what has been proved on the evidence and the admissions is just such a collision. True, the admission contained in the 1st defendant's Statement of Defence was of a collision between his motor-car and the plaintiff's cart and not between the car and the plaintiff himself. There is however no suggestion anywhere that one motor-car hit the cart and the another the plaintiff and despite the lack of any actual identification by the plaintiff of the vehicle which hit him I find as a fact, as a combined result of the plaintiff's evidence and the 1st defendant's admission, that the car which the 1st defendant agrees came into collision with the plaintiff's cart was the same vehicle which, on the plaintiff's uncontradicted evidence, collided with him and caused him injury. 7. The plaintiff has not proved the allegation, contained in the first paragraph of his Statement of Claim, of a collision between the 1st defendant's car and that driven by the 2nd defendant and owned by the 3rd. He has however, with the aid of the 1st defendant's admission, abundantly proved the allegation made in his second paragraph of a collision between himself and the 1st defendant's car. On the only evidence before me such a collision took place and the 1st defendant has not gone into the witness box to deny it. 8. Thus although the plaintiff pleaded two collisions and has proved only one he is entitled to succeed. The essence of his claim was the occurrence of a collision between himself and the 1st defendant's car and that he has proved. The alleged occurrence of a prior collision between the 1st defendant's car and another vehicle is not a material fact in the sense that it was necessary for the plaintiff to prove it before he could be said to have proved the collision between himself and the 1st defendant's car. He has pleaded a fact (the first collision) unnecessary to his claim and has been unable to prove that fact but this is a totally different matter from attempting to prove by evidence matters not alleged in a Statement of Claim. His pleading may not, indeed does not, attain the standard enjoined by O.18 r.7(1) of the Rules of the Supreme Court in that it does not contain "only" a statement in summary form of the facts upon which he relies but the surplusage is not fatal to his claim. 9. If the 1st defendant alleges, as he does in his Statement of Defence, that two collisions took place, the first in circumstances which negative negligence on his part or at worst entitle him to contribution from the 2nd and 3rd defendants, it was open to him to go into the witness box and prove that first collision. By merely abstaining from doing so he does not disprove the plaintiff's account of how he was hit by a car which I have found to be that of the 1st defendant. The practical effect of such abstention has, however, been to permit the dismissal of the 2nd and 3rd defendants from these proceedings. That is a course which was invited, and even forced upon the court, by the 1st defendant's election to give no evidence and he cannot complain of it now. 10. The facts of the accident as they emerged in evidence were that the plaintiff, who is a hawker, was pushing his cart which is approximately 3 1/2 feet high and 6 feet long across Castle Peak Road when he was hit by the 1st defendant's car. At the time the weather was good and the road dry and the plaintiff having emerged from Tai Nam Street into Castle Peak Road turned left along Castle Peak Road and pushed his cart for a few feet in that direction in the roadway and then turned the cart to the right to face the opposite side of Castle Peak Road which, at that point, is a one-way street with the traffic running from the plaintiff's right to his left as he faced across the street. The plaintiff testified that he waited for about one minute for a number of cars to pass him along Castle Peak Road and that then he looked in front of him and behind him to ascertain that no traffic was emerging from either entrance to Tai Nam Street and thereafter looked to his right where he saw a private car approaching him at a distance which he estimated contradictorily as "200 yards" and "300 feet". In explanation of this contradiction he said that by 200 yards he estimated 200 paces. 11. The plaintiff said that he was about 3 feet from the opposite kerb of Castle Peak Road when the 1st defendant's car struck him but it became apparent in cross-examination that this was an estimate of the distance between the front part of his cart and the kerb and that the plaintiff himself, having regard to the length of the cart and to the stance which he demonstrated as that which he adopted in pushing the cart, must have been at least 10 1/2 feet from the pavement when he was struck by the 1st defendant's car. The plaintiff said that after seeing the 1st defendant's car at a distance of some 200 paces he was not conscious of it again until it was some 40 to 50 feet away from him at which time his cart was then 4 to 5 feet from the opposite kerb; he had moved his cart a further foot or two when the car struck him; he had the impression that the car would either stop to let him pass or alternatively pass behind him and when he realized that neither of these eventualities was going to happen he waved his hand to the driver to slow down and placed his hand in the middle of the front of the car which then pressed against his whole body, notably the top of his right thigh. Following that he heard a squeal of brakes and was flung some 20 feet through the air. At no time did he hear any horn sounded. 12. In cross-examination the plaintiff agreed that Castle Peak Road is a very busy road and that running across it at a few feet from the opposite side of that side of Tai Nam Street from which he emerged, there is a zebra crossing. His reason for not using this crossing he said was that there are no zebra crossings in Tai Nam Street at either side of Castle Peak Road and that to have used the zebra crossing to cross Castle Peak Road would have entailed first crossing Tai Nam Street at the junction of Castle Peak Road where buses and minibuses constantly emerged, pausing and jutting out into Castle Peak Road, then to have crossed Castle Peak Road via the zebra crossing and finally to have recrossed Tai Nam Street at its opposite junction with Castle Peak Road. The risk in effecting three crossings, albeit one of them via a zebra crossing, was greater in his opinion than his usual habit of making only one crossing and that in Castle Peak Road in a place where there was no zebra crossing. The plaintiff further agreed that having turned left for a few feet down Castle Peak Road after emerging from Tai Nam Street he could have continued in that direction and eventually reached another zebra crossing instead of crossing Castle Peak Road at a point a few feet from Tai Nam Street where there was no such crossing. His reasons for not continuing along Castle Peak Road until he reached this second zebra crossing he said were two-fold; in the first place buses and minibuses halted on that left hand side of Castle Peak Road and it was difficult to negotiate their stopping places with his cart; secondly, that side of the road was in the sun and the other side of the road in the more comfortable shade. 13. The plaintiff admitted that he had started to cross Castle Peak Road on the assumption that the 1st defendant would let him cross either by stopping his vehicle or swerving to the left and passing behind the plaintiff and his cart. When he was four-fifths of the way across the road he was still under the impression that the 1st defendant would slow down. 14. On the evidence the 1st defendant's car was some 200 paces from the plaintiff when the plaintiff started to push his cart across Castle Peak Road. The 1st defendant has elected to give no evidence and there is nothing to suggest that there was any intervening traffic or that the 1st defendant did not have a clear view of the plaintiff and his cart. If the uncontradicted estimate of 200 paces is accepted it is apparent that the 1st defendant had ample time either to slow down and if necessary to stop altogether or, alternatively, to pass behind the plaintiff and his cart and in failing to adopt either of these courses and in hitting the plaintiff the 1st defendant was guilty of negligence. On the other hand, the plaintiff's admission that when he started to cross the road he expected the 1st defendant either to stop for him or to swerve to the left behind him indicates clearly that when the plaintiff started to cross the road burdened with his cart, he knew that he had not time to complete the crossing before forcing one of those alternatives onto the 1st defendant. In my view that was contributory negligence. I find however that the plaintiff's decision not to use either zebra crossing, was in the circumstances of the traffic normally obtaining in that area, not unreasonable and did not amount to contributory negligence. 15. In endeavouring to assess the degree of contributory negligence I have derived assistance from the decision of the House of Lords in Baker v. Willoughby(1). In that case the plaintiff was knocked down while crossing a straight road some 33 feet in width. A 40 m.p.h. speed limit was in operation and there was little traffic about. The plaintiff had been standing on the kerb behind the vehicle in which he had been a passenger, but began to cross the road in response to a request from his driver, who was standing on the opposite side of the road. Before he left the kerb the plaintiff looked to the right and saw only one car. He did not look again until he reached the middle of the road, when he looked to the left. At that point he was struck by the defendant's car which the plaintiff had not seen and which had overtaken the car he had seen. The plaintiff was walking and not running across the road. Donaldson J. held that the defendant was driving at an excessive speed or failing to keep a proper look out or both, but that the plaintiff also was negligent in not seeing that more than one car was approaching and in not waiting until they had passed. The House of Lords considered that the plaintiff was negligent also in failing to look to his right again. 16. On those facts Donaldson J. apportioned 25 per cent responsibility to the plaintiff, but the Court of Appeal held the parties equally liable on the ground that it was impossible to differentiate when both parties had a clear view of each other for 200 yards prior to impact and neither did anything about it. 17. In the House of Lords Lord Reid demonstrated with great clarity the unreality of that view:-
In the result the House of Lords unanimously restored Donaldson J.'s apportionment of 75 per cent liability to the defendant and 25 per cent to the plaintiff. 18. In the present case the plaintiff was not crossing the road as a mere pedestrian. He was encumbered by a cart which on his own evidence weighs more than one hundred catties and is approximately three and a half feet high and six feet in length. This circumstance, rendering him less mobile, should likewise have rendered him more careful about the timing of his crossing than if he had been a mere pedestrian. On the other hand the very size of his cart should have attracted the 1st defendant's attention far more easily than the sight of an unencumbered pedestrian crossing the road. In my view these two factors cancel each other out and I assess the degree of the plaintiff's contributory negligence at 25 per cent as in Baker v. Willoughby(1). 19. As to the physical effects of the accident, the plaintiff's most serious injury and that which was the cause of such disability as he subsequently suffered, was to the Achilles tendon of his left let. It has been suggested by counsel for the first defendant that this injury was not the result of the accident since it was not observed by the doctor who examined the plaintiff at the Kwong Wah Hospital shortly thereafter. The plaintiff's evidence was that at the hospital he could not get on to the bed by himself and had to be lifted from the stretcher to the bed; that about one hour after being X-rayed a nurse told him that he could leave the hospital and that when he then tried to stand he fell on the ground whereupon two nurses helped him to a chair; that one of the nurses told a doctor that he could not stand because of the tendon in his left leg and that the doctor thought that the plaintiff was pretending and instructed the nurse to telephone Shamshuipo Police Station and ask some officer there to get the plaintiff out of the hospital; that he heard the nurse tell the doctor that the police officer had said that this was not a police duty to which the doctor made no reply; that thereafter nobody paid him any attention until after about twenty minutes he hopped along with one hand against the wall to see the doctor; that he tried to use the doctor's telephone but was stopped by the doctor who then rang up a friend of the plaintiff for him and handed the 'phone to the plaintiff; and that the friend came to the hospital in a taxi and took the plaintiff away. 20. Dr. Lam, the doctor in question, gave evidence of examining the plaintiff on the afternoon of the accident and said that he found abrasions over the right elbow and the right knee and some spraining of those parts. The right elbow, right knee and chest were X-rayed, nothing abnormal being found in the X-rays. The doctor said that he saw no wound on the left leg but agreed that it was possible that there might have been an internal wound which was not visible. The doctor went on to examine the plaintiff's leg in court and said that he found a partial rupture of the Achilles tendon of the left leg, there being no atrophy of the calf muscle and the function of the tendon and the calf muscle being still good. The doctor said that he would expect complete healing in the future and that with exercise and physiotherapy as an out-patient he estimated the length of time required for a cure would be one year. Dr. Lam added that he had examined the plaintiff for a second time on the 10th July, 1969, some nine months after the accident, when he advised the plaintiff to go to hospital for further treatment of the left leg, advice which the plaintiff rejected. The doctor agreed that it was possible that he had missed the rupture of the tendon on the first examination but in cross-examination said that had the injury been present on the 12th November, 1968 he thought he would have discovered it. He added that on the second examination he estimated a twenty per cent disability of the left ankle which was reduced by the date of trial to about ten per cent. Had the plaintiff accepted proper treatment after the second examination in July 1969, the doctor considered that he would have completely recovered by the date of hearing. This witness said that he had no recollection of ordering a nurse to telephone Shamshuipo Police Station in order to have the plaintiff removed from the hospital nor any recollection of the plaintiff asking to use his telephone and added that he had no private office and that there was no telephone on his desk. 21. Another doctor, Dr. Au Ying Fan, gave evidence of having examined the plaintiff once only on the 12th June of this year and of finding a mild degree of disability in the left leg due to weakness of the muscle. In this doctor's opinion improvement could be expected with further use and exercise of the limb in, say, six months to a year and in a much shorter time with physiotherapy; assuming that the disability had been the result of an accident sustained on the 12th November, 1968 the leg should have been all right within about three months with proper treatment started at that time. 22. Other evidence as to the injury to the left Achilles tendon was given by Mr. Tam Fei Tang, a herbalist and bone setter, whose assistance the plaintiff sought immediately after being sent out of the hospital on the 12th November, 1968. Mr. Tam said that the plaintiff complained of swelling and pain in the left leg and inability to walk and that the main injury was to his left tendon which was swollen to a great extent and also caused swelling in the upper part of the foot; the patient was unable to put his foot flat on the floor without suffering severe pain in the ankle. This witness said that given an injury of this type to the tendon it would, in his experience, take a few hours, maybe up to ten hours, for the foot to swell to the stage reached by the plaintiff's foot when he first came to the witness for treatment. 23. There is a measure of contradiction in the evidence in regard to what happened at the Kwong Wah Hospital but in my view the plaintiff is far too unsophisticated to have made up the story which he told in the witness-box, and I am quite satisfied that at the hospital he was in fact in pain from his left ankle, that he was suspected of malingering and that he did receive the assistance of some doctor who telephoned his friend. I find as a fact that the injury to the tendon was occasioned by the collision between the plaintiff and the first defendant's car. 24. Mr. Arculli has submitted that the failure of Dr. Lam to observe the damage to the left Achilles tendon on examination of the plaintiff immediately after the accident and the plaintiff's discharge from the hospital on that day constitute a novus actus interveniens for which his client should not be held responsible. Whilst I would agree that improper or unreasonable medical treatment might constitute a novus actus interveniens (see Hogan v. Bentinck West Hartley Collieries (Owners) Ltd.(2)) I am not aware of any authority to the effect that a failure of diagnosis can so operate and I am not prepared to hold that such failure in this case constituted a novus actus interveniens. 25. Turning to the quantum of damages, it is at once apparent that the plaintiff's claim is exaggerated. Presumably in error, a sum of $5,400 has been claimed as representing a reduction in monthly earnings at the rate of $300 p.m. from May 1968 to October 1969. Yet the accident did not happen until November 1968 and clearly the claim over a period of 18 months was intended to relate only to the six months May to October 1969 inclusive so that the amount claimed under that head should have been $1,800 and not $5,400. 26. Another item claimed is $3,000 for loss of earnings for five months at $600 p.m. There is absolutely no evidence of any total loss of earnings for any period of time at all. The 5 months are presumably the 5 months preceding May 1969 (wrongly described as May 1968 in the Statement of Claim) the month from which a reduction in earnings of $300 p.m. is claimed. The claim in respect of total loss of earnings over a period of five months must fail but the plaintiff is entitled to add that period to the period of 6 months (wrongly described as 18 months) in respect of which he claims partial loss of earnings. The claim under that head must therefore be adjusted to a claim for a period of eleven months. 27. The extent of partial loss of earnings is claimed at $300 p.m. and on the evidence this appears to me to be high. Before the accident the plaintiff was said to earn approximately $8,000 per annum. His evidence is that since his injury he operated as before selling the same wares but that he does not go as far as Castle Peak Road as frequently as previously because of his leg, that he cannot start out at all in wet weather which causes pain in the leg, that he can only work 14 hours per day instead of 16 as previously and that he cannot push his cart so far as formerly. These disabilities do not suggest to me a loss of income of approximately 45% and doing the best I can I estimate the plaintiff's probable reduction in income at 25% or $2,000 per year which, rounded off to the nearest dollar is $167 p.m. His claim for eleven months partial loss of earnings therefore succeeds to the extent of $1,837 ($167 x 11). To this sum must be added compensation for partial loss of earnings since the issue of the writ in early November 1969. His claim in this respect is expressed as for $300 p.m. from November 1969 to date of judgment. I have already expressed the opinion that a more realistic assessment of the plaintiff's loss of earnings is $167 p.m. Moreover the plaintiff is not entitled to compensation up to the date of judgment for he has failed to mitigate his damages. On July 12th 1969 Dr. Lam invited him to attend hospital for treatment, an invitation of which the plaintiff did not avail himself. Dr. Lam was of the opinion that had the plaintiff accepted proper treatment after 12th July 1969 he would have completely recovered by the date of the hearing which was 22nd June 1970. It follows therefore that the maximum period after October 1969 for which the plaintiff can claim is 8 months, a period which entitles him to recover a further $1,336 ($167 x 8). The plaintiff is therefore entitled to recover in respect of partial less of earnings the sum of $3,173 ($1,837 + $1,336). 28. Medical expenses at $400 have been agreed between the parties and it is not disputed that the plaintiff spent $15 upon repairs to his cart. 29. The plaintiff is further entitled to compensation for pain and suffering. In the case of Wilson v. Pilley(3), Lord Evershed M.R. said:-
30. In an unreported case Clegg v. Radio Cabs ( ...(illegible) ) Ltd.(4) Donovan L.J. expressed the view that awards as low as £50 were given only for really trivial injuries. In Ingall v. John Lysahgt Ltd.(5) the injuries were not altogether dissimilar from those sustained by the present plaintiff. In that case a workman suffered broken bones in one toe and was off work for 10 weeks and suffered pain and discomfort for a year. The Court of Appeal increased the lower court's award of general damages from £50 to £100. Money has of course lost some of its value between 1956 and 1970. Taking that into account and balancing the fact against the different conditions prevailing in the United Kingdom and in Hong Kong, I award $1,500 in respect of pain and suffering. 31. The damages are therefore as follows:-
32. Twenty-five per cent of this sum falls to be deducted as the result of the plaintiff's contributory negligence and the resultant figure is $3,816. The plaintiff is entitled to costs as against the 1st defendant. It was however the plaintiff who initially brought the 2nd and 3rd defendants into the action. His claim against them has been dismissed with costs and I see no reason why the 1st defendant should be liable to reimburse the plaintiff in respect of the costs of the 2nd and 3rd defendants who were introduced as defendants by the plaintiff solely on the basis of hearsay. Costs to be taxed under the Legal Aid Regulations.
7th October, 1970. Coram: Pickering J. in Chambers H. Hu (Hoosenally & Co.) for Plaintiff. Arculli (Brutton & Stewart) for 1st Defendant. Court:- Having had the benefit of hearing counsel as to whether the costs awarded to the plaintiff against the 1st defendant should be calculated on the District Court Scale having regard to the amount of the award made, I am of the opinion that the District Court Scale is the appropriate Scale. I agree that in determining the appropriate Scale the figure of damages to be considered is that before any deduction has been made in respect of the plaintiff's own contributory negligence. 33. The general rule is contained in S.14(2) of the District Court (Civil Jurisdiction & Procedure) Ordinance Cap. 336 which reads:-
34. The proceedings were not brought in the Supreme Court by leave of that Court and the only question is whether I should now order costs on the Supreme Court Scale thus departing from the general rule. 35. This does not appear to me to be a proper case for departure from the general rule. The special damages claimed were inflated by a careless error which passed unnoticed until the trial and which consisted of a claim for partial loss of earnings in respect of a six-month period before the accident ever happened. A further item of $3,000 was claimed in respect of total loss of earnings for another five months and not one word of evidence was elicited to support the allegation of total loss of earnings. 36. Had the special damages claimed been both free of careless error and also accorded more closely to what it could reasonably have been hoped to prove in evidence, it would have been apparent to the plaintiff's solicitors that their total was such as to render it very improbable that the addition of general damages in respect of the not very serious injuries sustained by the plaintiff, would cause the final award to exceed $10,000. I am unable to say that it was reasonable in all the circumstances to commence this action in the Supreme Court and the plaintiff's costs against the 1st defendant must be taxed at the District Court Scale applicable to an award of $5,088 which was the amount awarded to the plaintiff before any deduction was effected on account of his own contributory negligence. Costs of the appearances of 29th September 1970 to the 1st Defendant on the appropriate District Court Scale.
Representation: H. Hu (Hoosenally & Co.) for Plaintiff. Arculli (Brutton & Stewart) for 1st Defendant. ...(illegible) (1) (1969) 3 All E.R. 1528. (2) (1949) 1 All E.R. 588. (3) (1957) 1 All E.R. 525. (4) Unreported 1961 C.A. No.253. (5) Unreported. 1956 C.A. No.346. |