Li Leung v. Yip Kam Wan

HCA000416/1980

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Silke, J. in Court

Date of Judgment: 30th October, 1980

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JUDGMENT

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1. On the 4th March 1977 a bicycle ridden by the plaintiff a bricklayer, aged then between 50 and 51, made contact with a ten ton lorry owned and driven by the defendant. The plaintiff was injured.

2. On the pleadings as they stood at the start of the trial, and on the evidence given by the plaintiff, I had been under the impression that the truck turned into the Caltex petrol station, situate at mile 24½ Castle Peak Road, and being the centre filling station of a line of three, Shell and Mobil being the others - and in so doing struck the plaintiff who was cycling along a strip of paved surface in front of that station.

3. For the plaintiff has no recollection whatsoever as to what happened. He did not know what hit him, he did not see the lorry at any time and only came to in hospital some few days later - "came to" in the sense that he recovered from post accident amnesia about that time and was capable of retaining his memory of events thereafter.

4. It was the defendant's evidence that he was driving from the direction of Yuen Long, that he needed petrol and, as was his custom for he had an account there, turned into the entrance to the Caltex station. The rear of his lorry was some three meters out into the carriageway and the front of it some two to three meters into the entrance and across the paved surface which serves as a pavement. He came to a halt diagonally, with his engine running and his left hand indicator still on.

5. The reason for his stopping there was that the Caltex station had three bays - one on the inside, one in the middle and one on the outside. And it was this last which was the only one to which his lorry could pull in. It was occupied by a Volkswagen car. In so stopping he left himself some three to four meters away from that bay.

6. After a few moments the bay became free he started to move into it, felt a crunch as though he had broken a spring, saw one of the petrol pump attendants waving at him to stop and did so.

7. He had hit the plaintiff's bicycle with the front left portion of his lorry. He had never seen the plaintiff at all before impact. When I say "he hit" the bicycle it could well be that the impact was mutual. It is the evidence of Mr. Tsui (2 DW), the petrol pump attendant, that after the bay became free he saw a bicycle just passing by and "at this moment the big lorry started to move". He indicated that the two were about two feet apart at that moment and with the bicycle close by the left cab door of the lorry.

8. He saw the front portion of the bicycle come in contact with the lorry. He agreed that, had the lorry remained stationary, the plaintiff could, without altering course, have passed the lorry.

9. It is clear from the sketch EX1 drawn by the defendant that he had a blind spot on his immediate left. By reason of the height of the cab from the ground and the lorry being at a diagonal it was he could not see the plaintiff on his bicycle. And he moved his lorry while his vision was obscured. He carried no attendant.

10. The plaintiff, as I have said, has no recollection of how the accident happened. He stated he never saw the lorry - I do not think him to be telling an untruth when he says this. He must have seen the lorry but his memory of the events at the time is nonexistent.

11. The accident spot was familiar both to the plaintiff and the defendant. The plaintiff says that he cycles to and from Yuen Long frequently. He uses an earth path which runs alongside the road from Yuen Long to the petrol stations. So do other cyclists. He is in the habit of continuing on past the petrol stations on the paved surface which starts just before the Shell station which is the first in line. It is really a continuation of the earth path.

12. The petrol pump attendant said he knew of cyclists using either this paved surface or the road to pass across the front of the petrol stations. When it was put to the defendant in crossexamination that the path was in constant use by cyclists he answered that that was true. He then sought to qualify his answer by saying that the path was blocked near the Shell station entrance and that cyclists continuing on in the Tsuen Wan direction would go onto the road. He then went on to say "It is not a case of saying it is impossible" - that is to carry on on the paved surface - "but that it is only right for them to go off onto the road."

13. He later agreed that this was not the first time he had known a cyclist to use the paved surface. He had seen this use on other occasions.

14. This area is also used by pedestrians and is really a pavement.

15. I have had the assistance of a police sketch and a series of photographs produced by agreement.

16. I would hold him to have known of the use of the paved surface by cyclists and that, to move off in the circumstances in which he did with his vision obscured, was negligent.

17. I think there also to have been contributory negligence by the plaintiff in that he too was familiar with vehicles using the Caltex, and other petrol stations, at this point. The lorry had its engine running and its indicator on he should have rung his bell to give warning of his presence.

18. I would on the evidence assess the negligence of the defendant at 90% and the contributory negligence of the plaintiff at 10%.

Injuries

19. The plaintiff was admitted to Princess Margaret Hospital on the same day: he was conscious. He had a large laceration on the dorsum of the left hand, a laceration on the dorsum of the right hand and a fracture of the right iliac bone - the pelvis.

20. This fracture was reduced in surgery and for one month he had an in-dwelling catheter. The fracture was an extensive one involving the wing of the pelvis, the Ilium, with slight displacement of half of the ilium outwards. There was a further fracture of the inferior Ramur of the Pubis - the pelvis at the front on the right side.

21. Both fractures are now well united.

Hands

22. Dr. Wedderburn examined the plaintiff on three occasions - his reports are dated the 23rd February 1978, the 25th April 1979 and the 3rd October 1980 respectively. He also gave evidence.

23. Generally it is clear that the plaintiff could no longer continue his preaccident employment as a bricklayer nor can he ever do so.

24. At first it was the injury to his hands which caused the plaintiff most concern. The right is minor with a very neat scar now left which is difficult to see and the plaintiff has full function of his right hand.

25. On the left hand there is a scar which runs from the web between thumb and forefinger down the back of the hand across the wrist to the thumb side of the forearm 5" long. There is a second scar arising from the web running to the thumb side of the hand at the wrist - 2½" long. These scars result from a skin graft the grafting procedure being performed twice- the plaintiff says it had been three times but I think him to be mistaken. The donor area was the front of the left thigh where there are three healthy scars: 3" x 4" long.

26. The tendons of the hand are not damaged.

27. On examination by Dr. Wedderburn on 23rd February 1978 the plaintiff was extremely reluctant to bend either his index or middle finger and claimed to have little use of them. He had full movement of his thumb. His finger movement was restricted in that he could not bend the proximal interphalangeal joint of both fingers more than 90^o. Scar tissue does prevent full movement of the bending of the fingers. His left grip was 20lb - as he is right handed its preaccident grip would be 50 to 60 lbs. He had not used his hand since the accident which accounted, in part, for the impairment in movement of the fingers and the loss of grip. Dr. Wedderburn assessed his impairment, had he been exercising the fingers, at 3% of the hand which is a 3% impairment of the arm and a 2% impairment of the whole man.

28. When examined on the 24th April 1979 the plaintiff was found to have deteriorated in general health, losing weight. So much so that Dr. Wedderburn thought he might have some general disease. None was found. He would not bend either the index or middle finger of the left hand though this could be done by the examiner, through full normal range of movement, if the plaintiff's attention was distracted - the loss of movement was functional not organic.

29. At the examination on the 2nd October 1980 Dr. Wedderburn found a considerable change in the plaintiff - for the better. He had almost full movement of the fingers of the left hand, the only restriction was a 10^o loss of movement at the proximal interphalangeal joints of the left index and middle fingers resulting in some minor loss of grip. He could not fully abduct the thumb.

30. The real impairment was, as it is the left hand, between 1% and 2%.

31. In evidence Dr. Wedderburn made it clear that he did not consider the plaintiff to be a malingerer. He had developed a functional nervous disorder and genuinely believed that he could not use his left hand. He was apparently given no physiotherapy or advice on the development of the use of his hand after the accident. This lack does occur on occasions when a patient lives a distance away from a hospital.

32. In the 1979 examination the nervousness was worse and the plaintiffs main complaint was as to his hand and not his hip.

33. By October 1980 he had overcome the functional origin of the disorder in his left hand - probably because his attention was now focussed up on his hip.

Pelvis and Hip

34. In 1978 the plaintiff had full movement of his right leg at the hip joint but the joint was found to be displaced laterally by a few millimeters - not more than a fifth of an inch. There was some wasting of the right thigh muscles. He walked with a limp using a walking stick.

35. I have set out elsewhere the fractures to the pelvis. On discharge from hospital two months after the accident the plaintiff used crutches - two months later a stick, which he was still using in February 1978. He had returned for follow up visits to the hospital until the end of 1977.

36. At this examination Dr. Wedderburn assessed the pelvic disorder as an 8% impairment of the whole man, or a 20% disability. He thought him capable of sedentary work but that he could not return to his work as a bricklayer.

37. At the 1979 examination the plaintiff could walk slowly and with a stick. There was, on X ray, no sign of osteo-arthritis. He spoke of taking pain killers when he got pain in his leg but he seemed to be using a supply he got about a year before this examination.

38. He had full movement of the right leg at the hip but the knee jerk reflexes on the right side were totally absent. There was some wasting of the muscle on the front of the thigh above the knee. Dr. Wedderburn thought there might have been some damage to the femoral nerve at the time of the accident causing the loss of the reflexes.

39. He still thought him to have a 20% disability.

40. At the examination on the 2nd October 1980 the plaintiff complained of pain in the right hip region: above the hip joint and below the crest of the pelvis. If he walks for fifteen minutes the pain radiates down the thigh to the region of the knee.

41. An X ray of the hip joint now showed a slight irregularity on the upper outer aspect of the socket of the joint which led Dr. Wedderburn to the conclusion that the fracture of the wing of the pelvis must have included a small crack which ran down into the socket of the hip joint which in turn led to a very small amount of new bone formation.

42. There was also found an unusual result in that the internal rotation of the leg was increased to 35^o and the external rotation reduced to 30^o. One does not compensate for the other.

43. The assessment of overall impairment was increased to 11½%.

44. Dr. Wedderburn did not think that the hip condition would deteriorate except marginally. There was no evidence of osteoarthritis though it was the doctor's evidence that this might well develop in the plaintiffs mid sixties.

Headaches

45. The plaintiff in his evidence complained of headaches starting after the accident and continuing up to now. He made the same complaint at the February 1978 examination. He made no mention of them at the April 1979 examination though given every opportunity to do so.

46. Dr. Wedderburn is of the opinion that the plaintiff did have them for some months after the accident but that if they now occur at all they are at infrequent intervals and there is no organic cause attributable to the accident which gives rise to them.

Damages

(a) Pain and suffering and loss of amenities

47. The plaintiff was in hospital for two months and had follow up treatment for about another seven months. He suffered considerable pain and discomfort from the skin grafting operations and considerable discomfort from the catheter. He had headaches for some time after the accident.

48. He suffers pain and discomfort now not only when the weather is bad but also when he walks for any distance. He says he can no longer go out to take recreation. There is the possibility of osteoarthritis developing later in life. He enjoyed his work on a bricklayer which he no longer is capable of doing. He is unable to ride his bicycle any more.

49. I have been referred to a series of cases reported in the Hong Kong Law journal: by Mr. Donnelly, who appeared for the plaintiff, to Szeto Yuk v. Chu Ming Keung⁽¹⁾. And by Mr. Hoo, who appeared for the defendant to Yeung Yuk Kee v. Kong Tsing Tor⁽²⁾ and Yip Hoi Kwai v. Yau Tor Choi⁽³⁾ and the awards made therein.

50. Mr. Donnelly also referred me to Griffiths v. R. & H. Green and Silley Weir Ltd.⁽⁴⁾ on the question of "functional nervous disturbance" and to Frank v. Cox⁽⁵⁾ cited in Kemp and Kemp at para. 8017 on the question of an illiterate - which the plaintiff is - losing amenities.

51. Both counsel agree that none of the injury cases are precisely on point - they seldom are - but they are a guide. Mr. Donnelly has also urged upon me that damages have risen in recent years both in Hong Kong, which he says lags behind, and in England.

52. Bearing all that which I have said in mind I think a sum of $30,000 to be the appropriate award under this head.

Specials: (including loss of earnings)

53. Certain items are agreed: item (c) hospital fees at $90: (d) travelling expenses at $360 (e) tonic soup at $600 and (f) loss of bicycle at $200.

(a) Loss of earnings.

54. Both as to loss of earnings and as to loss of future earnings there is a paucity of evidence.

55. The plaintiff tells me he earned, preaccident, $70 per day for an average 24, 25 or 26 day month: that wages have risen to $110 to $120 per day but he was somewhat vague as to when that rise took place: they are now about $120-130. He said they rise $20 to $30 per day each year.

56. I do note however one answer in examination-in-chief where he said his eldest son, now a carpenter at a construction site and previously a bricklayer, earns $110 to $120 per day. The plaintiff went on that this was more than he would earn as a bricklayer.

57. Doing the best I can on the evidence before me I would find $70 to be the daily wage for 1977: $90 for 1978, $110 for 1979, and $120 for 1980. I would take 25 days as an average working month.

58. For the year 1977: from March to December inclusive I am satisfied the plaintiff could do no work.

59. The year 1978, as I have already indicated, causes difficulty in that the plaintiff made no attempt to rehabilitate himself. It was Dr. Wedderburn opinion, stated in his February 1978 report, that if the plaintiff attempted to be active both in walking and the use of his left hand he would be able to perform several kinds of work - sedentary work, such as that of a caretaker or cleaner, and he could help his wife in her small vegetable plot.

60. He has in fact done this last, and helped in the house work, for about a year past.

61. He was not malingering but did have a genuine belief in his inability to work. This continued into 1979 when, in April of that year, Dr. Wedderburn found him totally incapable of achieving any form of gainful employment due to his mental attitude.

62. The plaintiff is of course under a duty to mitigate and his mental approach has altered since 1979.

63. I have no evidence before me of the openings for sedentary work for a person in the plaintiffs physical condition. He has construction site connections which may be of some help but it is notorious that, in Hong Kong, a person under a disability does not find it easy to obtain employment.

64. I have no evidence at all as to the wage he might have been expected to get in 1978 or, for that matter, now.

65. Again doing the best I can I think it reasonable to allow full earnings up to April of 1979 based on a 25 day month.

66. This would give a figure of: for 1977 at $70 per day, $1,750 per month x 10 months or $17,500;

for 1978 at $90 per day: $2,250 per month x 12 months or $27,000;

for 1979 at $110 per day or $2,750 per month x 4 months or $11,000.

67. Thereafter, by plucking a figure out of thin air in respect of wages which he could have received for a sedentary job, I arrive at $50 per day - though this figure does have some relationship to experience of other such damage claims. On this basis his loss for the remaining eight months of 1979 would be $110 per day minus $50 or $60 per day or $1,500 per month or $12,000; and for 1980 at $120 per day loss $50 or $70 per day or $1,750 per month for nine months = $15,750.

68. The total of loss of earnings comes to $83,250. This together will the agreed specials gives $84,500.

Loss of future earnings

69. In taking a multiplier of six and a multiplicand of $21,000 per year (i.e. $36,000 per year: - $120 per day x 25 x 12 - less $15,000: $50 per day x 25 x 12) I bear in mind the lump sum factor, the general vicissitudes of life, inflation, the probable age now of the plaintiff as 54, and Mr. Donnelly's submission that multipliers in Hong Kong are far too low. Also the probable difficulties for the plaintiff in getting future employment and the hindrances he will suffer from having to walk from his house to the road, get transport and walk to his job at the other end: such exertions causing him pain.

70. This gives a figure of $126,000 as loss of future earnings.

71. These awards will be less 10% and the final awards are therefore $27,000 for pain and suffering and loss of amenities which will carry interest at the rate of 10% from the date of the service of the writ until today;

72. $113,400 as loss of future earnings upon which there will be no award of interest;

and $75,050 as special damage including loss of earnings which will carry interest at the rate of 5% from the 4th March 1977 - the date of the accident 0 until today. And costs.

73. Costs of the legally aided plaintiff to be taxed under legal aid regulation.

Representation:

Mr. Donnelly (Peter C. Wong) for plaintiff

Mr. Alan Hoo (Gallant Ho & Co.) for defendant

(1) (1979) H.K.L.J. 369

(2) (1977) H.K.L.J. 144

(3) (1979) H.K.L.J. 197

(4) [1948] 81 Lloyds List L.R. 378

(5) [1967] 111 Sol. J. 670