Lam Chung Chak v. Chan Wing Yin

HCA000617/1980

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Coram: Zimmern, J.

Date of Judgment: 15th July, 1980

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JUDGMENT

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1. The plaintiff in this case was a passenger on a public light bus registration No. AV 6388 driven by the defendant on the 27th of May, 1978 when the public light bus collided with a vehicle coming from the opposite direction of Castle Peak Road. The plaintiff claims that by reason of that collision he suffered injury, loss and damage. The defendant by his defence, denies negligence, and avers that at material time, he was driving the public light bus towards Yuen Long when at the 14 mile stone, the said vehicle suddenly went out of control due to a punctured tyre

2. The plaintiff said in his evidence that he was on the bus not paying attention to anything when the suddenly heard a bang, lost consciousness and woke up in a hospital. The defendant who gave evidence said that he was driving at about 30 m.p.h. when an oncoming car crossed the double white line and rammed his car, by reason whereof the public light bus went out of control.

3. The defence pleaded and the evidence of the defendant in the witness box are completely inconsistent as is the statement made by the defendant to the police within a few hours after the accident. The statement reads:-

"I was then driving public light bus AV6388 with 12 to 13 passengers along Castle Peak Road heading for Yuen Long from Kowloon. When I had just passed the sulphate factory at the tip of Castle Peak at 14 milestone Castle Peak Road, I was driving with the fourth gear at an approximate speed of 25 m.p.h. While I was negotiating a slight nearside corner, my vehicle suddenly swerved to the offside lane. I reverted to the third gear in view of this and stepped on the foot brakes. Just when I had reverted to the third gear, the offside front part of my vehicle rammed into the offside front corner of a private car approaching in the opposite lane. Then my vehicle returned to the nearside on its own. As it went to the nearside, it fell off to the seaside on my nearside and sideturned."

He was then asked:

4. The vehicle was inspected by the Motor Investigation Bureau and in its report it stated that

"Offside rear tyre nozzle damaged by accident and deflation resulted."

The defendant admitted in the witness-box that the statement made to the police was true. If that was true then the defence filed in this case was in my view a complete sham. Be that as it may the statement of defence on its own does not show a defence. It is settled that in a running down action if there is a defect in the vehicle by reason of which defect an accident occurs then it is open to the court to infer that there was negligence on the part of the driver or the owner of that vehicle. It is then up to the party to explain adequately away that defect (Barkway v. South Wales Transport)⁽¹⁾. In this case there was no explanation whatsoever.

5. In my view there is no doubt that the collision was caused by the negligence of the defendant who is liable for the loss and injury sustained by the plaintiff.

6. The plaintiff was taken to hospital where he was found to have suffered a ruptured right eyeball, multiple lacerations over the right face and upper lip, fracture of there different bones of the upper face from the cheek bones down to the nasal bone. Fortunately, after two operations the fractures healed and there are no permanent disabilities save that, according to the plaintiff, he gets pain at the back of his neck when he turns his head. He had to undergo two operations and he was in hospital for a week in respect of these operations. The ruptured eyeball a different proposition altogether. He lost his vision completely although he was operated on and after a month when pain set in the whole eyeball had to be removed and he has now a glass eye.

7. He is a man presently 62 years of age. He was a prolific reader. He enjoyed T.V. He works as a dispenser in a maternity home. He cannot now enjoy his reading to the extent that he used to in that he tires easily. He finds watching T.V. difficult and as expected of anyone losing the sight of one eye he has lost his judgment of distances and has considerable difficulties in, for instance, going down staircases.

8. There are six heads of special damage claimed and the parties are agreed on five of them in the sum of $7,527.00 leaving one item namely item (e) being nutriment expenses at $2,000. Although it is quite customary to make some award towards this the evidence in this case is quite too nebulous in that it is said to consist of herbs and chickens. No evidence was given as to why herbs were required and the purpose therefor and there was not the slightest evidence, for instance, that chickens were required by reason of the operations. In my view and so I hold that there was insufficient evidence to support this item.

9. As to general damage three cases were cited to me of $50,000, $55,000 and $60,000. The proper award in this case for pain, suffering and loss of amenities including $2,000 which would be required to replace the present glass eye which is now loose by reason of shrinkage of the skin surrounding the eye is $70,000. There will be judgment for the plaintiff in the sum of $77,527 comprising general damages at $70,000 and agreed special damages at $7,527 with interests on $70,000 from the date of service of the writ at 12% per annum and on the sum of $7,527 from the date of the accident at 6% per annum with costs to be taxed in accordance with Legal Aid Regulation.

Representation:

Mohan Bharwaney (Ho & Ng) for the plaintiff

S.M. Chan (W.S. Lo & Co.) for the defendant

(1) [1950] 1 A.E.R. 392