Li Yuen Wah v. Chan Yee Kuk and Another

HCA000635/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 635 OF 1979

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

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

Date of Judgment: 10th November, 1980

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

JUDGMENT

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

1. On the 27th December 1976 the plaintiff was crossing Tai Loong Street (the road) when she was struck by a public light bus which was then being driven by the first defendant and was then owned by the second defendant.

INJURIES

2. The plaintiff, who was then about 19, was rendered unconscious and was taken to Princess Margaret Hospital where she was detained for 13 days. In hospital she vomitted, felt dizzy, could not see clearly, could not stand up and had severe headaches for which was given pain killers by injection. She suffered from concussion and a fracture of the right occipital skull bone.

3. In September 1978 she was examined by Dr Edmund Cheung, F.R.C.S. who carried out an X-ray and electroencephalogram (EEG) examination. He found the EEG showed moderate abnormality in the posterior part of the brain indicating brain damage. As a result of that brain injury the plaintiff suffered from considerable headaches and dizziness in the early weeks after the accident and Dr Cheung estimated she may well have intermittent headaches and giddiness for possibly 10 - 20 years. Although the frequency and severity of these attacks usually decrease with time the plaintiff is intollerant of loud noises, her ability to concentrate is impaired, she suffers from memory difficulties and impaired mental ability and she said she was irritable and impatient. Dr Cheung estimated her permanent disability as 15% made up as follows:

4. In a further report dated the 15th June 1979 Dr Cheung explained in greater detail his findings mentioned in the first report. He said the abnormal EEG suggested "abnormal activity of the brain and possible tendency to epileptic attacks." He again examined the plaintiff on the 25th June 1980 and found that her headaches had improved but she was still forgetful, she was frightened of heavy traffic and the noise of car norns. He confirmed his estimate of permanent disability as 15%. On the 25th September 1980 Dr Cheung again examined the plaintiff. He found her taking non-prescription pills for her occasional headaches. During this examination she told the doctor that about six months before, while riding in a friend's motor car, she was found to be unconscious. She was taken to Queen Elizabeth Hospital but she refused to be detained. Dr Cheung, in his evidence, said that he thought that episode might indicate that she had had an epileptic attack. He said in his last report that there seems to be some basis for her claim of being bad tempered and he referred to her "change of temperament".

THE ACCIDENT

5. The plaintiff was, before the accident, married and had a son a few months old and a young daughter. On the evening of the day of the accident she wanted to cross the road. There were railings on both sides of the road with openings for pedestrians. Before she started to cross the plaintiff looked to see whether there was any approaching traffic. Seeing no vehicle she crossed the road and, she said, just as she was about to step on to the pavement on the other side a vehicle "suddenly arrived". That vehicle was very near and almost right against the kerb. She was hit, fell down and was taken to hospital.

6. The first defendant elected not to give evidence after his various options were explained to him.

7. The first defendant cross-examined the plaintiff. He put to her, inter alia, that at the time of the accident it was raining slightly. The plaintiff denied that. The first defendant then suggested that she suddenly dashed in front of his vehicle which she denied. She repeated that his vehicle was very near the kerb. He put to her that she put her hands against his vehicle and she "slipped" and fell onto the ground. She denied this. The second defendant (who also elected not to give evidence) cross-examined the plaintiff suggesting that it was drizzling and that she had suddenly run out so the driver had no chance to brake in time. The plaintiff denied this. Mr Remedios, for the plaintiff, referred to a Notice under the Hearsay Ordinance and Evidence (Hearsay) Rules dated the 18th April 1980 (no counter-notice having been filed) in respect of the Outline of Facts to which the first defendant presumably agreed when he pleaded guilty to careless driving. These facts state, inter alia, that at the time of the accident, the street lighting was good, the weather fine, the road surface dry and in good repair. It went on:

"Investigation revealed that the injured C/F pedestrian had stood still on the pavement and checked clear the traffic condition before crossing the road in walking paces. But she was knocked down by defendant's vehicle at a sudden. Although the defendant claimed he had noticed the presence of the above injured pedestrian when approaching the accident location, he still carried on moving without paying necessary attention to the pedestrian crossing the road and resulting in the accident. Furthermore, no brake mark was left at the scene after the accident indicating the defendant had (made) no attempt to avoid the accident at that time."

8. By a notice under the Evidence Ordinance and Evidence (Hearsay) Rules dated the 6th September 1980 (no counter-notice having been filed) one of the documents thereunder is a statement to the police by the first defendant in which he stated, inter alia:

"When I reached the spot of the accident, I saw a person standing on the left side of the road at about some 20 feet away from my vehicle. So I continued to drive forward (sic). When my vehicle had come to a spot very near to that person, about 6 feet in distance, that person darted out all of a sudden. I immediately braked but it was too late."

I might add the police officer who drew the sketch at the scene testified he saw no brake marks.

DAMAGES

9. After the plaintiff was released from hospital she and her husband went to live with his parents as the plaintiff could no longer work and their income was thereby reduced. However, she left her in-laws after a month because she should not tolerate the noise emanating from a nearby quarry. Before the accident she was devoted to her daughter but after the accident she could not, on occasions, restrain her temper because the daughter now irritated her. And since the accident she has "beaten up" her daughter which she had never done before. The plaintiff and her husband have been separated for almost two years - she attributed this to her irritability and impatience. Before the accident she and her husband went swimming and to the cinema together. Now she is afraid to swim out to the raft and she is no longer interested in that past-time. She said she usually spent most of her time in her mother's flat (where she lives) because she is afraid of vehicles on the road. She has difficulty remembering things and sometimes forgets to keep appointments with her girl griends. She testified she tried to get another job in a spinning factory but she could not stand the noise which gave her a headache. The spinning of the machines also made her giddy. She left that employment and tried assembling plastic flowers at home but without success as she found the work "too difficult" as there were too many petals and she found it difficult to concentrate. Very recently she got a job at a packing factory at $26 - a day but left after a week because her daughter had meningitis. Prior to the accident she earned an average of $45 a day for a 22 day month. She seemed to me to have some difficulty in assessing her present condition as compared with the weeks and months immediately after the accident but I got the impression she was telling the Court the truth to the best of her ability. She said, in effect, that she has recovered substantially although she does have intermittent attacks of headaches for which she now has to take two pills whereas previously she too only took one. She still complains of "psychological effects" and I have no doubt that the accident has caused a change in her life-style and that her ability to concentrate and her faculties of recollection all have been and remained impaired. Her temperament too has changed and she is now more irritable and impatient. She can't stand loud noises and has a phobia about moving vehicles.

10. The Statement of Claim drawn and signed by Mr D.M. Woolland of the Legal Aid Department and dated the 15th February 1979 originally pleaded that the accident occurred while the plaintiff was crossing the road from south to north. However, at the beginning of the trial, on the 8th October 1980 Mr Remedios for the plaintiff amended the Statement of Claim by pleading the accident occurred while the plaintiff was crossing the road from north to south. The position is further complicated by the outline of facts used before the learned magistrate which refers to the first defendant driving the public light bus in the direction of Wo Yi Hop Road. In the Investigation Report reference is made to the first defendant travelling "along the road leading for Wo Yi Hop Road to Castle Peak Road." In the first defendant's statement to the police he stated, inter alia, that he was travelling along the road "towards" Wo Yi Hop Road and was about to go to Castle Peak. But when one looks at the sketch plan the arrows pointing to Wo Yi Hop Road and Castle Peak Road point in opposite directions. The plaintiff still suffers from "memory difficulties" and I am told that the roads in the vicinity of the accident are "convoluted".

11. Whether the plaintiff was struck by the vehicle driven by the first defendant when she was crossing from north to south or from south to north has not caused me great anxiety in the circumstances of this case. I am satisfied, looking at the evidence as a whole, that the plaintiff attempted to cross the road, after checking whether it was safe to do so, at a position where there was an opening in the railings specifically to enable pedestrians to cross the road at that point to a point on the other side of the road where there was a corresponding opening in the railings.

12. I am satisfied that the first defendant was solely to blame for the accident. I accordingly find for the plaintiff.

13. There is no evidence as to how much the plaintiff's earning capacity would now be were it not for the accident. I am satisfied that in 1976 she was earning about $990 per month. I think it reasonable to assess her present earning capacity had she not been injured at $1,500 per month. From her evidence she has a potential earning capacity of $572 per month ($26 x 22). The loss of earning capacity I therefore find at $928 per month. I think a multiplier of 12 appropriate having regard to her age and station in life.

14. For pain suffering and loss of amenities I award $50,000. For loss of future earnings I award $133,632. Except for $36, the special damages have not been proved and I will not make an award under this head. There will be judgment for the plaintiff in the sum of $183,632 with interest on $50,000 at 12% per annum from the date of service of the Writ.

Representation:

Mr Leo Remedios instructed by Director of Legal Aid for plaintiff

1st defendant, CHAN Yee-kuk, in person

2nd defendant, JIM Fong-tai, in person