Wu Hang v. Lee Wing Yee and Another
Read the full judgment text of HCA 879/1979 on BabelCite. This High Court CFI judgment.
1. This is a running down case. The defendants contested both liability and quantum.
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HCA000879/1979
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr Commissioner Wei, Q.C. Date of Judgment: 14th October 1980 ----------------- JUDGMENT ----------------- 1. This is a running down case. The defendants contested both liability and quantum. Liability 2. The plaintiff was 55 years old at the time of the accident. He was a skilled demolition worker and most of his work consisted of operating a pneumatic drill. At about 5.15 p.m. on the 9th March 1977 having finished work on a construction site in Hong Kong he was going home to Kowloon. He was crossing Des Voeux Road West near the junction of Water Street from south to north within the limits of an uncontrolled zebra-crossing when he had a collision with a taxi driven by the 2nd defendant in a westerly direction along Des Voeux Road West. 3. In cross-examination the 2nd defendant admitted that the taxi was owned by the 1st defendant, that he was employed by the 1st defendant to drive the taxi, and that at the time of the accident he was driving the taxi in the course of his employment. 4. Apart from these facts, the plaintiff and the 2nd defendant each had a different story to tell as to what happened. The facts as I find them are as follows. 5. There were tram tracks in the middle of the road. The collision occurred within the zebra-crossing when the plaintiff had walked a few steps along the crossing from the tram platform. He was struck by the left front or left corner of the bonnet of the taxi. As a result he suffered a fracture of the right femur (thigh bone). 6. At the time of the impact the taxi was travelling at a fairly fast speed. It did not stop after the impact until it had travelled a further distance of some two tram lengths. That part of Des Voeux Road West was a straight stretch. No other pedestrian nor any other vehicle was using the crossing. The weather was fine and the road surface dry. The 2nd defendant was some two tram lengths away from the plaintiff when he noticed that the plaintiff was standing on a part of the tram platform which was on the crossing, his body facing the tram tracks but his head turned the other way. The 2nd defendant drove on on the assumption that the plaintiff was not going to use the crossing. When he next saw the plaintiff they were only 5 to 10 feet apart. The 2nd defendant began to decelerate but could not avoid the collision. He stated in cross-examination that at the time of the impact he was driving past the plaintiff when the latter suddenly dashed out from the tram platform into the side of his taxi. I reject that statement. I find that the particulars of negligence and breach of statutory duty to accord precedence to a pedestrian within the limits of a zebra-crossing as pleaded in paragraph 4 of the Third Time Amended Statement of Claim proved. Subject to what I am going to say with regard to contributory negligence, the 2nd defendant is liable and the 1st defendant vicariously liable in negligence. Contributory Negligence 7. The plaintiff testified to the effect that before stepping on to the crossing he first looked to the left, and then took a quick look to the right, and that seeing there was no oncoming traffic, he started crossing. In certain previous criminal proceedings against the 2nd defendant over the same accident, the plaintiff's testimony before the learned Magistrate was that he looked to the left and started to cross. It is not disputed that the learned Magistrate's note of proceedings contains no evidence from the plaintiff that he looked to the right. My view of the evidence is that the plaintiff never looked to the right before crossing. Charles worth on negligence, 6th edition, says at page 530:-
It follows therefore that the plaintiff is guilty of contributory negligence in failing to keep a proper lookout. I would apportion the blame as to 80% for the 2nd defendant and 20% for the plaintiff. Quantum 8. The plaintiff has fully recovered. General damages for pain and suffering and loss of amenities have been agreed at the sum of $12,000. Special damages for nourishing food and travelling expenses are also agreed at $300 and $77.40 respectively. 9. On the day of the accident the plaintiff was employed as a demolition worker earning $70 a day. On the average he would work 20 to 23 days a month. He did not go back to work until July 1979 when he was employed to do some light work for about 2 months at $80 per day by the construction company he had been working with on the day of the accident. During that period he could not do heavy work because he still had some trouble with his leg. However, out of the expectation of Dr Wedderburn, he was able to resume his full work demolishing structures and using the same pneumatic drill as he did before the accident and has been so employed ever since. 10. In July 1978 he was thinking of returning to some light work but he was still complaining of some weakness of the leg. Dr Wedderburn considers it is reasonable that he did not return to work until July 1979. I accept that opinion. There were however some small earnings during this period, for he worked sometimes at home packing electrical wire brass fasteners earning about $5 a day. There is no evidence of any definite period of this kind of employment, the only evidence being, "At one time I did some light work at home". During this period, he also worked for some 40 days as a watchman at $40 per day for the same construction company. The period between the date of the accident and July 1979 saw increases in wages for a demolition worker. In April/May 1978 they were increased to $115 to $120. In February 1979, there was a further increase to $135. These figures were given by Mr Lai Wing Kim PW2, sole proprietor of Kin Kee Construction Company, the plaintiff's employer. The plaintiff has been working for that firm for 8 to 10 years, but he also works for other firms from time to time. Although no evidence was called of wage increases of these other firms, no suggestion was made in cross-examination that these figures were not typical for that particular trade. I think the plaintiff is entitled to calculate his loss of earnings on the basis of these figures. Counsel for the plaintiff submitted that the total net loss of earnings is $60,000, arrived at as follows:-
11. Deductions:
12. Counsel for the plaintiff submitted that the sum of $60,000 would be a fair estimate of the net total loss of earnings. I accept that figure. 13. These figures should be reduced by 20% to take account of the plaintiff's contributory negligence. I would therefore award to the plaintiff: (1) $9,600 ($12,000 x 80%) as general damages with interest thereon at the rate of 12% per annum for the period from the 24th April 1979 the date of service of the writ to the date of judgment; (2) $48,300 ($60,377 x 80%) as special damages with interest thereon at 6% per annum from the 9th March 1977 the date of the accident to the date of judgment; and (3) costs of this action. The legally aided plaintiff's own costs will be taxed in accordance with the Legal Aid (Scale of Fees) Regulations.
Representation: R. Barretto (D.L.A.) for plaintiff B. K. Ho (Kenneth K. C. Wong & Co.) for 1st and 2nd defendants |