Ng Kam Chou v. Chung Yoi Chiu and Antoher

Case No.HCA 968/1978

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA000968/1978

1978, No. 968

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Between
	Ng Kam Chou	Plaintiff
	and
	Chung Yoi Chiu	1st Defendant
	Cheng King Yuen	2nd Defendant

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Coram: Mr Commissioner Hooper in Court

Date of Judgment: 28th March 1980.

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JUDGMENT

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1. This is a running down case in which the plaintiff sues the 1st defendant as driver and the 2nd defendant as owner of a private vehicle registration number AN1331 as a result of a collision outside 635 King's Road when he was knocked down and severely injured. The accident occurred on the 8th of March 1974 at 12.10 p.m. in the early hours of the morning. It is specifically pleaded that the plaintiff was at the material time crossing King's Road from north to south along the stud crossing which is outside number 635 King's Road. The usual particulars of negligence are set out.

2. Save that a collision occurred between the plaintiff and this vehicle, which it is admitted was driven by the 1st defendant as servant or agent of the 2nd defendant on the date and place stated in the pleadings, the defendants in their Defence deny the plaintiff's claim and maintain that the plaintiff suddenly dashed out from the pavement across the road. They allege that the 1st defendant immediately pressed the horn, applied the brakes and swerved the vehicle to the right but could not avoid hitting the plaintiff. There is also the usual allegation that the accident was caused and/or wholly contributed to by the negligence of the plaintiff himself, and the usual particulars of negligence are set out.

Liability

3. Only one witness gave evidence in these proceedings and that was the plaintiff himself. He testified that he had come out of the building on the corner of the junction of King's Road and Healthy Street East and that it was his intention to cross to the other side of King's Road. There was only one place where he could cross the road and this was the stud crossing right at the entrance or exit to the building referred to. That stud crossing is the one on the western side of Healthy Street East. Having come to the junction of Healthy Street East and King's Road he stood at the side of the road by the kerb. He looked to his right in the direction of Central and then moved his eyes in the direction of Shaukiwan. He saw no traffic coming from Central, but he saw a mini-bus far away going in the direction of Central. The "small lights" were on. By this he presumably means the side lights. He saw that it was about to stop. Having found that there was nothing coming from the direction of Central he crossed the road and was then struck by a motor car and lost consciousness. It is common ground that that car was the 2nd defendant's car which was proceeding in an easterly direction. The plaintiff also testified that no street lights were on at the time because it was a save fuel period and furthermore that no traffic lights had been erected at this location. Under cross-examination, after it had been established that he lived in Western District, and that he would sometimes take a mini-bus home when the trams were no longer running it was suggested to him that he was in a hurry to catch the mini-bus on the other side of the road. This he denied saying "I did not have to do it". When it was suggested to him that he was interested in the mini-bus because it was heading towards Central he replied "I did not have that in my mind". It was further suggested that he did not, in fact, use the stud crossing but he replied "That was the only place I could cross the road". It was also suggested to him that he simply dashed across the road to which he replied "Even if I did, that would not be the position. It would be along the crossing." Finally when amongst other things it was put to him that it was because he dashed into the road all of a sudden that the accident occurred he replied "That should not be so".

4. The effect of his answers therefore was that he did not have to hurry to catch the mini-bus, he did not have it in mind that the mini-bus was heading towards Central, he did use the stud crossing because it was the only place he could cross the road, even if he did dash across the road it would be on the crossing and that should not be the case in any event.

5. It is surprising that it should have been put to the plaintiff that he did not use the stud crossing, because that is the place where the plaintiff has pleaded that the accident occurred and the defendants in their amended Defence have admitted that the accident took place on the date and place stated therein. Furthermore the sketch Exhibit P1 which was put in by agreement is not inconsistent with that contention and is indicative of the fact that the plaintiff was carried some distance before falling to the ground at position 'X' and the car came to a stop at the position shown on the other side of the junction. In any event no witness was called for the defence and there is no evidence to contradict the plaintiff's assertion. There is no evidence from the defence to establish that the plaintiff did dash out across the road, but on the contrary there is the evidence of the plaintiff that that should not have been the case which certainly does not amount to an admission. There is thus no evidence to establish that the plaintiff did dash across the road. I find as a fact that the plaintiff did cross the road at the pedestrian stud crossing on the western side of Healthy Street East and in the absence of evidence to the contrary I find that he did not dash across the road as alleged by the Defence.

6. I have reached the conclusion that both parties were negligent and their negligence was a direct cause of the accident. I do, however, find that the negligence of the plaintiff was minor compared with that of the defendant.

7. The effect of stud crossings has been dealt with by this Court on a number of occasions. The leading authority is the judgment of the Learned Chief Justice in Civil Appeal No. 6 of 1978 in which he said -

"In my opinion, the significance of the presence of a studded area is that it amounts to an invitation to pedestrians to cross there, with due regard to the dangers of motor traffic. It is also a warning to motorists that pedestrians are much more likely to be found in that area than they would on unmarked parts of the road, so that a higher degree of care is required from them when approaching such areas."

8. He then went on to quote from the judgment in Ngai Yuk-kwong v. Cham Kam Civil Appeal No. 4 of 1977 and went on to say -

"Nor do I read the second passage as suggesting that the burden of care on the pedestrian and on the motorist is the same. The motorist controls a lethal weapon, the pedestrian does not."

9. The plaintiff in this case was undoubtedly negligent in that he did not at any stage notice the defendant's vehicle on the road. Had he been paying proper attention he must have seen this vehicle, especially at night time if the lights were on. The defendant on the other hand was obviously negligent in that he failed to see the pedestrian on the stud crossing. The evidence was that there were no street lights as it was a save fuel period, which means that the defendant should have been driving with his headlamps full on. That being the case he should have been aware of the stud crossing and he should have approached it with considerable care. Furthermore, since the plaintiff must have crossed at least two-thirds of the east-bound carriageway before being struck, the defendant could not have been paying attention at all, for otherwise one cannot see how he could have failed to have seen the pedestrian. Furthermore, there were no skid marks to indicate that the defendant took any emergency measures to avoid the accident.

10. I hold that the plaintiff was 20% to blame and the defendant was 80% to blame.

Quantum

Special Damages

11. These have been agreed at $12,850.

General Damages

12. The report of Dr R. G. M. Wedderburn (Exh. P2) was admitted in the Court as an agreed exhibit. It reveals that after the accident on the 8th of March 1974 the plaintiff had concussion and was at first treated in the General Surgical Unit at the Queen Mary Hospital and subsequently transferred to the Orthopaedic Unit on the 10th of March 1974. He only has one symptom, post-concussional in nature, which is vertigo or dizziness. He was off work for two years (this has been amended by agreement between the parties to one year) and started to work in the Urban Council library but he resigned from this because of attacks of vertigo, but 18 months ago he joined Tai Chong Motors as a clerk in the accounts department. He has only been off work on five different days in the last 18 months because of the vertigo although he sometimes gets it at work but he says the Company Doctor gives him medicine which gives him relief rapidly. The attacks of vertigo are becoming less frequent and less severe and are likely to disappear completely or only occur once or twice a year in the future. There have been no episodes suggestive of post-traumatic Epilepsy.

13. The report goes on -

"	He suffered a number of severe injuries; a dislocation of the right shoulder, a double fracture of the pelvis, a compound fracture of the right Tibia and Fibula (bones of the lower leg) and a fracture of the left Tibia. The dislocation of the shoulder was reduced, the fractures of the pelvis treated by the bed rest which was necessary because both legs were enclosed in plaster casts from mid-thigh downwards. The plaster casts were maintained for a number of months although the report from Dr Wong of the Queen Mary Hospital says that he was transferred to the Rehabilitation Centre at Kun Tong in May, 1974. ...... he then said that he was in Kun Tong Rehabilitation Centre for a period of two months. He was re-admitted for Physiotherapy and exercises three times.
	After discharge he continued using two sticks for two months and one stick for a further month and reported to the Sai Ying Pun Clinic three times a week for Physiotherapy for an unspecified period. I think it is reasonable that this man was off work for two years."

In fact, the plaintiff was off work for only one year so that it would appear that the time that he was off work was more than reasonable.

14. The report continues -

"	On examination he has full movement of the right shoulder but he cannot fully straighten the arm at the elbow, the loss being 5^o, and he cannot bend it through 150^o. There is a 15^o deficit of flexion of the arm at the elbow as compared to the left arm and he also has lost 10^o of the movement of Supination i.e. the movement in which the hand is turned to expose the palm to the front. The opposite movement, Pronation, with which the hand is turned so that the back of the hand faces forwards, is normal.
	X-Ray of the shoulder is normal but X-Ray of the elbow shows that there was probably a small chip fracture of the Ulna (bone of the forearm on the 5th finger side) at the edge of the Ulna where it forms the socket of the elbow joint. This fracture was overlooked and obviously overshadowed by his other many more serious injuries and if it had been diagnosed and immobilised in a plaster cast the end result would probably have been the same. I do not think that the Hospital authorities can be blamed in any way for missing this minor fracture; the man probably never complained of any pain in the elbow as any elbow pain would be completely overshadowed by pain from the legs and pelvis.
	The leg lengths are equal, but from studying the X-Rays I think he probably has a mild degree of shortening of both legs, probably about 3/8ths of an inch.
	All movements of the hips, knees and ankles, are normal. The muscles of the thighs and calves have recovered well.
	He fractured the right Tibia and Fibula at mid-shaft; the fractures are soundly united and the lower fragment of the Tibia is displaced backwards by 1/2in., but otherwise alignment is excellent and there is no angulation of the fragments on each other. He also fractured the left Tibia at mid-shaft. The fracture was oblique and is well united and overall alignment is excellent.
	He has some pain on severe pressure of the examiner's hands on the pelvic region. X-Ray shows that he suffered a fracture of the wing or Ilium of the pelvis on the right and the Inferior Ramus of the Pubis. The bone between the Pubis and the Ilium contains the Acetabulum, or socket of the hip joint, and the whole hip region is slightly pushed inwards so that the right side of the Pelvis is mildly distorted, but the alteration of the position of the hip joint is very slight and the whole joint has moved in as a unit; the fractures did not involve the hip joint itself. There was reported a fracture of the Inferior Ramus on the left but this is so well united that the fracture line cannot now be seen."

15. Dr Wedderburn finally concludes his report with the following paragraph -

"I consider that he did quite well to go back to work two years after the accident; (since he went back to work one year after the accident it may be considered that he did extremely well) he was certainly not fit for strenuous activity at that time and he is fortunate that he now suffers no real Impairment from the fractures of both legs. He does have a very slight Impairment of ½% because of the fracture of the Pelvis with a mild displacement but there are no residual symptoms and he suffers a 4% Impairment of the right arm from loss of elbow joint movement which is a 2% Impairment of the Whole Man. However, as he is a clerk and does not require strength, the Impairment of the right arm does not affect his earning capacity. If he has any permanent Impairment it is not more than 2% and he is fortunate to have recovered so well considering the multiplicity and severity of his injuries. He can walk for up to half an hour, manage six flights of steps, run slowly, and he has resumed going swimming which was his main pre-accident recreational sport."

Loss of Future Earnings

16. Although Mr Pirie has asked the Court to award damages for this I do not think that it is appropriate to do so. There is no difference between his pre-accident employment earnings and his post-accident employment earnings despite the fact that he has been off work on five different days during the last 18 months because of the vertigo and dizziness. The evidence of Dr Wedderburn as contained in his report indicates that these attacks of vertigo are becoming less frequent and less severe and are likely to disappear completely or only occur once or twice a year in the future. The chances of his losing earnings as a result of them are therefore extremely slim and I do not think I should take them into consideration. I will award nothing under this head.

Pain, Suffering and Loss of Amenities

17. The plaintiff is obviously entitled to a substantial award under this head. I consider also that the dizziness or vertigo which he has suffered and is likely to suffer in the future is a matter which can be properly assessed under this head.

18. I have been referred to three cases -

	(1)	Chow Yu v. Yuen Lam Hin and Another (Action No. 3358 of 1978),
	(2)	Chung Tai Hai alias Chung Yin v. Lau Kai Sun and Another (Action No. 3267 of 1978),
	(3)	Li Sai Hung v. Tsui Kwong Wai (Action No. 2059 of 1979).

In the first case damages for pain suffering and loss of amenities were assessed at $45,000, in the second at $30,000 and in the third $45,000. The injuries in the first case were less severe and the pain and suffering would have been less but the residual injuries were worse. In the second case there would be a shorter period of hospitalization but some residual disability. The pain and suffering, however, would have been less than in the present case. In the third case there were no injuries to the hips but again the residual injuries would have been more severe and would have affected him more as he was a farmer.

19. Taking all things into consideration as set out in the report of Dr Wedderburn and also the evidence of the plaintiff himself to the effect that his main discomfort lies now with his head in that he suffers from dizziness I assess and award damages at $40,000 under this head.

20. There will, therefore, be judgment for the plaintiff in the sum of $12,850 Special Damages and $40,000 General Damages less 20% to reflect the contributory negligence of the plaintiff himself.

Interest

21. As I was not addressed on this matter I will now hear counsel.

	(N. B. Hooper)
	Commissioner of the High Court

Representation:

Mr Nicholas Pirie instructed by Hoosen & Co. for the plaintiff

Mr Freddie Lee instructed by W. S. Lo & Co. for the defendants