Lam Loy v. Ng Hak Keung and Another

HCA001216/1980

Coram: Roberts, C. J.

Date of Judgment: 11th December, 1980.

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JUDGMENT

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Introduction

1. This is a claim for damages for personal injuries sustained by the plaintiff as a result of an accident which took place on the 20th December, 1978.

2. At about 10.50 p.m. on the evening of that day, the plaintiff who was working as a tailor with a firm located in the vicinity was making his way home. There had been some rain during the day and both the plaintiff and the first defendant agreed that the road was slippery.

3. The traffic in Un Chau Street, where the accident occurred, was heavy. There was some disagreement as to the lighting. The plaintiff asserted that it was somewhat below the normal standard. The first defendant, the driver of taxi which collided with the plaintiff, said that the lighting was very bright at the spot where the accident took place, by virtue of neon signs hanging outside a restaurant close to the point of collision.

4. Un Chau Street is a three-lane road, oneway in the northerly direction. I do not think that the lighting of such a busy thoroughfare would be below reasonable standards.

Plaintiff's case

5. The plaintiff gave evidence to the effect that he intended to cross Un Chau Street from east to west in order to board a public light bus on the western side of Un Chau Street. He said that this was a place in which it was usual for public light buses to stop and indeed the evidence of the first defendant was to the same effect.

6. According to the plaintiff, he waited in the gutter about one foot from the kerbstone and outside an iron railing which runs along the east pavement of Un Chau Street close to its junction with Pratas Street.

7. According to the plaintiff, he looked to his left and saw nothing, and that there was a tourist bus opposite to him in the middle lane. He says that he took one pace forward, that he again looked to his left and saw a taxi rushing towards him about 30 feet away. While he could not assess its speed since he was not a driver, it was coming fast and shortly afterwards he was hit by the taxi. At the point of impact he was still in the gutter. As a result, he suffered a fracture of his left femur, which put him in hospital for some weeks. There was an agreed medical report.

Defendant's case

8. The first defendant, an experienced taxi driver with a good driving record, gave evidence that he was driving in a northerly direction along Un Chau Street in the outer, or right-hand, of the three lanes. He was driving at about 25 miles an hour in third gear. He had a good view ahead of him because his vehicle had been the first away at the previous traffic lights in Un Chau Street.

9. The first defendant said that he was about 60 to 70 feet away from the plaintiff when he first saw him. At that moment, the plaintiff was about three feet into the road. The plaintiff stepped back one pace, just before the collision, and the taxi hit the plaintiff when he was about two feet out from the kerb. As soon as he saw the plaintiff, he sounded his horn and applied his brakes but was unable to avoid a collision. The middle lane was occupied by public light buses, so that he was therefore not able to swerve to his left, even if he had had time to do so.

Causes of accident

10. Accepting that the plaintiff was 60 to 70 feet away from the defendant when the defendant first saw him, and that the taxi came to rest about 25 feet beyond the point of impact, as may be derived from the sketch plan which was exhibited, there would have been a distance of about 90 feet between his sighting of the plaintiff and the coming to rest of the vehicle. This is consistent, taking into account the wet condition of the road, with a speed of about 25 miles an hour.

11. This is, I have found, an adequately lit broad road with three lanes of traffic all going in one direction. 25 miles an hour seems to me to be a reasonable rate at which to drive along it.

12. I consider that the main cause of this accident was the inattention of the plaintiff. He says that he looked to his left twice. If he looked to his left before he stepped out into the road, he must have done so carelessly, because if he had looked properly he must have seen the taxi approaching him much further away than the 30 feet which he estimated, because all the evidence is that there was nothing between the taxi and the plaintiff to obstruct his view of the vehicle.

13. The alternative is that the plaintiff did not look to his left at all before he stepped out into the road and it seems to me that this is more likely to have been what happened. When he did look, it was too late.

14. I accept the evidence of the defendant that the plaintiff was further into the road than the plaintiff admits. I think that the plaintiff was about three feet into the road before he saw the taxi. If he had only been a foot or so from the kerb as he asserted, he should have been able to step back onto the pavement and avoid any collision with a taxi. This he was not able to do. I think he was not able to do it because he was too far out on the road.

15. The defendant had a good view ahead of him, but says that he did not see the plaintiff until he was 60 to 70 feet away from him.

16. I do not consider that this indicates any lack of care on the part of the taxi driver. It is only when a pedestrian steps out from the pavement into the road that he becomes a matter of immediate concern to an approaching driver. If the plaintiff had merely been standing in the gutter alongside the railing, this would not of itself have been an alarm bell which should have made the defendant act earlier.

17. I find that the taxi driver's version is the more likely one, that he spotted the Plaintiff as soon as the plaintiff began to move towards the centre of the road and that he cannot be criticized for not having seen the plaintiff at an earlier stage.

18. I accept the defendant's evidence that he could not have avoided hitting the plaintiff by swerving into the middle lane because that was already occupied by other vehicles.

19. The defendant asserted that the plaintiff had been looking at a newspaper and comparing it with betting slips which he had held in his other hand as he started to cross the road. I do not accept this evidence. It was never contained in the statement to the police and I consider it either an embellishment or an inaccurate recollection by the defendant.

20. I have therefore come to the conclusion that the main cause of this unfortunate accident was the inattention of the plaintiff as he sought to cross Un Chau Street.

Contributory negligence

21. Can it be said, however, that the defendant contributed to the accident by reason of any negligence on his part. The only respect in which it seems to me he could be said to have been at fault is in his failure to sound his horn.

22. There was a conflict between the plaintiff and the defendant as to this. The defendant insists that he sounded it. The plaintiff says he heard no horn.

23. In trying to assess which evidence I should accept, I have relied to some extent on the statement given by the defendant to the police on the day after the accident. In this statement there was no mention by the defendant of his assertion that he had sounded his horn as soon as he had seen the plaintiff.

24. According to him, he did tell the police this and they must have failed to record it. This seems to me to be unlikely. The sounding of a horn immediately before a collision is clearly a matter of crucial importance. I find it difficult to believe that, if the defendant had so informed the police officer who recorded the statement, it would not have been included therein.

25. I find that there was a failure by the defendant to sound his horn. If he had done so, on the facts as I have found them, there is a possibility that the plaintiff might have been sufficiently alerted to have stepped back to the kerb, again thus avoiding the collision which took place.

26. I assess the degree of liability at 75% in the plaintiff and 25% in the defendant.

Damages

27. All items of special damage have been agreed between the parties, with the exception of loss of earnings.

28. The issue between the parties here is not, save in one very minor respect, as to the amount of wages which were lost, but as to the physical capability of the plaintiff to resume work at an earlier date than that on which he did.

29. The medical evidence is that he was in hospital from the date of the accident for somewhat over two months, that he used crutches for a further three months and limped for yet another three months.

30. The medical report says nothing about the degree of pain which the plaintiff may have suffered. His evidence is that he did not work until September 1979 because it was impossible, as he wasn't feeling well and he was suffering from pain in his left thigh. He could not stand for more than about 15 minutes without a lot of pain in his leg. Had it had been feasible for him to do so, he would certainly have returned to work because his father was unemployed and his family circumstances were poor.

31. I accept the plaintiff's evidence that he did suffer, during this period, from a degree of pain from his legs, such as to make it reasonable for him not to have returned to work before he did.

32. The claim is for loss of wages for 9 2/3 months at $1,600 per month, a total of $15,467. This covers the period from the date of the injury until the 10th October, 1979, when he was certified as being fit to return to work, after the removal of the pin from his hip at the end of September.

33. From this sum there must be deducted the amount which was earned by him as a garment inspector before his return to hospital in September.

34. His evidence was that he earned $1,200 per month at this job, and that he worked for a month before he went back into hospital and for approximately another month or so after he came out of hospital and before he returned to his tailoring job in November. I will deduct $1,200 from the $15,467.

35. General damages will be $12,000.

36. The plaintiff should receive one-quarter of each of these sums, which is $3,978 special and $3,000 general damages.

37. Interest should run on the special damages at 6½% from the date of the accident to judgment.

38. On the general damages, interest will be at 13% from the date of service of the writ to judgment.

39. Costs to the plaintiff. To be taxed in accordance with Legal Aid Regulations.

Representation:

Miss Mary Ho (D.L.A.) for Plaintiff

Daniel Fung (Johnny T.K. Cheng & Co.) for Defendants