Yick Cham Hing v. Ng Sai Chu and Another
Read the full judgment text of HCA 1732/1978 on BabelCite. This High Court CFI judgment.
1. The Plaintiff claims for damages for injuries sufferer as a consequence of being knocked down by a public light bus driven by the 1st Defendant as servant and/or agent of the 2nd Defendant.
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HCA001732/1978
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----------------- Coram: Mr. Commissioner Gittins, Q.C. Date of Judgment: 30th January, 1980 ----------------- JUDGMENT ----------------- 1. The Plaintiff claims for damages for injuries sufferer as a consequence of being knocked down by a public light bus driven by the 1st Defendant as servant and/or agent of the 2nd Defendant. 2. The accident occurred on 12th March 1976 when the Plaintiff was crossing Kwun Tong Road, Kowloon from south to north and the vehicle driven by the 1st Defendant was travelling from east to west. LIABILITY 3. It is common ground:- (a) That the material stretch of Kwun Tong Road is divided by a railing into two parts with 3 lanes on each side for traffic travelling in opposite directions. (b) The Plaintiff was crossing Kwun Tong Road on an uncontrolled stud crossing which traversed the whole of Kwun Tong Road with a gap for the crossing in the dividing railing. (c) The Plaintiff was knocked down in the third lane, i.e. after he had crossed two-thirds of the westbound carriageway. 4. The Plaintiff's evidence was that he was with a group of 20 odd pedestrians waiting to cross; that there were many vehicles on the road; that after all vehicles had stopped he followed the other pedestrians to cross; that there were 14 to 15 persons in front of him, the closest being about 2 feet in front of him, and some pedestrians followed him; that when he reached the third lane he lost consciousness. He did not feel the collision nor did he see the Defendant's vehicle. He recovered consciousness in hospital. 5. Put in evidence was a statement made by the Plaintiff in hospital on 7th April 1976 (26 days later) to a police officer investigating the accident. In the statement he said that he was standing on the pavement ready to cross the road but that he could not remember anything after that. There was no mention of the vehicles being stationery nor of a group of pedestrians crossing with him. 6. The explanation he gave for the omissions in his statement was that at the time he made the statement he was dizzy and suffering pain from his injuries, particularly from his head injury; he claimed to have suffered a fracture of his forehead which caused injury to his brain. 7. His claim of serious head injury is not supported by the medical report dated 5th November 1976 from the united Christian Hospital where the Plaintiff was admitted after the accident. This report stated that on admission on 12th March 1976 he was found to have fractures of his right clavicle, right humerus and right ankle. Dr. Anthony Ng who produced the report stated that the hospital records showed that the Plaintiff was conscious and oriented when he was admitted, that he had retrograde amnesia in that he could not remember what happened at the accident, and that there was no medical evidence of brain damage. 8. Dr. Wedderburn who examined the Plaintiff on 27th September 1977 and 27th November 1979 primarily on the consequential disability of the Plaintiff as a result of his 3 fractures, was of the opinion that the head injury was comparatively slight and unlikely to have affected his memory. But together with the shock of the accident and pain, memory recall may be inaccurate although believed by the patient. 9. On this evidence together with the absence of any other pedestrian being involved in the accident I find that the Plaintiff has not discharged the onus of establishing negligence on the part of the 1st Defendant. 10. But this does not dispose of the issue of liability. The 1st Defendant also gave evidence. He testified that he was familiar with Kwun Tong Road near the vicinity of the accident; that he knew of the railing dividing the road; the existence of the stud crossing; that it was a busy area with many people from Ngau Tau Kok Estate using the stud crossing. He testified that he was travelling in the third lane at about 28 miles per hour with a moving lorry on his left about 4 or 5 feet ahead of him when he saw the Plaintiff cross the front of the goods vehicle about 10 feet from his vehicle; that he immediately applied the emergency brake but nevertheless the left front of his vehicle knocked the Plaintiff down. 11. In AU Cheung v. CHOI Lai-fan and another(1), on the duty of care owed by the driver of a motor vehicle and by a pedestrian with respect to an uncontrolled stud crossing, Roberts C.J. said:-
12. On these statements of the law and on the 1st Defendant's evidence that he knew of the existence of the stud crossing, that it was used by many pedestrians and that he was travelling on the third lane, he should have been aware of the real possibility of a pedestrian on the crossing who had traversed the first and second lanes. He did not ensure that there was no such person, and when the Plaintiff appeared in view, even the reasonable speed he was travelling at was too fast for him to stop in time. 13. Therefore I hold that the 1st Defendant was negligent in the circumstances. 14. As to the Plaintiff, even if the traffic in the first and second lane had stopped when he started crossing, he had a duty to ensure that it was safe for him to start crossing the third lane. This he failed to do. The alternative is that no traffic had stopped but there was a comparative lull and the Plaintiff miscalculated that he could get to the middle of the road safely. The only direct evidence is that of the 1st Defendant and this supports the alternative possibility. In any event I find that the Plaintiff had put himself in jeopardy and must be held to have been contributorily negligent. I hold his contributory negligence to be 50%. QUANTUM Loss of Earnings 15. The Plaintiff was incapacitated from being employed from 12th March 1976 to 11th July 1977. On the evidence of CHAN Yui-kwong representing the Plaintiff's employer at the time of the accident I award him loss of earnings as a casual worker at prevailing rates as follows:-
Pain, suffering and loss of amenities 16. The Plaintiff underwent 6 operations and was in hospital or otherwise undergoing treatment for about 15 months. 17. The fracture of the clavicle has healed satisfactorily with no residual impairment. 18. The fracture of the fibula has been secured by a plate and screws. The plate will require surgical removal if it causes marked irritation. 19. The fracture of the humerus is a severe supracondylar fracture involving the humerus at the elbow joint. He has had 3 operations on it and the treatment has been generally unsuccessful. Dr. Wedderburn reported that its condition on 22nd November 1979 was 5o deficit from 180o straightening and the elbow was able to bend through 60o. The movement of supination was 10o (normal 90o) and pronation 30o (normal 90o). His physical disability is 50% impairment of the right arm making 28% of the whole man and no further improvement can be expected. 20. He is and will be unable to do any work requiring sustained strength and dexterity with no prospect of improvement. 21. The Plaintiff has secured a job as caretaker which is suited to his disability. 22. I award $35,000 under this head. Loss of future earnings 23. As the Plaintiff is earning more in his present job ($1,240 per month) than if he had continued in the job at the time of the accident I make no award under this head. Loss of earning capacity 24. Although the Plaintiff is at present in employment and his immediate superior is well satisfied with him, I find that there is a real risk of this employment being terminated. If that should come about his job opportunities will be much restricted because of his disability. Dr. Wedderburn was of the opinion that he was lucky to get this job and the wage. 25. I award the equivalent of 6 months wages to cover the risk of losing his existing job or of his being unable to obtain another job or an equally good job. The award is $1,240 x 6 = $7,440.
26. 50% = $26,251. 27. There will be interest on the special damages at the rate of 4 1/2% from the date of the accident until payment and on the general damages at the rate of 9% from the service of the writ until payment. 28. The damages awarded together with the interest thereon to be paid to the Director of Legal Aid. 29. The Plaintiff's costs to be taxed in accordance with the Legal Aid Regulations and paid by the Defendant to the Director of Legal Aid.
Representation: Mr. Mohan Bharwaney (Poon & Sum) for Plaintiff Mr. Herman Poon (J.S.M.) for both Defendants (1) Civil Appeal No. 6 of 1978 |