Lam Tin-chor v. Yung Wai-sun and Another

HCA002528/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 2528 OF 1978

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Coram: Mr. Commissioner Litton, Q.C.

Date of Judgment: 11th January, 1980

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JUDGMENT

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1. The plaintiff LAM Tin-chor claims damages against the defendants for injuries caused on 22nd October, 1976, when the plaintiff was knocked down by a public light bus (PLB) near the 23 milestone at Castle Peak Road, New Territories. The PLB, registration number AZ 924, was owned by the 2nd defendant and driven by the 1st defendant. The accident occurred at dusk, at about 6:25 p.m., on a straight stretch of road.

2. The plaintiff's case on the pleadings was, quite simply, that he was riding his bicycle along the nearside lane of Castle Peak Road, in the direction of Yuen Long, when he was knocked down from behind by the defendant's vehicle. The defence filed on the defendants' behalf puts this in issue. The case for the defendants is that the plaintiff emerged on his bicycle suddenly at speed from a side-road, Shek Po Road, into Castle Peak Road right in front of the 1st defendant's PLB. It is clear from the pleadings and it must, therefore, have been apparent to the parties right from the start that there was a sharp conflict between them as to the direction in which the plaintiff was going when the accident occurred. The plaintiff says he was bicycling along Castle Peak Road. The defendants say no, he was coming from Shek Po Road into Castle Peak Road when he was hit.

3. Now the answers to the questions: where precisely had the plaintiff come from and where was he going to at the time of the accident, lie peculiarly within the knowledge of the plaintiff. If the plaintiff was telling the truth, it would have been a simple matter for him to have answered those questions in the witness-box. However, in examination-in-chief, he gave a series of garbled and almost unintelligible answers in reply. He said at first that he was riding his bicycle intending to go to Tin Sun Village. When he was asked by his counsel, Mr. Yam, where from, he answered that he had come from Tin Sun Village and was intending to go to Hung Sui Kiu. At any rate, he was, he said, bicycling along Castle Peak Road when he was hit.

4. Later in cross-examination, the plaintiff said that he was going to Tin Kwai Village in search of a job when the accident occurred. Now this last answer that he was going to Tin Kwai Village would appear to approximate to the truth, for Tin Kwai Village lies immediately to the south of Castle Peak Road opposite the Hung Sui Kiu market and, what is more to the point, opposite the junction of Shek Po Road and Castle Peak Road. This last piece of evidence I view as significant for this reason. The plaintiff is an uneducated and sophisticated man brought up in a rural environment in Fukien. The fabrication of a story to relate in court probably does not come easily to the plaintiff and when taxed in cross-examination on his destination on the day of the accident, he let slip an answer he was at pains to conceal in his evidence in chief.

5. In deciding the question where was the plaintiff going when the accident happened, I bear in mind also the statement made by the plaintiff to Sergeant 10717 about two and half weeks after the accident. The plaintiff was then in hospital undergoing skull traction. He was probably in considerable pain at the time. The plaintiff's native dialect is Fukienese. Sergeant 10717 who took the statement spoke no Fukienese. Considering these matters, counsel for the plaintiff invites me to place no weight on the statement, exhibit H. The reason is obvious. The statement, if it could be shown to have been made by the plaintiff, entirely destroys the plaintiff's case as developed in court and supports the 1st defendant's version of the accident. In exhibit H, the plaintiff is recorded as saying that he was "coming out from Shek Po Road and preparing to cross the road" - meaning Castle Peak Road - "to Tan Kwai Village on the other side" when the accident happened.

6. The plaintiff in his evidence identified his own signatures in two places on exhibit H but denied he ever spoke to the policeman. The plaintiff said that the policeman spoke to him in Cantonese but he made no reply at all, since he understood no word of Cantonese. The policeman was writing things down on a piece of paper and asked him to sign. The patient in the next bed then spoke to him in Mandarin, which he understood, and said he must sign, so he did. The plaintiff repeated his evidence that he uttered not one word during the interview but later in cross-examination admitted one sentence in exhibit H was his own, namely, that when he first noticed the PLB, it was four to five car-lengths away. I pause here to note that this last sentence, admittedly his, is quite inconsistent with the plaintiff's evidence in the witness-box that he did not notice the PLB before he was knocked to the ground.

7. In my judgment, exhibit H, though in the sergeant's handwriting, is the plaintiff's statement. The sergeant speaks Mandarin. The plaintiff on his own admission speaks "broken Mandarin"; not surprisingly, since he spent the first twenty-three years of his life in China. I think I can take judicial notice of the fact that most people in China brought up after 1949 would speak at least some Mandarin. The sergeant has no recollection of the occasion when he took the plaintiff's statement. I would have been most surprised if he did, since the event occurred more than three years ago and he must have attended hundreds of other injured persons in hospital and taken their statements in the meantime.

8. In my judgment, the probabilities are that the sergeant and the plaintiff conversed in Mandarin and exhibit H is the result. It is a perfectly coherent statement. It says what happened immediately before the accident. It is in a sense exculpatory in that it suggests that the PLB was going far too fast, about 40 miles per hour. I see no reason why I should not place reliance on exhibit H as an extra judicial statement against the interest of the maker. It has the effect of casting serious doubt on the veracity of the plaintiff's testimony in this court.

9. The plaintiff's evidence in the witness-box as to what happened when the accident occurred is not easy to follow. He said he was pedalling his bicycle along the "bicycle path". When approaching the junction of Shek Po Road, he had to pull out because of the lorries parked on the side of Castle Peak Road. They were at right angles to the road. He said in-chief that he first swung a little to his right, then he "pulled further to the middle of the road" because the third lorry's bonnet protruded rather more than the first two that he had just passed. He said that he turned his head round but saw nothing coming from behind and he was struck by a PLB, dragged for some distance, his body rolling over several times, and he then lost consciousness.

10. When the plaintiff was cross-examined as to what he meant by "pulling into the middle of the road", he said he swung out about one or two feet away from the lorries. Since the lorries were in the position more or less as shown in photograph 3, the plaintiff's suggestion that he was hit close to the nearside edge of the road becomes quite inconsistent with the matters disclosed on the sketch plan, exhibit 2. Exhibit 2, drawn by Sergeant 10717 on the day of the accident (he was then a P.C.), shows the bicycle lying on the crown of the road between the two carriageways about 3.3 meters from the bollard standing on the central kerb. The bicycle was nowhere near the point where the plaintiff says he was hit nor in line with the direction of travel of either the PLB or the plaintiff's bicycle, if the plaintiff's version of the accident were true. I reject the plaintiff's version of the accident.

11. Mr. Yam submits that if I disbelieved the plaintiff's testimony, on the defendants' own case there are sufficient facts to establish negligence on the part of the 1st defendant. I turn now to examine those facts. The defendant said in evidence that on the evening in question he was making a run in his PLB from Kowloon to Yuen Long, travelling along Castle Peak Road. He was on the outside lane, going at about 25 to 28 miles per hour. As he approached the junction of Shek Po Road and Castle Peak Road, he saw a large lorry parked along the edge of Castle Peak Road, close to the mouth of Shek Po Road, unloading groceries. Suddenly a bicycle emerged from Shek Po Road. It was only ten feet away. He swerved to his right, sounded his horn, took his foot off the accelerator and applied his foot brake. Unfortunately the nearside front of the PLB collided with the rear of the bicycle when the bicycle had almost reached the safety island. The 1st defendant said that he was by that time on the opposite carriageway and to avoid causing a hazard there by stopping the PLB, he drove on across the two lanes of Kowloon-bound traffic to the layby across the road.

12. The 1st defendant impressed me on the whole as a truthful witness, though, I have no doubt, he exaggerated when he said he sounded his horn. With the sudden eruption of the emergency, there was no time for him to sound his horn. Further, I have doubts as to whether the bicycle was as close to the PLB as ten feet when it first emerged from behind the parked lorry. If it was that close, the 1st defendant probably had no time to take any kind of evasive action. Going at 28 miles per hour, a vehicle covers 40 feet in one second. To have avoided hitting the plaintiff squarely with the front of the PLB, the distance between the two, when the driver first reacted to the emergency, must have been considerably greater than ten feet.

13. Another point is clear: the 1st defendant must have swerved very sharply to his right. The point where the bicycle rested on the road after the collision was only 3.3 meters from the bollard. The PLB must have gone through that gap, since it was the front nearside of the PLB which collided with the rear wheel of the bicycle. There is no suggestion that the PLB had run over the bicycle.

14. In cross-examination, the 1st defendant said he was sure of his speed because he had looked at his speedometer just before the collision occurred. He did so because he was very familiar with the area and "knew it as an accident black spot".

15. The point, and I should add the only point, which exercised my mind is whether, as Mr. Yam for the plaintiff submits, the 1st defendant was in the circumstances driving too fast. The question what is a safe speed cannot be answered in the abstract. The driver said in evidence that he could say in all conscience that he was driving at 25 to 28 miles per hour. I accept that piece of evidence, but that is not conclusive on the issue.

16. The driver knew, as he approached the junction of Shek Po Road on the day in question, that he was coming to an accident black spot. It was dusk. There were many street stalls lining the side of Castle Peak Road at a point shown in exhibit P2 as Hung Sui Kiu market. These are also seen in the photographs which, although taken in January 1978, show the street stalls in similar condition on the day of the accident. The area must have been full of people shopping after work. This was in a rural part of the New Territories where people tended not to have much road-sense and traffic discipline. On the driver's own admission, people regularly went across Castle Peak Road at that spot to gotto Tan Kwai Village and Tin Hou Road on the other side.

17. Furthermore, the driver knew or should have known that the view down Castle Peak Road for persons emerging from Shek Po Road was obstructed by the lorry parked close by. The pleading in paragraph 5B of the defence is a reflection of this fact. The possibility of something emerging unexpectedly from behind the parked lorry must have been apparent to the 1st defendant. In cross-examination, he said he was preparing to slow down just before the accident, the reason being that there were vehicles travelling on the inside lane. This was an explanation I found difficulty in following, since the inside lane was wholly blocked by the parked lorry and possibly by other lorries as well. The 1st defendant mentioned in his evidence other lorries at a construction site close by. The truth of the matter is that the 1st defendant was approaching an accident black spot. Any reasonably prudent driver would have slowed down to give himself more scope for evasive action, should someone heedlessly emerge into the path of the oncoming vehicle.

18. In my judgment, given the circumstances at the time, the 1st defendant's speed of 25 to 28 miles per hour was excessive. Had there been a little more time for the plaintiff on his bicycle or the 1st defendant at the wheel of his PLB to react, the accident would probably have been averted. The 1st defendant said in evidence that if the bicycle had been going a little slower, he would probably have avoided hitting it. By that he must have meant that he could have probably swerved to his right and cleared the bicycle to his left. By the same token, if the 1st defendant had been going more slowly, the collision might have been avoided. The 1st defendant's reaction time would not have been so compressed. He could have slowed his vehicle down sufficiently then to have enabled the plaintiff successfully to have crossed his path.

19. The court must obviously be mindful that the duty of care it requires of drivers should not be so high as to make them virtual insurers of the safety of pedestrians and cyclists. On the other hand, considering the potential for harm which a driver has at the wheel of a motor vehicle, the courts rightly require of him a high standard of care. In my judgment, the 1st defendant in not slowing down as he approached the junction of Shek Po Road was in breach of his duty of care and I so find. However, in my judgment, by far the greater degree of blame for the accident must rest on the plaintiff. A fair apportionment of blame in my judgment in this case would be 30 per cent on the driver and 70 per cent on the plaintiff.

20. I now consider the quantum of damages; firstly, under the heading of "pain, suffering and loss of amenities". The plaintiff is now 28 years of age. He came to Hong Kong from his native village in Fukien Province in September 1975, that is, about a year before the accident. He had received education up to Primary 5 level only in China. Prior to the accident, he had a variety of labouring jobs. One of those jobs yielded him about $1,300 to $1,400 a month but he was unable to say in evidence how long he stayed at that job. Doing the best I can on the rather sketchy evidence, I find that the amount pleaded in the statement of claim of $1,000 per month by way of pre-accident earnings is probably a little too high and I find that $900 per month would be about appropriate. No evidence was led as to whether the plaintiff had any hobbies or any leisure interest which have been affected by the accident. Presumably, therefore, there was none.

21. The plaintiff suffered the following injuries as a result of the accident:

There were probably other abrasions and lacerations but he gave no evidence as to that, and there was no evidence led as to the precise nature of his injuries when he was admitted to hospital. He was mildly concussed but no medical evidence was led as to that, and there is no suggestion that he had suffered any head injuries which I ought to consider when assessing the question of quantum of damages.

22. The plaintiff was hospitalized from the 22nd of October, 1976, to the 30th of December, 1976, when he underwent skull traction for his spinal injury. This involved immobilization of his neck by means of a device held in place by small screws inserted into his skull. It was probably a most unpleasant and rather painful experience.

23. The fractures in his pelvis required no treatment other than bedrest but unfortunately the fractured left ramus has not healed perfectly and it is now somewhat displaced by reference to the right ramus, leaving the plaintiff with a tilted hip. This tilting makes his left leg appear to be half an inch shorter than his right, but it has not noticeably affected his gait. As to the injury to the sacro-iliac joint, this has healed.

24. X-rays of the plaintiff's neck bone taken in January 1978 shows that the disc space between cervical vertebrae 2 and 3 - I will refer to this as C2 and C3 - was rather compressed. This and the damage to the ligaments in his neck, according to the medical evidence, is liable to cause the plaintiff continuing pain. However, the X-rays taken in January 1978 also suggest that a bony ridge was forming between C2 and C3 and if that process continued, it was likely eventually to lead to a fusion of C2 and C3, thus stabilizing the site of the old facture. Dr. Horsfall, when he examined the plaintiff in November 1979, thought it likely that this had happened.

25. As to the question of residual disability, it is common ground that there has been some functional impairment arising from the accident. The facts speak for themselves. The muscles and ligaments around the sites of the fractures must have been torn. The fractures have not healed perfectly, as shown in the X-rays. The plaintiff complains even now of continuing headaches, pain in the side of his abdomen, and complains of occasional nausea; complaints which Dr. Horsfall thinks are grossly exaggerated.

26. In my judgment, the plaintiff is not a man of robust temperament and, to some extent, he probably experiences more discomfort and pain as a result of his injuries than a more determined person. However, the tortfeasors must take the victim as they find him, and as there is no basis for suggesting that the plaintiff is deceiving the court as to his pain, I must weigh these matters in the scales in his favour. Exercising the best judgment I can under this head of damages, I award the sum of $30,000.

27. I turn now to the head of "loss of earning capacity". The plaintiff is a labourer and is likely to remain one for the rest of his life. The medical evidence is that as a result of the accident the plaintiff will nt not be able to take on the heaviest kind of labouring work. It is clear, however, that he can continue to do labouring work, for his present job requires him to lift weights up to 30 - 40 catties.

28. I agree with Mr. Yam's submission on behalf of the plaintiff that an assessment of the kind made by Dr. Horsfall - 6 per cent functional impairment of the whole man - is a rather unrealistic way of weighing the question of loss of earning capacity. The fact is that, by his injuries, the plaintiff is now likely to suffer a permanent handicap in the labour market by his inability to lift really heavy weights and to undergo extremely onerous physical exertions. I bear in mind the fact that there is no evidence that the plaintiff has, in fact, ever undertaken work of a really heavy nature.

29. If one is to reduce the matter to percentage terms, such a handicap, in my judgment, is more fairly expressed as about 10 per cent loss of his total earning capacity than "6 per cent functional impairment of the whole man". Taking an average wage of $900 per month at the time of the accident and a multiplier of 15, the formula is as follows:

30. 90 (10% of 900) x 12 x 15 yields $16,200

This would seem to me to be about right and rounding it off to a sum of $16,000, I award the sum of $16,000 under this head.

31. As to special damages, items (1) to (6) of the statement of claim have not been seriously contested. As to those items, I award the sum of $812.

32. As to the loss of earnings, in my judgment, the plaintiff was probably capable of resuming work by June 1977. He did, in fact, resume work in that month but left Hong Kong shortly thereafter to return to his native village in China. He was extremely vague in his evidence in-chief as to the time when he was away in China and, more to the point, suggested that he went to China because he was unable to make a decent living in Hong Kong. This was probably untrue, as it emerged in cross-examination, because in fact he went back to China to get married. In my judgment, the claim for special damages based on his loss of earnings must be limited to the period 22nd of October, 1976 to the end of June 1977; that is to say, a period of eight months.

33. I take a figure of $900 per month, which I have mentioned earlier, as his average pre-accident earnings and multiplying by 8, this yields the sum of $7,200. From this, however, must be deducted the earnings which the plaintiff had actually made during that period. The evidence in this regard was wholly unsatisfactory. The plaintiff at one stage appeared to have accepted that he was employed at a pig farm and then he retracted his evidence as to that. But, in my judgment, he did in fact have earnings during the period and exercising the best judgment I can, the sum which I ought to deduct from the award of special damages is $1,000 which reduces, therefore, the loss of earnings to $6,200.

34. In summary, the position is, therefore, as follows:

Taking into account the contributory negligence as I have found, there will, therefore, be judgment as follows:

35. I have now to deal with the question of costs in this case. The effect of my judgment is that in respect of the cause of action pleaded in the statement of claim the plaintiff is awarded a sum totalling $15,903.60. In accordance with provisions of Section 48 subsection (4) of the Supreme Court Ordinance, I also awarded interest in respect of the damages recovered. After I delivered my judgment, I was informed by counsel that on the 20th of August, 1979, the solicitors for the defendants paid into Court $17,500.00 in full satisfaction of the cause of action in respect of which the plaintiff claims in this action. The sum awarded by way of damages, therefore, fell short of the sum in Court. It was submitted by Mr. Yam for the plaintiff that, taking into account the interest on the sum which the plaintiff obtained in this case, the total sum would exceed the amount of money paid into Court and the plaintiff should therefore be awarded costs of the action. Mr. Stone for the defendants argued that as the award in respect of the plaintiff's cause of action was less than the sum in Court, the plaintiff should not have his costs after the date of payment in, but should be ordered to pay the defendant's costs after that date.

36. The nature of payment into Court is an offer to dispose of the claim on terms and the policy of the Court is normally to put the plaintiff on peril as to costs should he refuse the offer. There are no provisions under Order 22 for a defendant to make a separate payment into Court in respect of his liability for interest. Conceivably a case may arise where the damages ultimately awarded fell short of the amount in Court but the Court nevertheless felt that the plaintiff was justified in continuing the action after payment in because the interest he would get on success in the litigation would be a considerable sum in relation to the amount actually paid in. In such circumstances, a Court might exercise its discretion as to costs in the plaintiff's favour. This, however, it is not such a case.

37. Although I have sympathy for the plaintiff, my duty is clear. The normal practice is as set out in the note on page 382 of the 1979 Annual Practice, paragraph 22/5/3. In my judgment the proper order is that the plaintiff shall have the costs up to 20th August, 1979, but not thereafter. Further the plaintiff must pay the defendants' taxed costs after that date. I order that the sum of $17,500.00 now in Court be paid out to the Director of Legal Aid. I further order that the plaintiff's own costs be taxed under Legal Aid Regulations.

Representation:

David Yam (Vincent Lo & Co.) for Plaintiff

William Stone (Johnson, Stokes & Master) for both Defendants