Yeung Sui Sum v. Li Kin Wan

HCA002550/1980

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Coram: Roberts, C.J. in Court

Date of Judgment: 14th November, 1980.

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JUDGMENT

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Preliminary

1. The plaintiff, a married woman, was aged about 57 when she was knocked down, about 9.00 p.m. on the evening of the 1st December, 1978 by a Datsun motor-car, driven by the defendant, sustaining substantial injuries.

2. The plaintiff was struck by the car as she was crossing the Taipo Road from the carriageway which goes south-east in the direction of Taipo towards the carriageway which goes north-west towards Kowloon. The collision probably took place, though the evidence is not accurate as to this, about 20 to 30 metres north-west of the junction of Tai Wai Road with the Taipo Road.

3. It is not disputed that, when the collision occurred, the defendant's vehicle was on its correct side of the centre line of the road. The Taipo Road at that point, is 6.6 metres wide.

Summary of evidence

4. The plaintiff was a passenger on a Public Light Bus, travelling from Kowloon towards Taipo. The Public Light Bus stopped in order that she should alight. She descended from the Public Light Bus onto the roadway and walked to the rear of the bus. According to her account, she then looked right and left and saw no vehicles coming from either direction.

5. She estimated that, at this point, the Public Light Bus in which she had been a passenger had moved off, and was about 6-7 bus lengths away; this means 30-35 metres, taking the length of a Public Light Bus as 5 metres. Seeing that the road was clear, she began to walk across it, at what she described as an ordinary pace. After six to seven paces, she was hit by the defendant's car.

6. She said that she could not remember if, after she had started crossing the road, she had looked to her left again. She did not see the vehicle which hit her before it did so. She agreed that the collision had occurred after she had crossed the centre line of the road. The centre line was marked, according to the police plan, with a dotted white line.

7. The defendant gave evidence that he had been working until late that evening at a work site, that he had had something to eat there and that he was in no particular hurry to get home. He said that the road surface was dry, that the visibility was good, that that part of the road was well lit and that he knew it very well because he had been travelling backwards and forwards along it for seven months before the accident.

8. He was driving on dipped headlights in the direction of Kowloon, at a speed which he estimated at about 28 m.p.h., though he agreed that in his first statement to the police he had guessed it was about 30. He explained this by saying that he was sure that he kept within the speed limit, (which is 30 because it was a restricted area) but could not be sure as to exactly how far below the limit he was travelling. He added that he slowed down a little below 28 m.p.h. because, as he approached the junction of the Tai Wai Road and the Taipo Road, there was a degree of glare from the lights of Public Light Bus, which was stopped on the opposite side of the road facing towards him. This Public Light Bus was then stationary and remained so until the accident occurred.

9. After he crossed the Tai Wai Road junction, he noted a second Public Light Bus stationary a few feet behind the first one and saw that other vehicles were also stationary behind that second Public Light Bus.

10. As he drove on in the direction of Kowloon, what he called "an object", emerged from between the two Public Light Buses to his right and moved across the road in front of him. He braked and swerved to his right in an attempt to avoid a collision, but failed to do so and hit the plaintiff with the left-hand front side of the car. He added that it all happened so quickly that he had no time to sound his horn.

Plaintiff's evidence

11. The plaintiff is an illiterate, rather simple woman, whom I find to be unreliable in her recollection of what happened. This is hardly surprising in view of her severe injuries, and of the shock which she must have suffered as a result of the collision.

12. She remembered very clearly, and she repeated it several times, that she had looked both ways and seen no vehicles in either direction before she started to cross the road, but her memory of the remainder of the events of that evening seemed to me to be far less certain.

13. In assessing her evidence, I have taken into account the statement which she made to a police sergeant on the 20th January, 1979, in the Baptist Hospital. This was about seven weeks after the accident, so that it could reasonably be said that she was sufficiently recovered to know what she was saying.

14. Furthermore, her daughter was there. The sergeant, who was called to give evidence described how he recorded the statement, how he read it back to her, and how, when he asked her if it was correct, she agreed that it was. Thereupon, the daughter signed and the mother made a mark at the bottom of the statement.

15. In this statement, the plaintiff admits that she could only see about 50 feet of the lane leading to Kowloon, on which the defendant's car was travelling, because her sight was obstructed by the Public Light Bus.

16. In my view, this is what occurred. When she alighted from the Public Light Bus, she moved to the rear of it, and from behind the Public Light Bus towards the centre of the road. As she walked from near the kerb towards the centre of the road behind the Public Light Bus, she gave a perfunctory look in both directions. Her vision to the right was not blocked. On her own story her vision to the left was incomplete.

17. I find that the Public Light Bus was still stationary at this time. If she had had a clear view of the road to her left, and there is no suggestion that the road was other than a straight one for a substantial distance, she must have noticed the approach of the defendant's car. She did not do so. I think her failure to see was not due to the defendant driving at an excessive speed, as to which there is no evidence, but was the result of her failure to put herself in a position where she could see the road clearly.

18. I, therefore, conclude that she attempted to cross the road without taking proper precautions to ensure that the further carriageway, that is to say the carriageway going north-west to Kowloon, was clear of vehicles. And further that she compounded her carelessness, by failing to look again to the left as she crossed the road. It is not necessary to find whether or not a second Public Light Bus and other vehicles were stacked behind the first Public Light Bus, on the side of the road from which she had come. This would really have made no difference to her ability to see traffic in the Kowloon bound lane had she looked properly, nor would it have affected the ability of the defendant, driving his car, to see her.

19. Evidence has been given by the police sergeant, which I accept, that corrugated iron railings were present on both sides of this road at the time of the accident. It must follow from this, that a Public Light Bus which wants to disgorge passengers onto the road opposite a fence of this kind, must pull out a reasonable distance from the kerb.

20. The plaintiff herself said that the bus was some distance from the edge of the road when she alighted from it. Assuming this distance to be approximately one metre, and the width of a Public Light Bus to be not far short of two metres, the plaintiff would have emerged from behind the Public Light Bus only about half a metre from the centre of the road. A few steps would have taken her very quickly across the centre line to the point of the collision.

21. It would seem to be in accordance with normal prudence that she would have hurried across the road, particularly as she was crossing at a point where railings were present and where, as a result, she must have known that pedestrians ought not to seek to cross.

22. It is my conclusion, therefore, that she was unhappily the author of her own misfortunes by not taking proper precautions before starting to cross this road to ensure that no traffic was approaching from her left and going in the direction of Kowloon.

Contributory negligence

23. I next have to consider whether it could properly be said that the conduct of the defendant had contributed to the unfortunate accident which occurred.

24. I find the defendant to be a reliable witness. He is a serious and respectable man, with a good job and a clear driving record. I found him to be a credible witness and accept his recollection of events as an accurate one.

25. He said that he was driving at a speed which was slightly below 30 m.p.h. This was not contradicted and I accept it. On the evening in question, the surface of the road was dry, the lighting was good. It was a straight road, which was well-known to him. There were fences erected to discourage pedestrians from crossing.

26. There is nothing in these circumstances to suggest that a prudent driver ought to have driven below the maximum permitted speed, which was 30 m.p.h. He admitted very frankly that he had been caused some anxiety by the glare from the headlights of the stationary Public Light Bus but he said that this was not of sufficient importance for him to feel any sense of danger or to feel that his vision was seriously impaired. He did react to the glare to some degree by slowing down slightly.

27. As I have found, the plaintiff emerged from behind the Public Light Bus without warning, in such a way that he could not have seen her until she was within about half a metre of the centre line. I accept his evidence that he applied his brakes as soon as he saw an object passing across his front.

28. It has been argued that the brake marks on the plans which were produced show that the defendant must have been wrong when he said that he did not notice an object coming from the right-hand side of the car until he was already level with the Public Light Bus. The plan which was produced by the defendant shows the brake marks of the defendant's car as starting approximately alongside the rear of the first Public Light Bus. The distance between the beginning of those brake marks and the front of the car when it finally came to rest, looks on the plan to be something like 25 feet. This is consistent with the braking distance which is set out in the Highway Code of about 25 feet for a car travelling at about 25 miles per hour.

29. The defendant must have caught his first glimpse of someone coming from his right, some distance before the brake marks begin. On the braking distance contained in the Highway Code, for a speed of 25 m.p.h., this would be about 25 to 30 feet. This would have placed the defendant something over 10 feet short of the Public Light Bus when he first got warning and I consider that he did catch his first glimpse of the plaintiff somewhat earlier than he suggested in evidence, though in circumstances such as these, exact recollection of precise distances and relativities is not to be expected.

30. I believe, therefore, that the defendant must have seen the plaintiff emerging from behind the Public Light Bus when his car was about 10-20 feet, before the front of the first Public Light Bus. And I am satisfied that he did not see the plaintiff in sufficient time to do any more to avoid her than he did.

31. I therefore conclude that the accident was due wholly to the carelessness of the plaintiff and that there was no contributory negligence on the part of the defendant.

Damages

32. I will deal with the damages which I would have awarded, had I decided that all or any of the responsibility for the accident could be attributed to the defendant.

33. On the basis of 100% liability. I would have awarded the following items by way of special damages.

Special Damages

34. Items (a), (b) and (d), that is to say, hospital expenses, doctor's fees and physiotherapy, the agreed figure of $32,240

35. Item (c), the herbalist doctor's fees, the amount of $1,800 claimed.

36. I do not think it is unreasonable for a person who has first resorted to western medicine and is not satisfied with the results which it has achieved, to then resort to Chinese medicine in the hope that this will do better.

37. I am told that there are authorities which suggest that a plaintiff cannot switch backwards and forwards between western and Chinese medicine and expect the defendant to pay for both treatments, if they are contemporaneous. In this instance, one followed the other and I would not think it unreasonable for this plaintiff to have sought both.

38. Item (e) was an inflated claim. I would have been prepared to allow her a taxi fare for her own visits for physiotherapy. I would have been prepared to allow, not without some hesitation, one taxi trip per day for her family to see her in hospital. Thus taking a round figure, I would have awarded $800 under this head.

39. Item (f) "Nourishing food". The evidence of the plaintiff was that she had spent between $1,000 and $2,000 on this, but that she thought it was nearer to $2,000 than $1,000. I would have allowed $1,500.

40. Item (g) "Loss of earnings". This falls into two parts. From December 1978 to November 1979, when she was not working at all; from December 1979 to the date of judgment when she was working.

41. I was not assisted in attempting to reach a proper figure under this head by the absence of proper records showing what the factory, for which she was working before and after her accident, had paid her. She estimated that she earned about $1,000 a month before the accident.

42. Mr. Yeung, who gave evidence on behalf of the factory, estimated that the plaintiff and her husband together, earned about $2,000 per month before the accident and have been earning about $1,500 a month since the accident.

43. The plaintiff said that she and her husband had done about the same amount of work before the accident. It was submitted, however, on behalf of the defendant that it was unlikely that this was so and it was more probable that she would have done less work than her husband because she had a house to run.

44. I think this is correct and in the absence of any more detailed evidence, I would have found that her husband had earned $1,200 out of the $2,000 and that she had earned $800 before the accident. I would therefore have assessed a loss of earnings from the date of the accident to the end of November 1979 at $800 a month for twelve months. ($9,600)

45. The plaintiff asserted that she had only earned $200 a month since the accident. She attributed this to her inability to sit for long periods without discomfort. She said that as a result her productivity was very much reduced.

46. She admitted that she could manage to work for about two hours at a stretch but then needed to lie down for half an hour before she could work again. I have no doubt that her mobility is reduced, that she suffers considerable discomfort and a measure of pain and that her productivity is substantially lessened. I would assess her ability to earn, at the work which she was doing before and after the accident, as reduced by 50%. That means that I think she can now earn $400 a month instead of the $800 which she earned before. The amount to be awarded by way of Special Damages from the beginning of December 1979 to the date of the action is $400 a month. This would amount to $4,600. The same monthly figure would be the multiplicand for General Damages, in so far as that consists of loss of future earnings.

47. Loss of future earnings. I would have applied $400 per month as the multiplicand and a multiplier of 5, a total of $24,000 under that head.

48. The plaintiff spent the best part of three months in hospital. She suffered fractures of the thigh, the femur and the pubis, a damaged bladder and a small degree of facial scarring. After leaving the Baptist Hospital towards the end of February 1979, she had to use crutches for six months. She still has to walk with a stick. She says that she cannot go shopping by herself and can only manage to hobble short distances.

49. I have been referred to a number of cases of injuries of a not dissimilar nature and taking them into account I would award $35,000 for pain and suffering and loss of amenities.

50. The total damages, on the basis of 100% liability, would therefore have been - Special Damages $50,540 and General Damages $59,000.

51. I would have awarded interest at 5½% on Special Damages from the date of the accident to judgment and awarded 11% on the damages for pain and suffering from the date of service of the writ (28th May, 1980) to the date of judgment.

Representation:

Miss A. Mok (Robert W.H. Wang & Co.) for plaintiff.

M. Bunting (Philip K.H. Wong & Co.) for defendant.