Lee Hau Man v. Hon Ping Wan

HCA003033/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr Commissioner Hooper in Court

Date of Judgment: 26 March 1980

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JUDGMENT

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The Pleadings

1. In this case the plaintiff sues the defendant in respect of personal injuries sustained by the plaintiff in an accident which took place at about 7.40 a.m. on the 17th of May 1978 when the plaintiff was pushing a trolley across Harcourt Road, near Arsenal Street in a north to south direction and was knocked down by the vehicle registration no. AY7589 which was driven by the defendant. The plaintiff alleges that the accident was caused as a result of the negligence of the defendant and the usual particulars of negligence are set out in the Statement of Claim. The plaintiff has also pleaded that the defendant was convicted on the 20th of February 1979 of an offence of careless driving and that that conviction is relevant to the issue of negligence and that he intends to rely thereon as evidence in this action.

2. The defendant while admitting in his defence that an accident occurred at the time, date and place in question, denies that the defendant was guilty of any negligence or that the said collision was caused as alleged in the Statement of Claim. Further and in the alternative the defendant alleges that the collision was caused or in part by the negligence of the plaintiff and sets out the following particulars of negligence:-

Particulars of Negligence

3. The defendant also, whilst admitting the conviction at Western Magistracy, makes no admission that the conviction is relevant to the present proceedings.

The Scene of the Accident

4. By consent a number of photographs were put in as exhibit P(1)-(6). These photographs are of various views of the place where the accident occurred taken from different angles and different distances. They indicate that there is in the centre of Harcourt Road dividing the east-bound carriageway from the west-bound carriageway a central grass area surrounded by railings through which there is a passageway large enough for a car to pass from the east-bound carriageway to the west-bound carriageway and vice versa. The accident, it is common ground, took place in the east-bound carriageway though there is some dispute as to the precise place in relation to the various lanes of traffic in that carriageway. The photographs do, however, show that at the extreme left-hand side of the east-bound carriageway there is a gap in the railings which border the pavement almost opposite the passageway referred to above in the central grass verge. The precise reason for this gap in the railings on the left-hand side is not precisely known, because the police officer who gave evidence (PW3) was unable to say. The plaintiff maintains that it was to enable pedestrians and cyclists to cross the east-bound carriageway to the passageway in the central grass verge. It is, however, the Defence contention that the only reason for this passageway is to enable pedestrians on the sidewalk to board buses which stop at the bus-stop in that location, and that it is not to enable pedestrians to walk across the carriageway to the central grass verge. I will come back to this later.

The Plaintiff's Contention

5. The plaintiff who is now 74 years of age gave evidence that at the time of the accident he worked as an odd job worker in a shop and that on the morning in question, as was his usual custom, he had to push a wooden trolley to the sea-front to fill it up with salt water. At the time of the accident he had pushed the trolley through the gap in the railings on the left-hand side of the east-bound carriageway and was crossing Harcourt Road to the passageway in the central grass verge. His trolley was loaded with about 20 gallons of water which is equivalent to 70-80 catties. Before he started to cross the road two vehicles had passed and when he started to cross it was safe to do so. He looked to the right and saw that a vehicle coming towards him had just gone beyond the pedestrian footbridge, which is the footbridge from which the photograph Exhibit P1(1) was taken. Visibility was clear and he could see the car quite clearly and it was the only vehicle coming towards him at that time. He estimated the distance between the pedestrian footbridge and the spot where he was crossing as nearly 60 yards. As he was crossing the carriageway he stopped as he saw the vehicle was at the footbridge he continued to cross raising his right-hand to indicate that the driver of the car should not come so quickly as he, the plaintiff, was crossing the road. The trolley had passed through the opening to the passageway through the grass verge but the plaintiff himself had not yet reached that opening when he was struck and knocked over causing him to roll on the ground. He rolled for about 7-8 feet from one side of the opening to the other. However, he did not lose consciousness. At no stage did he hear a horn sound, nor did he hear the sound of severe braking. He maintained that the car was travelling fast. After being struck he shouted to the driver to stop and it went further ahead and swerved a few feet away before it stopped. However, he maintained that it did not swerve before it struck him. His cart or trolley remained in the passageway until the police arrived and nobody had touched it between the time of the accident and the arrival of the police. He denied that he had been running at any stage across Harcourt Road but conceded that he was pushing the trolley at a quick pace hurriedly. He did not stop at any stage. Under cross-examination he denied waving his right-hand; he denied that the defendant swerved his vehicle to avoid hitting the plaintiff; he maintained that he was right at the opening in the railings (to the passageway through the central grass verge) when he was hit and he denied telling the police officer shortly after the accident that he was hit about two feet from the opening in the railing. Furthermore, he denied the suggestion that the defendant's car struck his trolley.

6. The plaintiff was supported by Sergeant 8494 (PW4) with regard to the position of the cart after the accident and also with regard to the fact that there was no damage to the cart. The Sergeant also supported the plaintiff in that there were no skid marks on the road. He testified that the spot where the accident occurred was a 30 m.p.h. speed limit and were some 250 meters before one gets to the 40 m.p.h. limit on the same road. He was specifically asked about the passageway between the carriageways but was unable to give any specific reason for this other than that it was used by the Governor as a short-cut from the helicopter airport. He testified that there are iron bars which are shown in an upright position in photograph Exhibit P1(5) but which are lowered and locked when the passageway is closed. He was, however, unable to say whether the passageway was closed on the day in question. Not only do the photographs which went in by consent show that the posts were in an upright position, but photographs produced by the defence and taken during the course of the trial, also indicated that the posts were in an upright position. The probability would seem to be that these posts are not kept locked. This police officer took a statement from the defendant shortly after the accident which statement was tendered in evidence as Exhibit P9 and the translation Exhibit P9a. He denied the Defence suggestion that there was a bus-stop on the left-hand side of the east-bound carriageway adjacent to the central passageway.

The Defence Contention

7. The defendant's version of the accident as given from the witness-box was quite different. He testified that he was driving his vehicle travelling from west to east and that he was in the fast lane of Harcourt Road. His speed was about 30 m.p.h. or just over 30 m.p.h. When his vehicle came to the vicinity of the Red Cross Association just below the pedestrian footbridge he saw a man pulling a cart across the road. He drew the position with an arrow in red ink on the photograph Exhibit P1(1). When he saw the man he sounded his horn and tooted it several times. At this time he was about 30 odd yards away. He also stepped on the brakes lightly in order to reduce speed. However, the man continued to walk until he came to the middle where he stopped. He marked the spot where the man stopped with a dot on the photograph Exhibit P1(1). The man then raised his hand and moved it. The defendant then testified that it seemed that the man was asking him to go on or something like that but the hand signal was rather vague - not clear. At this stage he was very close to the man, about 20 yards away from him. He thought that the man had stopped to give way and so he went on. When he came close to him the man suddenly pushed his cart forward and the defendant swerved to his left to avoid him. He could not, however, avoid him because the man was pushing his cart forward quite quickly so the right front part of his vehicle hit the man. However, the plaintiff did not roll over on the road as he claimed, but merely fell down about two feet away from the railing. He testified that the trolley was hit by the vehicle and it was bounced into the opening of the passageway. He also maintained that the lighting condition was not very bright; it was shortly after seven but it was a bit foggy-misty.

8. So far as his conviction at the Magistracy is concerned he maintained that he asked the police officer who had taken the statement from him whether he would be disqualified or not on a charge of careless driving. He was told that it would not be too serious, at the most some sort of remark would be put on his driving licence. So he pleaded guilty.

9. The defendant made a very poor impression on me under cross-examination. It transpired that his evidence was quite different from the statement which he gave to the police officer only a short time after the accident, Exhibit P9, and was quite different to the statement of facts relating to the offence of careless driving which he admitted as correct in the Magistrate's Court. It was also quite different from the plea in mitigation which he put up in the Magistrate's Court. Furthermore, his evidence to the effect that he was influenced by the police officer to plead guilty was denied by the police officer under cross-examination. Also his evidence that he had hit the trolley was contradicted by the evidence of the police officer who testified there was no damage to it.

Effect of the Previous Conviction

10. The fact that a person has been convicted of an offence by or before any Court in the colony is admissible before the Court in any civil proceedings for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence. It makes no difference whether he was convicted upon a plea of guilty or otherwise, or whether or not he was a party to the civil proceedings. (See section 62(1) of the Evidence Ordinance.)

11. It is also provided in subsection (2) of section 62 of the Evidence Ordinance that the effect of a person proved to have been convicted of an offence is that -

12. In my view the evidence of the careless driving charge is obviously relevant to the issues before me. In view of his conviction of the offence of careless driving, a presumption arises under section 62(2) of the Evidence Ordinance, referred to above, that the defendant did commit this offence of careless driving unless the contrary is proved. The burden of proving the contrary lies upon the defendant. It is necessary for him to prove on a balance of probabilities that he did not commit this offence at that time. Of course, in deciding whether the contrary is shown, I must not confine myself to the defendant's evidence or that of his witnesses, I must consider the evidence as a whole and ask myself if the contrary has been shown anywhere in the evidence which I have heard.

Assessment of Defendant's Credibility

13. I am bound to say that I do not believe the defendant. He was a man who made a very poor impression upon me in the witness-box, and a man who has on his own admission changed his story to suit his own purposes.

Assessment of Plaintiff's Credibility

14. Although the police officer testified that the statement of facts in the Magistrate's Court was made up from the plaintiff's statement, and that the plaintiff had said that he was knocked down about two feet from the middle of the road, and the plaintiff in his evidence denied this, I do not think very much turns on this contradiction. The very fact that the trolley had been pushed into the passageway on the grass verge and was not damaged supports the plaintiff's story that he was virtually across the carriageway and was at the entrance to the passageway when he was struck and knocked down. I hold that the plaintiff's version of the accident is the more probable.

The Effect of Footbridges and Railings on Harcourt Road at this Point

15. It is the Defence contention that the plaintiff should not have used the carriageway at all to cross Harcourt Road, because there were pedestrian footbridges in the vicinity and because of the railings. Although it is conceded by the Defence that the plaintiff could not push a trolley containing 24 gallons of water over the pedestrian footbridges, the Defence maintain that the fact that the plaintiff's employer does not provide him with a lorry or other means of transport to convey the sea water to the shop, is no reason for his crossing the carriageway in question. It is, however, the case for the plaintiff that the opening in the railings on the left-hand side of the carriageway, which is approximately adjacent to the passageway in the central grass verge, indicates that persons can cross at this point if they are pushing trolleys or bicycles.

16. I must confess looking at the photographs, and the apparent presence of a bus-stop on the left-hand side of the carriageway by the opening in the railings, it does seem to me that the presence of this opening is probably to enable persons to board buses at this point, and was never intended to provide anything in the nature of a pedestrian crossing across this carriageway.

17. However, the question arises whether the plaintiff's use of this opening in the railings to cross to the central grass verge, amounts to negligence in this case. Mr Yam for the defendant suggests that it does and submits that the mere presence of the plaintiff on the carriageway would make him at least 30% liable for the accident. Mr Barretto for the plaintiff takes the opposite view and bases his case on the fact that the opening was to enable pedestrians and cyclists to reach the passageway in the grass verge.

18. Though I cannot accept the plaintiff's contention as the true reason for the opening in the railings on the left-hand side of the carriageway, I cannot agree with the Defence suggestion that the mere presence of the plaintiff on the road per se makes him 30% to blame for the accident, although it would appear that the plaintiff was in breach at Para 10 at Part 3 at the Highway Code.

19. The effect of railings upon the footway at the side of the road has been the subject of judicial opinion of the Full Court in the case of Lam Shui-tsin and James Tong⁽¹⁾. The plaintiff in that case after crossing a studded roadcrossing stepped onto part of the footway which was outside the railings installed for the purpose of preventing pedestrians from straying onto the carriageway. The defendant drove a 1½ ton lorry round a corner and crushed the plaintiff between his lorry and the railings. The plaintiff claimed damages for personal injuries against the defendant alleging negligence on the part of the defendant in that he wrongfully manoeuvred his lorry so that part of it overhung the footway where the plaintiff was standing and failed to take proper steps to avoid injury to the plaintiff. The Trial Judge had held that the defendant owed no duty of care to anyone on the strip of the footway outside the railings and dismissed the plaintiff's claim.

20. On appeal it was held -

21. Of course, in that case the Court was mainly concerned with the question whether the plaintiff was guilty of contributory negligence by standing on the footway beyond the iron railings. The majority of judges (Huggins and Pickering, JJ) took the view that so long as he did not encroach upon the carriageway he was, vis-a-vis the defendant, entitled to use any part of the footway and, on the evidence, he would have come to no harm but for the negligence of the defendant. They took the view that if it could be said in any sense that the plaintiff did not take every reasonable care for his own safety, that lack of care was not a cause of the damage which he sustained. Although McMullin J. thought that the case ought to be sent back to the Trial Court to make further findings of fact he had some comments to make about the guard-rail which I would respectfully adopt in the present case. He said -

"Since both the motorist and the pedestrian will be judged in the light of all circumstances affecting their performance on any given occasion the Court will necessarily find itself estimating what ought to be the attitude of the reasonable motorist or of the reasonable pedestrian to each separate element which fell (or which ought reasonably to have fallen) within his view of perception on that occasion. Including, of course, such phenomena as the guard-rail. For, while it may be true that the primary purpose of such a rail is to keep pedestrians from inadvertent excursions into the carriageway, a correlative effect must be to lessen the motorists expectation that such invasions will occur. To that extent it might be said that a subsidiary purpose of the railing is to relieve the motorists to some degree of the stricter need for vigilance which must exist where there is no railing guarding the edge of the pavement."

22. He went on later -

"The question whether he is negligent or contributorily negligent would still, of course, depend on all the prevailing circumstances - the state of the road and the lights; the quantity and type of traffic about; ......"

23. He later went on -

"In particular, I would think that the possibility of at least contributory negligence is patent when, as in the present case, a pedestrian stands outside guard-rails near a corner when the motorist's opportunity of observing him is lessened by the existence of the corner."

24. The main thing that must be borne in mind is that the presence of negligence and/or contributory negligence must be determined in the light of the factual situation in toto prevailing at the time.

25. The factual situation in the present case is that there were no signs prohibiting or forbidding the plaintiff to walk upon the carriageway. Rightly or wrongly he believed that he had the right to cross the carriageway to the passageway on the central grass verge. The defendant on the other hand driving along a road which was separated from the pedestrian sidewalk and the central grass verge by railings on both sides was relieved to some degree of the stricter need for vigilance in respect of the presence of pedestrians. This, however, would only apply so long as he was unaware of the presence of pedestrians on the road. Once he became aware of the presence of a pedestrian on the road, he was, in my view, bound to exert the same duty of care to that pedestrian as he would any other pedestrian who might be crossing a road which was unguarded by railings at a place other than a studded or pedestrian crossing.

Finding on Liability

26. On the facts of this case I hold that it has been established on a balance of probabilities that the defendant was extremely negligent and that his negligence was a direct cause of this accident. He clearly was unable to rebut the presumption raised by his conviction. I do, however, find that the plaintiff was also partly negligent in that he continued across the carriageway at a time when it was not completely safe to do so. The mere holding up of his hand to indicate that the defendant should slow down does not absolve the plaintiff from blame. Taking all things into consideration I hold that the defendant was 70% to blame for this accident and the plaintiff was 30% to blame.

Damages

Special Damages

27. The following two items of special damages have been agreed:

(3) The third item of special damages claimed was Special Nourishment $900. The plaintiff, however, when he gave evidence on this matter testified that about $500-$600 had been spent on Chinese herbs known as Pak Ki and Tong Sam. He testified that these herbs are well-known for helping the blood circulation and that they were prescribed by a Chinese herbalist and prepared by his wife. This part of his evidence was not challenged at all by the Defence, and although the Chinese herbalist was not called to give evidence, I think the unchallenged evidence of the plaintiff is sufficient for me to make an award under this head. Furthermore, the sum of $500 does not seem unreasonable. I, therefore, hold that the plaintiff is entitled to have $500 in respect of nourishing foods taken into consideration as part of his special damages.

(4) Loss of Earnings

28. It is accepted by the Defence that the plaintiff has lost $21,500 since the accident, made up by multiplying his monthly average wage of $900 by 21 months plus two extra months to represent the two times when double pay would have been earned over the Chinese New Year, plus a further sum of $800, representing two payments of $400 his average yearly bonus. I, therefore, assess damages under this head as $21,500.

General Damages

Pain, Suffering and Loss of Amenities

29. The medical evidence came from Dr R. G. M. Wedderburn who, with the consent of the Defence, submitted two written reports in respect of the plaintiff. The first report is dated the 28th of June 1979 and is in the following terms:-

30. The second report is dated the 4th of March 1980 and is in the following terms:-

31. In giving evidence in Court Dr Wedderburn was of the opinion that there is a possibility of osteo-arthritis in the plaintiff's hip joint which is slightly disorganized by the presence of abnormal bone. He did not think that it would make any significant difference in three to four years but in five to six years it would mean that the plaintiff would have difficulty with his mobility. Pain and aching in the region would increase. His recent examination, however, showed an improvement in the strengthening of the plaintiff's knee, and that the plaintiff could almost completely straighten it now. Under cross-examination he noted that the plaintiff had aged a lot between the first examination and the second examination, and he thought it probable that the accident had contributed to the aging process. He based this on the fact that there was such a big difference in the plaintiff's appearance between the two examination dates.

32. The doctor's opinion regarding his ability to work was confirmed by the plaintiff himself who when asked if he agreed with the doctor's assessment said "That's right. How can I work? I cannot even stand up." He also testified that he was in effect in very good health because he never suffered from illnesses except perhaps minor illnesses such as a cold. He lives on the 7th floor of a building and there is no lift to the building. He has to walk slowly up the building with the support of his stick and also holding on to the hand-railing.

33. It is obvious that the plaintiff has undergone a good deal of pain and suffering and loss of amenities. I consider that a substantial award should be made under this head.

34. Mr Yam for the defendant has referred me to the case of Lo Shau-chun v. Yuen Chuk-leung⁽²⁾ in which a 71 year old woman fractured her tibia, fibula and wrist, she remained in hospital for 101 days during which time her leg and wrist were in plaster, and she finally suffered a permanent disability of a slight limp. In that case an award of $15,000 was made in respect of pain, suffering and loss of amenities.

35. Mr Barretto for the plaintiff on the other hand has referred me to the case of Chow Chui-kwong v. Kwok Kwong⁽³⁾. In this case the plaintiff was injured in a traffic accident in July 1974 and suffered a compound fracture of the right knee cap, fractures of the right ankle, left hand, and 7th right rib, and lacerations of the left knee. Treatment of these injuries included an operation for removal of bone fragments from the right knee and open reduction and screwing of the ankle. The plaintiff was hospitalized for nearly three months. The injuries to the rib and hand healed but the knee could not be straightened and had only 65^o of movement instead of the normal 165^o. The ankle had only a few degrees of movement downwards from the right ankle and no movement upwards. There would be arthritic changes in both knee and ankle and disability was put at 10% of the Whole Man. The plaintiff's limp required a stick and he was unable to walk more than 200 yards without resting, had difficulty on stairs and slopes and was unable to use escalators. He had been an active and healthy man enjoying golf, tennis and swimming but was now unable to engage in the first two sports and had not attempted to resume swimming. An amount of $25,000 was awarded for pain, suffering and loss of amenities.

36. The similarities of the injuries in the above-mentioned case to those of the plaintiff in the present case are not insignificant. There is no doubt that the plaintiff in the present case was in a slightly different social bracket to the plaintiff in the above-mentioned case who could afford to do more things, but it is clear that he was an active man who did not want to sit in retirement at home. He had undergone a comparatively lengthy period in traction and was thus immobolized in hospital; his age would also have contributed to a longer period of healing.

37. The assessment of $25,000 in the above-mentioned case would, of course, be more today having regard to the effect of inflation. However, taking everything into account I consider $25,000 as an appropriate figure for the damages suffered by the plaintiff under this head and I so assess them in the present case.

Loss of Future Earnings

38. Mr Yam for the defendant having conceded that the plaintiff's loss of earnings amounted to $21,500 between the accident and the trial date, maintained that that should be the end of the matter, having regard to the old age of the plaintiff and the unlikelihood of his continuing to work for longer than a period of 21 months from the time of the accident. He suggests that at the very most a multiplier of 1 should be used. Mr Barretto on behalf of the plaintiff, on the other hand, has suggested that a multiplier of 4 to 5 would be more appropriate.

39. Taking into account that the plaintiff had retired from his working life in 1958, and that this was really a retirement part-time job, bearing in mind that it was a comparatively light job I consider that an award should be made under this head. I do, however, think that the suggestion of a multiplier of 4 to 5 years is optimistic, in view of the fact that the plaintiff has already been awarded loss of earnings between the time of the accident and the time of trial, and in view of the fact that the plaintiff is now 74 years of old. I will take a multiplier of 1, that is one year, which for the purposes of this case represents 13 months plus a bonus of $400. There is evidence that his wages would now have been over $40 per day i.e. $1,200 per month.

40. I assess damages at $16,000 under this head.

41. The above figures will be reduced by 30%.

42. Judgment will, therefore, be given for the plaintiff in respect of 70% of the above-mentioned assessments and in addition the cost of this action.

Interest

43. Counsel have indicated that they would like to address me on this subject after judgment and I will now hear them.

Representation:

Mr Barretto instructed by Rowdget W. Young & Co. for the plaintiff

Mr David Yam instructed by H. H. Lau & Co. for the defendant

(1) 1974 H.K.L.R. 357

(2) 9 HKLJ 100

(3) 6 HKLJ 390