Chow Man Fai v. Cheng To Sum and Another

DCCJ001795/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1795 OF 1980

-----------------

-----------------

Coram: Judge de Basto. Q.C. in Court.

Date of Judgment: 16th January, 1981.

-----------------

JUDGMENT

-----------------

1. This is a claim for damages by an infant plaintiff who suffered injuries in a collision with a car driven by the 1st defendant.

2. When the plaintiff, then about 11 years' old, at about 7.50 a.m. on the 3rd June, 1978 was on his way to school, he realized that he had forgotten to bring his water colours with him. He decided to go back home to get them. School started at 8 a.m. He intended to return home by crossing King's Road from south to north. The place he intended to cross was controlled by pedestrian and traffic lights. According to the plaintiff, seeing the light was in his favour, he began to cross King's Road. There was no one in front of him. When he reached the centre of the Road (which appears to have been a wide road at this point) he paid no attention to the pedestrian light on the other side of the road. He said he "assumed" that light would still be in his favour. When he was at the Queen Mary Hospital that came day he told a police officer that he took "no notice" of the pedestrian light on the other side of the road. The plaintiff was asked whether he was in "a great hurry" to get his water colours on the day of the accident and he replied in the affirmative. He was then asked whether that was the reason he did not take any notice of traffic on the road and, again, he replied "yes". It was put to him that, when he reached the central refuge in the middle of the road, if he had looked at the pedestrian light at that stage he would have seen the pedestrian light was red and that the traffic on that side of the road was already in motion. To these suggestions he answered, "I don't know."

3. After the plaintiff had been knocked down by the car driven by the 1st defendant, the plaintiff said be remembered the 1st defendant and two policemen immediately coming to his aid. Prior to the accident he had not seen the two policemen who, the 1st defendant testified, were standing on the north side of the road presumably preparatory to crossing the road. The plaintiff was eventually taken to Queen May Hospital but his father discharged him, against medical advice, when, the father was allegedly told by a nurse or nurses that his son would need an operation. He said he could not have misunderstood the nurses to refer to a plaster cast. Like Mr R.G.M. Wedderburn, P.R.C.S. I do not believe any operation was advised or mentioned. The boy suffered transverse fractures of the tibia and fibula of the left leg. Being only transverse fractures "there was no likelihood of the fragments overriding each other, thus obviating the possibility of shortening of the leg. In the event the fractures have soundly united without even the benefit of a plaster case. If the plaintiff had been in a plaster cast. I have no doubt that he would have been completely mobile very much sooner than the seven months the plaintiff's father said his son was incapacitated.

4. The father did not work for seven months after the day of his son's accident - at first he told the Court that there were two reasons why he stopped work - one was that he had had a quarrel because of "language barrier" with his employer who was a Hakka and the other reason appears that he intended to go and work for another company by the name of Wah Fung. Later, he said he did not work for 7 months because he had to look after the plaintiff. Whatever the real reason, the father did not work for 7 months from the day of his son's accident and there is a claim for loss of earnings by the father for those seven months. In my view that claim for 7 months' loss of earnings is errant nonsense. It was very apparent that the father is not only grossly over-protective of his son but that this relatively simple and not uncommon injury among young boys, was grossly exaggerated in the father's mind. In his report (Exh. P1(c)) Mr Wedderburn states that "the boy does not do Physical Education and is restricted in his activities by his parents" because of what the bonesetter is alleged to have said. The father evidently even thought that this injury would result in his son being turned down for a visa for America on medical grounds. As Mr Wedderburn states, "This boy should immediately start to do Physical Education classes and enter into all the activities of a boy of his age."

5. When the plaintiff received his injury he was living not only with his father but, inter alia, with his grandmother and aunt. All the plaintiff needed, according to Mr Wedderburn, was that he should have someone at his book and call, to assist him, for example, to the lavatory. I do not accept the suggestion by the father that the plaintiff was "too heavy", for his grandmother and aunt although I accept the grandmother is almost 80 and the aunt has children of her own. For my part, I think it was absurd for the father not to work for 7 months because of his son's injuries.

6. The 1st defendant said that at the time of the accident he was driving with his wife as a passenger. There were three lanes of traffic in the northern carriageway and he was travelling in the outer lane at about 25 m.p.h. There were no vehicles in front of him, but there were some in the adjacent lanes. As he approached the traffic lights they showed green and he saw about 4 or 5 people in the centre of King's Road waiting to cross - there was no central safety island. On the pavement on his left the defendant saw a number of people including two police officers in uniform waiting to cross the road. After the 1st defendant had just passed the first set of green lights and was travelling at about 25 m.p.h. the plaintiff walked out "hastily" from the centre of King's Road. The defendant immediately applied both brakes. He was asked whether he could have avoided hitting the plaintiff and he replied he could not have because there were cars in the lane to his left and he could not swerve to miss the plaintiff.

7. If the pedestrian lights on the south side of King's Road were in favour of pedestrians when the plaintiff started to cross, then, as I am entitled to infer, the traffic lights were then red. There was no suggestion during the trial that the 1st defendant had stopped at the lights but that he over-anticipated their changing to green and, therefore, had started off before he should have. It was suggested in argument, as I understand it, that the 1st defendant should have, because it was 8 a.m. on a Saturday, anticipated or foreseen the likelihood of school children rushing across the road - there is no evidence before me to suggest that motorists (including the 1st defendant) should have been aware that there were schools in the vicinity of the accident - or, indeed, that there were in fact any schools in the vicinity other than by inference from the plaintiff's evidence.

8. The plaintiff was 11 at the time of the accident. I have applied the test suggested by the English Court of Appeal in Moore v. Payner (1975) R.T.R 127 I find as a fact that the accident in this case was wholly caused by the plaintiff - he was, unfortunately, the author of his own misfortune. I believe the evidence of the 1st defendant and, in my view, he did all that was reasonably necessary and possible to avoid the accident. I am satisfied that at all material times the traffic lights were in the 1st defendant's favour. I therefore dismiss the Action by the plaintiff with costs to the 1st defendant on the upper scale. I now proceed to deal with damages I would have awarded had I come to a different conclusion.

Special Damages

9. Although it is usually my practice to allow a reasonable amount in respect of a Chinese person attending a bonesetter, in this case it is the evidence of Mr Wedderburn that treatment by the bonesetter "retarded recovery". It was also admitted by the Plaintiff's father that the substances prescribed by the herbalist for topical application caused contact dermatitis which had to be treated by a western - trained physician. In respect of special damages I would have allowed the following:-

General Damages

10. The plaintiff in this case returned to school at the beginning of the next term - he therefore, only lost about one month's schooling. In CHONG Hay v. AU How-wah (1979) HKLJ 373 the learned judge awarded $10,000 to a 8 year child with similar injuries but in that case the plaintiff was in hospital for 36 days. Although the plaintiff was not in hospital he had to be kept immobile. In all the circumstances and having referred to the drop in the value of money due to inflation I would also have awarded the plaintiff in this case $10,000 by way of special damages.

Representation:

Mr Daniel Chan of Messrs. Lau, Wong & Chan for the Plaintiff.

Mr Anthony Loong of Messrs. Yu, Tsang & Loong for both defendants.