Lam She Ping v. Cheng Chun Chuen and Another

HCA003974/1979

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Coram: Liu, J. in Court.

Date of judgment: 7th January, 1981

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JUDGMENT

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1. On the 12th November, 1978, at about 9.15 p.m., at the junction of Chai Wan Road and Hong Man Street, as a pillion passenger on a motor-cycle ridden by his friend Mr. Mui, the plaintiff was unseated and thrown to the ground as a result of a collision between that motor-cycle and a public light bus driven by the 2nd defendant and owned by the 1st defendant. The plaintiff suffered a fractured right thigh.

2. On the 14th February, 1980, the 2nd defendant was convicted of careless driving and fined $500. Save for the alleged negligence, the incident and the divers capacities of the 1st and the 2nd defendants pleaded in paragraph 1 of the Statement of Claim are left unchallenged. Apart from the admitted conviction of the 2nd defendant, the plaintiff described the circumstances in which the collision occurred. He told the court that he was travelling from West to East as a pillion passenger on a motor-cycle in Chai Wan Road. The motor-cycle approached the junction with the traffic signals in its favour. According to the police constable who gave evidence, traffic from West to East on that side of Chai Wan Road enjoyed precedence and any vehicle turning from the other half of Chai Wan Road into Hong Man Street would have to wait until the clearance of the traffic using the lanes of Chai Wan Road from West to East. According to the plaintiff, in defiance of the oncoming traffic the 2nd defendant was edging forward in his public light bus from the opposite side of Chai Wan Road in an attempt to turn right into Hong Man Street. Mr. Mui, the motor-cyclist attempted to take evasive action and swerved closer to and, in fact, onto the nearside lane, but the evasive action taken by Mr. Mui was of no avail and a collision resulted.

3. The 2nd defendant was clearly careless in failing to keep any or any proper lookout, failing to have any or any sufficient regard to the oncoming traffic which enjoyed precedence, failing to give Mr. Mui's motor-cycle any or any sufficient time to pass the road junction and failing so to stop, slow-down, swerve or in any other way, manage or control his public light bus as to avoid the said accident. In my judgment, the 2nd defendant was negligent.

4. As owner of the public light bus and principal of the 2nd defendant (a matter which is not denied by the Defence), the 1st defendant was, I find, likewise negligent.

5. In these proceedings, I proceeded with the claims of the plaintiff in the absence of any of the defendants for reasons which have been repeated ad nauseam. At the end of the plaintiff's case and without the presence of the defendants, having found liability against both the 1st and the 2nd defendants, it remains for me to assess damages.

6. Mr. Wedderburn examined the plaintiff a day or two before the 24th July, 1979. The surgeon opined that he would have then given the plaintiff three months' sick leave. The accident occurred on the 12th November, 1978, and there months from a day or two before the 24th July, 1979 would take us to about a day or two before the 24th October, 1979. I would take that to be about 12⅓ months.

7. The plaintiff told the court that he was working for a cleaning company for $750 a month. I was told that he had a good prospect to be made foreman within a few months and that thereafter he would be able to earn $900-$1,000 a month. In the evening, the plaintiff was diligent enough to assist his brother from whom he received, on an average, $800-$900 a month. Mr. Yam, counsel for the plaintiff was fair enough to invite me to pitch loss of income at $1,550 a month. Counsel was content to leave aside the prospects of promotion. It might have been felt to be slightly remote.

8. With $750 a month from the cleaning company and taking the lower ranger of the average received from his own brother at $800 a month, it would make a total of $1,550 a month which was urged upon this court by Mr. Yam, counsel for the plaintiff. The pre-accident earning capacity of the plaintiff was corroborated by the supervisor of the cleaning company, one Mr. Kwong, and the brother of the plaintiff himself. I need not descend into specifics. I am prepared to and do accept $1,550 a month as pre-accident income of the plaintiff.

9. Multiply 12.33 months by $1,550, and it would yield $19,081.50. The plaintiff testified that for two months during May, June, July, 1979 he worked for $950 a month. Despite the fact that he would have been given sick leave by the surgeon, the money actually earned in the sum of $1,900 must be deducted from $19,081.51. The net loss of income therefore stands at $17,181.50.

10. The plaintiff told the court that he is now 22 and he must be somewhere in the region of 20 at the time of the accident. According to his evidence, his mother visited him daily, occasionally by bus or when time was pressing, by taxi. Invariably, on her return journey, a taxi would have to be taken by reason that there was no transport linking the hospital with Wah Fu Estate in which the plaintiff's family resided. The claim for $300 by way of travelling expenses for hospital visits by the mother of an unmarried young man would be, in my view, conducive to his speedy recovery. The claim of $300 is far from being extravagant. It is a claim that I accept as being reasonable for inclusion in the award.

11. Next I turn to consider the doctor's evidence. The doctor told the court that the plaintiff should have reported back in December, 1979. After approximately the same period for which the doctor would have granted him sick leave, the plaintiff sought and obtained employment at slightly less than $1,550 a month. Counsel was content to forego the trivial difference between his normal earning capacity and a slightly less income for some two months until December from the end of the three months' would-be sick leave period subsequent to the examination by Mr. Wedderburn.

12. The plaintiff was warned to return in December, 1979 for a further operation which should have put him on the road to complete recovery. Mr. Wedderburn forecast full earning capacity six weeks after the second operation and total physical rehabilitation in six months. The plaintiff was ill-advised to decide against a further surgery in December, 1979, and therefore his loss of income, discomfort and incapacity arising therefrom cannot be the responsibility of the defendants. We are thus solely concerned with the 12⅓ months and the further period for the second operation and consequential convalescence.

13. Mr. Yam invited me to allow one week for the second operation and its incident preparation. I find his request as being fair and reasonable. Therefore, I would allow, all in all, seven weeks i.e. forty-nine days for the second operation which, I am glad to be told, is scheduled to take place some time after the Chinese New Year.

14. Mr. Wedderburn testified that the plaintiff should be able to undertake most tasks, except strenuous manual work, six weeks after the operation and that within a matter of months thereafter he should attain complete normality. Thus, an extra seven weeks would have to be compensated for.

15. Mr. Yam, counsel for the plaintiff invited me to assess it at $50 a week. I am prepared to accede to that request. Fourty-nine days at $50 a week would make $2,450, and for the second operation I would allow trivial hospital charges plus travelling expenses of the mother at $50.

16. Lastly, I turn to pain and suffering and loss of amenities during the period of, all in all, 14-14½ months. The injuries were not of the most serious kind, but the plaintiff was confined to hospital in his first operation for eleven days, and he spent two months in a convalescence home. He will undergo a further operation which is a matter of not much significance compared with the first. The plaintiff has suffered discomfort, pain and obviously physical limitations. Thus, there was some loss of amenities during the 14-14½ months. I was invited to award $10,000 by way of pain and suffering and loss of amenities. There is no specific complaint as to what pleasure the plaintiff had been deprived of during these 14-14½ months. Taking all these into consideration and not being uncharitable to the plaintiff, I find a sum of $5,000 by way of damages under this head as being appropriate.

17. I will therefore repeat the five items: (1) Loss of income from the date of the accident to the expiration of the three months' would-be sick leave, $17,181.50. (2) Travelling expenses of the mother during the plaintiff's first confinement in hospital and convalescence home, $300. (3) Loss of earning in the further operation which is expected to keep the plaintiff out of active circulation for some fourty-nine days, $2,450. (4) Hospital charges and the mother's visits for the second surgery, $50, and (5) $5,000 for pain and suffering and loss of amenities. I would award interest on (1) at 6¼% per annum from 12th November, 1978 to the date of judgment, on (5) at 12½% per annum from date of writ to date of judgment and on the whole of the judgment debt of $24,981.50 at 12½% per annum from to-day until actual payment. Costs to the plaintiff to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. David Yam instructed by Messrs. Rowdget W. Young & Co. for plaintiff.

Defendants absent.