Tsang Sun-keung v. Chau Pui-ching

HCA003543/1979

Quantum of damages.

Coram:Liu J. in Court.

Date of Judgment: 14th October, 1981.

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JUDGMENT

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1. At about 11 in the morning on the 30th March, 1978, while the plaintiff was walking close to the kerb at Shing Mun Road in the direction of Ku Hang Village, Tsuen Wan, he was struck by the near-side of a lorry then owned and driven by the defendant. As a result of the accident, the plaintiff sustained injuries which led to the amputation of his right leg. He was confined in hospital and rehabilitation centre for a considerable period.

2. By this action the plaintiff claims damages. Liability is disputed with an alternative allegation of contributory negligence.

3. The defendant was quite unaware of the accident until he was stopped a few bends further down the Shing Mun Road. He could give no account of the accident. I will return to his evidence in greater detail.

4. The plaintiff himself offered no great assistance. He was then walking home to Ku Hang Village. On the same pavement near its entrance was parked a lorry. As can be seen from the photographs, in particular P1(4) P1(6) and P1(9), there was a long stretch of straight road over 30 feet between the refuse collection point on the same pavement and the entrance to Ku Hang Village. The plaintiff testified that upon seeing the parked lorry on the pavement at the entrance to his village from a distance of some 30 feet away at the junction of the refuse collection point, he stepped off the pavement and proceeded close to the kerb along Shing Mun Road in the direction of his home and that after having walked for about 10 paces, he was struck from behind by something he was not able to identify and thereupon lost consciousness. Under cross-examination, the plaintiff gave the distance from where he was struck down to the parked lorry as being also approximately 30 feet. The plaintiff added, however, that it was only an estimate. But the approximately same distance from the parked lorry given by the plaintiff for the point of time when he was stepping off the pavement and the point of time when he was thereafter struck from behind suggests that he met with his accident almost instantaneously, and the similar distance so given does cast doubt on the plaintiff's assertion that he was struck only after he had walked for about 10 paces.

5. In the prosecution of the defendant for careless driving of which he was acquitted, the plaintiff's testimony before the learned magistrate was that he stepped slightly to his right to avoid the obstructing parked vehicle on the pavement and that he was struck from behind and lost consciousness after having taken about two paces.

6. The variation in the plaintiff's evidence in different courts was between "about 2 paces" and "about 10 paces". It was not strenuously contested that the plaintiff met with his accident next to the parked lorry. The essence was whether he was struck almost instantaneously or whether he was struck some 10 paces later.

7. The eye-witness Madam Kwan was called upon to give her version both before the learned magistrate and in this court. She was waiting on the opposite pavement in the vicinity of a bus stop. Before the learned magistrate, Madam Kwan described a man as walking up the Shing Mun Road and hooked by a lorry from behind, but she could not specify which part of the lorry did the damage. She also told the learned magistrate that according to her impression the number of the car was "AE something 6135 or 6513" and that the defendant's lorry was overtaken by another car on its way up the Shing Mun Road. Before me, Madam Kwan explained that she had only time enough to notice the prefix of the lorry, that at a higher level she could observe the part of the lorry which hooked the plaintiff and that after the plaintiff had been hooked there was a lorry coming from the opposite direction. No explanation was sought on these discrepancies, and I could find none. Madam Kwan was decidedly an impartial eye-witness to the accident. Her evidence before me was direct and well presented and her demeaner impressive. Despite these discrepancies, I find her a sincere and reliable witness whose evidence given before me I have no hesitation to accept. She saw the plaintiff walk up the Shing Mun Road on the pavement "along the kerb side". She had cause to focus her attention at the plaintiff because of his gait. At the time when the plaintiff was near the entrance to the Ku Hang Village, she saw a vehicle coming from "quite a far distance away". She described the distance as "the length of a street". She told the court that she did not notice if the plaintiff stepped off the pavement but that the plaintiff was walking alongside the lorry parked on the pavement and "very close" to it. She saw the defendant's lorry pass the plaintiff near the parked vehicle on the pavement. Madam Kwan's position was at a higher level, and she was able to see the protruding side portion of the defendant's lorry hooking the plaintiff. She also described the defendant's lorry as slowing down to "a very slow speed" after the impact, but at or about this time, a lorry was passing in the opposite direction.

8. I find that the plaintiff was walking along that long stretch of Shing Mun Road on the pavement close to the kerb, that when he was near the entrance to his village, the defendant's lorry was coming from quite a far distance away, that on approaching the vehicle parked on the pavement, the plaintiff stepped down onto the road close to the kerb to make a detour around the obstruction caused by the parked vehicle and that after he had walked for about 2 paces he was looked by the nearside slight protrusion of the defendant's lorry.

9. The defendant told the court that he did not slow down at or near what he subsequently come to know as the scene of the accident. His lorry carried a full load of sand, and it was travelling about five miles per hour. He heard no noise, no sound of impact. At or near the scene of the accident, he saw several pedestrians walking on the pavement towards his direction. He did not notice the presence of the plaintiff. He was travelling in a low gear and he could hear the noise of his own engine in front. He said that only after he had completely passed the stationary vehicle parked on the pavement when he was arriving at the bend, there was a vehicle coming from the opposite direction, but it was not necessary to swerve. I can attach no significance to the slowing down of the defendant's lorry. After he had driven a few bends away from the scene of the accident, he was stopped by a private car and was told that he had struck someone on the road. Thereupon, he parked his vehicle on the side of the road and intercepted another private car to bring him back. He confirmed that at or near the scene of the accident, the road was straight but at a slight incline.

10. It was daylight. The 20-foot wide road was more than enough for the safe passage of two vehicles. He had a clear unobstructed front view with no traffic, and except for the several pedestrians walking towards him there was no distraction. He claimed to be concentrating on his driving. He had thirteen years' driving experience, seven years of which were for lorries. He has never been convicted of any careless driving or dangerous driving offence.

11. It was a long stretch of straight road with no traffic and few pedestrians. There was not even the necessity for manoeuvering his lorry to accommodate oncoming traffic. It was a fine day. From the tenor of the defendant's evidence, he obviously was aware of the presence of the parked vehicle on the pavement near the entrance to Ku Hang Village. Nothing called for keen concentration in his driving. Nevertheless he failed to notice the presence of the plaintiff or that of Madam Kwan. I find that he did not keep a proper lookout. In addition, he was driving much too close to the kerb even though he was about to negotiate a bend which was not at all sharp. If he had kept any proper lookout, he should have anticipated the likelihood of the plaintiff, in that situation, stepping off the pavement to avoid the obstruction caused by the parked vehicle in the absence of traffic congestion. Had he taken heed of the presence of the plaintiff, he would have been able to steer clear of the kerb on approaching the obstruction and seeing the plaintiff walking all the way along on the pavement close to it, particularly when there was then no oncoming traffic. He should have also sounded his born to give warning of his approach. I have not overlooked the magistrates' court's proceedings or the defendant's acquittal, but on the whole of the circumstances, I am driven to the conclusion that the defendant was negligent.

12. The defendant must have driven at more than five miles per hour. Five miles per hour is 7.3 feet per second. The plaintiff had walked for about two paces before he was struck by the side of the defendant's lorry. Walking pace was probably about six feet per second at approximately three feet a step. If in fact the defendant had been travelling at only 7.3 feet per second, the speed of his lorry could not have been much faster than a pedestrian's walking pace, and the plaintiff could not have been violently hooked and spinned under the parked vehicle as described by Madam Kwan. However, there was no evidence as to how much faster the plaintiff was travelling. Instead, the evidence was that whatever his speed, he was driving slowly. Little can therefore be made capital of the actual speed of the lorry at or about the time of the accident.

13. Next I turn to consider whether the plaintiff was also negligent and, if so, what part the plaintiff's negligence played in the causation of the traffic accident. The case of Powell v. Philips⁽¹⁾ is instructive. There, after a dance a girl of nineteen was walking along the pavement of a poorly lit street at about 10.45 p.m. with an escort. The pavement was covered with snow and slush. From time to time, they had to step off it and walked in the roadway in or near the gutter. Her escort was walking in front close to the kerb with the plaintiff some way behind slightly to his right. The plaintiff was struck from behind by the defendant's car. The plaintiff's escort testified that he neither heard nor saw the car which struck the plaintiff but that he saw it drive past him at a fast speed of about 30 to 40 miles an hour with full beams on. At page 868 a/b, Stephenson L.J. assumed the girl, clad in a dark blue coat and naval blue trousers without "wearing or carrying anything white, light-coloured or reflective, walking in the roadway nest to the kerb and not on the pavement and not on the right hand side of the road facing oncoming traffic but with her back to it", to be in breach of the Highway Code.

14. Al little lower down on the same page at the letter "e", the learned Lord Justice continued:

"The perfect pedestrian would, I suppose, have crossed to the other side every time he found the left hand pavement uncomfortable to walk on and, if he found the other pavement no better, would have walked in the roadway on the other side facing the traffic and carrying a lamp. But the question is not what was ideal but what was required by common sense; was the common sense codified in these three rules for pedestrians applicable to the conduct of this particular road user on foot, the plaintiff, at this time and place? More precisely, has the defendant proved that the plaintiff failed to take reasonable care for her own safety by leaving the pavement when they got too slushy in order to walk a few feet out in the road for distance of about 20 yards in the straight street in a built up area with street lights on? My answer to that is an unhesitating 'No'. Even if it were 'Yes, there was some negligence on her part', I should not feel able to find that it made any real contribution to the accident. If she had been on the pavement, she would not have been injured, and if the defendant had proved that he was driving at a reasonable speed with suitable lights on and at least tried to give a proper lookout, I might not have regarded his negligence as substantially the sole cause of the accident."

15. The plaintiff was going home, and as he was nearing the entrance to his village, the pavement was substantially obstructed by a parked vehicle. It was a straight road in broad daylight. There was no oncoming traffic. The plaintiff should have heard the engine noise of the defendant's fully laden lorry, in a low gear, crawling up the slight incline. but in reality there was hardly any need for him to take precaution, such as by turning his head to ensure if the lorry was not coming too close from behind or waiting for the lorry to pass. The road was wide enough for any vehicle coming from behind in that traffic condition to leave a wide berth for any pedestrians stepping off the pavement and walking close to the kerb. There was no reason for the plaintiff to expect any failure by vehicles coming from behind to take heed of his presence, particularly in full view of the pavement obstruction caused by the parked vehicle. In these circumstances, it was not unnatural for the plaintiff to gain the confidence from the situation in which he found himself that there was no need for caution. The defendant as driver of the lorry was or if he had kept any proper lookout must have been forewarned by the scene ahead of him. He cannot be forgiven for failing to foresee the likelihood of the plaintiff as a pedestrian stepping off the pavement at that juncture.

16. In the situation as it presented itself, the plaintiff could hardly be condemned for being negligent, and if indeed he was, his lack of care could play only an insignificant role in the causation of the accident. The Highway Code was not made a live issue, but it remains predominantly a matter of common sense. Just as drivers cannot expect all pedestrians to be perfect, pedestrians should give some allowance to possible errors of judgment on the part of the drivers. In this regard, the plaintiff may possibly be open to some mild criticisms for not having taken the precaution of looking back for traffic before he stepped off the pavement, particularly when the engine noise of the lorry in a low gear must have been audible. The defendant's lorry was proceeding up the incline fairly slowly, and the plaintiff could have wholly removed himself from any risk. In the end, I cannot completely exculpate the plaintiff who, I find, was himself somewhat negligent in stepping off the pavement in the way in which he did, though his real contribution to the accident was negligible. I would arbitrarily fix the plaintiff's contribution at ten per cent only by reason that any figure less than that would seem to be unnecessarily meticulous. In conclusion, the defendant must shoulder 90 per cent of the blame for the accident.

17. Finally I turn to quantum. The plaintiff was given emergency operation on the 30th of March immediately after the accident. He had a wound depletement and pins temporarily inserted into his ankle for traction to immobilize his fractures. Two days later on the 1st of April, he was given a second would depletement because of pyogenic infection brought about by bacteria. He had swinging fever and septicemic shock which were signs of the onset of gas gangrene, a life threatening type of infection. This dreaded infection was brought about, I find on the balance of probability, by conditions at the scene of the accident. Next day on the 2nd of April, his right leg had to be amputated. There were a series of subsequent operations to clean up the stump, and the closure of the stump was a month later on the 2nd of May. He stayed in Princess Margaret Hospital for all his operations until the 30th of May, when he was transferred to the Margaret Trench Rehabilitation Centre. In all, he was confined in Princess Margaret Hospital for two months. He received treatment in the Centre for nine months and he was finally discharged from the Centre on the 1st of March, 1979.

18. The plaintiff's amputation was above the knee and he was fitted with a prosthesis. He was seen by Mr. Wedderburn in June, 1979 and September, 1980, and the surgeon described him as having a non-functional stump of merely four inches below his hip joint. Mr. Wedderburn explained that any stump of less than seven inches would not be functional. The platform on top of his artificial leg is not in fact gripping his stump. Therefore, the plaintiff has to swing his pelvis in locomotion in the process of bringing his right artificial lower limb forward. There was no leg movement. When he was first examined in June 1979, he had the phantom-limb symptoms which would give a false sensation of pain and itching in the missing leg or foot. These symptoms could be very irritable, but the plaintiff accepted them with fortitude and determination. By the time when he was examined by the surgeon again in September 1980, these symptoms no longer troubled him.

19. The surgeon certified the plaintiff as having a 40 per cent loss of functions, i.e. 40 per cent impairment of the Whole Man, and 70 per cent disability related to his previous earning capacity as a driver.

20. He can no longer drive and has sold his second-hand lorry which he purchased on a bank loan prior to the accident. He was a lorry driver cum delivery man, and his second-hand lorry was purchased for $7,000 to $8,000. He had paid some $4,000 to $5,000 by way of instalments, and after the accident a friend, Mr. Leung, attempted to help by continuing with two to three instalments of $400 each to keep up with the bank loan, probably on hire-purchase terms. After two to three months, it was found unprofitable to delay, presumably, bank repossession, and the plaintiff attempted to, but unsuccessfully, dispose of his second-hand lorry. Thereupon, rather than facing total loss and a possible claim by the bank, the second-hand lorry was unconditionally surrendered to his friend, the man responsible for the original sale to the plaintiff, who must have had to assume all pending and future liabilities. I accept the plaintiff's version.

21. Except for loss of income and loss in the second-hand lorry, the other items of special damages do not seem to have been hotly contested and particulars whereof set out below are, save as otherwise indicated, found proved:

22. As for the disputed loss on the investment in the second-hand lorry, I find that the plaintiff had paid up about $4,400 in monthly instalments. During the same period of his monthly payments, he had the use of the lorry. To do the best I can, I would discount 2/3rds of his monthly instalment payments as lorry hire and treat the remaining 1/3 (say $150) as payments towards purchase of the second-hand vehicle. This item of loss will be reflected in the plaintiff's earnings, and no more need be said.

23. The plaintiff disclosed that his net monthly income was between $1,600 to $1,800. His friend Mr. Leung Woon-shing was a similar lorry driver cum delivery man operating on the same location: His income was $150 - $160 a day whilst that of the plaintiff's was estimated to be then $100. He gave the plaintiff's earning as reaching $2,800 to $3,000 a month. An income of $2,800 - $3,000 less petrol expenses and $400 monthly instalment for his second-hand lorry might well have left the plaintiff with a net balance of just above $1,600 - $1,800 per month. Mr. Leung's version seems to be in the line with the realistic social conditions generally known in 1978. But I believe the main difference lies in the plaintiff's investment in his second-hand lorry. The plaintiff then paid $400 per month for, presumably, the hire-purchase of his second-hand lorry. There was no evidence directly on how much of the $400 was in reality for the purchase of his second-hand lorry. I have assessed it at slightly more than one-third i.e. $150 per month. That would mean that the plaintiff's monthly net earning in fact ranged from $1,750 to $1,950 (i.e. $1,600 + $150 to $1,800 + $150). I would take the mean of $1,850.

24. Therefore, for loss of income, the plaintiff's net monthly loss was $1,850 as at the date of his accident According to Mr. Leung, a lorry driver of their rank would have at least a daily taking of $120 as at the date of trial, compared to $100 in 1978. This is a 20% increase, and I would take an average or median rate of an extra 10% i.e. $185 per month making it $2,035 ($1,850 + $185) per month for the whole period from injury to trial (in fact to August 1982). The plaintiff stayed in hospital for two months and nine months in the Centre. Thereafter, he joined a Training Institution for electronic products. According to Mr. Wedderbum's second report in September 1980, the plaintiff would have two more years to undergo. In other words, the plaintiff shall not have completed his training course until the end of August 1982. Therefore, between April 1978 and August 1982 (both months inclusive), apart from a meagre monthly social welfare allowance, the plaintiff has been and will be non-productive for a total period of four years and five months, i.e. 53 months at an average net loss of $2,035 per month. That would yield a figure of $107,855, and together with $3,354 the total special damages amount to $111,209.

25. The plaintiff is left with his non-functional stump. In his condition, Mr. Wedderburn described his impairment as 40 per cent of the Whole Man and his disability in terms of loss of earning power as 70 per cent Mr. Wedderburn also described the possibility of loss of marriage prospects and the possible difficulty in achieving harmonious sexual relationship. The plaintiff is not an out-door man and has not been shown to be partial to any pastimes. In all the circumstances including his operations, hospital confinement and rehabilitation, I allow a sum of $80,000 for pain and suffering and loss of amenities.

26. According to the Labour Officer Madam CHOI, the plaintiff would probably be taken on as an assembler in the electronics factory for some six months before turning a repairer/quality control worker. The difference in pay was an insignificant $100 for the purposes of calculating his future loss. I would ignore the trivial difference of a hundred dollars for a comparatively short duration of six months. Madam CHOI advised the Court that eventually as a repairer/quality control worker, the plaintiff would take home $1,100 to $1,200 a month. Even at the higher monthly figure of $1,200, as compared with the net taking of $2,220 he would have brought home if he had not met with the accident (i.e. 20% higher than his pre-accident net monthly earnings of $1,850 a month), there will be a net loss of $1,020 a month. The plaintiff is 22 and a healthy, energetic and cheerful young man. I would allow him a 15 years' purchase. On account of the expected completion of his training only in September 1982, I have projected his non-productivity a year from the date of trial. Thus, a 15 years' purchase would give in reality only a multiplier of 14.

27. In conclusion:

28. 90 per cent of $362,569 is $326,312.10, and in that sum I would give judgment against the defendant together with interest on 90 per cent of special damages in item (a) at 5 per cent per annum from the date of injury to to-day and interest on 90 per cent of the $80,000 in item (b) at 14 per cent per annum from the date of service of the writ to the date of judgment. A substantial portion of special damages in loss of earnings includes a year's projection to the end of August 1982 for which no interest should be allowed. That extra year is just less than a quarter of the loss of earnings in item (a). Equity can best be achieved by an arbitrary deduction of 2% from 7% per annum to 5% per annum. It is hoped that this attempt to wrap a speculative exercise in a mathematical mantle will receive a benevolent reception. The plaintiff will have costs against the defendant taxed in to be accordance with the Legal Aid Regulations.

Representation:

Mr. Roderick Wu instructed by D.L.A. for Plaintiff

Mr. S.M. CHAN instructed by Johnny T.K. Cheng & Co. for Defendant.

(1) (1972) 3 A.E.R. 864