Chan Yuet-ling v. To Sum-fai and Another
Read the full judgment text of HCA 3545/1981 on BabelCite. This High Court CFI judgment.
1. This is an action for damages in respect of personal injuries received in a traffic accident.
Cited by 1 case
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HCA003545/1981 Personal injuries claim - negligence - plea of criminal conviction for careless driving - 1st defendant having pleaded guilty before magistrates court - whether defendants can challenge facts admitted in magistrates court - relevancy of conviction - contributory negligence - quantum of damages.
----------------- Coram: Hopper, J. Date of Judgment: 1st December, 1981 ----------------- JUDGMENT ----------------- 1. This is an action for damages in respect of personal injuries received in a traffic accident. 2. It is the plaintiff's case that on the 15th July 1979 she "was lawfully standing on the pavement at the junction of Hill Road and Queen's Road West, when the 1st defendant, the servant and/or agent of the 2nd defendant, drove, managed, controlled and negotiated a public omnibus BR 8983, the property of the 2nd defendant, round the corner from Queen's Road West into Hill Road that he caused or permitted the same to intrude into and to mount the pavement, and there collided with, carried away and finally trapped the plaintiff between the said public omnibus and a stretch of roadside railing" and that "the matter complained of was caused by the negligence of the 1st defendant". The usual particulars of negligence are set out and there is also included an allegation that the 1st defendant was negligent in "causing or permitting the said omnibus to mount and intrude into the said pavement and there collide with the plaintiff", and "failing to exercise or maintain any or any proper control of the said omnibus when negotiating a turn". 3. There are other particulars repeating these allegations in a slightly different form. 4. The defendants both admit that on the date there was a collision between the 2nd defendant's said omnibus (which was driven by 2nd defendant's servant 1st defendant) and the plaintiff in Hill Road near the junction with Queen's Road West but deny the other allegations and in particular that the omnibus mounted the pavement. They deny negligence on the part of 1st defendant and claim that the collision was caused or contributed to by the negligence of the plaintiff. Again the usual items of negligence are set out and in particular "running out and in to the side of the bus; squeezing or attempting to squeeze between the bus and the railings of road words at the accident spot when it was unsafe to do so, running into the path of the bus without giving 1st defendant any or any reasonable opportunity of avoiding the said collision; and crossing or attempting to cross the road when it was unsafe to do so". 5. The plaintiff has also pleaded that on 8th April 1980 1st defendant was convicted, upon his own plea of guilty, by the magistrate's court sitting at Western, of the offence of driving the said public omnibus on the said road without due care and attention contrary to section 14(1) of the Road Traffic Ordinance, Cap. 220 claiming that this conviction was relevant to the issue of negligence and that it would be relied on as evidence of negligence on the part of 1st defendant. 6. Whilst the defendants admit the conviction of 1st defendant as alleged, they maintain that 1st defendant pleaded guilty to save trouble and expense and they deny that his conviction is relevant to any issue arising in this action. 7. The evidence relied upon by the plaintiff to establish negligence comes from two sources (1) her evidence in the witness box and (2) the evidence of the conviction of 1st defendant in the magistrate's court. (1) The evidence of the plaintiff 8. She testified that at 3.20 p.m. on the 15th July 1979 she was in Queen's Road West near the junction of Hill Road. She indicated the spot with a pencilled cross in the sketch plan included in the papers from the magistrate's court (Exh. B). This shows that she was on the pavement in Queen's Road West next to a traffic light post a short but marked distance away from the kerb of Queen's Road West and even more marked distance away from the kerb of Hill Road, She intended to cross Queen's Road West in a southerly direction to the other side of Queen's Road Central. There is in fact a pedestrian crossing at this place crossing Queen's Road West and the plaintiff's pencilled cross shows her to have been on the pavement adjacent to the dotted line signifying the side of the pedestrian crossing nearest to the junction of Hill Road. 9. She testified that she was standing there approximately 5-6" away from the kerb of Queen's Road West or one foot away from the irregular edge of the kerb and had been standing there for about a minute waiting for the traffic light to change when suddenly she felt a draught of wind and then something pressed on her and she knew nothing. She did not see the defendants' vehicle before it touched her. She felt that her right side had been dragged and then she knew nothing. She then added that she was pressed on the railing and then she knew nothing. 10. Under cross-examination she became even more vague as to what happened and was not even prepared to say whether it was wind she felt. She was not sure but anyway it came from her right. It came with a sound and then she was dragged and then she knew nothing. She was unable to give an explanation as to why she didn't see the defendants' bus except to say that having looked to her right to see if there were people crossing she looked to her left. but not for very long. She denied that it was impossible for the bus to have dragged her round the corner. She further denied that in fact she had wanted to go down Hill Road and that she squeezed herself through the sap that she thought was there between the bus and the rails and she denied that she was making up the story about standing on the pavement to throw all the blame on to the bus driver. 11. That really was the crux of the plaintiff's evidence, that she was standing on the pavement. It is a vital ingredient of the plaintiff's case because it is her contention that the defendants' bus intruded into and mounted the pavement, and there collided with her, carrying her away and finally trapping her between the defendants' bus and the roadside railings. The evidence of the conviction 12. The papers relating to the conviction for driving without due care and attention were admitted by consent as Fxh. B although the accuracy of it was not admitted. 13. They indicate that the 1st defendant was convicted on his own plea of driving the bus carelessly on the date in question at Queen's Road Central near Hill Road. The summary of facts and the sketch plan previously referred to were admitted by the 1st defendant. 14. The admitted facts support the plaintiff's case and I set them out -
15. Clearly if the facts set out in the Summary of facts are accurate they support the plaintiff's claim, that she was standing on the pavement when the collision occurred at 3.20 p.m. on the 15th July 1979 although the facts have her standing "on the kerb". 16. If the sketch shows the position of the bus at the time of the accident and if the bus had not been moved after the accident, it would appear to be inconsistent with the summary of facts because as Mr. Mumford for the defendants has pointed out the rear nearside of the bus is shown in the sketch to be one meter from the first fixed point (the "One Way Only" traffic signal) and indicates that the part of the rear of the bus had not yet entered Hill Road. It is difficult to see from the sketch how, if the bus had not been moved after the accident, it could have either intruded into or mounted on to the pavement. 17. That then is the evidence for the plaintiff. 18. Clearly the conviction of the defendant by the magistrate's court on defendant's own plea is relevant to the present case because it relates to an admission of careless driving at exactly the same place and time as the driving which the plaintiff claims was negligent in the present case. The evidence of this conviction is clearly admissible under section 62 of the Evidence Ordinance. Under subsection (2) of that section the proof of this conviction before this court, means that he shall be taken to have committed that offence, unless the contrary is proved. This subsection governs the situation even when the person convicted was so convicted on his own plea of guilty. 19. It is clearly open to the defendant to prove that he did not in fact commit the offence to which he pleaded guilty in the magistrate's court. The burden is on him to prove this on a balance of probabilities. Of course in deciding whether he has proved this, I must not confine myself to the evidence of the 1st defendant, I must consider the evidence as a whole and ask myself if the contrary to the presumption has been shown anywhere in the evidence which I have heard. The evidence of the defendant 20. The 1st defendant admitted that at about 3.20 p.m. on 15th July 1979 in Hill Road the plaintiff had been trapped between the bus and some iron railings. The following day he took some photographs Exh. D2(a), (b) and (c) showing his bus and another bus negotiating the same corner. These photographs emphasize the extreme difficulty a bus driver would experience in making this turn. They clearly show the "One Way Only" traffic signal shown as the first fixed point in the sketch in the magistrate's court papers Exh. B. It can be seen from these photographs that the rear nearside of the bus would have to pass very close to this traffic signal whilst the front off side of the bus would have to pass very close to the barrier on the opposite side of Hill Road. This tends to show that it would have been impossible to negotiate this corner at any speed, because there was so little margin for error. 21. The 1st defendant was shown the sketch referred to and agreed that the four corners shown on the sketch fairly represented the position of the bus after it had completely negotiated the bend. This admission by the defendant would appear to be inconsistent with his admission in the magistrate's court that the bus "cut the corner". 22. In his evidence the 1st defendant testified that he had stopped in Queen's Road West in front of the traffic lights. When the lights changed to green, he then swerved outwards to give himself room to make the turn to the left into Hill Road. He then drove the bus into the junction of Hill Road as shown in the photos Exh. D2, At this time he was two or three pedestrians standing by the side of the pavement at the place marked x on the sketch, and added "that is, by the traffic lights". These people were standing there and they could not cross the road until the bus had passed. He had to look into the mirror on both sides. When he looked into the mirror on the left hand side, he saw a person who dashed out from the pavement and knocked on the rear of the bus. He then stopped the bus, pulled on the hand brake and got off to take a look and then he saw the plaintiff sandwiched between the bus and the iron railing. He did not know if she was one of the group of people waiting on the pavement, but when he drove in front of that group, there was nobody in front of him. At the time he braked he was only travelling at 2-3 m.p.h. in 1st gear. 23. He indicated the spot where the plaintiff was dragged in photo 2(B) showing where the yellow railing was at its outermost point. He helped her to get out and helped her into the bus to rest. He did not move his bus after the accident. 24. He explained that he pleaded guilty in the magistrate's court to save himself trouble. He had originally pleaded not guilty at the first occasion, but pleaded guilty when the magistrate told him that at that position it was very difficult for a driver to drive a vehicle and said that it was up to the 1st defendant whether he pleaded guilty or not. He did not think he was to blame for the accident. 25. Under cross-examination the 1st defendant said he did not know where the plaintiff had been standing. However, he appeared to agree that the x (denoting the first fixed point on the sketch i.e. the "One Way Only" traffic signal) was the position of the "injured person". 26. At this stage there was some confusion because it was suggested to him that this meant that she was within the boundary of the pavement and the bus must have mounted the pavement. This the 1st defendant however denied. 27. It was put to him that he had been paying attention to the off side barrier in Hill Road and not the near side. but he denied this. He denied that his story about the plaintiff dashing out into the bus was his own imagination. Finally he answered that the injured person was mainly to blame. 28. This answer seems to imply that she was not totally to blame. However in his next answer he denied that he himself was to blame at all. 29. Because of the unsatisfactory nature of the evidence as a whole on the issue of liability, I have experienced considerable difficulty in arriving at conclusions of fact. The plaintiff was not a good witness and tended to exaggerate her claim. However her claim that she was standing on the pavement was supported by the summary of facts admitted by the 1st defendant in the magistrate's court and by the 1st defendant's conviction in the magistrate's court, although her own evidence had had much further away from the kerb than the summary of facts which had her "on the kerb". 30. Her pencilled cross in the sketch on Exh. B had her right next to the traffic signals which were obviously some distance from the corner and cannot be seen in the photographs Exh. D2. The back of the "One Way Only" signal can be seen in these photographs and at the position x (denoting the first fixed point) on the sketch and this is the position where the 1st defendant admitted the injured person was. 31. It is difficult to see how the plaintiff could have been hit at all if the bus had been at the position she indicated with the pencilled cross. On the other hand it is difficult to see how the 1st defendant would have seen the plaintiff where he said she was at the first fixed point spot x shown in the sketch, because the clear implication of his evidence had been that he did not actually see her until she dashed out from the pavement into the bus. 32. Was the plaintiff standing on the pavement when she was struck or did she dash out from the pavement? 33. The allegation that she dashed out from the pavement was ventilated for the first time in this court. I find it hard to believe and I prefer the evidence of the plaintiff that she did not rush out from the pavement though I think she was exaggerating her position. I think it much more likely that she was on or near the kerb. 34. Looking at the evidence as a whole, I was not satisfied that the 1st defendant has rebutted the presumption that he committed the offence of driving without due care and attention and I am satisfied that he was in breach of the duty to take care which he owed the plaintiff and all other road users, which is the basis of an action for negligence. 35. Has the plaintiff been shown to be in breach of a duty to take care? Clearly she should have been aware of the presence of a large motor vehicle like an omnibus on the road. Clearly the bus could not have moved quickly in the conditions prevailing at that time. Clearly she was not paying sufficient regard for her own safety. Clearly she has not been completely frank about her position on the pavement and what steps she took. 36. The photographs reveal the extreme difficulty a bus driver would have negotiating this corner with such a long vehicle and such a narrow road. Pedestrians should in such circumstances keep a proper lookout and ensure that they are standing or moving in a safe place. I am not satisfied that the plaintiff did keep a proper lookout and I hold that she also was negligent to some extent and that her negligence contributed to the accident. I hold that the 1st defendant was 90% to blame and the plaintiff 10%. QUANTUM Special damages 37. The following items of special damages are agreed -
38. In addition to these agreed damages the plaintiff claim the following items of special damages -
(i) (b) Loss of wristwatch 39. The plaintiff gave evidence that she bought it for $1,000 and that she thinks it was a Girard Perigaux. She found it was missing on the day of the accident. She had been wearing it but first noticed it was missing whilst in hospital. She did not say when she bought it or how old it was. There was no evidence upon which I could assess her loss in this respect as $350 which is a very precise figure. The plaintiff was very vague generally in the witness box and had a tendency to exaggerate her claim as will be seen later. In the circumstances I do not feel that it would be safe to make any award under this head for loss of the wristwatch and I disallow it. (iii) Loss of wages 40. The plaintiff claims $29,394 representing "loss of salary from 15th July 1979 to end of April 1981 at $1,633 p.m. (and continuing)". 41. Mr. Mumford for the defendants accepts from the evidence of the plaintiff and her employer that the plaintiff was earning on average $1,633 p.m. as a baby amah at the date of the accident. He argues that since the medical report of Dr. Wedderburn has been agreed and since it indicates that at the time of the report (23/2/81) it was Dr. Wedderburn's opinion that it was unlikely that she would contemplate returning to work for another six months and at that time she would be able to do so, no award should be made for loss of salary after August 1981. He argues that the correct award should be $1,633 x 25½ months = $41,641.50. 42. Mr. Chong for the plaintiff raised no argument about loss of wages, in his final address and in the circumstances I assess her loss under this head at $41,641.50 (iv) Special nutritional food 43. The plaintiff claims $27,000 for "special nutritional food prepared for the plaintiff at $1,500 p.m. as from the day of discharge (and continuing)". 44. Mr. Mumford quite rightly argues that this is an absurd claim. I agree with him. There is no evidence that any such food was recommended by any doctor or specialist. Mr. Mumford says the would not object to a nominal amount of $500. 45. Again Mr. Chong did not touch on this aspect in his final address and I will assess damages under this head at $500 on the basis that experience has shown that a person such as the plaintiff would be expected to take some nourishing food in the belief that it would assist in her recovery. (v)Travelling expenses 46. The plaintiff claims $1.620 "travelling expenses to and from hospital as an outpatient and for the purpose of physiotherapy treatment at $20 p.m. for 18 months as from the day of discharge (and continuing)". 47. Again the evidence in support of this claim was unsatisfactory. She testified that she obtained physiotherapy treatment three times a week for about three months altogether. She took a taxi because she could not travel on the buses. The taxi fares cost her about $20 or 21 or 22 for the return journey. On one occasion it cost $19. She went to the David Trench Clinic on one occasion. She thought it was $18. She then said she was talking about the single journey not the return journey. 48. Dr. Wedderburn's report on the other hand showed that she went to the Tang Shiu Kin Hospital for physiotherapy for three months. Three times a week means 12 times a month means 36 times in three months. Bearing in mind the plaintiff's tendency to exaggerate, I will take the return taxi fare as $10. 36 x $10 = $360. I thus assess damages under this head at $360. GENERAL DAMAGES Pain suffering and loss of amenities 49. The agreed report of Dr. Wedderburn is set out below -
50. Mr. Chong has referred me to the following authorities. LEE Ting-lam v. LEUNG Kam-ming(1) which deals with the general pattern of awards under this head in cases of severe disablement showing a range of awards for serious injury from $60,000 - $80,000. LEE Fuk-yee v. TANG Kwong-chiu(2) where a sum of $30,000 was awarded. Mr. Chong submitted that the injuries in that case were less serious than the present case, but it is clear from the report in that case that the medical evidence showed that the plaintiff was now an invalid and would have to be institutionalized in a few months and whose life expectancy was markedly reduced. LEE Po-lin & ors. v. TSUI Hing-hau & ors.(3) where $5,000 was awarded for four fractured ribs and there was no permanent disability. NG Fat-sum v. LI Chor & anr.(4) where $10,000 was awarded for a fractured pelvis and a fractured femur, there being no permanent disability. 51. Mr. Mumford argues that the plaintiff only spent five weeks in hospital. She had a fractured pelvis with fractures of three ribs, a tear of the liver and loss of her spleen. Dr. Wedderburn's report revealed that her permanent disability was only 1%. He urged the court to assess her damages under this head at between $10,000 to $15,000 and to ignore the first of the abovementioned cases which relates to really serious injuries involving severe disablement. 52. I agree with Mr. Mumford that this case is no guide for the present sort of case. Taking all the factors into account I assess damages at $20,000 under this head. These figures would have to be reduced by 10%. I thus award damages to the plaintiff at $43,054.50 - 10% = $38,749,05 in respect of special damages and $20,000 - 10% = $18,000 in respect of general damages. Interest is awarded on special damages at 7.5% from the date of the accident till the date of judgment and on the general damages at 15% from the date of service of the writ till the date of judgment.
Representation: Mr. K.M. Chong (P.T. Fung & Co.) for the plaintiff Mr. E.C. Mumford (Ngan & Co.) for both defendants (1) 1980 H.K.L,J. 364 (2) 1980 H.K. L.J. (3) 1978 H.K.L.J. 376 (4) 1980 H.K.J.L.. 110 |
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