Cheung Luk v. Lo Kwok Hung

HCA004770/1980

HCA 4770/80

Assessment of damages for personal injuries - man of 75 - fractured wrist resulting in radial displacement of left hand.

H.C.A 4770/80

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

________________

BETWEEN

_______________

Coram: Fuad, J.

Date of Judgment: 5 March 1982

____________

JUDGMENT

____________

(Transcripton of Oral Judgment)

1. This action arises out of an accident that happened on the 13th October 1979 in King's Road not far from the junction of Tong Shui Road. It is common ground that a lorry which has been described as a "dump-truck" being driven by the 2nd defendant (owned by the 1st defendant) in an easterly direction towards Shek O came into collision with, or in some way struck, the plaintiff. It is also common ground that the plaintiff suffered injury mainly to his waist from the accident. The plaintiff told the Court that he had been shopping on the North side of King's Road and had crossed to about half way across the road using the pedestrain crossing there and that when the little green man on the pedestrian crossing light started to flicker he stepped to his left and stood on the raised island which is primarily a tram stop. He was standing on the edge of the island with his arms crossed in front of him, with his left arm slightly above and slightly ahead of his right. His arms were crossed just above the waist and in his left hand, he told the Court, he was carrying a folded newspaper with a little transistor radio wrapped in it. According to his evidence the vehicle passed so closely by him from his right that it struck his hand and he remembered no more until he woke up in hospital.

2. The 2nd defendant, who was the driver, told a very different story. According to him, he was driving his lorry at a speed of not quite 30 miles an hour when he saw someone who turned out to be the old man start to cross the road by stepping off the island. He jammed on his brakes but as he was about to come to a stop he realised that his vehicle had struck someone. He picked up the plaintiff and took him to the safety of the island. Useful photographs were taken, and a plan drawn, by a police officer who visited the scene about one hour after the accident had happened, that is to say about 5 o'clock that evening. It appears that the vehicle had been moved by that time so that it would not continue to obstruct the traffic but one of his colleagues had drawn chalk marks on the road where he had seen the vehicle resting. The officer who drew the plan showed brake merks extending to about 20 metres, although if the chalk lines correctly represent the final stopping place of the vehicle, the brake marks end about half way underneath the length of the vehicle.

3. Photographs showed that the route taken by the 2nd defendant was a narrow one in the sense that he had to negotiate between the edge of the island which formed the tram stop and a dotted white line which divided the road from the traffic coming in the opposite direction; and the distance between those two points was only 2.4 metres. He measured the defendant's vehicle and found that the maximum width of the vehicle was also 2.4 metres.

4. I will say at once that the plaintiff impressed me greatly when he was giving his evidence and I have no doubt whatever that he was telling the truth to the best of his ability. The same cannot be said of the defendant. It is quite clear that he gave a completely different version of how the accident occurred to the police officer who visited the scene and indicated to him that the pedestrian his vehicle had struck had not stepped off the island but had moved forward from the middle of the road where there was no island. It is sometimes possible to draw irresistible inferences from marks seen on the road after a collision has taken place. But evidence of marks on the road can mislead and to my mind in this case what was seen is not sufficient to displace the impression I formed of the veracity of the plaintiff. I do not think it can fairly be said that the mute evidence of the brake marks and their direction, and the final resting place of vehicle, is such that the plaintiff should not be believed. He gave his evidence so well and so graphically that I entertain no doubt that he was, indeed, standing on the island, at the edge of it, when he was struck on his left hand in precisely the manner he described; and I think it can also be said that the medical evidence is entirely consistent with his version and is perhaps a little difficult to reconcile with the version of the accident given by the 2nd defendant.

5. However fast the 2nd defendant was travelling that day, in my judgment he was going far too fast in all the circumstances. The space available for his vehicle in the carriage way which he selected to use was barely sufficient for him and in those circumstances, however busy the traffic was at the time, he should have been driving much more slowly and with much more care. It may be that he remised too fate that he was going too fast for the restricted space at his disposal and started to brake well before he reached the tram island, as the brake marks seem to indicate and that somehow before he was able to bring his vehicle to a half some part of it struck the plaintiff, as he told us in evidence. In these circumstances the 2nd defendant was clearly negligent and I am not satisfied that any contributory negligence has been shown against the plaintiff. While the tram island is obviously mainly intended to be used as a place where persons waiting to get on a tram would wait, it is perfectly understandable that this old man might wish to seek refuge on it rather than standing by its side like some other pedestrians were. In such a position he was entitled to feel completely safe, and a person using a vehicle must make sure that he drives at a reasonable distance away from the edge of the island so that there is no danger that any part of his vehicle (overhanging or not) will come into contact with somebody standing there. I do not believe the plaintiff was leaning forward or doing anything else that would justify a finding of contributory negligence against him. I therefore find on the facts that the injury suffered by the plaintiff was due solely to the negligence of the 2nd defendant.

6. I now come to consider the issue of damages. As we have seen, the accident took place on the 13th October 1979 and since the plaintiff was born in December 1906, he was about 72 at the time of the accident and is now about 75. Dr. Wedderburn examined him early in May 1980 and again in February 1982. He found that there was evidence of a fracture of the left forearm which had obviously been treated by a plaster-cast, and hospital records showed that he was discharged after three days and that he had to wear the plaster for about 40 days. He had been receiving physiotherapy three times a week for sometime after the accident but later only needed to report at monthly intervals. Dr. Wedderburn found the hand was displaced towards the thumb side slightly at the wrist. He described this at a radial displacement. The movement of extending and bending the wrist showed that he had lost 40° of the movement of extending the left hand at the wrist. Flexion or bending, according to Dr. Wedderburn, was normal. When the hand is held in the neutral position and tilted to the thumb side, the movement is called radial deviation; when tilted towards the little finger side the movement is described as ulnar deviation. He had normal radial deviation but ulnar deviation, which is usually 45° on the right, was reduced to 15° and the area of the wrist on the left hand appeared more swollen than that on the right. The fracture went up the radius and its closest point to the wrist was one inch; and the fracture was oblique across the bone. The distal fragment was tilted forward by 10°. The other bone of the forearm was dislocated so that the normal mechanism of the right wrist joint was severely affected. On the physical examination in May 1980 he had a 70 1b. grip with his good right hand and only a 25 1b. grip with his left, which the Doctor thought was quite good considering the anatomical abnormality suffered. As the plaintiff is right handed, in Dr. Wedderburn's opinion, his pre-accident left hand grip would have been at least 60 1bs. Dr. Wedderburn noted that he had not returned to work and felt he could not do so because of the weakness of the wrist. He thought that whereas a younger person would be able to overcome the handicap, because of his age the plaintiff was unable to overcome it, and he was not therefore fit for work. His estimate would be that he had a 5% impairment from loss of ulnar deviation, making a 10% impairment of the arm, which was a 6% impairment of the whole man. When Dr. Wedderburn examined the plaintiff on the second occasion he found some improvement. There were some slight changes in the amount of movement of the left wrist extension had improved to 55° and ulnar deviation to 20°, but he had lost 10° of radial deviation. He now exercised a 40 1b. grip with his left hand and 55 1bs. with his right. Some improvement in the grip strength would be expected as he adjusted himself to the abnormality. Impairment of the arm had decreased to 8%, that is to say a 5% impairment of the whole man.

7. The Doctor said that it would not be unnatural in his view for a man of his age to give up work after the comparatively slight injury.

8. I am satisfied in all circumstances that it would be unreasonable to have expected the plaintiff to seek other and obviously lower paid work at his age. The defendants have to accept the plaintiff as they found him. He was a perfectly fit old man working as a cook and there is no reason to doubt Dr. Wedderburn's estimate at the time that he might have been able to work for three or four more years as a cook. Certainly the plaintiff, who I believe, said that he would have gone on working until he was unable to do so; and no doubt, his employer who has been very good to him would have kept him on as long as he was doing a reasonable job. I think that the defendants must be held liable for pre-trial loss of wages up to the hearing today and I regard a multiplier of one as being fair in respect of future loss of earnings.

9. The plaintiff was earning $640 a month at the time of the accident and he had free accommodation and two free meals a day which have been valued respectively at $180 and $200 a month, the total being $1,020 per month - and he had an annual bonus of a month's salary. Counsel have very kindly worked out the appropriate Figure and, in money terms, it comes to $1,073 a month. About 29 months have passed since the accident so his pre-trial loss of earnings was $1,073 x 29 which I make to be $31,117 and therefore the plaintiff is entitled to $31,117 special damages for pre-trial loss, from which Counsel have agreed should be deducted the sum of $7,703, the payment he received as Workmen's Compensation; and so that Figure becomes $23,414. The special damages regarding special nourishment ($400), travelling expenses ($50) and damage to his watch beyond repair ($500) have been agreed, and I make the sub-total $950. Therefore the total amount to special damages which I award the plaintiff becomes $24,364. As regards pain, suffering and loss of amenities, after careful consideration I think that a sum of $15,000 is appropriate. In respect of loss of future earnings, as I have said, I think a multiplier of one is appropriate and therefore he should receive $12,876 as general damages. I make the total general damages $27,876. I award interest at the rate of 7% per annum From the day of accident until today on the special damages, and interest at the rate of 14% per annum on the general damages from the date of the service of the writ until today. I imagine that Mr. Bunting will not wish to address me on costs and I award costs to the plaintiff. I give judgment against the defendants in those terms and direct that the sums awarded be paid out to the plaintiff's solicitors and that the plaintiff's own costs be taxed in accordance with the Legal Aid (Scale of Fees) Regulations.

Representation:

Mr. Gilbert Rodway (Rowdget W. Young & Co.) for plaintiff

Mr. Michael Bunting (H.A. Hoosenally & Co.) for defendants