Leung Wah Chung v. Bany Haigh and Another

HCA000582/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 582 OF 1973

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Coram: Mr. Commissioner Yang

Date of Judgment: 17th October 1973

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JUDGMENT

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1. At about 9 p.m. on 15.3.70 the defendant Mr. Haigh was driving motor vehicle AJ 9061 in the outer lane of the southbound carriageway of Chatham Road, towards Hok Yuen Street, Kowloon. The plaintiff Mr. Leung was at the time crossing Chatham Road from east to west on an uncontrolled crossing just to the north of Hok Yuen Street. There he was knocked down by Mr. Haigh's car and injured. That stretch of the road was poorly lit and the road surface was wet as it was drizzling that evening.

2. Mr. Leung now sues Mr. Haigh for damages for personal injuries received as a result of the alleged negligent driving and/or breach of a statutory duty by the latter.

3. Mr. Leung's evidence on the accident, which I accept, is as follows. He said that as he stepped from the pavement onto the crossing, he looked to his right, and apart from some vehicular traffic coming towards him some 100 yards on his right, he saw no other traffic. He was walking at a normal pace. As he was on the crossing, he heard the screeching of a car and he was knocked unconscious. He did not hear the sound of horns. Mr. Haigh's evidence is that when he was driving in the centre lane about 100 yards from the crossing, there were three or four cars in front of him and one or two cars by his side in the inner lane. When he got to about 30 to 40 feet from the crossing, he swerved to the outer lane to overtake the cars in front of him. In the course of overtaking the other cars, he "caught in the corner of my eye on the left red brake lights from the car" he had been following, which was at that moment 18 to 20 feet from the cross-ing. He immediately realized that something was wrong and that someone must be on the crossing. He continued to say:

" At that time I must be about 10 feet from the crossing. I was doing 30 m.p.h. I immediately braked - I saw no one before I braked. When I braked, I braked hard and the next thing I knew: a man was to the front and right of my car in a jump movement. He was half jumping and half running. He was jumping to get out of the way. It was in the form of a jump on impact. When I first saw him he was about in the centre of the car in front - a matter of inches in front. The reaction of instant horror on my part and since my foot was on the brake, I pulled my wheel over to the left in the hope I could miss him. I hit him on the zebra crossing. It took 59 feet for my car to stop as the road was wet. I pulled out at an angle, because the car had skidded and I had swerved."

4. Mr. Donnelly argues on behalf of the defence that Mr. Leung was not a reliable witness. It is true that in his statement to the police made at about midnight on 15.3.70, shortly after he regained consciousness, Mr. Leung told the police that he had alighted from a bus at Sun Lau Street before he crossed Chatham Road, whereas he told the Court that he had not alighted from a bus. However the rest of his statement agrees with his evidence. Having regard to the circumstances in which the statement was made, I have no hesitation in accepting his evidence on the accident as representing the truth. It is further aruged for the defence that the paucity of cross-examination of Mr. Haigh by counsel for the plaintiff indicates that Mr. Haigh was telling the truth. I am prepared to accept that Mr. Haigh was not a dishonest witness, and he told the Court what he believed had happened, but in my view his evidence, as considered in conjunction with Mr. Leung's does not show that it was Mr. Leung's negligence which was the sole or contributory cause of the accident. Mr. Donnelly also submits that if the plaintiff's evidence represented the truth, then the accident could not have happened. I am unable to agree with this proposition. The width of the southbound carriageway is 36 feet 7 inches according to the sketch plan produced in Court, and Mr. Leung, being hit by the car in the outer lane, must have been at least 24 feet from the pavement. It is commonsense that it takes only several paces, or several seconds at a normal walking pace, to cover this distance. When Mr. Leung first stepped onto the crossing Mr. Haigh was probably about 100 yards away. For a car travelling at 20 to 30 m.p.h., it would take several seconds (not more than 10 seconds and not less than 7 seoonds according to my calculations ) to cover this distance. Therefore in those circumstances not only was the accident now under consideration not impossible, it was in my judgment probable. Mr. Donnelly finally argues that there is no evidence to show that the uncontrolled crossing conforms with that specified in the Road Traffic (Road Crossing) Regulations. I see no merit in this contention.

5. Mr. Haigh's main defence is that Mr. Leung had run out onto the crossing without first ascertaining that it was safe for him to do so and it was therefore Mr. Leung's negligence which caused the accident. As Mr. Haigh first saw Mr. Leung just before the accident, I would not think he was in a position to say how Mr. Leung stepped onto the crossing. Whether or not he was running whilst on the crossing is of secondary importance. The real question is whether he stepped onto the crossing when it was unsafe for him to do so. Now Mr. Leung was knocked down in the outer lane which means that he had already safely crossed at least two-thirds of the southbound carriageway because those cars in the inner and centre lanes had accorded him the precedence which he was entitled to expect.

6. On Mr. Haigh's own admission, the lighting was poor in that part of Chatham Road and the road was wet. He started to overtake other cars at a distance of only 30 to 40 feet from the crossing. He did not see anyone on the crossing before braking, though at the time that he braked Mr. Leung must be already about half way across the southbound carriageway. And as Mr. Haigh was able to see the brake lights of the car in front of him (which, incidentally, managed to slow down or stop in time to give precedence to Mr. Leung) his view of the crossing was most probably blocked by that car. In those circumstances, Mr. Haigh was clearly guilty of negligent driving, particularly having regard to a motorist's statutory duty to accord preoedence to pedestrians on such crossings. On the evidence I am of the opinion that Mr. Leung was not guilty of negligence at all.

7. Mr. Donnelly cites six authorities in support of his submissions on the question of liability. I think I need refer to only one. Suffice it to say that I have considered the rest and found them to be of varying degrees of assistance. In Kozimor v Adey (1962) 106 SO.JO. 431, Megaw J. said:

" A driver was in breach of Reg. 4 (i.e. Reg. 4 of the Pedestrian Crossings Regulations 1954, which is similar to Reg. 4 of Hong Kong's Road Traffic (Road Crossing) Regulations, Cap. 220) if in fact he collided with or interfered with the free passage of any pedestrian, and the only possible exception was if a suicidal pedestrian deliberately walked in front of a vehicle. He could only be certain of avoiding a breach by approaching the crossing at such a slow speed that he could stop in time to avoid any conceivable use of it by any conceivable pedestrian, however unexpected and however foolish."

8. With great respect I follow this dictum.

9. I now deal with the question of assessment of damages. In doing so I bear in mind the opinion of Huggins, J. on the care that must be exercised in using awards in England as a guide (see Lung Chun Ming (No.2) v. Yeung On (1963) H.K.L.R. 572 at 583; Chan Kwok Wai v. Lo Sau King (1963) H.K.L.R. 692, at 699, cited by Mr. Donnelly).

10. There is no substantial dispute as to Mr. Leung's pain and suffering and the extent of his injuries. When he regained consciousness in Queen Elizabeth Hospital later the same night he felt a great pain in his right thigh and his sexual organ. At times the pain was so severe that he fainted.

11. Dr. C.W. Chin of Queen Elizabeth Hospital said in evidence:

12. It appeared that in late July 1970, Mr. Leung was still having pain in his sexual organ, right hip and thigh, and also that part of the abdomen where the suprapubic cystostomy had been performed. After that his pain decreased. He had to rely on a crutch for another month, after which he no longer required a crutch but walked with a limp. Now he feels a numbness in his abdomen and right hip and thighwhenever there is rain or a strong wind. He is unable to stand or walk for any great length of time.

13. Dr. John Chan, who examined Mr. Leung on 10.9.73. this year said in evidence:

"Physical Findings:

X-Ray Findings:

14. In Dr. Chan's opinion it is unlikely that the patient would get any better.

15. The special damages Mr. Leung claims are:

16. Items 1 and 4 are agreed On Item 3, Mr. Leung's evidence is that his sister paid this amount to Queen Elizabeth Hospital on his behalf for the room and food provided there, and he has since repaid his sister. There is no evidence to the contrary and I find this expenditure proved. On Item 3, Mr. Leung told the Court that the special tonic and food were not taken on doctor's advice, I therefore disallow it. Under Items 1, 2 and 4, the special damages I award come to $1,676.12.

17. Various authorities were cited by defence counsel to show the range of general damages awarded by the courts in England as well as in Hong Kong. I shall not enter into a detailed analysis of these cases, for each of them must necessarily stand on its own special facts and offers nothing more than a rough guide.

18. At the time of the accident Mr. Leung was a gymnastics instructor at a school earning over $900 per month. He is now a teacher in mathematics and in charge of discipline amongst pupils in the same school. His salary is over $1,400 per month. It is not suggested that there will be any loss of future earnings.

19. There is no evidence what recreations he indulged in before the accident. Apart from his inability to stand or walk for a long time, no evidence has been adduced to show the loss of other amenities of life. Wearing a shoe with a raised heel, he now walks with a slight limp.

20. That Mr. Leung must have suffered considerable physical pain is indisputable. His pain did not begin to decrease until about four and a half months after the accident. He had had two operations and was detained in hospital for a total of three and a half months. Even now he feels numbness in his abdomen and right hip in bad weather, and this discomfort will probably stay with him for the rest of his life.

21. There being no continuing loss of earnings, I take into account the permanent shortening of the leg and the consequential reduction of amenity, the pain and suffering, and the feeling of numbness in bad weather. I accordingly assess the amount of general damages at $25,000.

22. There will be judgment for Mr. Leung for $26,676.12 with costs (the Legal Aid Ordinance to apply).

Representation:

Mr. F.A.L. Eddis (W.K. Lore & Co.) for Plaintiff, assigned.

Mr. J.D.M. Donnelly (Gordon, Hampton & Winter) for 1st Defendant.