Lo Mai Li v. China Motor Bus Co Ltd and Another

HCA002463/1980

Quantum of damages.

Coram: Liu, J.in court

Date of Judgment: 31st July 1981

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JUDGMENT

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1. On the 9th January 1979 shortly after 6 o'clock in the morning on her way to work, the plaintiff was knocked down and run over by a China Motor Bus at the Chai Wan Sun Ha Street terminus driven by the 2nd defendant, a servant and agent of the 1st defendant company. She suffered fractures at her ankles on both of her legs. She was hospitalised including a period in the Sandy Bay Convalescence Home for a period of over three months. She had undergone remedial operations for the fractures including a skin graft on the 9th January 1979 and 13th February 1979. After her confinement in the convalescence home at Sandy Bay, she had to be aided with two crutches for about two months and thereafter one crutch for a few more months.

2. The plaintiff is an elderly lady, and the accident left her with a comparatively minor degree of immobility. Ultimately, she has normal extension of her right ankle, but she suffers a 30^o loss in extension of her left ankle. Her right ankle in flexion or bending yields a slight 5^o deficit, but the flexion or bending of her left ankle is impaired to the extent of 25^o. Her left ankle remains swollen today. She can walk for about three bus stops and manage four with a rest.

3. Standing two to three hours is, according to Mr. Wedderburn, equivalent to walking about four bus stops with a rest in between, and discomfort and pain would set in thereafter. There are symptoms of osteoarthritis, but the x-ray still reveals no sign. The on-set and development of osteoarthritis is a slow process and no prediction can be accurately made.

4. The plaintiff has been found to have a heart condition which would not be much of an impediment for an oriental woman of her social status, but Mr. Wedderburn fairly opined that in other societies such a heart condition would immediately call for an early retirement. Without that heart condition, expectation of life, which has not been affected by the accident of a woman of the plaintiff's present age of 73, would be 13 years, and that must be somewhat reduced on account of her ill health. The closest medical assessment of the plaintiff's pre-accident earning capacity gave the age of 75 with a year or two thereafter at a slower pace. Naturally with a heart condition, such estimate has to be more conservative. However, Mr. Wedderburn concluded that the diagnosed cardiac insufficiency of the plaintiff was at the "very early stage".

5. In essence, the plaintiff's allegation against the defendants was that she approached the accident bus from the front, the driver of which in a raised cab should have an unobstructed view of her approach. The defendants' answer to that was that the plaintiff was running along the off-side of their bus, having approached it from behind, with a view to boarding it but that the plaintiff misjudged the time and found herself close to the side of the slowly moving bus behind the driver's cab. Thus it was argued that the traffic accident was no fault of the 2nd defendant's who could not have been aware of the plaintiff's presence. Alternatively, a fair degree of contributory negligence on the part of the plaintiff was claimed.

6. The 2nd defendant was convicted on the 8th October 1979 in Western Magistracy of the offence of careless driving in the said accident. Little was said of this conviction. In conjunction with the evidence given in this case which I will come to in a moment or two, this conviction together with the notes of proceedings are ample evidence on which the negligence of the 2nd defendant in the said accident may be found.

7. The plaintiff is now an elderly lady of 73. Her evidence was by no means perfect or completely satisfactory. There were discrepancies and inaccuracies in her evidence. When the plaintiff was still in hospital, she was visited by the police. A rough sketch was drawn and she was instructed to and did authenticate it by appending her thumb print thereon. From the position where the accident bus was parked for picking up passengers, there was a left hand bend into Sun Ha Street. A comparison of this sketch on which the Plaintiff's thumb print was put, "Ex. D1", with another sketch said to have been made by the driver "Ex. P8" the obviously inaccurate lay-out in "Ex.D1" can readily be seen. It is evident that no reliance can safely be put on it.

8. The plaintiff maintained that her angle of approach was from the front at much more than a right angle with the side of the accident bus ahead of the driver's cab. She disclaimed all responsibility for the angle of approach of about 60 shown in the rough. sketch "Ex.D1" on which her thumb print appears. It was submitted by counsel for the defendants that the plaintiff deliberately perjured herself by asserting under oath that "Ex.D1" had been prepared before hand by the police and shown to her for her signature in hospital. P.C.12365 explained to the Court that he was not at the scene of the accident and had therefore no knowledge of the position of the accident bus or the plaintiff and that he drew the rough sketch "Ex.D1" on the information supplied by the plaintiff in hospital. The Plaintiff was seeking to dissociate herself from the sketch "Ex. D1". She could have been confused on matters soon after the accident. From my observation of her demenour and her general attitude in her testimony, no conclusion can fairly be drawn that she had deliberately told an untruth to this Court. However, I have taken this and other inaccuracies into consideration. These were peripheral, and in the end I have come to the conclusion that the plaintiff's evidence on the central issue was in no way affected.

9. The plaintiff told the Court that she had come straight from Block 13 for transport early at 6 in the morning, that block 13 was behind the Po Leung Kok School and that she approached the accident bus from the front diagonally in the direction of the driver's cab. According to the plaintiff from a distance of 6 to 9 feet away, she had a clear view of the driver attending to the boarding passengers and the money box, and when she came nearer to 4 or 5 feet from the accident bus, it suddenly drove off; hence the accident. She categorically described her position as such that had the driver looked in front, he could not have missed her presence.

10. The 2nd defendant driver admitted that block 13 was behind the Po Leung Kok School and that one would have to walk past that school from block 13 to enter the bus terminus. He further told the Court that from his level he was able to see any person even within a distance of two feet from the driver's cab.

11. Block 13 was behind the school. The plaintiff, I find, took the usual route as most others passing the school to enter the terminus. If in fact the plaintiff had approached from behind, she would have probably gone around the rear of the bus rather than to take the longer and more inconvenient approach along its side walking towards the front. Apart from the 2nd defendants conviction, the evidence against him was, on the balance of probability, all one way. In the light of the 2nd defendants conviction and the overall evidence, there can be no doubt that the 2nd defendant was negligent.

12. I find that the 2nd defendant started the accident bus and brought it forward in motion without paying sufficient regard to the presence of prospective passengers and pedestrians on his diagonal right with in his front vision and that he did not keep any proper lookout for the plaintiff whose evidence of her approach and position I accept.

13. It is not necessary for me to decide whether the plaintiff was run over once or twice by the front and the rear wheels of the accident bus. The medical evidence is consistent with either a blow to the plaintiff's ankles or damage done by having once been run over by a bus. The medical evidence raises doubts as to whether the injuries were consistent with damage caused by being run over twice by the front and rear wheels of a bus. It is not necessary for me to journey further in the driver's negligence. I find that the plaintiff was run over at least once. I was impressed by the vivid description of the plaintiff who retained consciousness throughout, but I cannot lightly ...(illegible) the force of the medical evidence. If I had to decide on the issue, I would find that the plaintiff was probably confused in a moment of panic and agony and that she was in fact run over once and not twice by the accident bus.

14. I turn next to consider if the plaintiff was herself negligent. This is a bus terminus for Chai Wan close to the tremendous Chai Wan Estate. Counsel of the defendants did not seek to argue that the plaintiff was negligent by crossing that bus terminus to catch the accident bus. There was no evidence as to how best prospective passengers or pedestrians should come up to the stationary buses. It was not a bus stop where the driver's attention may safely be focussed on the near-side, for pedestrians. It was a terminus with people emerging from every direction. The evidence on distances was admittedly unhelpful. Judgment was reserved principally on contributory negligence. After deliberation, I am virtually driven to the conclusion that no contributery negligence could be pinned on the plaintiff for approaching the accident bus in the manner in which, she said, she did.

15. Finally I come to the question of quantum. Certain special damages have been agreed. They are a $36 claim for out-patient expenses, $67 for private practitioner's consultation fees and $99 for travelling expenses by the plaintiff for attending the out-patient clinic. In addition, both as to recoverability and quantum the parties were ad idem as to the travelling expenses of $500 for the daughter's visits to the plaintiff in hospital and convalescing at home and a claim for extra nourishment in the sum of $400.

16. The plaintiff's expectation of life has not been affected. She has a heart condition, and therefore her ultimate multiplier will be affected. She was earning $1,400 a month with three meals worth $10 each. The plaintiff's evidence of the closure of her former employer's restaurant was far from being clear-cut, but I have no doubt that the plaintiff continued to be so employed as a dish washer and cleaner in the restaurant business run at the same premises right up to the date of her accident. Only $5 worth per meal was claimed in the Statement of Claim. That is an inaccurate assertion, but I would treat all proper amendments as having been made for the plaintiff's full claim.

17. The Plaintiff was unemployed during her hospital confinement and convalescence period for seven months. She used to work a full month of 30 days before the accident. Therefore, her net monthly benefit would be $1,400 by way of wages and $900 by way of provisions, totalling $2,300 per month. For seven months that would make a total of $16,100.

18. Starting from August 1979 she took to plastic flowers for $5 a day, working approximately 20 days a month, earning in the region of $100 per month. From August 1979 to July 1981, say 24 months, her partial loss of earningswould be $2,200 x 24 and that would be $52,800. In view of her age and her heart condition unconnected with the accident, I would allow a low multiplier of 1. That would make $26,400, being $2,200 per month for 12 months by way of future loss.

19. To summarise, the total damages would be :

20. According to Mr. Wedderburn, including the real possibility of osteoarthritis the impairment of the Whole Man was put at 10 per cent. Bearing in mind the degree of disability, the period of confinemant and anguish and anxiety experienced by the plaintiff, despite her heart condition which is not being taken as serious among our local working class, I would be prepared to and do award her $25,000 for pain and suffering and loss of amenities.

21. I would give interestsat 6 per cent per annum on the special damages in items 1,2 and 3 from the date of the accident to date of judgment and 12 per cent per annum on the $25,000 general damages from the service of the writ to the date of judgment. The Plaintiff is to have costs against both defendants.

Representation:

Mr. Ruy Barretto with Mr. S. Cunningham instructed by Rowdget W. Young & Co. assigned by Director of Legal Aid for Plaintiff.

Mr. Mumford instructed by Ngan & Co. for both Defendants.