Yeung Por v. Attorney General and Another

1996, No. P.I. 586

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon. PATRICK CHAN, J. in Court

Dates of hearing: 16, 17 and 20 January 1997

Date of Judgment: 20 January 1997

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J U D G M E N T

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1. On 26 March 1991 at about 8:00 p.m. Plaintiff had just finished work and was going home in Causeway Bay. She walked along the pavement of Lau Lee Street in a northerly direction and arrived at the junction with Electric Road. Her home was at the building which was right opposite, so she walked straight across Electric Road. That road was a single carriageway running from East to West. It was wide enough for at least two lanes of traffic, although there was no dividing line in the middle. While she was crossing the road she was knocked down by a motor-cycle driven by the 2nd Defendant who was a police officer on duty.

2. The Plaintiff said that before she crossed the road she looked to her left and right. On the right she could notice a taxi parked by the side of the road. It was some three to four car lengths away; it did not obstruct her view. There was no other vehicle parked along that road because of the restrictions along that road.

3. She also noticed no oncoming vehicle and she walked slowly across. When she got to the middle of the road and was about two to three steps from the pavement on the other side she saw a motor-cycle approaching her at high speed. It was seven to eight car lengths away when she first saw it. She said that the motor-cycle had only its dim lights on but not its headlights. It did not give any warning or sound the horn. She said she was scared; she did not know what to do. She raised her arm to signal the motor-cycle to stop but it did not and hit her. She said that she was spun round twice and fell on the ground. The motor-cycle and driver also fell. As a result of the accident she was injured and sent to hospital. There is no dispute that at the time the weather was fine, the road was dry and the street lights were on.

4. According to the 2nd Defendant, on that day he was on duty at Central Police Station. At about 7:50 p.m. he had just finished dinner at the Causeway Bay Police Station with his colleagues. Then he drove his motor-cycle along Electric Road, intending to go back to Central Police Station. He said that along the road there were vehicles parked on both sides. This was confirmed by his colleague, DW 2, who arrived at the scene shortly after the accident. Since it was after 7:00 p.m. the vehicles were permitted to load and unload there. In fact, according to the evidence of

5. DW 2 as soon as he arrived with the police siren these vehicles then drove away; apparently, some of the drivers were still inside the vehicles. At that time traffic on the road was smooth.

6. The 2nd Defendant said that he was travelling at 30 kilometres per hour, his headlights were turned on, and that, according to him, was his practice and the result of police training. At the junction with Lau Lee Street he saw a stationary white van parked on the left by the roadside near Lau Lee Street. He was driving on the right-hand side nearer to the vehicle parked by the right side of Electric Road. There was no other car driving along.

7. He said he suddenly saw the Plaintiff rushing out in front of the stationary white van on his left. When he first saw the Plaintiff she was four to five feet away. He immediately swerved to the right and braked to stop his motor-cycle. He said he had already watched out for any vehicle coming out from Lau Lee Street and he had slowed down to approximately 25 kilometres per hour, but he did not expect the Plaintiff to dash out so suddenly so he could not stop in time to avoid a collision. He said the Plaintiff hit into his front wheel. The Plaintiff fell and he and his motor-cycle also fell. He got injured at the knee. Under cross-examination he said that between the time he first saw the Plaintiff and the time of the collision she had walked for about two to three paces.

8. He admitted that he did not tell the police in his statement afterwards about the white van parked by the left side of the road. He said there was just that vehicle. He explained that it was just a brief statement. It is not disputed that traffic was not busy at the time.

9. The Plaintiff was going home after work and her home was just opposite across the road. There was no reason for her to run across. I also consider her build and her age and I do not believe that the Plaintiff would be rushing across the road in these circumstances. I accept that she was walking at a normal pace. I also find that the Plaintiff was going straight across the road. I see no reason why she would walk at an angle. In fact, this is not seriously disputed by the parties.

10. I accept the evidence that there were some vehicles parked along both sides of the road, contrary to what the Plaintiff said. I find that there was a vehicle on the left side near the junction of Lau Lee Street and Electric Road, but I cannot be sure whether it was a taxi or a light goods vehicle. Both the Plaintiff and the 2nd Defendant are not reliable on this point. It might be that this vehicle had obstructed part of the Plaintiff's view of Electric Road.

11. I believe that before she started to cross the Plaintiff had looked to her left and right for any oncoming traffic. However, I think that because of the presence of the vehicle, be it a taxi, as she described, or a light goods vehicle, as the 2nd Defendant described, she had not looked far enough.

However, I do not accept that when the 2nd Defendant first saw the Plaintiff she was only four to five feet away. If that were the case there would not have been a collision.

12. On the other hand, I find that the 2nd Defendant's headlights were turned on and not really the dim lights. This, I accept, was part of his training.

13. Judging from the evidence before me I do not find that the 2nd Defendant was travelling at a very high speed. I do not believe that he was in such a hurry as to be travelling very fast. After all, the impact of the collision did not seem to be very great.

14. The 2nd Defendant admitted that he was travelling on the right side of the road, which was the equivalent of the second or fast lane if there were central dividing lines. The position of the motor-cycle after the accident was also on that side of the road. Hence I find that the point of the collision was on that side, or what would have been the second or the fast lane. I therefore find that when the accident occurred the Plaintiff was already past the middle of the road and nearer to the other side. She would be a few paces to the pavement. It would seem, therefore, that 2nd Defendant should have been able to see the Plaintiff at some distance away, Electric Road being a straight stretch of road.

15. The 2nd Defendant said that he had watched out for vehicles coming out suddenly from Lau Lee Street. He should therefore be prepared for all exigencies on the road and to exercise greater care when approaching that junction. Since the Plaintiff was walking at a normal pace, the 2nd Defendant, I find, should have seen her at a distance away and should have taken steps to avoid hitting her. And yet there was this collision. I find that the 2nd Defendant had not kept a proper look out for the Plaintiff and had failed to see her in sufficient time to avoid a collision. However, as I have said, it was a straight stretch of road, the Plaintiff, when she started to cross, should have noticed the 2nd Defendant's motor-cycle coming in the distance and hence should have also exercised greater care.

16. As I have said, she might not have looked far enough to notice the 2nd Defendant's motor-cycle. Furthermore, as she walked across she should have continued to keep a proper look out. If she had done so she would have realised that the 2nd Defendant was approaching and should have quickened her pace and crossed to the other side. Hence, I think that she also was partly to blame; it appears that she had not continued to keep a proper look out. What happened was that when she suddenly noticed the 2nd Defendant coming she panicked and stopped. She tried to use her hand to signal to the oncoming vehicle. I think that the 2nd Defendant did not expect the Plaintiff to behave in such a way. He thought that since she was more than half-way across the road and about a few paces to the pavement she could have made it. As the 2nd Defendant could not stop in time he had a collision with the Plaintiff.

17. In all the circumstances it would seem that both the Plaintiff and the 2nd Defendant were at fault. The Plaintiff should have noticed the 2nd Defendant in the distance and she should have hurried across. She should have continued to keep a proper look out and she should not have behaved in such a manner in the middle of the road.

18. On the other hand, the 2nd Defendant should have seen the Plaintiff from a long distance away and should have been alert to all exigencies. As a driver he is expected to exercise great caution since he was manning a "lethal weapon."

19. Considering all the evidence before me, and doing the best I can, I think the 2nd Defendant should be more to blame. I think that the Plaintiff should be 40 per cent to blame and the 2nd Defendant 60 per cent.

20. As the result of the accident the Plaintiff suffered an abrasion on the head and a fracture of the anterior end of her left tibia and fibula; that is to say, at the ankle area. She was sent to hospital for treatment. Internal fixation was carried out with the insertion of a bone graft and screws. She had to put on a plaster of Paris for six weeks. She was hospitalised for three months. She used two crutches for several months until December of 1991. She had undergone regular physiotherapy, firstly, on a weekly basis and later on at monthly intervals. In June 1992 there was another operation to remove the screws and she spent four weeks in hospital. She now suffers pain in her left ankle and spasms at times. She can walk for twenty-minutes, or so, but cannot stand for fifteen-minutes. There is occasional swelling and she has to take pain-killers about twice a week. There is some difficulty in climbing steep slopes and stairs.

21. According to the doctors the fracture has healed well, but there is limited plantar flexion and eversion at her left foot. There is some difference between the doctors' assessments as to this. One said there was no dorsiflexion and 20 degrees of plantar flexion. The other said that there was 10 degrees of dorsiflexion instead of the normal 20 degrees, and there was a 20-degree plantar flexion instead of the normal 45-degree. There is early degeneration of the ankle and osteoarthritis is likely to occur. She also has several scars, two on the leg and one on the iliac crest. This will lead to numbness of the thigh and occasional cramps and mild pain. The doctors' assessments on her physical impairment are also similar, that is, eight to nine per cent of the whole person. Their estimates of the loss of earning capacity differ, however; 15 per cent according to the Plaintiff's expert and eight per cent according to the Defendant's expert.

22. Counsel for the 2nd Defendant referred me to a number of cases. I think the more relevant cases are Mak Chi Cheung v Cheung Kwai Yui High Court Action A1864 of 1986 decided on 4 March 1987. The award for pain and suffering and loss of amenities was $70,000. Ho Yum Kan v Sam Sing Transportation Company Limited High Court Action A5191 of 1987 decided on 21 March 1988 where the general damages awarded for pain and suffering and loss of amenities were $65,000.00. Ho Chi Kin v Chan Hoi Shing High Court Action 7161 of 1984 decided on 30 October 1985 and the award was $50,000.00. Counsel submitted that these awards would now be $210,000.00, $185,250.00 and $165,000.00. I do not propose to verify the accuracy of such conversions.

23. To give an idea of the increase in awards through the years I should perhaps mention that in 1980 when the Court of Appeal in Lee Ting Lam 1980 Hong Kong Law Reports 657 set out the guidelines for awards, the range for the category of serious injury was $60,000.00 to $80,000.00. In 1988 the Court of Appeal in Lau Che Ping 1988 2 Hong Kong Law Reports 650 increased it to the range of $135,000.00 to $180,000.00. In 1996 the Court of Appeal in Chan Pui Ki updated the figures to the range from $400,000.00 to $540,000.00.

24. I do think that, looking at the three cases as referred to me by counsel for the 2nd Defendant, the injuries in the present case are more serious than these three cases. The period of suffering for the Plaintiff was longer, the degree of impairment was greater, the future suffering and loss of amenities were also greater for the Plaintiff and there was also the likelihood of osteoarthritis.

25. On the other hand, counsel for the Plaintiff referred me to the cases of Lam Hon Ting v Ho Yan Yuen High Court Action 1582 of 1990 decided on 27 July 1990; the award was $180,000.00, and Ho Yum Kan v. Sam Sing Transportation Company Limited, which has been referred to above. He said that the figure in Lam's case would be $350,000.00. Now, in my view, that case seems to be more serious than the present case.

26. Bearing in mind these cases and the differences, I think that the award for pain and suffering and loss of amenities in the present case should be $300,000.00.

27. The Plaintiff also claims loss of earning capacity. The Plaintiff has not suffered any loss of earnings. She has been employed as a cleaner by The Jockey Club for over ten years at the time of the accident. She is still able to keep her job. Counsel submitted that there is no guarantee that the Plaintiff will not lose her job in future, and, if so, she will be handicapped in the labour market. Her condition will also deteriorate as the osteoarthritis comes on.

28. This may well be the case, but as counsel for the 2nd Defendant said, the Plaintiff is now 57 years of age and towards retirement age. I take the view that bearing in mind her age and the nature of the work she has been performing for all these years it is not likely that, even without the accident, she would have been able to continue for too long in the job. I do not think that I should make a separate award under this heading. The special damages have been agreed at $28,477.00.

29. For the reasons given above I will give judgment for the Plaintiff for damages; there is a 40 per cent contributory negligence on her part. The total award is $328,477.00. The Plaintiff is entitled to 60 per cent of that which is $197,086.20. This will carry the usual rate of interest as in personal injury cases.

Yes.

Representation:

Mr Anthony CHAN, instructed by S Y Fung & Co., for Plaintiff

Mr Geoffrey CHANG, instructed by the Attorney General for Defendants.