Yu Ki v. Chin Kit Iam and Another

HCA002224/1980

Coram: Roberts, C.J.

Date of Judgment: 13th May, 1981.

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JUDGMENT

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Preliminary

1. The plaintiff, aged 61, claims damages for personal injuries sustained in the early morning of the 16th May, 1979, when she was knocked down by a public light bus owned by the second defendant driven by the first defendant.

2. A counterclaim for damages to the second defendant's vehicle was abandoned during the course of the trial.

Plaintiff's Evidence

3. The plaintiff, who lives at 179 Belcher's Street, West, gave evidence that on the evening of the 15th May, 1979, she met a neighbour of hers, who asked the plaintiff if she would take over the collection and removal of garbage for three days while the neighbour went to Canton.

4. The plaintiff agreed to do this and arranged with her neighbour that they should meet on the following morning at 5 a.m., outside a barber's shop, which was situated close to the south-west corner of the junction of Belcher's Street and Sands Street.

5. The plaintiff explained that, in order to save herself trouble the following morning, she took her handcart, which was to be used for the collection of the garbage, to the place where she was to meet her neighbour and chained it to a litter-bin close to the junction.

6. The following morning, 16th May, she crossed Belcher's Street a few paces from the building where she lived and walked along the southern pavement until she reached her cart, which she unlocked and took to the edge of the pavement.

7. She looked both ways up and down the road, and satisfied herself that it was clear. She moved her cart into the gutter close to the pavement and stood next to it facing westwards to see if her neighbour was coming that way. The cart was about three inches from the pavement and she stood just behind it, with her hands resting on the handle. The cart, which seems to have been about three feet wide, was wholly in the roadway.

8. She remained there waiting for her neighbour, for a period which she estimated as 15 minutes, though this may be an exaggeration, since her recollection of times generally did not seem to be accurate.

9. As she was standing in the gutter with her cart, she was struck from behind and lost consciousness, waking up in hospital. The first defendant does not dispute that it was the public light bus which he was driving on that morning which hit her, though his version of how the accident occurred is very different.

First Defendant's Evidence

10. The first defendant described how he was driving in a westerly direction along Belcher's Street at about 5.45 on the morning of the 16th May.

11. He had stopped at a zebra crossing, not far to the east of the junction of Sands Street and Belcher's Street, in order that some of his passengers might dismount. As a result, he had not picked up speed fully by the time he reached the Sands Street junction, when he was driving at about 20 miles per hour.

12. Immediately after he had crossed that junction, he saw an old lady pushing a hand cart, about 25 feet in front of him. At that moment, she had almost reached the broken white line down the middle of Belcher's Street, and was pushing the cart obliquely across the road in a southerly direction.

13. He slowed down as soon as he saw her, by releasing his accelerator and applying his brakes. Nevertheless, the old woman continued to cross the road, hurrying towards his side of the road because, he thought, she must have seen a public light bus which was approaching her from the west, i.e. travelling towards the defendant.

14. As she continued to move across his front, he applied his brakes hard and swerved towards the left but was not able to avoid hitting her with the off-side front of his vehicle. When his vehicle struck her, she was in the middle of the road. After the collision, his vehicle veered to the left and came to rest against a lamp-post on the pavement on the south side of Belcher's Street.

Which version is correct?

15. The plaintiff, who is 61, is not young for her age. In some respects I do not think that her recollection of detail was entirely accurate, though it is to be expected that her memory of the events which preceded the accident would be patchy, since she sustained severe injuries and became unconscious at the moment of impact.

16. In assessing her reliability, I attach much importance to her evidence, which I accept, that she left her handcart tied overnight to the litter-bin near the junction of Belcher's Street and Sands Street. It follows that it is wholly unlikely that she would have been pushing her cart across Belcher's Street on the following morning, since her cart was already on the southerly pavement.

17. Nor do I see anything improbable in her explanation that she thought it would make the job easier to do on the following morning if the cart was already moved there on the previous evening and that, because her clothing was already dirty from a day's work, she preferred to move the cart straight away and then return home to wash.

18. I am fortified in my conclusion that the plaintiff's version is to be preferred by medical evidence that she probably suffered a fracture of the right shoulder blade. As to this, I accept the evidence of Dr. Wedderburn that she did sustain such an injury, even though it was not mentioned in the Queen Mary Hospital Medical Report.

19. It is surely more likely that she would have sustained such an injury if she was standing in the gutter facing west, than if the vehicle had struck her in the middle of the road on the left-hand side of her body as the defendant suggested.

20. There is further support for the plaintiff's story in the fact that the near side of the defendant's vehicle suffered what was described in the Motor Vehicle Accident Report as damage to all near side panels from front to rear.

21. Counsel for the defendant argued that this damage had been caused by a metal box placed on the pavement not far from the lamp post against which the public light bus came to rest, but I do not think that this box could have caused that damage, since it was within a few feet of the lamp post.

22. On the other hand, as counsel for the plaintiff suggested, such damage could have been caused by the public light bus striking the cart with its near side as the cart stood in the gutter.

23. I therefore reject the defendant's version of what occurred and accept that of the plaintiff.

CONTRIBUTORY NEGLIGENCE - Was there any contributory negligence on the part of the plaintiff?

24. She was asked several times if she agreed that it would have been safer to stand on the pavement rather than in the gutter with her cart and with her back turned to the traffic on her side of the road. While she was reluctant to concede that this Was so, as a matter of common-sense a pedestrian who stands on the pavement with a cart must be safer than one who stands in the roadway.

25. Nevertheless, the highway is not reserved for motor vehicles and, just as motor vehicles may stop in the road (subject to any restriction as to parking) so may a pedestrian with a cart, which, after all, is another form of venicle and one which preceded the motor car by hundreds of years.

26. A pedestrian on the highway is entitled to expect a motorist to exercise a proper degree of care in avoiding him. The fact that a pedestrian pauses in the roadway with a hand-cart does not lessen that duty - though there will be circumstances in which the cart is placed in such a position that a motorist has little chance of avoiding it. In this case, there was no such difficulty for the defendant.

27. He said that he was driving with dipped headlights, that it was still dark, that the street lamps had been switched off, but that he did not see the plaintiff until he was about 25 feet away from her.

28. This indicates to me that, on his own story, he was either driving too fast or not keeping a sufficient lookout, since he should have observed her at a much greater distance. He was driving on a stretch of straight road, with no vehicles immediately in front of him obscuring his view of the old lady standing in the gutter.

29. It is my finding that the defendant was driving too fast for the lighting conditions and too close to the kerb and that, when he did see the plaintiff, who was probably wearing dark clothes, it was too late to avoid her. After striking her, his vehicle veered to the left and hit the lamp post. I see nothing surprising in a driver's reaction, in an emergency, being such as to take him towards the pavement, instead of into the centre of the road towards oncoming traffic.

30. I therefore find that the first defendant was wholly responsible for the accident.

General Damages

31. It was agreed by the parties that general damages should be assessed at $25,000.

Special Damages

32. The first three items of special damages claimed were agreed -

33. HO Ping-yuen, the plaintiff's son, said that he visited his mother everyday while she was in the Queen Mary Hospital, which was for about two weeks. Thereafter, when she was transferred to Sandy Bay Hospital, he visited her there daily for about 20 days.

34. While she was in the Queen Mary Hospital, he took a taxi to see her between 2 and 3 each afternoon, taking an hour off from his job in order to be able to do so. He took a taxi to the hospital on each occasion at a cost of $12, making a total of $168.

35. For the return journey, he sometimes took a taxi and sometimes a bus. If the 14 return journeys were equally divided between taxi and bus, there would have been seven taxi rides at $12 each and seven bus rides at $1 each, a total of $91.

36. He visited the Sandy Bay Hospital in the evenings, about 7 o'clock, after it was dark, taking a taxi each way at a cost of $5 to $6 for a single journey. This gives a total of $220 for the 20 days stay of his mother in that hospital.

37. HO Ping-yuen, has established an expenditure on taxis and buses of $479. The amount claimed was only $413.

38. The only criticism of this item advanced by the defence was that it was unnecessary for the plaintiff's son to take a taxi as often as he did and that he should have used a mini-bus or an ordinary bus instead.

39. It has become customary to allow members of the family of an injured person in traffic accident claims, the cost of one return taxi ride per day to visit a relative in hospital. This seems to me to be reasonable and I will allow in full the amount of $413 claimed.

40. The amount claimed under this head was $2,000, though the plaintiff's son gave evidence that he had spent in the region of $3,000 on nourishing food.

41. While she was in hospital, he gave her fish soup which (according to his understanding) speeds the healing of wounds and is good for recovery from injuries. He also took her specially prepared congee.

42. After she returned home from hospital, he prepared medicated food, containing a Chinese herb called 'tin chat', which he had learned from other people was good for bone recovery.

43. In MUI Ling-kwan v. WONG Yin-wah⁽¹⁾, the Full Court discussed the principles upon which an allowance for nourishing food should be made.

44. Briggs, C.J. at p.472 observed that the courts allow a reasonable sum for such a claim, but that if the figure claimed is challenged, it must be proved that the expenditure was on nourishment suitable to assist the recovery of the injured person.

45. At p.479, McMullin, J. expressed the view that there should be some evidence put before the court to support the advisability of special food.

46. In this instance, there was no evidence that any doctor, or herbalist, or person with any medical knowledge, had suggested that the nourishing food which was supplied was advisable or suitable; only the son himself. Nor was there any itemization of the costs of the extra food.

47. Following this Full Court case, I have to find that the plaintiff has not satisfied the tests there laid down.

48. However, it seems to me to be proper, even in the absence of the necessary evidence required as to the advisability or suitability of the food, to allow a nominal sum, where relatives have spent this on food which the injured person or the relative reasonably believes to be helpful to the plaintiff's recovery.

49. As the plaintiff was in hospital for about five weeks, I will allow $10 a day for additional food during that period, a total of $350. I do not allow anything for the period after her return home.

50. The plaintiff claimed $1,300 for fees paid to a bone-setter. However, her son gave evidence that he had paid $45 a visit for her first fifteen visits, and by $15 a visit for a further 15 visits, a total of $900.

51. No receipts were produced to substantiate these payments. Nevertheless, I accept his evidence that he did pay these amounts for treatment given to his mother by a bone-setter.

52. I was referred to the decision of Leonard, J. in KWAN Mei-king v. AU Hong-keung⁽²⁾.

53. The headnote of that case suggests that the cost of bone-setting treatment incurred after conventional treatment may be allowed, if bone-setting has been shown to be beneficial and did not overlap any "conventional" treatment undergone by the patient. In KWAN Mei-king⁽²⁾, Leonard, J. quotes Briggs, C.J. (in another, unreported, case) as disallowing the cost of Chinese medicine, if its use overlaps conventional treatment in time.

54. I do not think that a plaintiff, whether he is claiming recompense for the cost of treatment by conventional medicine or by Chinese medicine, must show that the treatment was "beneficial". It is sufficient, in my view, if it is established that the cost of treatment was reasonable, that the plaintiff had some faith in its possible efficacy and that the money claimed was in fact spent.

55. It appears to be suggested in KWAN Mei-king⁽²⁾ that if Chinese treatment is carried on at the same time as conventional treatment, the reimbursement of expenses for Chinese treatment cannot properly be claimed.

56. This does not seem to me to be right. I see no distinction between a patient who changes from one European doctor to another, and one who changes from conventional to Chinese treatment. In each case, he should be able to claim the expenses of both treatments, even if they overlapped, so long as the cost of each kind of treatment, taken by itself, is proved to have been incurred.

57. I regard it as reasonable for any person of Chinese race to decide at any stage that Chinese herbal medicine or the attentions of a bone-setter are likely to be beneficial, whether or not he has previously sought conventional medicine and treatment, or is still receiving it. If he does so, he should be entitled to the reimbursement of reasonable fees for the Chinese treatment as well as for the conventional treatment.

58. In this case there was an overlap, since the plaintiff was meant to attend the Tang Chi Ngong Clinic after her release from Sandy Bay Hospital; at least one of those visits took place after she had started her visits to the bone-setter.

59. The plaintiff, though she did not in terms assert that she believed that the bone-setter would do her good, would not have attended him unless she had believed that this would be of some benefit to her. I see nothing unreasonable in such a belief.

60. I allow the $900, which the plaintiff's son said that he had paid to the bone-setter.

Clothing and cart

61. I allow the value of the clothing worn by the plaintiff at the time of the accident; she said that it had been bought recently for $80.

62. She said that she had bought the cart three or four years previously at a cost of $100. I allow some depreciation and award $50 under this head.

Dr. Fung's fees

63. According to the plaintiff, she went to Dr. Fung for some injections, during the period when she was also submitting herself to the bone-setter, as she was in considerable pain from her injuries.

64. Her son produced receipts to support the plaintiff's story and added that he had taken his mother to Dr. Fung for a consultation, though he did not know what treatment she had received.

65. He explained that he did not take her to the Tang Chi Ngong Clinic because it was night-time and Dr. Fung lived in the same street as he and his mother.

66. It was suggested for the defence that the plaintiff had not established that the pain which she was suffering, and for which Dr. Fung treated her, was the result of the accident. However, I regard it as a reasonable inference from the severe injuries which she sustained a few weeks' before, that, if she was suffering pain, and I accept that she was, this was caused by those injuries.

67. I allow this item of $295 in full.

Loss of past earnings

68. The plaintiff claimed $800 a month, from the date of the accident until judgment in this action. This was based on an employer's statement that she had earned a total of $6,000 during the 7½ months immediately preceding her accident, an average of $800 per month, when she worked as a kitchen hand in a restaurant.

69. In Dr. Wedderburn's opinion, she was not capable of doing any work until the middle of April 1980, that is to say, 11 months after the accident. After that date, he thought that she could reasonably have taken on some work at home of a sedentary nature, though he estimated that she would not have been likely to have earned more than between $200 and $400 per month doing work of that kind.

70. While it is difficult to assess the likelihood of such work being available, I think it right to assume that it would have been, had she looked for it, which she did not. I thus deduct $300 per month from the $800, taking the mid-point of the maximum and minimum figures of possible earnings suggested by Dr. Wedderburn.

71. Consequently, she should receive, as special damages for loss of earnings, 11 months at $800 per month ($8,800) plus 13 months at $500 per month ($6,500), a total of $15,300.

Loss of future earnings

72. I have first to decide the age to which, but for the accident, it is likely that she could have continued to work in her previous job.

73. Dr. Wedderburn's estimate was that she would have gone on "until 65 or perhaps 68 with a maximum of 70". I will assume that she would have been able to work until she was 67, bearing in mind the fact that, quite apart from the accident, she was suffering from spondylitis, which Dr. Wedderburn thought was likely to accelerate within the next few years and reduce her mobility substantially in due course.

74. As her present age is 61, she would but for the accident, have had a maximum of 6 years more working life before her. I take the multiplier of 4.

75. For the reasons which I have given above, the multiplicand should be $500 per month. This produces a total under general damages for loss of future earnings of $24,000 ($500 X 12 X 4).

Summary

76. The total of special damages is $17,582.

77. General damages for pain and suffering and loss of expectation of life have been agreed at $25,000. loss of future earnings amounts to $24,000. So there should be a total of $49,000 general damages.

78. Interest will run at 7% on the special damages from the date of the accident, i.e. from the 16th May, 1979 until to-day.

79. Interest on the general damages will run at 14% from the date of service of the writ, which was the 13th May, 1980, until to-day.

80. Plaintiff to have costs, taxed in accordance with the Legal Aid Regulations.

81. Damages to be paid within 14 days.

Representation:

(1) (1973) H.K.L.R. 465.

(2) (1972) H.K.L.R. 352.