Cheung Wai Lin v. Kowloon Motor Bus Co (1993) Ltd and Another

HCA004741/1980

Headnote

Damages for personal injuries in a road traffic accident. Plaintiff suffered past concussional syndrome after a linear fracture of the left occipital bone which has resulted in a permanent memory impairment of 10%. There has also been a loss of sensation of smell affecting the taste. Award of general damages for pain, suffering and loss of amenities $65,000.00. Interest of 2% on general damages in accordance with guidelines set out in Birkett v. Hayes (1982) 1 W.L.R. 816 and 7% on special damages. Action was dismissed on liability.

BETWEEN

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Coram: Jones J. in Court

Date: 7th January 1983.

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JUDGMENT

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1. The plaintiff in this action claims damages for personal injuries and loss suffered in a road traffic accident that occurred on the 15th December 1978 when she was knocked doom by a bus owned by the first defendant and driven by the second defendant.

FACTS

2. At about 2.10 p.m. on the date of the accident the plaintiff was about to cross Des Voeux Road Central near Gilman's Bazaar in order to take a bus to the Jockey Club Happy Valley where she was due to start work at 2.30 p.m. The plaintiff testified that having looked in both directions to see that the traffic was clear she began to cross. When she reached the middle of the west bound carriageway near the tram tracks she slowed down as a tram was approaching from her right. She was then knocked down and fainted. She did not see the bus nor did she hear any sound to indicate that a vehicle was approaching.

3. The plaintiff was admitted to Queen Mary Hospital where she did not regain full consciousness until seven hours later. Amongst her injuries the plaintiff sustained a fracture of the left occipital bone.

4. On the 19th December 1973 the plaintiff made a statement in hospital about the accident to a police officer P.C. Pang now Sergeant Pang.

5. The statement contains the plaintiff's personal particulars and then reads as follows: -

"         At about 2:10 p.m. on 15.12.1978, I was walking all by myself west along the pavement of Des Voeux Road Central. When I was about to reach the corner of Des Voeux Road Central near Gilman's Bazaar, I was facing north and was about to cross Des Voeux Road Central to the bus stop on the other side of the road in order to take a bus back to Happy Valley. Maybe it was because I was too much engaged in paying attention to my left when I crossed the carriageway and neglected the westbound Vehicles on my right, that was why I was knocked down by a westbound bus only after I made about 3 to 4 steps onto the carriageway. After the accident, I fainted. I lapsed into unconsciousness and subsequently came to only after I was taken to hospital. I do not have any complaint in respect of this traffic accident."

6. However, the plaintiff said that she does not have any impression of this statement although she admitted that it bore her signature. 'Then he took the statement Sergeant Pang did not realise that the plaintiff had suffered a head injury. However, he said that she was willing to make the statement and she did not seem to be confused.

7. On the other hand Dr. Yeung the Medical Officer of Queen Mary Hospital expressed his opinion that as she was suffering from headaches at the time, the statement could not be taken at its face value.

8. The second defendant gave evidence that just before the accident the bus was empty of passengers as he was preparing for the return journey. He claimed that he was travelling along Des Voeux Road Central at 20 m.p.h. about 1 foot from the pavement. When he approached the junction with Gilman's Bazaar he saw the plaintiff at a distance of about 3 feet, dash out in front of the bus. He swerved to the right, braked, and brought the bus to a halt. The right side of the plaintiff's forehead collided with the front near side of the bus. She landed a short distance away on the same side of the bus.

9. Both parties agreed that the pavement was crowded.

LIABILITY

10. The second defendant's evidence with regard to speed and distance was unreliable although his re-assessment of distance in re-examination I found to be more accurate than his earlier evidence. In particular he did not seem to appreciate the difference between thinking distance and braking distance. According to the Highway Code the overall stopping distance for a private car travelling at 20 m.p.h. on a dry surface is 40 feet. Other vehicles in similar conditions may need twice this distance in order to stop. It is clear that if the second defendant's version is accurate the plaintiff would have suffered far more serious injuries or indeed might have been killed. However, I am satisfied that the second defendant's speed was slower than his estimate of 20 m.p.h. for he had almost brought the bus to a halt before the collision which I am sure was well within 40 feet. Quite clearly all estimates can only be regarded as approximate particularly as the incident happened four years ago. I find that the bus was further away than 3 feet from the plaintiff when she stepped onto the road and also further than 1 foot from the pavement.

11. I have been urged by Mr. Mumford who appeared for the plaintiff not to place reliance upon the contents of the statement made to the police because it was made at a time when the plaintiff was disorientated following the injuries that she sustained. Sergeant Pang was not permitted to see the plaintiff until the fourth day after the accident. It is inconceivable that the hospital authorities would have allowed such a visit unless she had recovered sufficiently for this purpose. Accordingly I do not accept Dr. Yeung's evidence on this matter. I prefer the evidence of Sergeant Pang who was a reliable witness.

12. The plaintiff fully appreciated the damaging effect of the statement which was in conflict with the evidence that she gave in Court. While there is no doubt that the plaintiff was suffering pain and discomfort, I do not consider that she was suffering to the extent that she was unable to give a coherent account of the facts of the accident. The answers that the plaintiff gave were rational and did not indicate that she was not possessed of her full faculties. Further there was no medical evidence that she was suffering from temporary amnesia. I consider that the account in the statement can be relied on to be more accurate than the evidence the plaintiff gave in Court. In my judgment I find that the plaintiff emerged from the pavement quickly without looking to her right. She was undoubtedly in a hurry to get to work. I reject her evidence that she saw a tram. It is significant that there was no evidence that anyone else attempted to cross the road apart from the plaintiff. As a result of the plaintiff's failure to keep a proper lookout she was negligent.

13. It therefore remains to be determined whether there was any negligence on the part of the second defendant. There was no evidence of brake or skid marks to support the plaintiff's allegation that he was driving too fast. Immediately he saw the plaintiff he took evasive action by braking and swerving to the right. Despite this manoeuvre the plaintiff walked into the front of the bus on the near side. I am not satisfied that the second defendant drove too fast in the circumstances. In my judgment he also kept a proper lookout. I find that no blame attaches to the second defendant for he did everything possible to avoid the accident. Negligence has not been proved. I find that the plaintiff was the sole author of her misfortune.

DAMAGES

14. On the basis that I had held in favour of the plaintiff I will assess the amount of damages that I would have awarded. I accept that after admission to the Queen Mary Hospital the plaintiff as a result of the accident was found to be suffering from abrasions over the right infraorbital area, swelling of the left elbow and a linear fracture of the left occipital bone. She was discharged on the 25th December 1978 to be followed up in the outpatients department.

15. The plaintiff was off work until March 1979 when she returned to the Jockey Club before joining Jardines as a clerk on the 2nd April 1979.

16. Special damages of $50.00 were agreed in respect of medical expenses. However, although the defendants agreed that the plaintiff was off work for 3 months the wages of $800 per month were in dispute. At the Jockey Club the plaintiff said she earned an average of $600 per month and from her employment as a tutor $300 per month. During the period from 1st April 1978 to 30th March 1979 the plaintiff's total earnings from the Jockey Club amounted to $5,430.75. On the assumption that she worked for 9 months during this period her earnings would have been $600 per month. I find that with her income as a tutor the loss of income would be $900 per month. This item of special damage is proved at the amount pleaded. Accordingly special damages are allowed as claimed in the sum of $2,450.00.

17. The plaintiff saw Dr. Pang, a psychiatrist at the end of February 1980. He performed two electroencephalograms known as EEGs the first on the 29th February 1980 and the second on the 8th May 1980. The results revealed that the plaintiff had a mild diffuse abnormality over both posterior temporal regions. Dr. Pang referred the plaintiff to Dr. Philip Wu, an ear, nose and throat surgeon because she had made complaints about a loss of sensation of smell which had affected her taste. Dr. Wu found that the plaintiff had suffered a significant loss of sensation of smell which indirectly affected an alteration in taste. He attributed the loss of sensation to the injuries to the head and fractured skull which affected the olfactory apparatus. He considers that this disability is likely to be permanent.

18. In his first report dated the 5th January 1980 Dr. Pang was of the opinion that the plaintiff had a 15% memory impairment. However in his report of the 5th August 1982 he assessed that impairment at 10% which he considers will be permanent. Although the plaintiff said that her eyesight and hearing had been affected as a result of the accident there was no medical evidence to support these complaints. An increase in the plaintiff's weight appeared to have been controlled after receiving appetite-suppressants.

19. Mr. Pirie who appeared for the defendants contended that a number of the complaints made by the plaintiff could be attributed to post traumatic neurosis which will disappear in a short time after the conclusion of this action. Although Dr. Pang conceded that the plaintiff did exhibit some symptoms he did not consider that the plaintiff showed significant neurotic features to be suffering from post traumatic neurosis. No medical evidence was called on behalf of the defendants to support their contention which I reject.

20. Evidence given by the plaintiff's mother that the plaintiff's character had changed as she was prone to be more irritable was in my opinion exaggerated. The plaintiff also exaggerated her symptoms particularly those relating to her eyesight and hearing which I am unable to accept as true. The evidence of Dr. Pang also tended to adopt a more pessimistic prognosis than was justified.

21. However, I accept that the plaintiff suffered a post-concussional syndrome following the injuries to the head which has resulted in a 10% memory impairment and a loss of sensation of smell that affects the taste.

22. It was submitted that the plaintiff had suffered a loss of earning capacity by virtue of her inability to work as a secretary. After leaving school in 1977 the plaintiff took a secretarial course for one year which included shorthand and typing. However, neither before nor after the accident has she sought a secretarial position. Dr. Pang is of the opinion that the plaintiff is unable to do the work of a secretary. Nevertheless, at the beginning of 1982 the plaintiff said that her superior at Jardines was prepared to recommend her for the post of secretary, but she declined because she lacked confidence. I consider that the plaintiff's employer is in a more favourable position to express an opinion on this matter than Dr. Pang. The evidence has led me to the conclusion that she has never had any intention to become a secretary. The plaintiff has not established that there has been a loss of earning capacity.

23. For general damages for pain, suffering, and loss of amenities I would award $65,000. With special damages the total award is $67,450.00.

24. In H. C. 4321/81 Madam Ho Hing Mui v. A. G. and others Fuad J. as he then was did not adopt the new rate of interest of 2% on general damages that was recommended as a guideline in Birkett v. Hayes ⁽¹⁾ as he said he was not strictly bound by the English Court of Appeal. However, Mantell J. in H. C. 2356/81 Tan Shins Kee v. St. Francis Xavier's College, Kowloon adopted the reasoning in that case and awarded 2%. I propose to follow Birkett v. Hayes ⁽¹⁾ and therefore award interest at 2% on the general damages from the date of service of the writ to trial. There will be interest on the special damages at 7% from the date of the accident.

25. However, the action is dismissed with costs. Plaintiff's costs to be taxed in accordance with the Legal Aid (Scale of Fees) Regulations.

(1)     (1982) 1 W.L.R. 816

Representation:

Mr. E. C. Mumford (Rowdget W. Young & Co.) for plaintiff.

Mr. Nicholas Pirie (Deacons) for defendants.