Fung Sing Yin and Another v. Wong Hon Shing and Others

HCA002403/1981

HEADNOTE

Road Traffic Accident. Personal Injuries. Damages for loss of earnings and for loss of future earning capacity.

BETWEEN

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Coram: Jones, J.

Date of Judgment: 25 February 1982

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JUDGMENT

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PRELIMINARY

1. The 1st plaintiff aged 29 claims damages for personal injuries and loss suffered in a road traffic accident that occurred at about 4.30 a.m. on the 15th April 1978 at the junction of King's Road and Kam Hong Street. The 1st plaintiff was a passenger in a Datsun station wagon registration number BP7608 owned by the 2nd defendant and driven by the 1st defendant when it collided with a public light bus registration number AU3191 owned by the 4th defendant and driven by the 3rd defendant. On the date of the accident the 1st plaintiff was serving the last day of his employment with the 2nd plaintiff as a newspaper delivery van driver. As a result of the accident the 1st plaintiff received from the 2nd plaintiff the sum of $13,438.89 as compensation under the Workmen's Compensation Ordinance. The 2nd plaintiff claims reimbursement of this amount and costs of $1,756 from the defendants.

2. It is not in dispute that the 1st plaintiff was seated in the rear of the 2nd defendant's vehicle. It therefore falls to be decided whether the accident was caused by the negligent driving of one or both of the 1st and 3rd defendants for whom the 2nd and 4th defendants are vicariously liable.

EVIDENCE

3. The 1st plaintiff's evidence did not assist on the matter of liability for he did not see the accident happen.

4. The 1st defendant worked part time for the 2nd plaintiff in the same capacity as the 1st plaintiff. His hours of work were from 3.00 a.m. - 7.00 a.m. From 9.00 a.m. until 5.00 p.m. he worked full time in another job as a clerk. After collecting copies of the South China Morning Post from the newspaper's office at Tong Chong Street, North Point for delivery to customers on the Peak, the 1st defendant drove westwards along King's Road. As he approached the junction at Kam Hong Street at a speed of slightly over 30 m.p.h. the lights in his favour were green. However, before he proceeded into the intersection the first set of lights which are shown on the sketch plan exhibit P1 changed to amber. He did not observe any other traffic in the vicinity. When he reached the middle of the intersection he noticed something dashing towards his vehicle from his right at a distance of 3' - 4'. He swerved to his left, but was unable to avoid the 3rd defendant's vehicle colliding with the station wagon.

5. The 3rd defendant said that he was driving at a speed of 20 m.p.h. odd alon Kam Hong Street in a southerly direction as he approached the junction with King's Road. The traffic lights in Kam Hong Street were green in his favour. He slowed down before he entered the junction when he looked to his right. He saw no traffic coming on the eastbound carriageway so he accelerated and proceeded across the tram tracks into the westbound carriageway where he collided with the 1st defendant's station wagon. He said his head lights were on. The 3rd defendant conceded that he did not look to his left before the collision occurred.

6. Mr. Diu Sai Wah is a public light bus regulator. He is a friend of the 3rd defendant for whom he gave evidence. It appears that during the early hours of that morning he had been to a night club in the company of the 3rd defendant, presumably after the 3rd defendant had finished his driving duties. About 2.00 a.m. he boarded the public light bus with a girl friend. At the time of the accident they were on a joy ride. Mr. Diu confirmed the 3rd defendant's evidence that the traffic lights at Kam Hong Street were green when the public light bus approached the junction with King's Road.

7. The evidence of Mr. Lee Sum, a witness to the accident, was admitted under Sections 47 and 49 of the Evidence Ordinance and the Evidence (Hearsay) Rules. He was standing at the junction of King's Road and Kam Hong Street facing east. He saw the traffic light at Kam Hong Street was showing green and said both vehicles were travelling very fast.

8. There was a conflict of evidence as to whether the surface of the road was wet or dry. Although it may have been drizzling nevertheless I believe conditions were relatively dry. However, having regard to my conclusions I do not regard this matter to be of particular significance. The sketch plan shows two skid marks measuring 5.6 metres and 2.6 metres in the westbound carriageway of King's Road which were undoubtedly caused by the 3rd defendant's vehicle when his brakes were applied. The force of the impact was so severe that the 1st defendant's vehicle was damaged beyond repair.

9. On the 14th August 1978 the 1st defendant pleaded guilty to a summons for careless driving at the Western Magistracy when he was fined $140. In the summary of facts the 1st defendant admitted that he ignored the amber light. As a result of the conviction for careless driving the burden of proof is upon the 1st defendant to establish upon a balance of probabilities that he was not negligent see Stupple v. Royal Insurance Co.⁽¹⁾

10. The 1st defendant explained that he pleaded guilty because he believed that the employer for whom he worked during the day time would not allow him leave of absence to attend Court. This did not accord with his evidence that his employer readily allowed him leave when he attended Court on the plea day. Further he did not receive any legal advice with regard to the summons. I did not find either reason convincing. I am satisfied that the 1st defendant pleaded guilty because he drove carelessly. The burden of proof was not discharged.

11. It is agreed that the traffic signals at the junction were in normal working condition on the date of the accident. A sequence of operation and cycle diagram for the traffic lights at the junction revealed that when the lights for King's Road change to amber they will show that colour for three seconds whilst the lights for Kam Hong Street will show red. After the King's Road lights change from amber to red, the lights governing Kam Hong Street will remain red for a further two seconds before changing to red and amber, upon which they will remain for two seconds before changing to green. Accordingly there would have been an interval of seven seconds from the time the amber light came on in King's Road to the green light coming on in Kam Hong Street.

LIABILITY

12. I did not find Mr. Diu to be a convincing witness. I am satisfied that he was paying attention to his girl friend with whom he was conversing and that he was not concentrating his attention upon the lights ahead. I do not accept his evidence that he observed the lights in Kam Hong Street were green. Again I find difficulty in accepting the statement of Mr. Lee Sum which has not been tested by cross examination. It is significant that his statement to the Police was not made until six weeks after the accident. I place no reliance upon his evidence.

13. The 3rd defendant must have been suffering from fatigue at the time for he had commenced his driving duties at 5.00 p.m. the previous day. It appears that was probably socialising with Mr. Diu during the early hours before embarking on the joy ride. Having regard to the damage caused to the station wagon and the skid marks, I am in no doubt that the 3rd defendant was driving too fast. I consider that the 3rd defendant's evidence as to his speed was an underestimate. I did not find the 3rd defendant to be a convincing witness. I am sure that he did not pay attention either to his right or to the traffic lights with the result that I do not accept his evidence that the lights were green.

14. Although the 1st defendant contends that he proceeded into the intersection when the light was amber he makes no reference to this fact in his statement to the Police made on the date of the accident when he said the light was green. On balance I accept that the light was amber so that the 1st defendant should have stopped unless he had crossed the stop line or was so close to it that to pull up might have caused an accident. Although he saw the first set of traffic lights change from green to amber he proceeded at 30 m.p.h. with no intention of stopping. Further he paid no heed to any other traffic that might have been present. I am of the opinion that the 1st defendant was driving at a speed which in all the circumstances was excessive. I am satisfied he was driving over 30 m.p.h. In all probability the light had changed to red before he entered the intersection. I am satisfied that neither exception was open to the 3rd defendant. He should therefore have stopped when the lights showed amber. When the lights in King's Road were amber the lights in Kam Hong Street would be red. Once the lights changed to red in King's Road they would remain red in Kam Hong Street for a further two seconds before changing to red and amber. I find upon the evidence that the lights had just changed from amber to red in King's Road and were red in Kam Hong Street when both vehicles proceeded into the intersection. Apart from the fact that the 1st and 3rd defendants were driving too fast it is clear that neither was keeping a proper lookout. They were both driving negligently. In view of my findings I hold that the 1st and 3rd defendants were equally to blame for the accident.

INJURIES

15. The 1st plaintiff sustained two superficial abrasions to the right side of the face, bruising of the right shoulder and a fracture of the left femur. In his medical report dated the 30th October 1980 Dr. Wedderburn stated that the 1st plaintiff had a theoretical 2% impairment of the leg from a loss of internal rotation which is a 1% impairment of the whole man. However, this would only affect an athlete. There will be no permanent disability.

16. If the accident had not occurred the 1st plaintiff had intended to work as a truck driver when his income would have increased from $1,550 per month to $2,400 per month. I am satisfied that he was qualified to be a truck driver. At the present time a truck driver would earn about $2,800 per month. Had the 1st plaintiff remained with the 2nd plaintiff his income would now be $2,500 per month. I found the 1st plaintiff to be an impressive witness, and I accept his evidence. I am satisfied that due to the injuries that he suffered, which was supported by the evidence of Dr. Wedderburn that the 1st plaintiff is unable to work as a truck driver. Although he worked for two days as a taxi driver in August 1979 I accept that due to the long hours involved he is unable to follow this occupation.

17. The 1st plaintiff can no longer participate in gymnastics, football or basket ball which activities he pursued before the accident.

18. Following the accident the 1st plaintiff was unable to work for the remainder of 1978. Since that time apart from the two days' work as a taxi driver the 1st plaintiff has worked for his father. His earnings per month in 1979 were $600, 1980 $1,000, 1981 $1,200 and this year $1,700.

19. General damages for pain, suffering and loss of amenities have been agreed at $14,000.

SPECIAL DAMAGES

20. Two items of special damage were agreed viz nourishing food $1,000 and hospital expenses $2,098. The 1st plaintiff received treatment to his shoulder from a bonesetter which he said resulted in an improvement. Although this treatment overlapped with conventional treatment that he was receiving at Sai Ying Pun Clinic I shall on the authority of Yu Ki v. Chan Kit Lan and Chan Kwai Ming⁽²⁾ allow the bonesetter's fee of $550. Travelling expenses of $300 for taxi fares were incurred by the 1st plaintiff when he attended Sai Ying Pun Clinic for physiotherapy treatment. I am of the opinion that this sum is reasonable. The claims for damaged clothing and the watch were also satisfactorily proved. The claim for loss of earnings was not seriously challenged and I accept the 1st plaintiff's evidence.

21. The loss is calculated as set out below:-

22. Special damages are therefore allowed as follows:-

23. A claim for loss of earning capacity for a period of 2 years at $1,000 per month was also not seriously challenged. This is based upon the difference between the 1st plaintiff's present income of $1,700 per month and the income that he could be expected to receive either as a truck driver or with the 2nd plaintiff. I am satisfied based upon the medical evidence that this claim is reasonable and will be allowed at $25,000.

24. General damages will therefore be:

25. There will be judgment for the 1st plaintiff against the defendants for $80,873 special damages and $39,000 general damages. Interest upon the special damages will be at the rate of 6½% from the date of the accident and at 13% on the general damages from the date of service of the writ. Credit is to be given by the 1st plaintiff for the award made under the Workmen's Compensation Ordinance to be deducted from the special damages. Costs will be to the 1st plaintiff. There will also be judgment for the 2nd plaintiff against the defendants for the sum of $15,194.89 and costs. Plaintiffs' costs to be taxed in accordance with the Legal Aid (Scale of Fees) Regulations.

(1) [1971] 1 Q.B. 50

(2) [1981] H.K.L.R. 419

Representation:

Mr. Bunting (Hastings & Co.) for Plaintiffs.

Mrs. Penlington (Edmund W.H. Chow & Co.) for 1st and 2nd Defendants.

Mr. Poon (Cheng & Lam) for 3rd and 4th Defendants.