Yick Bing v. Sze Kwong Fai
Read the full judgment text of HCA 132/1979 on BabelCite. This High Court CFI judgment.
1. The plaintiff suffered injuries in a road accident and sues the defendant for damages flowing therefrom alleging that the accident was caused by the negligence of the defendant.
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HCA000132/1979
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Power, J. in Court Date of Judgment: 11th April 1980 ----------------- JUDGMENT ----------------- 1. The plaintiff suffered injuries in a road accident and sues the defendant for damages flowing therefrom alleging that the accident was caused by the negligence of the defendant. The Accident 2. The accident occurred at about 7.30 a.m. on 5th February 1976 when the plaintiff was struck by a motorcycle being driven by the defendant when he was crossing Shaukiwan Road in a southerly direction. 3. The plaintiff says that he had been standing waiting at a bus-stop preparatory to crossing to the other side of the road where he intended to wait for a tram to take him to Western District. He said that he stepped out onto the roadway as a bus was pulling away from the stop, and that he was struck after he had taken 2 paces. He suggests, although he did not actually see what struck him, that the motorcycle must have come around the rear of the bus as it was pulling out i.e. come around over-taking the bus on its left side. 4. The defendant says that he was travelling along Shaukiwan Road in the inner lane on his motorcycle with a pillion passenger in 3rd gear accelerating and that he had reached a speed of 30 m.p.h. when he saw the plaintiff who was then about 2 paces out from the footpath and about 35 feet in front of him. He admitted that he did not sound his horn and said that he did not have time to take evasive action. He said that he had only obtained his driving licence about 3 months before the accident. He agreed that he knew the road well and that he knew that there was a bus-stop on one side of the road and a tram stop on the other side. He said that he saw no bus immediately prior to the accident and that traffic was light and the roadway was straight in the area of the collision. From the evidence it was clear that the collision took place about 8 feet from the pavement. 5. I am satisfied that the plaintiff's version of the accident cannot be accepted. I make it clear that I considered him to be an honest witness but it was obvious both from the content of his evidence and his manner in giving it that he was not a very quick-witted person. While it may well be that he did step out onto the roadway after a bus had driven away and that he had looked to his right at some time before the bus pulled out, I am satisfied that he did not look to his right immediately before stepping out onto the roadway. If he had done so I have no doubt that he would have seen the defendant approaching on his motorcycle. I am satisfied that he was negligent in that he failed to keep a proper lookout before commencing to cross the road. 6. As for the defendant I am satisfied, from his own evidence, that he also failed to keep a proper lookout and that, had his lookout not been defective, he would have seen the plaintiff at an earlier time than he did. While there is no particular fact in the evidence to which I can point to support the following observation I am nonetheless left with the impression that had the defendant been a more experienced driver the consequences of the collision could have been minimized if not avoided altogether. His lookout was defective in circumstances where he was not only well aware that pedestrians might be crossing the roadway but where he should have been aware of the duty upon a driver with his limited experience to proceed with particular caution. 7. When considering the apportionment of blame as between these 2 parties I am guided by, and respectfully follow, the indication given by learned Chief Justice in Au Cheng v. Choi Sai Fan and Chan Loi (C.A. 6 of 1978) that when considering the burden of care that lies upon the pedestrian and the motorist in a road accident one must bear in mind that: "The motorist controls a lethal weapon, the pedestrian does not". 8. I find that the defendant was 70% to blame for the collision and the plaintiff was 30% to blame. The Injuries 9. After the accident the plaintiff was taken to Casualty Department of Tang Shiu Kin Hospital and was later on that day admitted to Queen Mary Hospital. He was discharged on the following day, 6th February 1976. 10. On admission to Queen Mary Hospital he was found to have a bleeding nose, a 4 cm. laceration to right forehead and abrasions to his hands and knees. 11. The medical reports make no mention of it but the plaintiff says, and I accept, that his left foot was sprained in the accident and that he was unable to walk on it for 10 odd days. 12. The plaintiff was examined by Dr T.C. Wong, an opthalmologist from the Tang Chi Ngong Opthalmic Centre on March 1st 1976 who stated in his report of 27th January 1977, (Exh. 1(c)), that:
Dr Wong later corrected the final paragraph by stating that the plaintiff was suffering from a 10% total disability and not a 10% disability of the right eye. On 31st March 1977 Dr Wong stated that he did not think that the right eye would deteriorate further and that the left eye should not be affected by the poor function of the right eye. 13. The plaintiff was examined by Dr Edmund Cheung, a neurologist, on 23rd September 1977 who reported, (Exh. 1(g)),:
14. The plaintiff was further examined, on 4 occasions between October 1977 and January 1978, by Dr Heffernan, an opthalmologist, who reported, (Exh. 1(h)),:
15. On 28th March 1979 Dr Wedderburn, having examined the plaintiff, reported (Exh. 1(i)) that he considered that the impairment of the whole man was 15% and that he considered that the plaintiff's disability was 5%. However he, quite properly in my view, qualified the latter opinion saying that it was an administrative and judicial decision not really within the province of a surgical or medical opinion. More important he found that the plaintiff had a 78% loss of vision in the right eye. 16. When giving evidence on the second day of hearing, 6th February 1980, the plaintiff said that due to excessive use his left eye had become worse. At conclusion of the evidence on that day the matter was adjourned to a date to be fixed to allow the plaintiff to obtain a further medical report in this regard. Upon resumption on the 8th April the plaintiff said that he had seen Dr Heffernan again during the period of the adjournment, however, no further medical evidence was placed before the Court. 17. I accept that the plaintiff suffered the injuries set out in Exh. 1(a) and (b), that he was concussed after the accident and that he had sutures inserted in the laceration to his forehead. He says that he suffered "much pain" and I accept that, for a short period after the accident, he did. I also accept that his left ankle was sprained and that he found difficulty walking for some days after the accident. I accept that, at times, he still feels pressure on his forehead. With regard to this, somewhat minor, pain Dr Cheung, in Exh. 1(g), says that "complete recovery is unlikely". 18. The most serious consequence of the accident is, of course, the injury to his right eye. I accept that the vision of the eye has been greatly reduced and that he now has a severe restriction of the visual field of the eye. Dr Heffernan summed up the injury by saying that the "patient has suffered a severe visual disability of the right eye due to traumatic optic nerve damage. The visual loss comprises defective central and colour vision and an extensive visual field defect. The loss is permanent and directly attributable to the accident." (Exh. 1(h)). 19. I am satisfied from the medical evidence that the plaintiff has a normal left eye. While there may have been some deterioration in the vision of that eye since the accident, I do not accept, as was suggested by the plaintiff in his evidence, that this deterioration has been caused by excessive use. As the evidence stands this seems to me to be the only proper approach to this suggestion. After the first two days the hearing was adjourned to give the plaintiff the opportunity to obtain further medical evidence in support of this suggestion. Upon resumption he admits that he did consult Dr Heffernan again during the period of the adjournment. Despite this there has been no further medical evidence forthcoming and evidence of Dr Wong is that the left eye should not be affected by the poor function in the right eye, stands uncontradicted and, indeed, unchallenged by expert evidence. If there has been some deterioration in the sight of that eye then I am satisfied it is such as naturally takes place with age. Special Damages (i) Loss of Wages 20. I accept that at the time of the accident the plaintiff worked in the Hing Kee Timber Shop earning a salary of $1,000 per month, gratuities of $100 to $200 per month for making deliveries and a payment of $4 per day meal money. He says that he received treatment for his eye during the three months after the accident and that he rested for some months before obtaining employment as a delivery worker at the Po Kwong Hong where he was paid a salary of $650 per month plus $7 per day meal allowance on each working day, i.e. for about 26 days per month, and an entitlement to double pay at Chinese New Year. It appears, from Exh. 2, that he commenced work there in September 1976 which is about 7 months after the accident. 21. In February 1977 his salary was increased to $700 per month where it remained until his resignation on 30th April 1977. 22. The plaintiff immediately thereafter commenced to work at the Hing Kee Timber Yard, which is under the same ownership as the Hing Kee Timber Shop, and earned $1,100 per month and a meal allowance of $12 per day. It appears that the plaintiff sustained an injury to his finger in September 1977 while working at the timber yard due, which he says was due, to his bad eyesight, and that he then returned to the Po Kwong Hong on 1st October 1977 at a salary of $750 per month with a daily meal allowance of $8. It seems that, as at February 1979, his salary was raised to $800 and his meal allowance to $9. He resigned at the end of February 1979 because, according to him, he was making mistakes when doing his delivery work. He said that his left eye became worse due to excessive use and that, although he was not asked to leave, he resigned to avoid inconvenience to his employer and embarrassment to himself. He said that he rested for 2 months and then started to work as a coolie on a casual basis earning an average of $300 per month. 23. From the medical reports it appears that the plaintiff was 59 at the time of the accident. The defendant must take the plaintiff as he finds him and what he found, in the present case, was a not very quick-witted working man of 59, with no particular training, who was entering the last years of his working life. 24. From the evidence of the plaintiff and his demeanour when giving that evidence I am satisfied that he was severely shaken by the accident and its consequences which came at a time when he had reached an age when his working life was drawing to an end. However, I can see no reason taking into account all of the vagaries of life why he would not have been able to continue in the employment that he held at the time of the collision for another 5 years, i.e. until February 1981. I am satisfied that the likelihood is that he would thereafter have taken some form of casual work such as he presently performs. 25. I am satisfied that, at the time of the accident, the plaintiff's monthly pay and allowances were: salary of $1,000, gratuities averaging $150 and meal allowance of approximately $104 - a total of $1,254. 26. The collision was on 5th February 1977 and the plaintiff did not start work again until beginning of September 1977 - a period of almost 7 months. This was a substantial period of convalescence and adjustment but given his age and the severe shock occasioned him by the accident I do not consider it to have been unreasonably long. 27. His loss of wages for the 7 months from February 1976 to August 1976, inclusive, was $8,778 ($1,254 x 7) less the $190, which his employer paid him for the few days that he worked in February. This gives a total loss of $8,588 for that period. 28. In September 1976 he obtained work at the Po Kwong Hong where I am satisfied his monthly pay and allowances were: salary of $650, meal allowance of approximately $182 - a total of $832. His salary was increased to $700 in February 1977 and he ceased work at the Po Kwong Hong on 30th April 1977. It appears that he received a pro rata payment at Chinese New Year which would have been in about the sum of $300. 29. From September 1976 to April 1977 he earned a total of $7,106 ((5 x $832) + (3 x $882) + $300). If he had remained in his former employment he would during that period of 8 months have earned $10,032 ($1,254 x 8). His loss during that period was, therefore, $2,926 ($10,032 less $7,106). 30. On 1st May 1977 the plaintiff went to work at the Hing Kee Timber Yard where he was paid $1,100 per month with a meal allowance of $12 per day - a total of $1,412 per month. This amount is greater than the amount of his earnings at the time of the collision and so he suffered no loss during the period when he worked at the timber yard. However, I am satisfied that the figure $1,412 is of relevance in so far as it establishes the amount which he would have been capable of earning as at May 1977, and thereafter, had there been no collision. 31. In September 1977 the plaintiff, having sustained an injury to his finger, left his job at the timber yard and returned to work at the Po Kwong Hong. He was clearly, given his defective eyesight, acting reasonably in so doing. 32. At Po Kwong Hong from 1st October 1977 he was paid $750 per month and received a monthly average meal allowance of $208 - a total of $958. In February 1979 his salary was raised to $800 and his meal allowance to $9 per day - a total of $1,034. It appears that he was paid a pro rata Chinese New Year allowance in 1978 and a full allowance in 1979. His earnings for the period October 1977 until he left his employment at the end of February 1979 were $17,427 (($958 x 16) + ($1,034 x 1) + $315 + $750). 33. But for the accident he would, I am satisfied, have been earning $1,412 per month during this period i.e. a total of $24,004 ($1,412 x 17). 34. His loss of wages during this period was therefore $6,577 ($24,004 - $17,427). 35. It is true that the plaintiff might have had the wage which he would have been earning increased during this period, however, there was no evidence to establish that this would have happened and bearing in mind the age of the plaintiff it may be that his employers at the timber shop would have been reluctant to increase the wages of an employee of the plaintiff's age. 36. I have not made any allowance for Chinese New Year bonus with regard to the wage that he might have earned had he remained in employment at the timber shop as there was no evidence that the shop paid any such bonus. 37. The plaintiff resigned from his employment at the end of February 1979 to avoid inconvenience to his employer and embarrassment to himself. 38. It is submitted that the plaintiff acted unreasonably in resigning from his employment, that the resignation was in no way related to the accident and that he must bear the consequences of the financial loss consequent thereon. 39. Mr Ozorio points out that his employer said that he was a good worker whom, despite the fact that he was making some mistakes, he would not have dismissed. As I have already indicated, I do not accept his suggestion that his left eye was deteriorating as a result of its use in conjunction with his defective right eye. 40. Having given full weight to the foregoing I am nonetheless satisfied, when I bear in mind his age and the nature of his injury, that his decision to resign was precipitated by a genuine lack of confidence in himself which was a direct consequence of the accident and that, in the circumstances, he acted reasonably. I accept his evidence that he rested for 2 months and was then unable to find work on a permanent basis and so started to work as a coolie on a casual basis and has continued in this work, from which he earns an average of $300 per month, up to the present time. 41. I am satisfied that he suffered a loss of wages of $2,824 ($1,412 x 2) for the months of March and April 1979. 42. I am satisfied that from May 1979 to the end of March 1980, a period of 11 months he has suffered a loss of $12,232 (($1,412 x 11) - ($300 x 11)).
(ii) Travelling Expenses 43. The plaintiff says and I accept that he spent $11 on a taxi to get home from Queen Mary Hospital and that he took about 70 trips by tram, at 60 per return trip, to receive outpatients treatment. I allow travelling expenses of $60. (iii) Damage to Clothing 44. The plaintiff says his clothing which was worth $100 was irrepairably damaged and I allow that amount under this head. (iv) Special Food and Nourishments 45. The plaintiff says that he ate wild duck for special nourishment on 3 occasions at $50 per time and I allow $150 on this head. (v) Medical Expenses 46. The claim in this regard was for an agreed amount of $2,120 for medical reports obtained for the purpose of this litigation. I consider that these are costs, not special damages, and should be claimed as such upon taxation. The Special Damages are:
General Damages 47. The plaintiff claims general damages for pain and suffering, loss of amenities and loss of future earnings. 48. There will be an award for loss of future earnings for a period of eleven months only. I am satisfied, as I have already indicated, that the likelihood is that the plaintiff would, after that time, even had there been no accident, have been doing the work which he is now performing. This gives a figure for lost earnings for the period of $15,532 ($1,412 x 11) from which must be deducted $3,300 ($300 x 11) that being the amount which the plaintiff will earn during the period. This gives a figure of $12,232 for loss of future earnings. The period being so short I do not, in the circumstances, consider it necessary to make any adjustment for accelerated payment. 49. I fix the award for pain and suffering and loss of amenities at $40,000. 50. The total sum of general damages is $52,232. 51. The total figure of assessed damages, special and general, is $85,725. 52. The plaintiff is entitled to 70% of this figure - a sum of $60,007.50. 53. Interest is to be paid at rate of 5% on $23,445 (70% of Special Damages) from date of accident to date of judgment and at rate of 10% on $28,000 (70% of $40,000) from date of service of writ until today. 54. Defendant is ordered to pay plaintiff's costs to be taxed including costs of appearing to receive judgment, however, costs of hearing are to be taxed on basis of a hearing lasting 2½ days. 55. Plaintiff's costs to be taxed in accordance with Legal Aid Regulations. 56. The moneys paid into Court are to be paid out forthwith to Director of Legal Aid. Balance to be paid within 14 days.
Representation: Miss H. C. Wong instructed by Lau, Wong & Chan for plaintiff Mr M. Ozorio instructed by Johnson Stokes and Master for defendant |