Lee Fuk Yue v. Tang Kwong Chiu

HCA002259/1978

Coram: Li, J. in Court

Date of Judgment: 16th January, 1980

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JUDGMENT

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1. On the 26th February 1976 a traffic accident occurred near the 10 1/2 mile stone of Tai Po Road. The plaintiff was knocked down by a vehicle registration number AU 6452 of which the defendant was the driver as well as the owner. The plaintiff suffered personal injuries namely haemothorax (i.e. blood having been found in his chest cavity), haematuria - blood was found in his urine. He fractured the 4th, 5th and 6th ribs on the right. As a result tracheostomy (i.e. a tube being inserted to his windpipe to facilitate breathing) was necessitated while he was hospitalised. The end result of all these was that the plaintiff also suffered from emphysema (i.e. swelling of the lungs). The medical evidence was that possibly the plaintiff, prior to the accident, suffered to a certain degree this disease which was aggrevated by the accident. These are well reported in Exhibits 4, 5 and 6 in the medical reports. All the aforesaid facts are not in dispute and, at least, not seriously challenged.

2. On the question of liability there is a dispute as to how the accident happened. The plaintiff's version is that at the material time he walked across the Tai Po Road from the north side which is New Territories bound to the south side which is Kowloon bound and was standing on the pavement near a bus stop and a lamp post to await a bus for Kowloon. He stood there for five minutes. All of a sudden he was hit on the rear left of his body and was thrown to the ground. He lost consciousness and suffered the aforesaid injuries. The defendant's version is that he was travelling along Tai Po Road towards the New Territories. Suddenly he saw the plaintiff rushed out from the steps on the near side (or left sid) of his vehicle across the road. He immediately applied his brake and swerved to the right. He had not sufficient time to avoid the plaintiff and knocked him down.

3. A sketch plan was prepared after the accident by a police officer who investigated into the case and has been admitted by consent as Exhibit 1. This sketch shows that the off side tyre mark of the defendant's vehicle left a curve of some 25 metres from the wrong side of the road (i.e. the south side of the road) right over the pavement, missed the lamp post, and crashed to the fence beyond the pavement on the south side of Tai Po Road. That is the sum total of the sketch and the evidence as far as the plaintiff and the defendant are concerned.

4. When asked to mark his position where he was waiting for the bus and before he was knocked down the plaintiff placed a cross near the lamp post which is at least 6 metres away from the nearest point to the tyre mark of the defendant's car. That is clearly inaccurate. The plaintiff also sees fit to produce a record before the magistrate of the defendant's conviction of careless driving.

5. The defendant was charged on the 4th August 1976 before a magistrate for careless drving to which he pleaded guilty. He admitted certain alleged facts attached to the record of proceeding that

"at the time the weather was overcast and there was light rain. The road surface was wet and slippery. At this juncture a male pedestrian aged 62 was just crossing the road from the defendant's left to right and had already reached the middle of the road. As the defendant was travelling at a quite fast speed thus could not stop in time and eventually crashed into the pedestrian. The defendant's vehicle later came to a hault at the bus bay of the opposite carriageway. The pedestrian was ustaining serious injury. The defendant hadn't paid full attention to the circumstances of the road, wet and slippery otherwise he could have stopped in time to avoid the above collision."

6. Pausing at this stage I observe that although the defendant admitted these facts it constituted merely an admission between the defendant and the Crown. The fact remains that the defendant has been convicted of careless driving as a result of this traffic accident. The defendant's evidence was that the plaintiff rushed across the road and he could not stop the oar in time. In contradiction to his own aforesaid admissions he gives evidence that at the time of the accident the road surface was not wet. In cross-examination the defendant admitted he was driving too fast, well above 30 m.p.h., and that because of the speed of his car he lost control and could not avoid the plaintiff. In the course of his evidence he changed twice the position of the point of impact and the point where the plaintiff eventually fell. At first he marked the point of impact with a circle on Exhibit A1. Later, he changed the point of impact by marking on Exhibit 1 a triangle which is nearer to the point where the long tyre mark begins. On further cross examination he changed the point of impact again back to the point indicated by the circle. He marked the point where the plaintiff landed with a square in Exhibit 1. He further says that after the accident he came out of his car and moved the plaintiff, lying unconscious in the middle of the road, to near the bus stop. That was his explanation why the plaintiff was lying near the bus stop.

7. I have heard address by counsel for the plaintiff as well as counsel for the defendant as to how to resolve this contradiction in evidence. If the accident occurred as the defendant alleged then there was no reason for the defendant to plead guilty to careless driving at all. Obviously he could not, in the circumstances as he alleged, have avoided the plaintiff in whatever speed he was travelling. After the accident he moved the only piece of evidence in his favour. Had he left the plaintiff in the centre of the road, or marked the position of the plaintiff in the centre of the road before he moved the plaintiff to the bus stop, he would be able to show that in fact the accident occurred right on the middle of the road and that the plaintiff was dashing across right in front of his vehicle. He did not do that. He simply destroyed the evidence in his favour. He is unable to contact the one and only witness who could give evidence to corroborate his version. In the face of such conflict and on the balance of probability I am inclined to accept the plaintiff's evidence and hold the defendant 100% liable. I find that on the balance of probability the plaintiff was knocked down while he was standing on the pavement awaiting a bus to go to Kowloon.

8. Even if I am wrong in this finding and even if I were to accept the defendant's version, I still hold that the defendant is at least 75% to blame. Exhibit 1 shows that there was only a slight curve in that part of the road. The bend is such that the north bound road is the outer side of the curve which would be in full view of the defendant as his vehicle approached the staircase or steps on his near side. He saw the steps and he saw the plaintiff while he was in the middle of the road. I have no evidence whether there is any speed limit on the road at all. Assuming that there was no speed limit he was driving at a time too fast to be in full control of his vehicle. He was not keeping a proper lookout. I would have assessed 25% contributory negligence on the part of the plaintiff for his rushing out. However I do find that the plaintiff was in all probability knocked down on the pavement. That disposes of the question of liability.

9. There remains for me to consider the quantum of damages. The plaintiff has listed eight items of special damages, two of these, counsel for the plaintiff has conceded, should be subject matters of costs. These two items are the medical report charges and medical examination and report for $75 and $780 respectively. As to the others, the 1st item is for loss of earnings. At the time of the accident the plaintiff was 61 years of age. He did some home industry work namely to join wires on plastic plates for television antennae for a firm by the name of Yick Wah in Kowloon. The arrangement was that sometimes Yick Wah would deliver the components to the plaintiff to work on and collect the completed and finished work to Yick Wah by goods vehicle. Sometimes the plaintiff would have to go to Yick Wah to collect the components, bring them home, work on them and bring the finished work back to Yick Wah. The average earning of the plaintiff was between $400 plus and $600 plus per month. Ever since the plaintiff sustained injury he had not been able to work. He was hospitalized for about a bit more than a month and since then he found himself short of breath. For quite sometime he could not raise his hand to feed himself. He had difficulty in walking. Since his injury the plaintiff had been receiving Social Welfare assistance, both for his inability to earn an income and for his injury, totalling $573 per month. That assistance, I assume, he still collects up to date. I am prepared to find on the evidence that the average earnings of the plaintiff, prior to the accident, is around the region of $550 a month and that his capacity to work has ceased since the accident. He claims two years loss of earnings as from the 26th February 1976 to February 1978 at a rate of $600 per month and continuing. Having regard to the plaintiff's age, his antecedent emphysema and the nature of work that he undertook, I am prepared to give a multiplier of 5 staring from the date of his injury, namely: five years. The multiplicant is 550. The reason why I adopt a multiplier of 5 is that had it not been the injury he has reasonable expectation to do the light work up to the age of 66 or even longer.

10. The learned counsel for the defendant suggests that whatever welfare assistance the plaintiff receives should be set off from the damages under the item of loss of earnings. However, he very properly and fairly directed my attention to the case of Li Pui-kee v Ng Chuk-kong in O.J. Action No. 1429 of 1973 delivered by my brother Cons. In his judgment he clearly and thoroughly analysed the English Authorities on the subject. I have no desire to repeat them. I am quite prepared to follow his conclusions. I should add that even without his analysis common sense dictates that such welfare assistance cannot operate as a set off provided they have not emanated from the defendant. Otherwise there would be a law for the rich and another law for the poor. A rich man who is injured will not require welfare assistance and as a result he will be compensated for his loss of earnings to the full. When a poor person is injured and could not work he receives assistance and the assistance is set off against him. In other words the poor are worse off than the rich. That cannot be the moral. Nor can it be in the interest of public policy for taxpayers to subsidise a negligent driver.

11. The second item is hospitalisation charges. It is said the son paid for them. It is $106. For the same reason as aforesaid this sum is clearly recoverable.

12. Another item is for herbalist charges. The plaintiff gives evidence that after the accident he suffered a dislocated right shoulder joint. A right knee joint was out of position. These have not been supported by X-ray evidence or medical evidence by experts. The plaintiff says that he had difficulty in walking as well as difficulty in raising his right arm to feed himself. There is the evidence of one bone-setter, who is certainly not an expert, who says he treated the plaintiff and obtained medical fees and massage fees up to $2,400. In addition to this he says that he prescribed various Chinese herbs to the plaintiff presumably to facilitate his blood circulation as well as his breathing. Having regard to the fact that the plaintiff suffered emphysema and having regard to the fact that Chow Kan, although not an expert, is a Chinese herbalist, I am satisfied that he was in a position to prescribe to the plaintiff certain herbs for the purpose. Chow Kan has produced a receipt for $2,400 for treatment. A bundle of ten prescriptions was given to me. They are not translated in full. They only indicate "a variety of herbs" with the price on each of them. The only evidence is from Chow Kan that the herbs that he prescribed were very expensive. I do not know how expensive such herbs were. To take one instance, the translation in the Chinese document dated the 13th June, 1976 indicates that Chow Kan prescribed some 12 varieties of Chinese herbs for $165.

13. These herbs may or may not have any scientific basis. It is a Chinese practice that a person who has some form of physical injury will surgeries apart, consult a herbalist and just take herbs. For this reason I am inclined to grant the herbalist fee of $2,400 and reduce the expenses for the herbs he prescribed to $1,000. I grant a total of $3,400 for the bone-setter's fees and herbs.

14. There remains some smaller items. While the plaintiff was in hospital congee, soup and fruit were brought to him. This item of special nutrition at $300 may be admitted as money spent to put the plaintiff in happier frame of mind to speed up his recovery. $300 has been claimed for travelling expenses. This may seem a big sum for the plaintiff's son to travel every other day to hospital for a month to visit the plaintiff. I am given to understand, however, that the expenses cover not only the son's travelling but also the plaintiff's trips to go to collect medicine once a month, up to date, for his emphysema which had been aggrevated by the accident. That I do not think is excessive. When he visited his father the son had to close up his one-man shop for the purpose. He claims that no business could be done for 1 hour or two spent on each of his visit during that month. He claims $250 for loss of earnings. I do not think this is excessive. I allow all the aforesaid items of special damages.

15. Now I come to the question of general damages. The plaintiff was hospitalised from the 26th February to 1st April 1976. In the course of his stay he had to have a tube inserted into his windpipe to help his breathing. He was immobilised for some time for at least a week to 10 days. He suffered from emphysema which had been aggrevated by this accident. In his report Dr. Wedderburn said:

"that it is certain that he had emphysema before his accident but he was moderately active and did not restrict his activities of a man of aged 60. There is no doubt that he had severe injuries and that the damage to his chest has greatly increased his difficulty. A congestion which was compensated became almost completely decompensated as a result of his accident and his present serious condition has resulted from the accident. He is really now an invalid and in a few months I think it is likely he would have to be admitted to an institution. His expectation of life is very reduced. I would be surprised if he survived for two years. This old man is now becoming helpless and is in great distress. He is incapable of any form of work or any activities in which he can earn money."

16. I do not have to consider damages due to loss of work because that item of damages had already been considered. However, it is obvious from Dr. Wedderburn's report that although the plaintiff suffered emphysema yet shortness of breath was alleviated by the active life the plaintiff led for a man of 60. However he became less mobile after the injuries. Whatever compensatory factory generated by his active life has now been determined by his immobility. That is why Dr. Wedderburn used the term "decompensated" as a result of the accident.

17. My attention has been brought to both cases from England as well as cases in Hong Kong. Learned counsel for the defendant suggests that if emphysema can be attributed to have been caused or aggrevated by the accident then the reasonable compensation should be in the term of $20,000 to $25,000. Learned counsel for the plaintiff suggests a much higher figure. He suggests something like $40,000. Having considered some of the awards made in those cases I am of the opinion that a sum of $30,000 for general damages in the present case is appropriate to compensate the plaintiff for pain and suffering as well as loss of amenities.

18. For the aforesaid reasons I award the following special damages:-

19. These sums are in additional to general damages as follows:-

20. The total award will be $67,356 with costs to plaintiff.

Representation: