Liu Siu Ping v. Yip Ping Chun

HCA001119/1976

Coram: Mr Commissioner Wei, Q.C.

Date of Judgment: 30th July 1980

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JUDGMENT

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1. On the 8th March 1975 at about 9 p.m. the plaintiff, a lady about 40 years of age, was crossing Nathan Road near Nelson Street along a studded pedestrian crossing from west to east when she was knocked down by a private car No. 9773 owned and driven by the defendant. The crossing was controlled by traffic lights whilst the road traffic was controlled by another set of traffic lights. So much for common ground as to what occurred at the time of the accident. The defendant is defending this action as to both liability and quantum.

Liability

2. There were iron railings in the middle of that part of Nathan Road. There were three lanes in the north bound carriageway. The plaintiff was an unlicensed hawker. Her evidence may be summarized as follows. She was going to use the crossing to get to the hawkers' market. She stopped on the pavement near the crossing, took a look at the traffic lights controlling the crossing and saw that the green man signal was on. To her right a number of vehicles had stopped before the crossing. There was a certain amount of confusion (and in my opinion honest confusion) as to whether there were any cars stationary in the centre or the outer lane, but she was certain that there were vehicles stationary in the inner lane. Having noticed that the traffic lights were in her favour, she started crossing the road within the limits of the pedestrian crossing. She was about half way to the iron railings when she was struck by the defendant's car. She was thrown up in the air and landed on the road some two feet to the north of the pedestrian crossing.

3. On the other hand the defendant had this to say. He was driving along Nathan Road and approaching the Nelson Street junction when he noticed that the traffic lights were red. So he stopped his car immediately before the white stop line which was in front of the pedestrian crossing. It had been drizzling and the road surface was wet. There were cars stationary in each lane, he was in the outer lane, and in the centre lane occupying the first position was a 14-seater minibus. When the lights turned to green, he drove off, and so did the minibus to his left. He was about half way across the crossing when suddenly the plaintiff dashed past the front of the minibus and into the path of his car. At that juncture he was doing 10 to 13 m.p.h. whilst the minibus, which was one or two feet ahead of his car, was going even faster. That was the first time the defendant had seen the plaintiff. She was three to four feet away. He tried to brake his car but could not avoid the collision.

4. As Mr Lane the defendant's counsel very properly conceded, the defendant's testimony conflicts with Exhibit F, a statement he gave to the police on the 8th March 1975 after the accident. According to that statement, when he was approaching the crossing, he saw that the traffic lights were still in his favour and therefore kept on driving. As his car was just reaching the crossing, the plaintiff suddenly dashed past the front of a public light bus on his left hand side with the result that the left mudguard of his car collided with the plaintiff. It does not appear from that statement that at any time before the collision the defendant's car stopped or even slowed down. At the trial the defendant stated that that part of the police statement which stated that he saw that the traffic lights were still green and therefore he continued to drive forward was a mistake. He was asked by the police officer who had been taking his statement to read it which he did before he signed at the foot of each page. His explanation is that he was tired and did not read the statement thoroughly. The statement, he said, was taken some time after 11 p.m.; he had not had anything to eat or drink; and he was under the impression that the officer taking the statement was doing so accurately. The defendant is a retired police sergeant. He has had 23 years' service with the police. Before his retirement he was a duty sergeant in the report room at the Sham Shui Po Police Station. As a police sergeant he has had the experience of taking statements, which he would read back to the maker or ask the maker to read. He gave his evidence in a calm and collected manner. His choice of words was careful and deliberate. With his background and experience, I find it hard to believe that the defendant could have failed to notice the "mistake" in his statement. I reject his testimony as well as his statement to the police as to how the collision occurred.

5. I accept the plaintiff's evidence as summarised above, and, subject to what I say with regard to contributory negligence, I find that the collision was caused by the negligence of the defendant.

6. In cross-examination the plaintiff stated that before the collision the defendant's car never in fact stopped. She further stated that there was no minibus or public light bus in the centre lane. I think that had the plaintiff used reasonable care she would have noticed the defendant's car in time to avoid the collision and that she failed to keep observation on approaching vehicles to make sure that they were going to stop. I therefore find that she failed to keep a proper lookout and that the collision was contributed to by her own negligence. The blame should, I think, be apportioned between the plaintiff and the defendant in the proportion of 10:90.

Quantum

7. As a result of the collision the plaintiff sustained a fracture of the neck of the right femur (thigh bone). The fracture was treated by the insertion of a Smith-Petersen nail. She made good progress and there is a medical report, Exhibit E 65, saying that on the 6th June 1975 she could walk normally. This period of normality lasted until August 1976 when she started to develop avascular necrosis of the head of the femur. Another medical report dated the 4th July 1980, Exhibit I, says that in October 1977 an operation of hip replacement was performed. The acetabulam, the socket of the hip joint in the pelvis was replaced by a plastic socket. The head and the neck of the femur were removed and replaced by a metal prosthesis fixed into the shaft of the femur with special cement. In early April 1980 the prosthesis was loose probably as a result of a foreign body reaction to the cement. Another operation was performed whereby the prosthesis was replaced. There are two well-healed scars from these operations on the thigh. The medical report continues :

"There is no shortening of the leg. She can flex the leg at the hip through 90^o (normal 150^o). External rotation is 45^o (normal 40^o). Internal rotation is 5^o (normal 25^o - 30^o). She complains of discomfort at the extremes of these movements. However these are good ranges of movement two months after operation and after some years of restriction of movement."

The report further says that movements will increase, that she will be fit for sedentary work by December 1980 and that after another three months she will be fit for work which requires intermittent standing and walking provided that about half of the time she is sitting. The report describes her walk as brisk. She carried a stick in her left hand but did not lean on it, her speed was excellent, normal walking speed. The report ends with a reference to a 20% chance of a further foreign body reaction. If this occurs it will be necessary to remove the prosthesis and leave the upper end of the shaft of the femur to form a false joint either with the acetabulam or against the side wall of the pelvis. If this was to become necessary she would not be fit for any work except some form of home industry although some patients who have above average determination lead active lives, can walk distances of one to two miles, board public transport and attend their offices for a full working day. PW6, Doctor Vincent Ma, who performed the operations in October 1977 and April 1980, says that her percentage of disability is about 10%, and that she can work even now whether it is sedentary work or hawking. He does not think that she will be disabled from standing or lifting light weights, although she will not be able to do heavy work. Both counsel referred to the recent case of CHOW Wai-ting v. LI Ka-wah (1), a case of a young girl aged 16 who sustained a fracture of the right femur and a fracture of the lower part of the pelvic bone. The award of $45,000 included the sum of $13,000 for the cost of a recommended hip replacement operation. On the other hand in the present case there is the 20% possibility of a further foreign body reaction. Furthermore as she can no longer do heavy work, she would be at a disadvantage if cast on the labour market. There is therefore some loss of earning capacity, though it is unlikely to be substantial. I do not propose to award any specific sum, but will take account of that in awarding general damages. On the basis of full liability, I would have awarded the global sum of $50,000 as general damages.

8. The claim under this head amounts to $31,876, of which $24,600 is agreed medical expenses whilst the remaining $7,276 represents a bonesetter's fees. The bonesetter's treatment lasted two months from the 8th May 1975 to the 12th July 1975. During this period she attended at the Queen Elizabeth Hospital for medical follow-up. As already mentioned, the medical report issued by the orthopaedic unit of that hospital, Exhibit E-65, states that on the 6th June 1975 she could walk normally. PW4 LEUNG Chung-wah, the bonesetter, states that as far as he could observe, in early June 1975 the plaintiff was still on crutches. He has given similar treatment to other patients which proved to be beneficial. When he had completed his treatment of the plaintiff about the middle of July 1975, she could walk without crutches. On the other hand, Dr Wedderburn's report dated 15th June 1977, Exhibit E 75, which is agreed, states in relation to the onset of avascular necrosis in August 1976 :

"The history of the onset is typical, a period when postoperative recovery progresses well followed by a period of normality and then a period of deterioration. Although the time intervals in Mrs Liu's case are prolonged considerably beyond the normal intervals."

Mr Leung states in cross-examination that in the course of his treatment he also manipulated and massaged the plaintiff's leg. Dr Vincent Ma took the view that it could have done harm to the leg although he would not put it higher than a mere possibility. The plaintiff gave no evidence whatsoever about the bonesetter's treatment. I do not think there is sufficient evidence that the treatment was beneficial to the plaintiff in either physical or psychological terms. The bonesetter's fees are disallowed. The award on the basis of full liability under the head of special damages would have been $24,600.

9. The award of general damages is therefore $45,000 ($50,000 x 90%) together with interest thereon at the rate of 10% per annum from the date of the service of the writ of summons, i.e. 6th July 1976 to the date of judgment. The award of special damages is $22,140 ($24,600 x 90%) together with interest thereon at the rate of 5% per annum from the 8th March 1975 the date of the accident to the date of judgment.

Representation:

N. Pirie (Michael Jenkins & Co.) for plaintiff

W. Lane (Johnson Stokes & Master) for defendant

(1) (1979) 9 H.K.L.J. 198