Ng Ching Lin v. Cheung Tam Shing and Another

HCA000447/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 447 OF 1968

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Coram: Huggins, J.

Date of Judgment: 10 January 1969

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JUDGMENT

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Huggins, J.: This is a claim for damages for personal in juries received in a traffic accident on the 27th January, 1966. It is in that class of cases to which my Lord, the Chief Justice, referred in general terms in his speech only yesterday. We have a case arising out of an incident three years ago and it is extremely difficult at this length of time to ascertain exactly what happened.

1. It is admitted that the first defendant was the driver of the second defendant's lorry. It is admitted that the plaintiff was injured as a result of a collision with that lorry. The plaintiff was the driver of a second lorry which at about 12 noon he had parked in Connaught Road West. He had put this lorry in or about a parking space reserved for private motor-cars and he put it there in order to load the lorry.

2. The first dispute, which is only incidental at the moment, is whether he parked close to the side of the road or not. If not, he was negligent but in my view that negligence would be too remote to be a contributing factor in this case. The oral evidence puts the lorry at a distance of between 3" and 1' from the side of the road: one witness says 3" to 6", another 10", and I think two or three say 1'. There is in evidence a tracing of a plan. I have already dealt with the admissibility of this document. That plan puts the lorry at a distance of between 4'7" and 3'6" from the side of the road, the front being further from the side than the rear. I think counsel for the defendant was inclined to suggest that with such a big lorry it was inevitable that the vehicle should be parked some distance away from the side of the road. It is not necessary for me to make any general finding of that kind. The evidence is that the first defendant was able to drive straight in without having to manoeuvre backwards and forwards to get into a space between two vehicles. There was no vehicle behind when he stopped and he, therefore, was able to drive straight in with the result that probably he had been able to get as close in as he thought safe. The real question is whether I accept the evidence of this plan or the evidence of the witnesses. The plan was prepared by a police officer who has no personal recollection of the things that he saw at the scene, but I have no reason to believe that this plan is other than accurate and I accept that the vehicle was in fact parked something like 4' on the average from the side of the road. The relevance is this, that by reason of the lorry's being parked so far from the side of the road the available space on the carriageway for the passage of vehicles was considerably narrowed. As I say, in my view this does amount to negligence but it is not a directly contributing factor.

3. The plaintiff says that he had finished loading the lorry so far as he was going to load at that particular point and that he was walking towards his cab along the off-side. I suppose many persons who drive vehicles are guilty of walking along the off-side of their vehicles from the rear to the front on occasions. It is a dangerous thing to do: one should take the shortest distance on the road and not walk along the off-side, with one's back to oncoming traffic. It is a thing that is commonly done although that does not detract from its being negligent. The plaintiff says that he met another person on foot as he went forward and he says he was trying to aveid this pedestrigh. No other witmean saw this second man. The plaintiff says that he was walking with his shoulder 6" from the side of the road and that at the moment he was struck he was opening the door of the cab and had his hand on the handle. It is not clear to me how the plaintiff could have been trying to avoid another pedestrian if he had his hand on the handle of the door. I am not satisfied that there was any other person present.

4. One of the most significant things in this case is that the plaintiff admits that he was not aware of the approach of 'the defendants' lorry. He never saw it although he says that he looked before he started walking. I am satisfied that there was a long stretch of straight road behind his lorry and that if he had looked properly he must have seen the oncoming lorry driven by the defendant. I do not believe he looked at all and undoubtedly the major part of the blame for this accident must attach to him.

5. On the evidence it is clear that there was only just room for the defendants' lorry to go through between the stationary lorry and the tram tracks with approximately 3'5" or 3'4" clearance on either side. I emphasise the word 'tracks' because the next dispute is whether there was a tram actually at this place at the time of the accident. The first defendant's evidence is that he stopped behind a tram at a tram stop some 200 yards back to the east; that when the tram started again he started with the tram and then changed into second gear, the gear at which he was driving at the time of the accident; and that for some distance he was running alongside the tram. The other witnesses say they never saw a tram at all. This is merely a question of whether I can believe the evidence of the first defendant or not and I have come to the conclusion that I ought to believe his evidence that there was a tram actually passing at the time of the accident: I am by no means satisfied that any of the plaintiff's witnesses really knew what was going on around.

6. The first defendant says he was "in the middle" and I think that means he was just about half way between the tram and the stationary lorry: 3'5" was the distance found between his front offside and the tram track. We have no evidence as to the overhang of the tram but it would clearly be not less than 9" and probably something in the region of 12" or more. I will take it as 12". This being so, I think that for the plaintiff to walk along the side of his lorry without having looked to see whether there was any traffic coming was gross negligence. If he had looked he must have seen the first defendant's lorry.

7. In order to fix the first defendant with negligence it seems to me that the plaintiff must show that the first defendant saw him or ought to have seen him walking into the danger area in time to stop: if he went on once he saw the plaintiff move from the back of the lorry then, in view of the clearance that there was, it was negligent for him to continue. The first defendant says he "thought there was room" for him to get through.

8. Now I do not accept the evidence of the plaintiff that he had reached the cab when he was struck. I find that he was no more than about half way at the most down the loading platform of the stationary lorry at the moment of the impact. That would be something like 9' from the back of his lorry. He could have covered that distance within 3 seconds. The question I asked myself is, Where was the first defendant when the plaintiff started walking? There is another dispute as to the speed at which the first defendant was driving. Some of the witnesses say 'very fast': he says 'very slowly'. But these terms are of no assistance whatsoever in a case of this kind. What is fast to one person may be slow to another and in particular when a large vehicle passes at a short distance somebody who is on the ground even a comparatively slow speed may well seem fast to the person on the ground. KWOK Ming's estimate of 30 m.p.h. I consider completely valueless, nor am I particularly impressed with the first defendant's admissions based upon the length of the brake marks. He gave no estimate of his speed but says he was in second gear and that he was travelling alongside the tram-car. I am not persuaded that he was travelling faster than was proper in the circumstances. The faster he was going the less time he would have to avoid the plaintiff, so let me now assume in the plaintiff's favour a speed of 15 m.p.h., which is 22' a second. In 3 seconds the first defendant would have travelled 66' or approximately three times the length of his own vehicle. The first defendant says the man walked towards the front, that all of a sudden he turned round and that he knocked against the side board of the defendant's lorry. This suggests to me that the first defendant thought it was safe to go on so long as the plaintiff was walking straight. I have indicated that I do not agree with that. I think that he did see the plaintiff start walking and realised that there was some danger for he started to apply his brake "on and off", but I do not think that he finally appreciated how grave the danger was, and did not adopt emergency measures, until it was too late. This may have been an excusable error of judgment on his part but it was negligence. If he was watching the plaintiff as he says he was he would have known the plaintiff had not looked round. The plaintiff is a well-built man and for the defendant to have tried to get through with the plaintiff even walking close to the side of his lorry would, in my view, have been dangerous.

9. I attach no weight to the failure of the first defendant to sound his horn. This was a silent area in which the sounding of a horn is forbidden by law. Of course in a case of emergency it is proper for him to disregard that law, but even assuming that an emergency had arisen here it is most doubtful in my view whether a warning would have avoided the accident once the danger has arisen: there would not have been time for the plaintiff to go back.

10. It was suggested that it was negligence in itself for the defendant to drive alongside the tram. I cannot agree with that. I think it must be accepted that the presence of trams on fixed tram-lines itself is dangerous, but I do not consider that it is in any way reprehensible for the driver of "independent" vehicles to drive alongside a tram on fixed lines. It is, therefore, enough for this part of the case that I am satisfied the defendant cannot be entirely excused.

11. I have already indicated my view that the plaintiff was guilty of contributory negligence - and contributory negligence of a high degree: he walked out into the road when he must have known that there was only a narrow passage by reason of his having parked out from the side of the road. He walked out along the side of the vehicle without looking and with his back to the oncoming traffic. Doing the best that I can, I assess the degree of his contributory negligence at 80% and the degree of blame attaching to the defendants at 20%.

12. It then comes to the assessment of damages. There are claims for special damages. I think Items (1), (2) and (3) are admitted. Leave was given to add a claim for $651 in respect of hospital expenses. The Statement of Claim has not yet been amended by the addition of this Item (7). I will allow Item (7), conditionally, of course, upon the amendment. Item (6) is loss of earnings. The loss of earnings in my view is properly a head of special damage up to the date of the writ: therefore it is properly claimed in the general damages.

13. The plaintiff was paid $500 a month from May 1967 to April 1968. "May", I think, was an error. He was in fact paid up to the end of May and he would not be entitled in any event to anything before June. Here I am in very great difficulty. The plaintiff was earning $500 a month as a driver and I am satisfied that he can only drive: he is a man with only one year's education and he has no other trade than that of a driver. But I am not satisfied that he had made any real attempts to mitigate his loss. He has applied for three different types of jobs, one as a shop assistant, one as a night watchman and one as a waiter in a teahouse. I cannot think of many more types of job for which he would be less suited in view of the injuries which he has received. I appreciate the great difficulties of obtaining employment in Hong Kong even for the hale and hearty but I think it is incumbent on those who claim damages for personal injuries to prove their loss. I have no evidence before me as to the prognosis in relation to the injury. The last medical evidence that I have dates back to his discharge from hospital, which was a very long time ago. He has been attending herbalists, so he says, but none of them has been called and I have no knowledge of the sort of treatment they had been giving and I have no idea what is likely to happen to this man's leg: I cannot say how much of the loss of movement and the pain and the suffering which he has undoubtedly suffered is due to the original injury. This I can say, that I am satisfied it is highly improbable that the plaintiff will be able to earn $500 a month in his present condition. Without any strict proof before me the best I can do is to say that I think that probably he will not be able to earn more than $300 a month in his present condition. Again, without further evidence I am unable to say that he was during the period from June 1967/April 1968 unable to obtain employment which would bring him something in the region of $300 a month. Therefore I propose to allow under Item (6) loss of earnings for 11 months at the rate of $200 a month.

14. We then have a claim in respect of consultation fees of herbalists and travelling expenses for going to the herbalists. This is one of the items of claim which repeatedly cause the greatest anxiety to judges in Hong Kong who have to decide what is reasonable for Chinese citizens who require medical treatment. It is particularly difficult in the present case because the only medical evidence I have is as to the plaintiff's injuries at the time he left the hospital. Then the leg was completely healed. There is now an open wound 2" x 1" and the leg is in a nasty condition. Even allowing for what may be the natural prejudice of Western-trained physicians I think that the doctor who gave evidence has some justification for questioning the propriety of the treatment which the plaintiff has been receiving and without evidence from the herbalists as to what they have been doing (so that I can be satisfied as to the nature of the treatment and that it was proper treatment), I do not think that I ought to allow Items (4) and (5). I particularly do not say that I would never allow damages to cover treatment by a herbalist after treatment in a Western hospital but I do say that I would require evidence that the treatment was proper treatment. The mere fact that the plaintiff preferred to go to a herbalist does not disentitle him to claim the damages under that heading but I am not satisfied here that the charges have been properly incurred even if I were prepared to believe they have been paid.

15. As to the general damages, this leg was very severely injured indeed. The plaintiff must have suffered great pain and it is said by the doctor that some deformity is inevitable. The extent of the deformity and the extent to which the pain and loss of amenity is going to be due to the original injury is very difficult to assess. The plaintiff underwent six surgical operations. He was in hospital, I think, for six months, and I assess the pain suffering and loss of amenity at $10,000.

16. The loss of earnings I have already dealt with in relation to the special damages. I assessed the proper loss or proper reduction in earning capacity at $200 a month. The plaintiff is a man of 38 years of age and I think it would be reasonable to use as a multiplier the figure 12. That bring us according to my calculation, to a total of $38,800.

MR. CHING: That makes it, my Lord, a total of $43,226. The special damages are $4,426.

COURT: And the general?

MR. CHING: $38,800.

COURT: Judgment will be entered then for 1/5 of those amounts.

10th January, 1969.

Ruling as to Costs

17. It has been argued that the plaintiff should be awarded only one-fifth of his costs because he has been held largely responsible for his own loss. I do not think that is correct. In Waller v. Levoi⁽¹⁾ the County Court Judge had granted to each party that part of his costs which was proportionate to his opponent's degree of blame. The Court of Appeal held that the right order where a plaintiff is successful, even though he be guilty of contributory negligence, is that he recover costs on the scale appropriate to the amount of damages awarded and that the defendant recover no costs. (There was no counterclaim). Applying that case I am satisfied that there can be no question of my apportioning the costs to be awarded to the plaintiff. The only question which has occurred to me is whether "the scale appropriate to the amount of damages awarded" would here be Scale V of the District Court scales of costs. In my view the present case was properly brought in the Supreme Court and costs should be awarded on the Supreme Court scale. I therefore order that the defendants pay the plaintiffs costs to be taxed accordingly.

Representation:

(1) 1968 The Times, October 16.