Lee Tak-wah v. Tang Ping Kwong Asian - a Courier and Another

HCA002081/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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ACTION NO. 2081 of 1972

CORAM: CONS, J.

Date of Judgment: 31st January, 1973

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JUDGMENT

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1. This is an action that arises out of an accident that occurred in April of 1971 in Hennessy Road near the junction of Tin Lok Lane. I have - as is so often the case - two completely different versions of how that accident occurred. Put very briefly, the plaintiff's claim is that while standing on a level with a safely island and within the bounds of a studded pedestrain crossing, he was literally mown down by the first defendant who approached sharply from his left. The first defendant was driving a Volkswagen car at the time. It is admitted that he was driving that car as agent on behalf on the second defendant. The first defendant's version is that at some distance past that particular studded pedestrain crossing, the plaintiff dashed out suddenly from behind a tram that was on the tram-tracks leading in the opposite direction. This tram, was, I think stationary. The plaintiff dashed out from behind the tram and the defendant had no opportunity to avoid him, even although he was going at a very slow speed.

2. I can find nothing in the evidence at all which can be termed "independent evidence" which would lead me to think that either of child as well, assumed - without proper thought - that when those lights were red, there would be no traffic going into the particular area of road that they were about to cross. They should have realized that traffic could come out of Tin Lok Lane and turn right in front of them, and by not making allowance or looking for that traffic - and clearly they did not, or at least the plaintiff did not - the plaintiff was acting negligently.

3. As to the proportion of negligence to be assigned to each party, there have been two cases recently in this court where very similar problems have come up. The first was the case of Edwards v. Hong Kong Tramways, 5 674/72. There it was accepted by the Judge that both the driver of the tram and the pedestrian who was knocked down by it, were to blame for the accident. The Judge, in that case, relied very heavily on the House of Lords case of Baker v. Willoughby, the basic principle of which is that where an accident is caused by a vehicle and a pedestrian who were both in a position where, had they given proper thought to the circumstances, could have avoided the accident, then basically speaking, unless there are any special circumstances, the driver of the vehicle is more to blame than the pedestrian. The Judge in Edwards' case applied that principle and added in as a specific factor not one that would make the driver of the vehicle less blame-worthy, but more blame-worthy than on the principle of Baker v. Willoughby. He applied that because in that particular case the pedestrian was crossing on a proper controlled pedestrian crossing.

4. The other case was LAU Sin-yee and SZETO Si-cheung, OJA 1550/72. That was a case where a girl was knocked down, not on a studded crossing, but fairly near to one, and as in the present case it was a set of roads which were controlled by traffic lights. In that case the Judge held that although there was good visibility, and that she should have seen the car to the same extent as the driver should have seen her, she was 80 per cent to blame, and he was 20 per cent to blame. He based his decision on the fact that the difficulties in the way of the car driver at that particular junction were very great by reasons of the number of roads that had to be crossed, and the different streams of traffic that had to be observed, whereas the girl merely had to look in one direction to see whether it was safe to cross.

5. I think the present case falls somewhere between those two. The difficulties facing the driver in this case were not so great as they were in the LAU Sin-yee case but he did have to be on the look-out for other pedestrians who might be crossing the road from any of the corners of that cross-roads. He had to negotiate a turn and he also had to look out for possible traffic which may have been coming from the road opposite. The plaintiff only had to look in the one direction - that was to his left. Unlike the girl in the LAU Sin-yee case he was actually on the studded crossing, but he has not the advantage that Mr. Edwards had in the other case, and that because this was only a studded crossing, whereas in Edwards case it was a proper, full pedestrian crossing. I think the blame, in this particular case, should be born equally between the two parties.

6. I know virtually nothing about the plaintiff except that he used to ply his trade as a collector of rubbish from building sites and other places, and then dispose of it for payment. He appears to be a man - I would think - in his late thirties. His left ankle was fractured in two places, he was detained in hospital for about four weeks following a reduction of the fracture and he was an out-patient until the following November. For a lot of that time, he was in plaster and walking on crutches. The medical evidence is not of the best in this case, but I am satisfied that he now requires another operation, which he intends have on the 10th of this month, which may take up to a maximum of 6 waks in hospital and 6 weeks' convadesoence. There can be no guarantee that this operation will restore him to the position that he was in befor the accident, but the impression I gained from the doctor was that there was a very good probability of this.

7. I think it unlikely that he will take the full time that the doctor mentioned as a maximum period in hospital, but in the general damages I think it proper to include the loss of what would be the specific wages that he would earn while he is undergoing this operation, wages that he would have earned at his old rate. Bearing this in mind and assuming that he will probably take three months out of his working life to complete the operation, I think the general damages for pain and suffering, loss of amenities and loss of future wages should be $6,400. I assume - because I think it is probable - that once that operation is finished, there will be no continuing loss of wages, that he will be able to return to his old job.

8. Special damages have been claimed; the first item has not been supported by any evidence at all and I do not propose to allow that. The remaining items are concerned with loss of wages. The plaintiff told me that at his old job he earned, on an average, about $800 a month. There is not unnaturally no evidence to the contrary, but this does seem to be a reasonable figure and I propose to base my decision upon that.

9. Following the accident he did not get another job until the 8th of January of the following year. He did not even try for a new job until the doctors in the November told him that he could look for light work. There is no medical evidence that he was - during that period - unable to work, but he tells me that for a long part of it he was on crutches and I am inclined to believe him. I also appreciate that for a completely unskilled man, the possibilities of getting light work - which was all that he could have done during that period - would be very remote. In fact, it took him two months after he did start trying before he was able to find himself employment. I therefore, think it proper that he should be allowed loss of his wages from the time of the accident up until the 8th of January, 1972, except for a period of two months which he spent in prison. It is clear that for that period it was not the accident that was preventing him from earning.

10. The evidence bears only a superficial resemblance to what is claimed as special damages from the 8th of January onwards. Neither the dates nor the amounts tally with each other. He tells me that he got a job as a paint scraper and later another job as a watchman over vegetables. He does not tell me why he left the first and went to the second which was at a lower paid rate. I think it would be reasonable to assume that a man in his circumstances would drop from $800 to somewhere about $500 or $550 a month if he was unable to work properly. I think it fair to say that after the 8th of January, his loss of wages should be assessed at $350 a month.

11. The last item claims for a "loss continuing". I take that to mean "continuing to the date of judgment", that is, very roughly speaking, one year from the 8th January until this month. At $350 a month this loss of wages would be $4,200. The total damages that I would have awarded on full liability would therefore be $6,400 in general, $7,385 for loss of wages from the date of accident up to the 8th of January, 1972 and $4,200 from that date until judgment. That makes a grand total of $17,985 which must be divided in two by reason of the 50 per cent contributory negligence.

12. Judgment is therefore entered for the Plaintiff in the sum of $8,992 and 50 cents, and he is entitled to have his costs. If it should be necessary, I will make the order that they be taxed in accordance with the Legal Aid Scheme.

Representation:

Miss. J Leong (David Burgin and Co.) for Plaintiff., 

Michael Asome (Johnson, Stokes and Master) for Defendants.