Liu Hung Fai v. Sandvik Hongkong Ltd and Another

HCPI000934/1995

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES LIST

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Coram: The Hon. Mr. Justice Wong in Court

Dates of Hearing: 17 - 20 March 1997

Date of Handing Down of Judgment: 18 April 1997

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JUDGMENT

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1. This is an action for damages for personal injuries arising out of a traffic accident on 14 June 1992 in Tong Mei Road at the junction with Mongkok Road. The Plaintiff was crossing the road in an easterly direction towards the petrol station when she was knocked down by a private car, registration number DP2637, owned by the 1st Defendant and driven by the 2nd Defendant. She sustained injuries as a result. The road was a pedestrian crossing and had yellow lines painted on it with metal studs. It was drizzling on that day. The 2nd Defendant did not deny that he was the driver of the car, which knocked down the Plaintiff.

2. The Plaintiff, aged 64 at the time of the accident, is now 69 years old. She lived and still lives alone at Flat D2, 15th Floor, Fu Tong Building, 58 Tit Shu Street, Tai Kok Tsui, Kowloon. Her evidence was to this effect. At about 2:30 p.m. on 14 June 1992, she had an appointment with a student to meet in Nathan Road to discuss Tai Chi sword and handicraft lessons. She had to cross the road to get to the other side. She was standing at the kerbside by the pedestrian crossing and looked at the traffic and the pedestrian lights before she crossed. The pedestrian crossing light was showing green and the cars had stopped on her right. She crossed the road at a fast speed and looked at the safety island in front of her. She was suddenly hit by an object on her right. When she woke up, she noticed a private car stopping on her right side. The car had hit her left knee. Before she was hit, she did not hear any sounding of the horn or any sound of sharp braking or swerving. At the time she was hit, she was 4 to 5 paces from the safety island. She fell on the ground and temporarily lost consciousness. She said that she was the only person crossing the road. She was admitted to Kwong Wah Hospital and underwent operations on her left knee. She was subsequently transferred to Wong Tai Sin Infirmary for convalescence for 5 months. She had to attend aftercare treatment after discharge. She also attended physiotherapy treatment on a regular basis. She still suffers pain in her left knee and wasting of muscle. She walks with a limb, and a stick when she goes out. She cannot squat down and cannot climb up to a height. Since the time of the accident, she has not been able to teach Tai Chi sword and handicraft which she used to do to earn an income for her living.

3. The 2nd Defendant gave evidence. He said that at about 2:30 p.m. on the day in question, he was driving DP2637, a blue Toyota, with a Japanese colleague. He was driving along Tong Mei Road towards his office after having visited the jade market. Just before the junction of Tong Mei Road and Mongkok Road, he was about 20 cars distance from the traffic light, which was red. He was on the third lane (on the right side). His speed was 20/30 km/ph. He noticed a white van on the second lane on the right. The white van was stationary because the traffic light was red. He slowed down in point of time, proceeding gradually to the traffic light. The traffic light changed to amber when he was about 10 to 15 cars distance away from the traffic light. The white van started to move. He just proceeded as normal because the road was wet and it was also a traffic junction. His car picked up speed to 30/40 km/ph. The light then turned green and the white van moved off. When the light turned green his car was 5-6 cars distance away. He started to proceed as the white van was moving. Somewhere around the centre in the intersection, he noticed the van slowed down and veered left. By then he had caught up with the van. Then he saw an old lady dashing across the road and he immediately stopped and steered the car to the right The white van was about 6 feet tall and his vision of the left side of the road was blocked by the white van. He was still driving at 30/40 km/ph. He swerved about one half to one metre away and stopped just at the edge of the pedestrian crossing. The old lady fell to the ground but she was not unconscious. He helped her to the side of the road and was told that she did not want to go to the police and she did not want trouble. She also said that there was nothing wrong with her. The Plaintiff denied saying this.

4. The 2nd Defendant made a witness statement on 19 December, 1995. Nowhere in that statement did he mention a 6 feet tall white van and that his vision was obstructed. The road had three lanes. Before the Plaintiff reached the third lane, she would have to walk past the first and second lanes. She could not have dashed into the third lane from the pavement all of a sudden and hit the 2nd Defendant's car. If the evidence of the 2nd Defendant is to be believed, it is more likely that the Plaintiff would be hit by the white van instead of his car. Under cross-examination by counsel for the Plaintiff, the 2nd Defendant also agreed that he did not tell the police about the 6 feet tall white van and that his view was obstructed. When he was cross-examined, the following exchanges took place.

5. The Plaintiff gave me the impression as a careful and prudent person. She gave her evidence clearly and in a calm manner. She was positive that she crossed the road when the pedestrian light was in her favour. I prefer her evidence to the evidence of the 2nd Defendant. I have no difficulty in finding that the accident was caused solely by the negligence of the 2nd Defendant. The Defendants are liable to the Plaintiff in damages.

6. I turn now to quantum of damages. Special damages in the sum of $58,349 have been agreed and there would be, therefore, an award for this amount under this head.

Pain. Suffering and Loss of Amenities

7. Having considered the authorities and having regard to the injuries suffered by the Plaintiff, and in particular the decision of the Court of Appeal in Leung On & KMB v Chan Pui Ki [1996] 565, I consider the appropriate damage under this head should be $400,000.

Loss of Pre-trial Earnings

8. I accept the evidence of the Plaintiff and the evidence of the two medical experts that as a result of her injuries, the Plaintiff would not be able to continue to teach Tai Chi sword and handicraft. On the evidence, I find that her earnings were $4,000 a month and there will be an award of $228,000 ($4,000 x 57) under this head.

Loss of Future Earnings

9. Again, I accept the evidence of the Plaintiff and her medical witnesses and allow $192,000 ($4,000 x 12 x 4) under this head.

Loss of Earning Capacity

10. There is no dispute between the parties and I award a sum of $50,000.

Domestic Helper Expenses

11. Having viewed the second video tape, I am satisfied that the Plaintiff is able to manage most of her affairs but at the same time she does require some help because of her injuries and age. She lives alone and in a small flat. She does not need a domestic helper for 6 hours every day. In my view, a domestic helper for three hours a day should be sufficient. I allow $388,800 under this head ($60 x 3 x 30) x 12 x 6.

Other Expenses

12. There would be judgment for the Plaintiff for the sum of $1,736,534. Special damages carry interest at the rate of 5.75% p.a. from date of accident to date of trial and general damages at the rate of 2% p.a. from date of writ to to-day. I also make an Order Nisi for costs in favour of the Plaintiff. The Plaintiff's own costs will be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. Andrew S.Y. Li instructed by M/s Bough & Co. for the Plaintiff.

Mr. Douglas Yau instructed by M/s Simon Ho & Co. for both Defendants.