Tse Po-chi v. Fung Hon-tung

HCA003254/1978

No. 3254/78

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Garcia, J.

Date of Judgment: 12 April 1979

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JUDGMENT

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1. In this action the Plaintiff sues for damages for injuries and losses sustained as a result of an accident which occurred on 6th September 1976 when a motorcycle under the control of the Defendant collided with her.

2. At about 8.30 p.m. on the relevant date, the Plaintiff Madam Tse Po-chi, was walking back to her home which is situated on the west side of Hong Ning Road on a hill near the Connie Tower. She says that she had just left a neighbour on the opposite side of the road after returning to the latter a bamboo pole which she had borrowed on an earlier occasion. The section of the road which she intended to cross that evening was very dark, but from her evidence some illumination is provided to the eastern approaches of the said road by lights coming from huts in the vicinity. Hong Ning Road, near Connie Tower, has an upward incline from south to north, and is divided into two carriageways, one going northward to Ngautaukok and the other south-ward to Kwun Tong Road. A broken white line in the centre of the road separates the two carriageways. On either side of the road, large vehicles, such as touring buses and lorries are parked. According to the Plaintiff, she had emerged from the space between two parked vehicles on the south bound carriageway, took two paces forward and seeing that it was clear, walked a few more steps towards the centre white line. Just before she had reached that line she stopped to observe if any vehicles were coming uphill along the north bound carriageway. She says she saw two motorcycles coming up the hill, one of which was driven by the Defendant. She could not say whether there were any lights on the Defendant's vehicle at the time she saw it but there is evidence from the Defendant and his witness that he had switched on his headlamp, and there is no indication that there was anything wrong with that lamp at the relevant time.

3. After looking at the Defendant's motorcycle coming up the incline, she looked towards the direction of travel along the south bound carriageway and whilst doing so, was suddenly struck by the said motorcycle and she fell unconscious. She further states that she was on the eastern side of the centre white line when she was so struck. As a further result of the accident, the Defendant was thrown from his motorcycle and he was also rendered unconscious.

4. The Plaintiff was taken to Queen Elizabeth Hospital where she was examined by Dr. Fenn and found to have sustained the following injuries:-

An X-ray examination performed later revealed the following further injuries:-

As a result of this examination she was referred to the orthopaedic unit of the said hospital for further examination and treatment and the following are the findings:-

She was treated by closed reduction of the three mentioned fractures together with immobilisation in plaster casts, and on 5th October 1976, open reduction and internal plate fixation of the fractures of the left ulnar and radius were performed on her. Following this latter operation, she was transferred to Kowloon Hospital for convalescence and rehabilitation on 8th October 1976, and she was finally discharged from hospital on 25th December 1976. From the date of her admission to the date of discharge, she spent a total of 113 days in Hospital.

5. Returning to the scene of the accident, some traffic policemen who has not been identified, apparently without marking the positions of either of the parties or of the motorcycle, and without taking any measurements whatsoever, removed the motorcycle and placed it on the western pavement away from the scene of the accident. Half an hour or so after the occurrence of the accident, P.C. 8688 Choi Hing Hui, arrived on the scene, and finding that the motorcycle and the parties had already been removed from the scene, proceeded to prepare a sketch plan of the road itself, indicating thereon a pool of blood he had seen on the road surface and the direction of the incline. He had also represented on the plan the vehicles parked on either side of the road but says that they are not drawn to the scale used generally in the sketch.

6. The Defendant says he had bled a lot as a result of injuries received in the accident, and so also, the Plaintiff whose injuries I have mentioned earlier. However there is no direct evidence from either party to indicate whose blood it was on the roadway. Mr. Poon Wai-on who was accompanying the Defendant on another motorcycle at the time in question, says that he had been following behind the Defendant at a distance of about four vehicle lengths, going up the incline, and he had observed that the Defendant's rear light, which was switched on, had given out a blink and brighten momentarily when the Defendant's motorcycle approached the top of the incline and he concluded from this indication that the Defendant had applied his brakes then. When Mr. Poon reached the top of the incline, he saw that an accident had occurred and on looking round saw the Defendant lying near the wheels of a lorry parked on the north bound carriageway next to the western pavement. He also saw the Defendant's motorcycle lying on the ground sideways across the road but pointing in the direction of the north bound carriageway almost on the centre white line on the road, whilst the Plaintiff was by the side of the rear wheel of the motorcycle. If his impression and recollection of the respective positions of the Plaintiff, the Defendant and the motorcycle are correct, and there is nothing in the evidence to indicate otherwise, the pool of blood would in my opinion have been that of the Plaintiff's.

7. The Defendant only holds a Provisional Driving Licence for riding motorcycles and he had been under some kind of instruction from Mr. Poon for only about one month prior to the occurrence of the accident, hence Mr. Poon's presence at that scene. The Defendant says that he and Mr. Poon had come out from a side street on to Hong Ning Road and that he had engaged 1st gear to go up the incline ahead of Mr. Poon. After travelling for a short distance, he changed to 2nd gear and then to 3rd gear before reaching the top of the incline reaching 27 to 30 m.p.h. just before the accident. He further states that he had to accelerate his engine when going uphill at the time in question since the engine was of small capacity being only 125 c.c. and he had considered it unreasonable, when questioned, to go uphill on a lower gear. Regarding the headlight on his motorcycle, he says it was switched on when he was riding that night but the headlight on the motorcycle had a limited capacity, throwing a beam of no more than 10 feet ahead of the motorcycle itself when fully switched on. Whilst he was riding along the centre of the north bound carriageway, he says he saw a dark shadow falling on the area illuminated by his headlight but as soon as he applied his brakes, he could not stop his motorcycle in time to avoid a collision with the Plaintiff. The road was dry at that time but even with emergency braking, of which there was no indication on the roadway after the accident, he could hardly have stopped his motorcycle at the distance he says he first saw the dark shadow, taking into account the speed at which he was travelling. He also says that the dark shadow emerged from his left, that is from the western side of the road but agrees that if someone in dark clothing had been standing in the centre of the road outside the angle and distance capable of being illuminated by his headlight, he might not have seen her.

8. In my view, the Plaintiff could not have come from the Defendant's left side since most of the injuries sustained by her appeared on the left side of her body. She was, and I accept her evidence in this respect, facing the western pavement, whether she was stationary near the white line or walking from east to west in the north bound carriageway. Much emphasis has been made by the Defence of a statement which the Plaintiff made to a police officer that she could not remember what happened prior to the accident yet in her evidence at the trial she was able to recall what had occurred. I find support of the view that her evidence of the events just before the accident was unreliable in the final positions of the two parties and of the motorcycle after the accident, as related by Mr. Poon. It appears to me that she was walking towards the western pavement along the north bound carriageway when the collision took place from the relative positions of the Plaintiff and the motorcycle after the accident since if what she says were correct that she was stationary on the south bound carriageway before the collision, her final position would be on the eastern side of the centre white line. Further if the motorcycle which was travelling at a high speed in the circumstances had collided with her while she was stationary, she would have fallen backwards but the injuries to the front portion of her head indicate otherwise.

9. The Defendant gave no explanation for accelerating his motorcycle during the climb up the incline, except to say that it was unreasonable for him to change to a lower gear during that process. In my judgment the speed at which he was travelling when approaching the brow of the incline when taking the other circumstances into consideration, that is, the dark area of the road he was proceeding along, the large vehicles parked near the western pavement of the north bound carriageway, the limited capability of the headlight on his motorcycle to illuminate the road ahead, and his limited experience in riding the motorcycle, and of the motorcycle itself, render him liable to the major portion of the blame for the accident. I find however that the Plaintiff continued walking towards the western pave-ment despite the fact that she says herself that she had seen the motorcycle coming up the incline and she has to share in the responsibility for this accident. I assess the Defendant's liability to be 80% and that of the Plaintiff 20%.

10. At the time of the accident the Plaintiff was about 35 years of age, married with 3 children aged 9, 3 and 2 years.

11. There is no evidence as to what her occupation was prior to her marriage or whether she was employed then. At the time of the accident, she was registered as the proprietor of the Luen Fan Hong, carrying on business as kerosene suppliers, from her residential address at 66 Block N, Tung Hoi Building, 6th floor, Pak Tai Street, Kowloon. The firm commenced business on 14th February 1976 with one truck to deliver kerosene and liquid petroleum gas to her customers. Her duties in the firm were to issue invoices and to assist her husband, who was the driver of the truck, to load and unload the goods they dealt in and to accompany him on his delivery rounds.

12. During the period of her stay in hospital after the accident, she testifies that she has had to employ a person by the name of Lee Shu to accompany her husband on his delivery rounds. His wages were $1,000 per month but this included his having to drive the vehicle as and when required. He had been in the Plaintiff's employment for about 18 months after her accident and it was then decided to dispense with his services so that the Plaintiff could see whether she was capable of performing the same tasks as before but after a period about seven months he was re-employed again in September 1978 for $1,200 per month and he thus continues to be so employed.

13. The Defence compalins that no evidence has been adduced as to what his exact duties in the firm were, whether his services were really necessary and what proportion of loss of profit was directly attributable to his being employed as a substitute for the Plaintiff and indeed, if the firm had earned more as a result of his being so employed. Mr. Lee has to do more than what the Plaintiff was required to do, at least he had on occasions to drive the delivery truck, and assuming that her wages were $1,000 per month prior to the accident, she would have lost the sum of $16,800 for the period from 6th September 1976 to 1st February 1978 when a medical board was held. Counsel for the Defence concedes that her services are worth something in the labour market and that the permanent injuries which she suffered affect her via-bility as a manual worker. It is not unreasonable to base her wages on what her substitute would receive and had received and she says that she had not worked for a period of 18 months after the accident. I think that the basis for this particular calculation would be the notional wages she would have been able to earn for the above-mentioned period and the loss would be $16,800. As far as her prospective loss is concerned, Counsel for the Defence has objected to the assessment made by the medical board of 15% permanent disability which they found in the Plaintiff after the accident. Dr. Wedderburn in his report of an examination of the Plaintiff agrees that from an earning point of view her disability is 15%. Applying this figure to her notional wage earning capacity, if whole, the loss which she would sustain for the future would be $1,800 per annum. The Plaintiff is now aged 38 was a healthy woman prior to the accident and in cases of a similar nature a multiplier of 12 has been used. This in my view would be an appropriate multiplier and the total amount under this head come to $21,600.

14. The Plaintiff spent a period of 16 weeks in hospital, had to use two crutches for a period of 2 months after that and for several months has had to use some support in order to move about. For pain and suffering and loss of amenities I would award the sum of $25,000.

15. As far as the remainder of the items of special damages are concerned, no specific evidence has been adduced by the Plaintiff regarding her claims for special food and nourishment and she is even unable to say what kind of food it was she bought and consumed. Although some expenditure was incurred on this item the claim for $2,500 seems unreasonable in the absence of any specific evidence of such expenditure and I would therefore reduce the award on this item to $1,000. Item 4 of her claim for special damages is disallowed as there is no evidence at all to support that claim. Mr. Bunting concedes the claims made in items 3, 5 and 6 of the claim for special damages and these are allowed at $50, $180 and $100 respectively. Counsel for the Defence submits that because the Plaintiff had obtained a substitute for her services to the firm, no award should be made to her in her claim for wages paid to a baby sitter for the period of 9½ months after the accident. Besides her duties in the firm, the Plaintiff also doubled as a housewife looking after her children and her husband, and it was she who carried out most of the domestic duties at home. This is not unusual in most families in Hong Kong and the evidence of her having been disabled for a few months after the accident, having to use crutches and other supports to move around, would make such expenditure a necessary and reasonable one. I would therefore award the sum of $7,600 as claimed under item 7 of the claim for special damages.

16. The total amount of general damages in the result would be $25,000 + $21,600 or $46,600.

17. Special Damages:-

Assessing her share of contribution to the accident as 20%, I would therefore award her the sum of $37,280 for general damages, and $20,584 for special damages, with costs to be taxed and with interest at the rate of 4% per annum on the special damages from the date of the accident to the date of trial.

Representation:

Brian L. de Souza instructed by John Ip & Co. for the Plaintiff.

Michael Bunting instructed by Johnny T.K. Cheng & Co. for the Defendant.