Yu Kin Chi v. Wong Lun and Others

HCA005831/1982

BETWEEN

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Coram: Hon. Liu J.

Date: 17th March, 1983.

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JUDGMENT

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1. On the 26th December 1980, some time around 5 o'clock in the afternoon, whilst travelling as a passenger in a private car driven by the 4th defendant, the plaintiff was injured in a collision with a lorry driven by the 2nd defendant. The scene of the accident was in the Hammer. Hill Road, Kowloon. The private car was travelling from north to south going slightly downhill, and the lorry was travelling slightly uphill from south to north. As a result of the accident, the plaintiff lost an eye. Suffice it for me to say that he has experienced the not uncommon pain and suffering in an injury of this kind. He received the usual medical treatments and hospital confinement. It is fortunate that the plaintiff has not, as a result of the accident permanent injury, suffered any loss of earning capacity. Hence, no claim for future loss is being claimed.

2. By way of prudence, the plaintiff joined both the 4th defendant, his friend, the driver of the private car and the 2nd defendant, the driver of the lorry. Such prudence has now proved to be well exercised because in this court the contest between the 4th defendant and the 2nd defendant cannot said to have been entirely tranquil. It is to be decided whether there was any negligence on the part of any of these drivers and if there was who was negligent or whether, in fact, both were to a degree negligent.

3. The collision was in broad daylight when visibility was good, road surface was dry and traffic flow normal. There were no unusual features relied upon by one party or the other in establishing or rebutting alleged negligence. Essentially, therefore, the case falls to be decided on the manner in which each driver allegedly drove his vehicle.

4. Let me first deal with the lorry driver in this collision. He had had some experience in driving lorry. He had been associated with the lorry that was involved in the accident for quite some time. According to his evidence in court, after passing the intersection going into that long stretch of Hammer Hill Road, his destination was Ping Tang Village, the entrance to which was situated at the spot about 70 to 80 feet from the intersection. Upon entering Hammer Hill Road, he was travelling at about 10 m.p.h. After he passed the railing opposite the entrance to Ping Tang Village, he halted. He kept a proper lookout for the on-coming south bound traffic and allowed cars to pass. When he felt safe to cross the south bound lane into Ping Tang Village with the 4th defendant's private car at an alleged distance of some 400 to 500 feet away, he started to turn right at the speed of 4 to 5 m.p.h. The road was 7.9 meter or slightly over 24 feet, at 4 m.p.h., that would give a travelling distance of 7 feet per second and would take the front of the lorry more than 3 seconds to reach the curb of the south-bound lane.

5. A statement of the lorry driver was produced as Exhibit P2 in which he told the Police Constable that the first time he saw the private car was from some 300 feet away and that at the time when he had decided to make a right turn, the private car was some 250 feet. He claimed in court that he was inaccurate in his information given to the Police Constable.

6. If I had to select from only these two versions as to the distance between the lorry and the private car when the 2nd defendant lorry driver first spotted it, that is to say his court version of 400 to 500 feet and his version of 300 feet given to the Police Constable, I would prefer the latter. The version of 300 feet was given immediately after the accident to a Police Constable when both the 2nd defendant lorry river and the Constable ware in a position to assess and, if in doubt, have such estimate duly verified on the spot. Moreover, even when the lorry driver went back on the 14th March, a few days before this trial for the purpose of taking accurate measurements of distances, he was being far from wholly energetic in seeking to confirm the previous figures. His excuse was "I did not have such a long tape to measure and therefore I simply estimated". The lorry driver has not succeeded in his attempt to improve his version given soon after the collision to the Constable. On his version reduced into writing as given to the Police Constable, i.e. the time he first saw the private car was at a distance of 300 feet and the time he started to turn right was when the private car was 250 feet from him, if the 4th defendant private car driver's evidence of 30 m.p.h. is to be accepted, and I cannot see any reason why it should not be, the private car was then travelling at 44 feet per second and it would take it slightly more than a second to cover the distance of 50 feet. That would mean that even on his more reliable version as given to the Constable, the 2nd defendant only allowed himself slightly more than a second after sight of the private car to decide turning right into Ping Tang Village. At the speed of 4 to 5 m.p.h. or 7 feet per second, it would take over 6 seconds to clear the entire lorry from' the south-bound lane (24 feet plus the length of the lorry of some 19 feet i.e. 43 feet). A second's decision was certainly too brief for any prudent driver to make before attempting to cross the path of the on-coming south-bound vehicle for entering into the muddy path for Ping Tang Village, particularly when he ought to have anticipated that it would take quite some time to clear his lorry from the south-bound lane. The 2nd defendant was adament that the private car was some 250 feet away when he started to cross. Even assuming that as being correct, at 30 m.p.h. or 44 feet per second, the private car would have reached the lorry in 5½ seconds at a time when it had not managed to clear its 19 feet wholly from the south-bound lane. That would not have been a very careful maneuvre in his turning right, right across the south-bound traffic.

7. The 2nd defendant lorry driver, in his statement to the Police Constable, did not mention having seen any other cars in the south-bound lane of traffic or allowed cars in that lane to pass. I cannot but be suspicious of his embellishment on this aspect in court. That suggests that he had hardly waited long enough for' allegedly taking all those proper precautions he described before he started to turn right.

8. The 2nd defendant lorry driver further told the court that the colour of the private car was green, but according to the 4th defendant private car driver, it was ivory white. I certainly have no hestitation in preferring this evidence from the private car driver who really ought to know the colour of the car he drove at the time of the accident. Being unable to tell the court the colour of the other car involved in the collision, how much more likely would the lorry driver find it difficult to repeat other evidence, like the passing cars, to the court without the aid of his written statement and how much more likely would a version departing from his written statement be inaccurate.

9. The evidence of the 2nd defendant lorry driver seems unreliable. The 2nd defendant has also not shown himself to be an impressive witness.

10. Even in the version given to the Constable and committed to writing as a statement duly signed by him, the 2nd defendant lorry driver must have had some incentive for trying to paint a less.. incriminating picture. I prefer the version given by the private car driver, which was to a degree corroborated by the passenger, the plaintiff.

11. In addition, the lorry driver pleaded guilty to careless driving, and his attempt to retract or neutralise that guilty plea for the purpose of this case is unconvincing and has certainly not done him credit.

12. The "Particulars of Negligence" against the 2nd defendant in the Defence of the 3rd and the 4th defendants did not specifically join issue with manual or light signal, and I have placed no reliance on this aspect.

13. The version of the 4th defendant private car driver is straight forward. He was slightly more than 8 to 10 feet away from the lorry, the first time he saw it near the bus-stop, but the 4th defendant was quite frank with the court that he was not in a position to estimate the distance. From the photograph, it can be seen that that was quite near the entrance to Ping Tang Village. The 4th defendant driver further explained that when he suddenly found himself in front of the side of the lorry at a distance of 8 to 10 feet, it was not possible to take any evasive action or to avoid the collision.  I am aware that he had had a driving licence for only 6 months, but the lighting was good, road condition was not said to be bad, visibility was clear and there was no conceivable reason that he could not have steered from the side of the lorry if he had had sufficient time or space for manipulation as alleged.

14. I have also taken into consideration the discrepancies in the description of the distance between the private car and the lorry given by the plaintiff passenger, but in substance he corroborated the evidence of the 4th defendant that his friend's private car suddenly came up to the side of the lorry at a distance of 8 to 10 feet making it impossible for the accident to be avoided. It is equally true that in his statement to the Police Constable, the private car driver, the 4th defendant also had incentive to be partial. But taking all into consideration, I would prefer his version.

15. I find that the 2nd defendant lorry driver failed to keep any proper lookout, or stop or stop sufficiently until it was safe to make his right turn. I further find that the 2nd defendant lorry driver failed to have any sufficient regard for the southbound traffic and manoeuvred his lorry so negligently that he left the private car driver no time to take any evasive action to avoid the collision. In the circumstances, I find that the lorry driver was wholly negligent for the accident and the private car driver was not, in any way, to blame.

16. Turning to quantum, it is the general consensus that $70,000 for the loss of an eye is not an unreasonable yardstick. In a similar award in 1981 by a Registrar of this court, a like sum was awarded for the loss of total vision in the left eye, the eye-ball of which was reptured in the accident. But in the case cited to me, the award was given for the loss of one eye as well as some scaring to the face together with some dissymmetry in facial appearance in the area of the eyelids. We are now well into 1983, despite the slight difference between the two cases, the award of $70;000 is certainly not an inappropriate award, and I would, therefore, adopt it.

17. The sum of $70,000 would naturally be inclusive of pain and suffering caused by the injury to the plaintiff as a result of the collision. As for special damages, all seem to be undisputed say for two items i.e. special nourishment and travelling expenses. I would agree with Mr. Barretto that the claim of $4,000 by way of special nourishment can in no way be substantiated by the state of the evidence given in this case. As for travelling expenses, the plaintiff was quite open about those payments that he was not in a position to specify precisely how and in what time they were incurred. He managed to give the court a general picture of his travelling expenses. To be or appear to be as accurate as I could, I think it would not be unfair to deduct a small percentage out of the claim of $16,00. I proposed, therefore, to delete $200 out of the $1,600 leaving $1,400 as travelling expenses substantiated. The claim for $4,000 for special nourishment is naturally to be deleted. Including the amended item of cost of the artificial eye at $3,500, the total special damages amount to a round figure of $10,000.

18. Counsel invites me to award 14% per annum on the award for general damages in the sum of $70,000, but I think 14% per annum may well be excessive. I see no reason why the figure of 12% per annum should not be adopted; hence, I would award interest on the general damages of $70,000 at 12% per annum from the date of the writ to date of judgment. As for special damages, counsel seeks a rate of 7%. I am prepared to accede to that request. I would award interest on the special damages awarded in an even sum of $10,000 at the rate of 6% per annum from the date of the accident to the date of judgment i.e. today.

19. The issue of negligence has been hotly contested between the 4th defendant private car driver and the 2nd defendant lorry driver who has suffered a finding made against him by this court on that issue. I see no reason why costs should not follow the event between the 2nd defendant and the 4th defendant and their respective car owners in the person of the 1st defendant and the 3rd defendant.

20. Counsel for the plaintiff invites the court to find the joinder of both drivers and both owners as being reasonable and acceptable in the circumstances of this particular case. I am in entire agreement with Mr. Eddis, counsel for the plaintiff. Instead of adopting the more devious order for costs, I propose to give costs of this action in favour of the plaintiff as well as the 4th defendant, private car driver and its owner, the 3rd defendant and both sets of costs to be paid by the 1st and the 2nd defendants. The costs which have been awarded in favour of the plaintiff in these proceedings is to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. Eddis with Mr. Delgado instructed, by Messrs. Rowdget W. Young & Co. assigned for the Plaintiff.

Mr. Barrette instructed by Messrs. Fairbairn & Kwok for the 1st and 2nd Defendants.

Miss Fi Lan Chua instructed by Messrs. Gallant Y.T. Ho & Co. for the 3rd and 4th Defendants.