Ho Yip-keung v. Chung Cheuk-ki and Another

HCA000114/1979

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Coram: Mr. Commissioner Litton, Q.C.

Date of Judgment: 19 December 1979

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JUDGMENT

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1. On the 3rd of February, 1977, the plaintiff was knocked down by a bus, registration No. BL5498, at Shanghai Street, Kowloon, and was severely injured in consequence. The accident happened at about 3.30 p.m. when there were many pedestrians about; they were on the pavement of Shanghai Street and also on the roadway. The accident occurred on the north-bound carriage-way of Shanghai Street in the vicinity of its junction with Soy Street.

2. Vehicular traffic along Shanghai Street was restricted to buses only, with two lanes on each side of the central double white line. A pavement ran along the side of Shanghai Street and the kerb continued across the mouth of Soy Street sealing off vehicular traffic at the junction.

3. On the day in question, the defendants' bus, plying the No. 102 route, was making its first run of the afternoon from Shaukiwan to Mei Foo Sun Chuen, having left Shaukiwan at about 3.00 p.m. and gone to Kowloon through the Cross-Harbour Tunnel. Its route to Mei Foo Sun Chuen took it along Shanghai Street going northwards. The bus was on the outside lane when the accident happened.

4. The driver, the 1st defendant, gave evidence before me. He was a fair and careful witness, and I have no hesitation in accepting his evidence and I find the facts to be as follows. When the defendants' bus approached the junction of Soy Street, there was a No. 105 bus drawn up at a bus-stop thereby occupying virtually the whole of the inside lane. The bus-stop for the 102 bus was some distance beyond that - probably well over 100 feet beyond - and in order to approach his bus-stop, the 1st defendant had to bring his bus to the outside lane. The 1st defendant said in evidence and I accept that he started pulling out about 30 feet behind the No. 105 bus, and in doing so he had to slow down. There were a number of people standing on the roadway on the inner lane of Shanghai Street ahead of the 105 bus waiting to get across the road. The 1st defendant said in cross-examination that it was very commonplace for people at that stretch of road to wait in groups; therefore, he was always ready to apply his brakes to stop his bus at any time. He had just taken his foot from the accelerator and had switched on his indicator intending to pull left when a man came out of the standing group and dashed forward.

5. He estimated the man to be about 5 feet away. The 1st defendant immediately braked and brought the bus to a standstill, "... within", he said, "about 12 to 13 feet." He also instinctively pulled the steering-wheel to the right. However, he had little room to manoeuvre because of the traffic coming from the opposite direction. The 1st defendant did not say in evidence that he perceived the bus actually hitting the plaintiff: possibly because of the width and the bulk of the bus, the impact was not perceptible in the driver's cabin. When he alighted he saw the injured man lying on the ground next to the middle door of the bus on its nearside. This was about 11 or 12 feet from the front of the bus.

6. What is clear from the evidence is this: the plaintiff was hit by some part of the bus on its nearside. The position of the plaintiff on the ground after the accident is consistent only with this inference. The 1st defendant very fairly said in cross-examination that had there been more room for him to swerve, he would probably have missed the plaintiff altogether. Further, the 1st defendant said in evidence and I accept as the truth that after the accident he noticed that the body of the bus at its front left - at the very extremity - was damaged. He described that the damage as a vertical crack in the fibre-glass fabric: damage which was not there when he took the bus on its journey from Shaukiwan that afternoon.

7. Here, I should mention a somewhat confusing piece of evidence adduced in the examination-in-chief of PC11944 who had attended the scene of the accident at about 4.10 p.m. that afternoon. PC11944 said in answer to questions by the counsel for the plaintiff that he had observed that afternoon recent damage on the body of the bus on its front nearside. He described it as a dent, some 4" deep at its deepest. Naturally, PC11944 was in no position to say when the dent might have been made, but his conclusion (for what it is worth) is that the damage was recent - there was no dust on the damaged part and the paint was still flaking. Now, this piece of evidence is consistent with the driver's evidence that the damage to the bus was on its nearside and is wholly inconsistent with the plaintiff's case.

8. The plaintiff's case, at least as it developed at the trial, is that he had managed to get across both lanes of the north-bound carriage-way of Shanghai Street before he was hit. He said in evidence that, although he saw the bus coming, he judged it safe to cross its path and, therefore, he paid no further attention to it. He said that he had just reached the middle of the road and was paying attention to traffic on his left when he was hit; he was never aware of the bus being close to him to his right. I have no hesitation in rejecting the plaintiff's version of the accident. Even now I am not clear what the plaintiff's case is. If the plaintiff's case is that he was standing on the double white lines waiting to cross the road and that the bus-driver should have seen him there, then it is noteworthy this was never pleaded. The case on the pleadings is vague in the extreme.

9. Paragraph 2 of the Statement of Claim merely states that the 1st defendant knocked down the plaintiff who was crossing the road. Paragraph 3(b) of the Particulars of Negligence complains of the 1st defendant failing to observe or heed the plaintiff without stating where the plaintiff allegedly was at the time. What the plaintiff's recollection of the accident really is I have some doubt. He said he was knocked unconscious; the driver said he was bleeding from the head after the accident. The doctor who attended to him on admission to hospital was never called nor were the notes be made put in evidence (although Dr. Malcolm CHAN said there were such notes). Dr. Chan who attended to the plaintiff the day following his admission spoke in rather vague terms of the plaintiff having suffered concussion. I got the impression that Dr. Chan, being a surgeon, was far more interested in the post-operative treatment than in the plaintiff's general condition on admission. But, whether the plaintiff was concussed or not, his recollection of the events as related in the witness-box cannot be relied upon.

10. Apart from the driver's evidence which I find attractive and reliable, there is the evidence of CHOI Yat-cheung, an inspector working for the 2nd defendant, whose evidence I accept. He arrived at the scene of the accident at 3.55 p.m.; the plaintiff was then being carried into the ambulance. Mr. Choi noticed blood on the roadway close to the nearside middle door of the bus. There were chalk marks round the pools of blood and these were noted on the sketch plan he had made, Exhibit D3. The blood was just inside the inner lane. When it was put to Mr. Choi in cross-examination that PC11944 arriving at the scene at about 4.10 p.m. found no blood, the explanation was simple: the inside lane was re-opened to traffic around 4.00 p.m. before the PC's arrival and the buses passing close to the stationary bus, No. BL5498, would probably have soon obliterated all traces of blood.

11. In my judgment, the plaintiff is extremely lucky to be alive today. He owes his life to the vigilance and careful driving of the 1st defendant. The plaintiff had dashed across the road into the path of the bus but luckily for him the driver had reacted instantly; he swerved to his right and slammed on his brakes. Otherwise, the plaintiff would probably have been hit squarely by the front of the bus. As it was, the bus gave him a glancing blow at its extremity, enough to crack the rather fragile fibre-glass body of the bus and to cause very severe injuries to the plaintiff but not enough to kill him.

12. On the plaintiff's own evidence he took a very high risk in crossing the road in the path of the on-coming bus. Counsel for the plaintiff accepts the evidence of the driver that there were people waiting on the inner lane to cross the road. Her complaint was that the driver should have seen the situation of danger and taken extra care. But the fact is no-one else stepped forward except the plaintiff. The plaintiff said in evidence that, using his own experience as a driver, he thought he had time to get across. In fact, he did not, and was run down.

13. All estimates of time and distance are, of course, approximations, and I attach no great weight to the slight discrepancy in the driver's evidence as to the extra distance the bus travelled before he was able to pull it to a complete halt: in-chief his evidence suggested 18 feet, in cross-examination it was about 12 to 13 feet. The fact remains that he stopped the bus within a very short distance - probably less than its own length. This suggests two things: (1) the bus was travelling rather slowly, and (2) the driver was keeping a sharp look-out. As to the speed, I accept the driver's evidence and I find as a fact that when the plaintiff dashed out, the bus was travelling at about 15 miles per hour. It follows from what I have stated the plaintiff's action fails; he was solely responsible for the accident; negligence has not been established against the defendants.

14. For the sake of completeness; I will now proceed to deal with the issue of damages.

15. The medical evidence shows that, on admission to Kwong Wah Hospital, the plaintiff had the following injuries:

(1) rupture of the right kidney;

(2) ruptured diaphragm;

(3) bruising of the right lung;

(4) fractured ribs;

(5) broken collar-bone;

the plaintiff also had severe internal bleeding. The damaged kidney had to be removed. The diaphragm, because of the extensive damage, could not be sutured and was left to heal itself. The plaintiff was given 6 pints of blood. He was eventually discharged from hospital on 26th of February, 1977.

16. As far as I can gather from the lather sketchy evidence adduced at the trial, the plaintiff was seen once only by Dr. Malcolm CHAN as a follow-up patient on the 9th of March, 1977. The plaintiff was then complaining of chest discomfort at the place of the fractured ribs and said he got tired easily. As far as I can judge, the plaintiff did not see Dr. Chan or any other doctor again until 9th April, 1979 when after the solicitors had written to Kwong Wah Hospital, the plaintiff was "interviewed" at the Kwong Wah Hospital, but not by Dr. Chan. Who interviewed him I do not know. To what extent the plaintiff was examined medically on that occasion I do not know. The only evidence put before the court is a memorandum on page 25 of the agreed bundle - a less helpful piece of evidence is difficult to imagine.

17. The fact is that the plaintiff had suffered a severe shock to his system. He must have bled to within an inch of his life - the fact that he needed a transfusion of six pints of blood speaks for itself. He underwent a major operation. A vital organ was removed. Apart from the fractures, the lung was bruised and the diaphragm ruptured. The plaintiff says that even now he easily gets tired and finds himself short of breath. After walking for an hour or so in the streets his legs get cramped. If he exerts himself at work he feels sick - this, he says, affects his work. The plaintiff also says that he enjoyed playing football before the accident but his health is not now sufficiently robust to enable him to do so.

18. I find nothing inherently improbable about the plaintiff's present complaints, except this: no evidence of recent medical examinations was put before the court. The plaintiff is not an unsophisticated labourer, he is the sole proprietor of a metal workshop and is himself an employer of labour. If the plaintiff's complaints of general ill-health are not exaggerated, there would have been some medical evidence to back up the plaintiff's claim. The letter dated 28th March, 1979 from the plaintiff's solicitors (page 23 of the agreed bundle) to the Kwong Wah Hospital asked whether the plaintiff would "suffer any permanent disability as a result of the rupture of his right kidney" - in itself an extraordinary request since, as far as I know, the hospital had nothing more to do with the plaintiff for over two years. The solicitors were not asking the hospital to assess the plaintiff's general health as a result of the accident; the question was in effect an academic one: Does a one-kidney man suffer any permanent disability? The answer given on page 25 was "No.". That is hardly evidence that the plaintiff is now in perfect health.

19. I am left with an uneasy feeling in this case that in drawing inferences unfavourable to the plaintiff because of the shadowy way the medical evidence was presented I may be doing him an injustice. However, I must bear in mind that the burden of proving loss and damage is on the plaintiff. Dr. Chan - on what evidence I have no idea - seems to think that the plaintiff has fully recovered. But that opinion was expressed in general terms: such a patient with such injuries ought to have fully recovered within six to nine months. Since the last time he saw the plaintiff was 9th of March, 1977, Dr. Chan obviously cannot say more than that. I cannot, however, go behind the evidence since the court is not embarked on an independent search for the truth. The outcome on the evidence is that I am bound to agree with Mr. Mumford's submission that the plaintiff's claim to residual disability is exaggerated.

20. My conclusion is somewhat reinforced by the fact that the plaintiff never sought to claim any loss of earnings nor has it been put on his behalf that his earning capacity has been impaired. If his general performance as a "whole-man" has been substantially affected, I would have expected argument to have been put regarding at least some loss of earning capacity, however, conjectural the actual computation of damages might be. I can, therefore, only conclude that whilst the injuries were in February 1977 undoubtedly severe, the plaintiff has in the long run made full recovery - except, of course, for the removal of the right kidney - and has not suffered any significant loss of amenities in consequence of the accident. As regards his hobby, football, if the plaintiff were determined to play football he would doubtless have managed it however shaky his game might have been at its first resumption.

21. There are two other matters I must first mention before embarking on my assessment of general damages : (1) the risk the plaintiff now runs of danger to his life as a one-kidney man, should he contract some kidney disease in his remaining kidney or meet with another accident, and (2) the possibility of rheumatism developing at the site of the fractured ribs. As to the first, this is obviously a matter to be taken into account even though, by itself, the risk factor would not sound in heavy damages. As to the second point, Dr. Chan mentioned in passing a possibility of rheumatism, but this was again in academic terms and cannot weigh in the scales.

22. I approach the case on the basis that the plaintiff suffered the severe injuries of the kind I have earlier described. They were a major shock to his system; he has lost one of his vital organs as a result; he underwent severe pain and suffering; he now runs the hazards of a one-kidney man. I have been referred to a recent decision of Silke, J. (22nd of November, 1979) in CHOW Keung-kwong v. CHEUNG Ka-kui⁽¹⁾ where the plaintiff also lost a kidney and was awarded $30,000 in general damages. It would be extraordinary if two cases were identical on the facts. Hence, previous awards by the court in comparable situations provide only a guide as to the range within which the process of assessment should take place.

23. Using the best judgment I can and in the light of the circumstances I have outlined above, I think that an award of a global sum of $40,000 for general damages would be appropriate.

24. In the result, however, the action is dismissed with costs.

Representation:

Miss Rose Yeung (George Liang & Co.) for plaintiff.

Mumford (Ngan & Wong) for 1st and 2nd defendants.

(1) Action No. 2456 of 1978 (consolidated with Action No. 2455 of 1978)