Lau Kai Tai v. Tsang Chor Chau and Another

HCA002500/1977

Coram: Zimmern, J.

Date of Judgment: 31st October, 1978

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JUDGMENT

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1. The Plaintiff, a minor, born in 1962, was on the 31st May, 1976 knocked down by a public light bus driven by the 1st Defendant when crossing Kadoorie Avenue. It was a clear afternoon and the road was dry. This part of Kadoorie Avenue, a minor single lane carriageway, is approached by a sharp left turn off Argyle Street, a major Kowloon. carriageway, and leads uphill to that salubrious residential district in Kowloon, commonly referred to as Kadoorie Avenue.

2. The Plaintiff told the court that afternoon he was standing on the pavement a few yards up from where Kadoorie Avenue runs into Argyle Street with the latter's traffic to his right intending to cross the former. He looked round, saw no traffic either way and commenced crossing. When he reached the crown of the road, on the middle white traffic line he was knocked unconscious. He did not know what had hit him.

3. The driver said he was driving on the near lane of Argyle Street. He indicated to turn left on to Kadoorie Avenue and turned left at a slow speed. He had seen the Plaintiff crossing the road and as he, the Plaintiff, had reached the white line, he, the driver, thought it safe to proceed uphill and' did so proceed when the Plaintiff suddenly retreated on to his path. The act of the Plaintiff was unexpected. The Defendant had pleaded guilty at the Magistrate's Court to a charge of careless driving arising out of the accident.

4. Kwok Ka-ku, a student, was called by the Plaintiff and he told the court he was a passenger on the P.L.B. sitting immediately behind the driver. The P.L.B. had travelled at a moderate speed on the middle lane along Argyle Street. On the near lane was a stationary taxi by the kerb and another P.L.B. behind when the bus he was in turned into Kadoorie Avenue. A boy was crossing this Avenue and the P.L.B. ran on to him. He said the boy was walking from right to left which is directly contrary to what the Plaintiff and the driver had said save this does support the driver's version of the Plaintiff's retreat. I was impressed by this witness and accept his evidence save for the last mentioned point for the following reasons. First, he admitted that he saw the Plaintiff for only a moment and that was immediately before the collision. Second, there was no reason for the Plaintiff to retreat. The driver said there was a public utility van coming down Kadoorie Avenue at that time. Even if that be true, which I do not for a moment accept, it would not cause the Plaintiff to retreat for there is a large "Stop" sign at the position restricting traffic entering Argyle Street and any such vehicle there would then be grinding to a halt.

5. I find that the driver Defendant did not exercise care and caution in entering Kadoorie Avenue from the middle lane of Argyle Street. He was probably keeping a look-out for on-coming traffic on his near lane which diverted his attention from pedestrian traffic on Kadoorie Avenue. He was negligent.

6. The Defendants claim contributory negligence. A pedestrian also has a duty to exercise care and caution and to maintain a proper look-out. He failed to do so in that he failed to see the approach of the P.L.B. It might well be he was keeping a look-out for traffic on the near lane of Argyle Street, but that is not good enough. I find he contributed to his own damage to the extent of 30%. The driver Defendant was far more blame-worthy.

7. Injuries. The Plaintiff was admitted into Queen Elizabeth Hospital on the same day. He was then unconscious. Examination showed:

He regained full consciousness about ten days later and showed mixed type of deafness of right ear and slowness in speech. He was soon discharged thereafter and attended on a few occasions at the Yaumati Clinic. He has now one permanent disability by reason of the injuries sustained - total deafness of the right ear. Dr. Wedderburn told the court that he had examined the Plaintiff recently and that there is a slight risk of post traumatic epilepsy by reason of post traumatic amnesia for over twenty-four hours and a fracture of the skull. In the unlikely event that this does occur, he told the court that it can be anticipated and stopped by medicine.

8. Damages. He will of course be awarded damages for pain suffering and loss of amenities. Counsel for the Plaintiff submits that there ought to be an award for loss of prospective earnings. I have to consider his future chances of life. He was in Form 1 at Ng Wah College and is now in Form 4. His father said he has gone backwards in his studies and that he has undergone a personality change in that he is now bad-tempered and disrespectful to his elders. I was not impressed with his evidence. I was told he has gone backwards in his studies because prior to his accident in Form 1 he came 36th out of a class of 45. Last year he came 41st out of 45. His master was not called to testify. In spite of his lowly position in Form, he has a high I.Q. 135, normal being 100. The Plaintiff told the court that he wanted to train to be a flight engineer after leaving school and that hope has now been dashed. He comes from a middle class family and whether he makes technical college or university is a matter very much for himself. I do not think his deafness in one ear will hinder that. I also do not think he would lose any prospective earnings. To me what he has lost is perhaps chances of certain careers or employment and for that loss I award him a lump sum of $40,000 and another sum of $12,000 for pain suffering and loss of amenities, totalling $52,000.

9. For special damages I award the total sum of $700 which includes the agreed sum of $133.50.

10. As the Plaintiff contributed 30% to his own damage he will get $36,400 under general and $490 under special damages.

11. There will be judgment for the Plaintiff in the sum of $36,890 with interest at the rate of 8% per annum on the sum of $36,400 from the date of service of the writ.

12. Further order that the Defendant do pay the judgment sum of $36,890 to the Registrar who upon receipt shall pay the sum of $700 to the Plaintiff's father and invest the balance at his own absolute discretion. The Registrar shall in his absolute discretion have authority to make such payments of both capital and interest of the monies invested by him for the maintenance, education and advancement of the said Plaintiff. The balance, if any, of the monies held by the Registrar shall be payable to the Plaintiff on attainment of majority.

13. I am told there is a payment into court by the Defendants less than a fortnight before hearing. Costs for the Plaintiff up to the date of payment in half his costs therefor. The balance if any of the sum paid in after satisfaction of the judgment and costs to be paid out by the Registrar to the Defendants solicitors.

Representation:

Kenneth Kwok (David Tong & Co.) for Plaintiff

E.C. Munford (Peter Mark & Co.) for Defendant