Lee Hoi Yin v. The Personal Representatives of the Estate of Li Chi Shing Deceased and Others

HCA002547/1976

IN THE HIGH COURT OF HONG KONG

ACTION NO.2037 OF 1976

ACTION NO.2547 OF 1976

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Coram: Li, J.

Date of Judgment: 15 July 1977

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JUDGMENT

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1. These consolidation actions arose from a traffic accident which occurred on the 1st September, 1974 involving a single deck bus No. HK5484 (hereinafter referred to as "the bus") owned by the Kowloon Motor Bus Co. (1933) Ltd. (hereinafter referred to as the 2nd Defendant) driven by one Cheung Shui Cheung (hereinafter referred to as the 3rd Defendant) and a private car No. AV1219 (hereinafter referred to as "the car") owned and driven by one Li Chi Shing (hereinafter referred to as "Li"). The Plaintiff Lee Hoi Yin alias Lee Kwai Ping (hereinafter referred to as the "1st Plaintiff") in Action No. 2037 of 1976 and the Plaintiff Poon Liu Ming (hereinafter referred to as the "2nd Plaintiff") in Action No. 2547 of 1976 were both passengers in the car at the material time. The accident occurred about 9.30 a.m. on the 1st September, 1974 on the road linking Fanling Cross Road and Sha Tau Kok near the junction of the path leading from that road to Wo Hang. At the time Li was driving the car in the direction of Luk Keng in Sha Tau Kok and the bus was driven by the 3rd Defendant from Sha Tau Kok towards Fanling Cross Road to Sheung Shui. The car and the bus collided on a spot near to a rather deceptive bend - deceptive in the sense that its curve was much sharper than it appeared. As a result of the collision Li was killed and both Plaintiffs sustained injuries. The aforesaid facts are not disputed. Hence the 1st Plaintiff and the 2nd Plaintiff each institutes proceedings against the personal representatives of Li, the 1st Defendant, as well as the 2nd and 3rd Defendants in their respective actions claiming damages for negligence. In the Statement of Claim both Plaintiffs claim that Li was negligent in driving too fast, failing to keep a proper lookout so as to observe the approach of the bus and failing to apply the brakes in time or to so control the car as to avoid the collision. The Plaintiffs also claim that the 3rd Defendant was negligent for driving on the wrong side of the road, failing to take proper steps to warn other users of the road of the approach of the bus, failing to observe the approach of the car and failing to apply the brakes in time or so control the bus as to avoid the collision.

2. By their Defence in both actions the 1st Defendant deny negligence, adopt the allegation of negligence of the 3rd Defendant by the Plaintiffs as being the cause of the accident. In addition the 1st Defendant allege that the accident was caused by the 3rd Defendant driving the bus with defective brakes. In their Defence the 2nd Defendant and 3rd Defendant take the same line in both actions in denying negligence and adopt the Plaintiffs' allegation of negligence against Li and contend that Li's negligence was the sole cause of the accident. In their amended Defence the 2nd Defendant and 3rd Defendant also allege that Li drove on the wrong side of the road.

3. At the commencement of the hearing learned counsel for the 1st Defendant conceded that the 1st Defendant is liable to the Plaintiffs for negligence but maintains the 1st Defendant's claim that the 3rd Defendant was also negligent. It is not disputed that at the material time the 3rd Defendant was the servant and agent of the 2nd Defendant. If the 3rd Defendant is found negligent as alleged the 2nd Defendant is vicariously liable. Thus so far as liability is concerned the Plain tiffs are in an unassailable position. There is no question of any contributory negligence on the part of either Plaintiff. As far as the Plaintiffs are concerned the only issue is no of quantum of damages which they claim and set out in their amended Statement of Claim. However, there is a cross accusation of negligence between the 1st Defendant and the 3rd Defendant. It falls upon me to decide whether Li was completely to blame for the accident or the 3rd Defendant was also negligent and, if so. to apportion the share of liability between the Defendants.

4. The issues in these proceedings are therefore twofold viz:

5. The Plaintiffs' main concern is on the quantum of damages. Thus little evidence has been adduced by Plaintiffs relating to the question of liability. However both the 1st Defendant and the 2nd and 3rd Defendants have called witnesses, including a considerable amount of expert evidence on the issue whether the 3rd Defendant was to blame as well. I propose to deal with the question of liability between the Defendants first.

6. Perhaps I should add that prior to the commencement of the hearing I visited the scene of the accident. This gave me a general idea as to the terrain of the vicinity. My impression is that as one drives from Sha Tau Kok towards Fanling Cross Road approaching the scene of the collision one first comes into a very gentle curve to the right, i.e. the off-side, until one is about 45 yards from the elbow of the curve which presents practically a blind corner. It is a deceptive curve in the sense that on casual inspection it looked like a straight stretch of road until one reaches the elbow. On the centre of the road there was a single white line up to about 10 yards before the elbow where a double white line starts. There is evidence which I accept that since the accident the double white line had been extended further down beyond the elbow in the direction of Sha Tau Kok. Thus due allowance has to be given as to the approximate spot of impact which must be nearer to the elbow of the curve on the 1st September, 1974 when the point of impact is shown to be only about four or five feet from the beginning of the double white line before its extension. However as one goes from Fanling Cross Road in the direction of Sha Tau Kok one can see the spot of impact only after one has passed the elbow or gone over the wrong side of the road. The other feature is that throughout the bend there is a gentle incline of about 15⁰ or more upwards towards the elbow from the Sha Tau Kok end. The third feature is that the width of the road is only 22'8". Even then the width is irregular. Near the point of impact the width of the road on the side of the car is 12'6" to the centre leaving the width of 10'2" for the bus. The aforesaid impression is obtained by visiting the scene, checking it with the photographs Exh.14 and the police sketch Exh.15. As to the degree of the incline towards the elbow I accept the evidence of Professor Bruges as confirmed by my own visual inspection.

7. The 1st Defendant call Professor Bruges as an expert witness only. The driver of the car was killed in the accident. The professor visited the scene on the 21st May, 1977. From his measurements of the road, the various data given to him and his knowledge in applied physics and strength of metals he came to certain conclusions. He has prepared another sketch to illustrate and support his conclusions. According to him just before the accident the car must be approaching the elbow of the road in the direction of Sha Tau Kok at a speed of about 40 m.p.h. This would bring the car a little over the centre double white lines. When the driver attempted to correct its position back to his own side there should be a reduction in the speed of the car to about 30 m.p.h. In his opinion the car could not be entirely on the wrong side of the road or there would have been a head-on collision. As to the 30' tyre mark made by the car on the road at 24' before the point of impact he said that it must have been made by its off-side wheel. Otherwise, again, there would have been head-on collision according to his calculation. As to the bus the professor gives his opinion that it must be doing about 20 m.p.h. on approaching the elbow reducing its speed to about 10 m.p.h. at the time of impact. Further the presence of only one single brake mark of 10' made by the bus leads him to the conclusion that there must have been at least 20% imbalance of the brakes of the bus. He came to this conclusion also because the final position of the bus, after impact, was such that its off-front wheel was 9' from the kerb on the otherside of the road indicating that it was about 3'6" over the centre of the road. On these premises the professor further concludes that the brake mark must have been made by the off-front wheel. In his words the bus's swerve to the right would be sharper and more if the brake mark were made by the rear wheel. Taking all these into consideration the professor gives his opinion, if I understand him correctly, that at the time of impact the bus must be very close to the centre of the road. Had the bus had balanced brakes it would not have swerved towards the centre of the road. Although the professor did not say so in so many words he impliedly indicated that without the brake imbalance there possibly could have been a near miss.

8. Another expert witness, Woo Lap San, is called by the 2nd and 3rd Defendants to refute the opinion and conclusions of Professor Bruges, Mr. Woo is an assistant to the Chief Engineer of the 2nd Defendant. He concedes that the single brake mark left by the bus indicates that there would have been an imbalance of its brakes though such imbalance could not have been more than 10%. Even then it could not have caused the bus to swerve for more than a couple of inches. If the imbalance were more than 10% or up to 20% it would have been easily detected by the driver. He further says that the brake mark of the bus must have been made by the off-rear wheel and that the bus must have stopped within 17' after emergency braking was applied. As to the tyre mark of the car he says that it must have been left by the nearside tyre. In his opinion it was so left by the nearside front wheel when the car corrected its course after it had gone completely over the other side of the road.

9. I shall not repeat the theories and reasons given by the Professor and by Mr. Woo in support of their respective conclusions. Neither of them witnessed the accident. Both of them relied on certain premises which may or may not be correct. Mr. Woo's adopted premises is that the car must have been travelling at a speed of 50 to 60 m.p.h. From this he develops the theory that before the impact the car was completely over the other side of the road and then swung back partly to its own side of carriageway when it hit the bus. Professor Bruges, on the other hand, developed his theory from the final position of the bus after collision. From this he prepared a scale plan setting out the position of the vehicles at various stages prior to impact. However, even Profess or Bruges concedes that he can't be absolutely accurate. He can't say for certain that the bus was, at any stage, over the centre white line of the road. All he says is that the bus could have swerved near the centre of the road. He says in cross-examination that:

Further in answer to a question by me he says that on impact of the two moving vehicles the off-front of the bus could have been carried by the force of the car over the centre line before the car bounced off from the bus.

10. In addition we have the evidence of the 3rd Defendant, one passenger and one pedestrian who are eye-witnesses. All of them are certain that the car was completely on the wrong side of the road as it went past the corner at high speed. I have given due allowance for the fact that the 3rd Defendant is an interested party and that neither the passenger nor the pedestrian is a motorist. They could have optical illusions as to the course of the car. Having considered the evidence as a whole I am of the opinion that the car did not go over completely to the wrong side of the road. The tyre mark left on the road must have been that of the near side wheel of the car as Professor Bruges suggested. I accept the theory of the professor that centrifugal force would cause the tyre mark made by the off-side wheel of the car. Even so, a good part of the car must be on the wrong side of the road as it went past the sharp corner or elbow. This is supported by the thin line of black mark shown in Exhibit 14(3). From that picture it is evident that a thin black mark (which appears to be a tyre mark) went over to the wrong side of the road well beyond the point where the bus came to its final position. In other words the point of impact must have been further down the road towards the Sha Tau Kok direction and well before the bus went over the off-side of its carriage way. The evidence of the car being completely on the wrong side of the road would have been an optical illusion. As far as the bus is concerned I find that it did not cross the centre of the road despite the brake imbalance. Had it done so there would have been a head-on collision the same way as if the car were completely on the wrong side of the road. I accept Mr. Woo's evidence that the brake mark was caused by the rear wheel. Otherwise, taking into consideration of the length of the bus, it would have travelled something like 27' after the wheels were locked and was still in motion on impact. That is unlikely for a bus travelling at a speed of less than 20 m.p.h. up an incline. I find as a fact that the brake mark was left by the rear wheel of the bus and that the impact occurred when the bus was still moving on the correct side of its carriage way on impact. I am of the opinion that the front portion of the bus ended up 3'6" on the wrong side of the centre line solely because its off front wheel was hit on impact and carried it over. This is supported by the evidence of the 3rd Defendant who said that on impact he felt a jerk on the steering wheel which went to the right. It is further supported by the evidence of the Motor Vehicle Inspector who is an independent witness that he found the right off-front suspension spring of the bus was damaged. He said that this would take the force away from the steering wheel even though the front off-side wheel was forced to turn to the right. The end result of the collision indicates that the off-side front of the bus hits into the offside of the car just behind its off front head light of the car tearing the offside of the car open. This is inconsistent with the bus having gone over the centre line before the impact in view of the line of the tyre mark of the car as shown in Exhibit 14(3).

11. It is also observed that the width of the bus is 7'6". The width of the carriageway for the bus was about 10'2" according to Exhibit 15 in the sketch. Thus there is a leeway of just over I' on either side for the bus to keep within its own path. There was precious little the 3rd Defendant could do apart from jamming hard on the footbrake and hope for the best when he saw the car coming from the opposite direction and partly over the centre line cutting into the path of the bus at high speed. Even if the bus did swerve a little towards the centre line as a result of the emergency braking it was indirectly caused by the car coming at high speed on the wrong side of the road. In any event I accept the evidence of Mr. Woo that the degree of imbalance was small and that the bus would swerve only a couple of inches.

12. In short I find as a fact that the car approached the elbow of the road at high speed of at least over 40 m.p.h. while the speed limit for that part of the bend was 30 m.p.h. The car went over the centre line at the elbow of the bend on the road up to the point of impact. The angle of impact was such that the off front wheel of the bus was pushed to the right before the bus completely stopped. As a result the bus went over the centre line of the road. In view of the line of the tyre mark of the car as shown in Exhibit 14(3) I do not accept Professor Bruge's version as to the position of the bus on impact as shown in his sketch in Exhibit 16. Indeed this is also at variance with his oral evidence in cross-examination. Having regard to the width of the road I am of the opinion that the 3rd Defendant had done all that a reasonable driver could do in the circumstances. Even without the bus swerving before impact, which I so find, the collision could not be avoided. For these reasons I find that the 2nd Defendant and the 3rd Defendant must be absolved from liability.

13. I now come to the question of quantum. The 1st Plaintiff was a young woman of 25 at the time of the accident and suffered serious injuries. She was unconscious for about four days and 1ost her memory for some three weeks. According to medical evidence she must have had severe pains for about two months and when admitted to hospital she was found to have a deep laceration to her right eye, punctured wounds on her right face and left upper arm. In addition her right cheek bone, upper jaw, left arm and right femur were all fractured. Her right lung collapsed and a drain had to be inserted into her chest to re-expand it. She went through a series of orthopaedic surgery to repair the fractures. Traction was applied till 11th November, 1974. For seven weeks in hospital she could only take liquid food. She could not see with her right eye up to the time she was discharged from hospital after having been detained there for 102 days. The end result, despite all the medical skill to repair her, is that she now has double visions whenever she uses her right eye which is sensitive to wind and light. This is due to the deformity of the orbit and her right eye ball was displaced to the extent of being 6 mm below her left eye and the rupture scarring of her posterior pole of the right eye ball. Due to a damaged right optic nerve she has a narrower visual field with her right eye. In addition she develops in-growing eye lashes to the right eye which might have to be corrected by surgery. She is now left with a scar on the right eye, the upper left arm and a depression on the right cheek bone. Her right leg is shortened by 1 ½" with a scar on her right knee. Before the accident she worked as a seamstress earning about $691 per month. After the accident she resumed work as a metal worker in April 1975 earning $350 per month. She left the job as she found that she was not strong enough. She went to China Mainland for treatment. After she returned to Hong Kong she started work from the end of January till September, 1975, in a packing factory earning on the average of $390 per month. She found the work too heavy going and left. She had no work in October. By the end of November, 1975 she found transistor work earning $400 per month till the end of January 1976 when she found work as a seamstress again. However, because of the injuries to her eye and leg she would undertake simpler type of sewing earning about $550 per month. She was an active young woman who liked badmington and swimming. She has now to curtail her activities because she is easily tired. She can't even finish seeing a picture in the cinema or watch T.V. for long. She has post concussional symptoms. Further, as a result of her visual disturbance she suffers from headaches once two or three days lasting for a day. In the words of Mr. Wedderburn who wrote no less than three medical reports about her between 17th September 1975 and 9th May 1977, she was a brave and honest woman who did not exaggerate her suffering. In his latest report Mr. Wedderburn assessed that she suffered a total of 31% impairment, 30% disability from the earning point of view.

14. The 1st Plaintiff claims general damages as well as special damages set out in the amended Statement of Claim. I shall deal with the special damages first. From the aforesaid facts I work out her total and partial loss of earnings as follows:

However the figure for this item worked out by counsel for the Plaintiff, is only $11,903.64 in a different way after disregarding some decimal figures. I think that a round sum of $12,000 is fair.

15. There is no dispute as to her medical expenses at the sum of $547.00. The actual expenses incurred by the Plaintiff herself as an out-patient after discharge is only $80. But during her stay in hospital for 102 days her mother had to go and clean her and feed her every day It is reasonable that the mother's travelling expenses should be included as part of the special damages arising from the accident. Taking all into consideration the sum of $816 is not unreasonable. As regards the extra nourishment given to the Plaintiff, whilst she was in hospital and for a short period after she returned home it was in the form of herb and chicken soup. Taking the period of time involved I do not feel that the sum of $1,080 is excessive. Even if the nourishment was not absolutely necessary it certainly kept the Plaintiff in a more pleasant frame of mind and helped her to the road of recovery. If one can imagine the unappertising hospital food it is not too much of a luxury to have some soup from home - especially during the period when she could have only liquid food. Taking all into consideration I came to the conclusion that the special damages for the 1st Plaintiff should be $14,433.00.

16. The 1st Plaintiff is a young woman and unmarried. Having regard to the extent of her injury and the after effect thereof her enjoyment in life, normal activities of a girl of her age, the prospect of marriage must have been seriously curtailed and her suffering must have been gross. While I feel the sum of $130,000 for her pain and suffering and loss of amenities is excessive I think the sum of $80,000 for this item is fair. As to prospective loss of earnings I take into consideration that she earned a little less than $700 per month before the accident. Mr. Wedderburn assessed loss of earning ability to be 30%. However she had been earning $550 per month since February 1976. The difference is much less than 30% of her former earnings. But I must also consider the normal increase in wages since 1974. The $700 in 1974 is of a different scale in 1977 and the future. One of her colleagues Kwok Loi Hing who earned about $800 per month in 1974 is earning about $1,100 per month now for the same work. I am inclined to assess the loss of 30% earning ability in the sum of $300 per month. In this way the multiplicand is $3,000 She is now 27 years old. She has a long working life. However, taking into consideration that this is a lump sum award I think a multiplier of 15 is reasonable. This will give her a sum of $54,000. All in all the general damage should be $134,000.

17. The injuries suffered by the 2nd Plaintiff is less severe than the 1st Plaintiff, though by no means slight. She was admitted into hospital on the 1st September 1974 with larcerations on her scalp, right forehead, 2 ½" on her right face 2" on her right forearm and 3" on the back of her right hand over the dorsum. In addition she had a fracture of the right radius near the wrist and fractured pelvis. She was discharged on the 2nd October 1974 but had to use crutches for a month thereafter. She was bed ridden for three weeks while in hospital. She was a girl of 17 when injured. She now has several scars: one on her scalp which is well healed concealed by hair, one 2" long over her right cheek, 2 on her lower neck of about ½" long, and one on her right wrist extending to the 3rd finger of her hand. The last scar, I understand, can be put right by cosmetic surgery costing about $1,500. Her right hand suffers a reduction of grip pressure which shows some improvement by April this year. Her fractured pelvis has been repaired. But Mr. Wedderburn says that if she gets married she would require extra care for child birth. Having regard of her injury Mr. Wedderburn is of opinion that she would suffer acute pain for three to five days and discomfort for about three months.

18. She also claims for special damages and general damages in the form of loss of earnings, medical fees, damages to clothings, travelling expenses, extra nourishment, pain and suffering and surgery expenses for her hand. Having regard to her age, status and the injury suffered I assess general damages for pain and suffering as well as loss of amenities in the sum of $27,000 to include the surgical expenses and discomfort for the cosmetic surgery of her hand. As to special damages I feel that her claim for $4,200 representing six months' loss of wages is reasonable. Her claim of travelling expenses for her father to visit her may be put down to $600 instead of $800 because in 1974 petrol prices were not as high as $6 per gallon. The claim for extra nourishment of $450 is reasonable for the same reasons I gave for granting the 1st Plaintiff's claim on this item. No evidence has been adduced in respect of her claim for medical expenses and damages to clothing. All in all I award special damage to the 2nd Plaintiff the total sum of $5,250.

19. In short I find that the 1st Defendant was solely responsible for the collision which caused injuries to the 1st Plaintiff and the 2nd Plaintiff. The 2nd Defendant and the 3rd Defendant are absolved from blame. Even if there had been a slight imbalance of the brake of the bus it did not contribute to the cause of the accident.

20. There will be judgment against 1st Defendant for the 1st Plaintiff in the sum of $134,000 in general damages and of $14,433 in special damages and for the 2nd Plaintiff in general damages in the sum of $27,000 and the sum of $5,250 in special damages.

21. The sum awarded on special damages in both cases is to carry interest at the rate of 4% p.a. from the date of the accident and that on general damages is to bear interest at the rate of 8% p.a. from the date of the service of the writ in each case.

Representation: