Lau Kam-tui v. Nancy Fok Po-har and Another

HCA001047/1975

IN THE HIGH COURT OF JUSTICE

ORIGINAL JURISDICTION

ACTION NO. 1047 OF 1975

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Coram: Li, J. in court

Date of Judgment: 21st October 1976 at 2:35 p.m.

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JUDGMENT

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1. This is one of two consolidated actions arising from a traffic accident. On the 14th of October in the afternoon, a collision took place on Tai Po Road near the 20 ½ milestone between a bicycle ridden by Mr. LAU Kam-tui, a motor car driven by Mr. FUNG Kwong-choi and owned by Madam Nancy Fok, the 1st and 2nd defendants of the action, and a pedestrian, TSE Mau-kiu, the third party in the action. I shall refer to Mr. Lau, the bicyclist, as the cyclist; Mr. Fung as the motorist; Madam Fok as the owner; and TSE Mau-kiu, the third party in the action, as the pedestrian. As a result of this collision, both the cyclist and the pedestrian were injured. The cyclist then sued the motorist and the owner for negligence. It is alleged in the statement of claim that the motorist, as a driver, failed to keep a proper lookout, failed to steer and control the car properly so as to avoid the collision, failed to give warning of the presence of his motor vehicle, and was driving at an excessive speed. The owner is sued as being vicariously liable for the negligence of the motorist. The cyclist further relies on the conviction of the motorist arising from this incident of careless driving and the record of proceedings resulting in this conviction which are exhibited as exhibits 5A to C. The motorist denies negligence and alleges that the whole accident was caused by the cyclist for cycling too fast, failing to keep a proper lookout, failing to take care when approaching a pedestrian, failing to control his bicycle and to avoid a collision with the pedestrian, colliding with the pedestrian and falling into the path of the motor vehicle driven by the motorist, carrying a wooden box at the back of his bicycle so as to hinder the control and sight of his bicycle, and carrying a load on the bicycle so as to hinder the control of the bicycle. A third party notice was issued to the pedestrian by the motorist and owner, accusing the pedestrian of negligence for causing the accident by failing to keep a proper lookout, crossing the road while it was unsafe to do so, running out into the road without warning and looking, and colliding with the cyclist causing the cyclist to fall into the path of the motor vehicle.

2. The motorist admitted that he was convicted of careless driving because of this accident. However, he pleaded that the plea of guilty was one of expediency and that it was not proof of his negligence.

3. Arising from the same accident, the pedestrian in the other action which has been consolidated with the present one, sued the motorist and the owner as well as the cyclist for negligence. I shall not refer to the details of the allegations in the pleadings of that action. It is sufficient to say that at the commencement of the hearing of the consolidated actions, the action taken by the pedestrian was settled by all parties concerned, in that the motorist and the owner agreed to pay the pedestrian damages totalling $28,000 with costs, and the pedestrian agreed to withdraw the action against the cyclist. In the present action, the only action which remains to be heard the motorist and the owner serve notice of discontinuance of the third party notice against the pedestrian. Thus, the remaining issue to be tried in the action is that of the action between the cyclist and the motorist as well as the owner.

4. The evidence of the cyclist is not particularly helpful. He said he was riding his bicycle along Tai Po Road in the vicinity past a petrol station and fairly close to the pavement. He did not know if there was any traffic behind him and did not see anyone in front of him. However, he was suddenly hit from behind. Before he was hit he certainly had not come into collision with anybody at all. He said that if the pedestrian stopped down to the road, he would alight from his bicycle as he was cycling very slowly. He denied that he ever swerved onto the road. He said that he maintained a straight course. As agreed the record of the court proceedings in which the motorist was convicted of careless driving on his own plea is produced. It is recorded that after the motorist pleaded guilty, the facts of the case were presented to the magistrate. It was recorded, inter alia, that on coming to the 20 ½ milestone, Tai Po Road, outside Lam Garden, there was a long straight section of the derestricted road, the defendant (i.e. the motorist) was following a bicycle. With no reason or excuse, the defendant knocked right at the rear of the bicycle and pushed the bicycle along for about 50 feet before coming to a stop. When the bicycle was knocked down it scratched down the old woman who was standing by the roadside. These facts were admitted by the defendant. This, to some measure, shows negligence on the part of the motorist.

5. The motorist, on the other hand, gave evidence that he was at the time travelling at about 30 miles per hour. There was a pedestrian who put one foot on the road in front of the cyclist. The cyclist was not travelling very fast, in fact, he was travelling quite slowly. However, when the pedestrian put the foot down on the road this caused the cyclist to swerve to the centre of the road. It is not so clear whether he meant there had been a collision between the pedestrian and the cyclist. Anyway, he said there was a swerving onto the road. He said that the car was at the time about 5 to 6 feet away from the bicycle. When the bicycle swerved to the centre of the road he stepped on his brake. It was too late to avoid a collision with the bicycle. As a result the accident happened. He explained that his plea of guilty before the magistrate on the charge of careless driving was purely a matter of expediency. He said that he wanted to end the matter and dispose of the matter forthwith. He also said that when the facts were presented to the magistrate, no one interpreted to him to the effect that he hit the bicycle first and then incidentally hit the pedestrian as well. Had he heard that, he said he would have denied it.

6. The pedestrian was called and she was adamant that just before the accident she was not crossing the road at all. Her memory appears to be at fault. She is an elderly woman. Her evidence is not helpful at all. Neither is the evidence given by the owner of the car. Her evidence was that the cyclist hit the pedestrian, swerved to the middle of the road and fell upon the motorist's car. She maintained this form of answer irrespective of the question that was put to her by her own counsel. It seemed that she was determined to come to tell not the truth but to give a biased opinion as to what was the cause of the accident. I would not say that she deliberately told a lie, but her opinion and her mind was so biased that no useful information could be obtained from her evidence. I could not believe her when she said that the car was at a standstill when the bicycle fell upon the car and the accident was caused. There is some evidence though by Superintendent LI Kwong-yee who was at the material time not the accident enquiry officer of the New Territories. He filled that post about a year after the accident. However, he was the one who wrote a memo to the Director of Legal Aid, outlining the brief facts of the case. It appears that from his memo to the Director of Legal Aid, he did not mention that the motorist hit the cyclist first and then the pedestrian. As a result, he was closely questioned. He explained that when the accident occurred he was not in the Accident Enquiry Office. It was some months afterwards that he took up the post. At the time when the Director of Legal Aid asked for a report from him, all he put down was to copy from a brief extract of the preliminary enquiry report in the police file, which was the result of the preliminary enquiry. But there was what was called a prosecution file containing more or less the same documents, which was kept in the Summons Office or the Prosecution Section of the police in that area. The report of brief facts contained in that file were presented to the magistrate. These facts were collected and reworked in the latter file after a series of assessments and investigations and before a summons was issued. Hence was the discrepancy. His report to the Director of Legal Aid was formed on the preliminary investigation. The fact that was presented to the learned magistrate was a matter after thorough investigation. He produced the police file as a person who used to have custody of them. There was also the statement by the pedestrian that she crossed the road for a few steps. All these are not of great help in assessing who was to blame for negligence except that one can read between the lines on the evidence. To rely on the sketch as to who caused the accident and when the collision began is entirely a matter of speculation. That is so because these brake marks and the scratch marks cannot tell the actual position of the collision and how the collision was caused. However, one thing is certain. Nobody can deny that the place in which the accident occurred was part of a straight stretch of the road with a clear, unobstructed view. The motorist said that the cyclist was travelling quite slowly. Had there been a pedestrian crossing the road the cyclist could have stopped his bicycle without having to swerve as far as the centre of the road. He might be able to stop his bicycle, get down, and let the pedestrian pass over. Even if there had been a collision between the bicycle and the pedestrian, the bicycle was fairly close to the pavement. The motorist, was at least 5 or 6 feet away from the cyclist. There was no question that either of these was the cause of the accident. Even if such a collision between the cyclist and the pedestrian did take place, nonetheless, the road was a clear road and a straight road. My conclusion is that if the motorist was involved in this accident, it was either that he did not keep a proper lookout, or he was driving at an excessive speed in the circumstances, or that he was so inexperienced that he went into a panic and hit both of them. Furthermore, the defence evidence is at variance with the pleadings in the defence. The defence alleged that the woman, the pedestrian, rushed out into the road. In his evidence the motorist, the 2nd defendant, was very careful to say that the pedestrian had only put one foot onto the road. Well, one foot on the road from the pavement cannot be very far away from the pavement. If the cyclist was driving close to the pavement he did not require 5 or 6 feet out in the centre of the road to avoid the pedestrian. For these reasons, I hold that the motorist is entirely responsible for the accident for failing to keep a proper lookout. One can only judge from the conduct of the 2nd defendant, the motorist, and his approach to these actions. I can well understand why he discontinued the third party notice against the pedestrian, because one must be practical. It is obvious that the pedestrian is a woman not of means, so that it is useless for the motorist, even if she were found responsible for the accident, to obtain any form of indemnity from her. It is no use wasting good money after bad. What is surprising is that he should settle the action by paying damages as much as $28,000 to the pedestrian. My conclusion is that either he admits his responsibility for this accident, or that he is an extremely charitable man to the extent of foolishness. That leaves me to deal with the quantum of damages.

7. As a result of the accident the plaintiff, the cyclist, was hospitalised between October 1973 and December 1973. Then he had to attend clinic as an out-patient from time to time to take follow-up cure. Even after April 1974, he was using a pair of crutches. It was only some time in January 1976, or December 1975, that he could walk without the assistance of a stick. He was a licensed hawker and he used to earn about $600 a month selling preserved vegetables to an area in Fanling to various schoolboys. The accident caused him a broken leg. The licence lapsed and he was in no position to use them for some time. His business contact is lost and he is now living with relatives. He has resumed his trade to a certain measure. But he is not able to go around as actively as before. He can only do business within a restricted area, in the close vicinity of his home. He has not the same strength as before to carry on the trade that he used to carry on as a hawker of preserved fruit. He claims for special damages for the period between October 1973 to April 1975, a total loss of earnings at $600 per month. He also claims the loss of earnings of $600 per month as from April 1975 up to now. He claims for special damages the various listed items. I will take the smaller items first. It is conceded that the cost of the fruit, preserved fruit, and the travelling expenses to and from hospital are $80 and $30 respectively. He claims $260 for the bicycle that was damaged and $135 for the watch and $100 for the wooden box that was destroyed or damaged. But for none of these items can he produce a receipt.

8. This is queried. It seems that all these articles were purchased in 1972, about a year before the accident. The bicycle, since he has produced no receipt, it is more a matter of assessment. The bicycle should worth something, but it was a year old. I will reduce the sum to $160 in place of $260. For wooden box, I assess as $20. For the watch, I will reduce it to $75. I will allow the whole period of his claim for special damages of $600 per month amounting to $10,800. According to the report of Doctor Wedderburn he would be fully recovered by some time in January, 1976. I will award him damages of $600 per month from April 1975 to January 1976 which come to another $5,400. Thus the total of special damages is $16,565. That is not all. He also claims general damages. The general damages will cover the items of his pain and suffering during the period when he was hospitalised, the discomfort after discharge, and the period that he was an out-patient, and his having to move about with the assistance of crutches only. After January 1976 it would take him some time to regain his stride in his business. It is all very well to say that the plaintiff could change his work and earn just as much as before, and resume his earning capacity. According to Doctor Wedderburn, a total disability of up to 2% with the result that he will suffer some form of osteo-arthritis. He will, of course, have difficulty to regain his former business. He should not be forced to choose other profession and other work. Some people may find that selling fruit to children in a large area in Fanling is a form of enjoyment in life. For these various deprivations that he suffered as a result of this accident, taking into consideration his pain and suffering during those months and the loss of business in future, I do not feel that another $10,000 is excessive. For these reasons, I would grant him special damages in the form of $16,565 plus $10,000, general damages totalling $26,565. Costs should follow the event. The plaintiff will have costs. The costs is to be taxed according to the Legal Aid Ordinance.

9. Interest at 4% on special damages as from the date of the accident and interest at 8% on general damages as from the date of issue of the writ.

Representation: