Lui Sau Kwan v. Li Han and Others

DCCJ007058/1974

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

Action No. 7058 of 1974

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Coram: Judge Garcia, D.J. in Court.

Date of Judgment: 25 April 1975.

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JUDGMENT

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1. On the 8th day of July 1973 at about 10 p.m. the plaintiff in this action, Miss Lui Sau Kwan, her mother, Madam Cheung Lan and another woman, Madam Ho Chun, were passengers in a taxi No. AN657 driven by the 4th Defendant, Chan Kwok Chuen. The plaintiff sat in the front seat next to the 4th Defendant, whilst the plaintiff's mother sat directly behind the plaintiff, with Ho Chun next to her. The taxi was then travelling from Johnston Road towards Happy Valley along Queen's Road East in a southerly direction. The weather, and road, conditions, were not good at that time - it had been drizzling, visibility was poor and the road was wet and slippery.

2. According to the evidence given by the 4th Defendant, when the taxi arrived at the junction of Queen's Road East and Wongneichung Road, the taxi stopped at the "SLOW" sign situated at that junction so that he could ascertain whether any vehicular traffic was proceeding along Wongneichung Road in a northerly direction, that is coming out of Happy Valley. However the plaintiff's mother is uncertain whether the taxi actually stopped at the junction or had only paused there a moment before beginning to cross the junction into Wongneichung Road. In his report to the National Insurance Company Limited, (undated but received by the Company on 11th July 1973), the 4th Defendant states: "It was drizzling, the road was wet and slippy (sic). I had switched on the head lamps as visibility was poor at that night. I stopped at that road junction and when I saw that the road was clear, I moved on again." Continuing with his oral evidence, as he turned his taxi from the stop position into Wongneichung Road going south, and as he reached the tram tracks on the road just past the junction of Wongneichung Road and Hau Tak Lane, a private car bearing the registration No. AF 4005, driven by the 2nd Defendant, and going north along Wongneichung Road, at a high speed (about 35 m.p.h.), collided with the offside front of the taxi. Extensive damage was caused to the taxi, the plaintiff sustained injuries to her head and face, and the 4th Defendant suffered some injury to his forehead.

3. The police came and make a sketch of the scene and the plaintiff was taken to the Tang Shiu Kin Hospital for treatment. At about 12.15 a.m. on 9th July 1973, she was taken to Queen Mary Hospital where she was examined and admitted. The following medical report indicates what injuries she had sustained that evening when she was first examined after the collision:

Following her discharge from the Hospital on 12th July 1973, the plaintiff consulted a Dr. Peter Wu on 8th August, 1973, and on 9th May, 1974, he issued his report, part of which reads as follows:

"A healed laceration scar over the right forehead. Complete analgesia over the distribution of the right supraorbital and supratrochlear branches of the ophthalmic division of the trigerminal nerves .........

Opinion: The damage to the nerves is likely to be permanent with permanent loss of sensation to the areas innervated by these nerves."

4. A further result of the collision is that the owner of the taxi, the 3rd Defendant, claimed against his insurers, the National Insurance Co. Ltd., for the cost of repairs to his taxi, in the sum of $4149.90, whilst a separate claim was made by him against the 1st and 2nd Defendants' insurers, the Oriental Fire Insurance Co. for loss of earnings for which latter claim he was paid a sum of $2000. The acceptance of the last mentioned sum by the 3rd Defendant is now stated by the said Oriental Fire Insurance Co. to be a complete discharge by the 3rd Defendant of any further liability to any other party, that is, against the 1st and 2nd Defendants but it has been submitted that because the 3rd Defendant's claim against the Oriental Fire Insurance Co. was only limited to the claim for loss of earnings the acceptance by him of the sum of $2000 was limited only to the claim for such loss of earnings and that he is entitled to prosecute a claim for repairs to his taxi. In fact in the correspondence which preceded the payment of the said $2000, it appears that care had been taken to separate the 2 different claims. I am of the opinion that taking into consideration the circumstances and the facts leading to the acceptance by the 3rd Defendant of the said $2000, the discharge given by him is limited only to his claim for loss of earnings.

5. On the 20th August, 1973, the 2nd Defendant appeared before a magistrate on a summons for careless driving to which offence he pleaded guilty. He was not legally represented thereat, and the facts submitted to the magistrate now appear a little incongruous in the light of the evidence given by the 4th Defendant. It seems that the basis upon which that summons was issued was the statement made by the 4th Defendant and possibly the fact that the 2nd Defendant was travelling at a high speed.

6. There are certain discrepancies between the so-called facts admitted by the 2nd Defendant and the evidence of the 4th Defendant, particularly in the answers which he gave to questions asked of him in cross-examination and by me. Foremost among these discrepancies are hi answers to the following questions:

Following this he tried to correct himself by answering: "I first saw other car when it was 120 feet away and at that juncture I was already crossing junction". Even this answer conflicts with what he had said in examination-in-chief regarding the cause of the collision. Again, in answer to my question:

If he could see as far down as the Roman Catholic Cemetery from where he had stopped, as he says, he would have been able, without a doubt, to see the private car travelling towards north at a fast speed, yet he took a risk in proceeding to turn into Wongneichung Road. In my judgment, having regard to his evidence, and the evidence of the bad weather and road conditions on that night in question, the 4th Defendant is solely responsible for the accident which occurred. As a driver with 12 years' experience, and a taxi driver at that, he should have apprehended the danger of taking risks when crossing the junction of a major road in bad weather and road conditions after observing the approach of a vehicle along that road.

7. The claims for damages made by both the 3rd and 4th Defendants against the 1st and 2nd Defendants set out in the 3rd party notice filed on 17th January, 1975, are dismissed with costs to be taxed.

8. It has been agreed by the parties that the special damages claimed by the plaintiff be limited to $1900 and accordingly there will be judgment for the plaintiff in this sum against the 3rd and 4th Defendants.

9. With regard to general damages, it has been submitted that it would be difficult for damages under this head to be assessed because of the absence of the plaintiff (she is in Paris undergoing a course of study), and because an up-to-date medical report on her condition is not available to the Court. Although the evidence called for the plaintiff leaves very much to be desired, there are nevertheless sufficient materials for an assessment to be made although with some difficulty.

10. At the outset I questioned the desirability of including "(3) Concussion of brain and (4) laceration of skull in the statement of claim since the doctor who examined the plaintiff on 8th August 1973; Dr. P.H.T. Wu, was not called to give evidence as to how far these two injuries affected the plaintiff's general condition and these matters are not dealt with in Dr. E.P. Chan's report of 1st August 1973. Mr. Hoosenally has suggested that the fee charged by Dr. Au To, that is, $3000, for plastic surgery, could form the basis of an assessment of general damages. I agree, since this sum could as far as possible be used for at least eradicating the very prominent scar which the plaintiff bears over her right eyebrow. In addition, some consideration must be given to the pain and suffering which would accompany injuries of the nature suffered by the plaintiff (she spent 4 days in Hospital and had a total of 17 stitches), and also of the permanent loss of sensation over her right forehead. I would assess these at $3000 and accordingly the total general damages will be $6000.

11. There will be judgment for the plaintiff against the 3rd and 4th Defendants as follows:

with costs to be taxed.

12. The plaintiff's claim against the 1st and 2nd Defendants is dismissed with no order as to costs.

Representation:

Messrs. Johnson, Stokes & Master, Solicitors for plaintiff.

Messrs. Chan & Ho, Solicitors for 1st & 2nd defendants and also for 1st & 2nd Third Party.

Messrs. Hoosenally & Co., Solicitors for 3rd & 4th defendants.