Wong Hon Yiu v. Ng Tat Ming and Others

HCA000985/1974

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 985 OF 1974

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Coram: Briggs, C.J.

Date of Judgment: 11th July, 1975.

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JUDGMENT

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1. This is an action for damages for personal injuries resulting from a road traffic accident which occurred in Wor Chai Street, Kowloon on the evening of November 8th, 1972. The accident had some unusual features.

2. At about 5 p.m. the plaintiff was crossing Wor Chai Street from south to north; where he was crossing there is a straight roadway allowing for two lines of traffic, one in each direction. It appears from a sketch made by the police soon after the accident that the roadway is some thirty-two feet wide. There is a slight curve to the east of where the plaintiff was crossing and the roadway slopes slightly downwards from the right of that point. Photographs exhibited of the scene and the sketch map indicate that visibility to the east is excellent - all things being equal.

3. The plaintiff himself gave evidence. He said that there was heavy rain that day and typhoon signal No. 7 had been hoisted. He waited for the rain to stop. When it had stopped he decided to cross the street. He looked left and right before doing so and saw no traffic approaching in either direction. There is a broken white line running down the centre of the street. When the plaintiff was near to this but still on the southern half of the road, he was knocked down by a car. He said that he was following behind two other pedestrians, who were also crossing in the same direction.

4. As a result of the impact, he was knocked down and rendered semi-conscious. Then he was hit by a second car and became wholly unconscious. He was emphatic that the second car hit him on his head and that the second car came from the same direction as the first car.

5. There were therefore two cars involved in the accident. The first was driven by the first defendant.

6. Unfortunately, the first defendant has gone abroad and cannot be found. I understand that he is a seaman and has 'jumped ship'. The parties therefore agreed that two statements made by him should be put in evidence. One was made to the police on the day of the accident: the other is contained in a letter to his wife dated November 29th, 1974 - two years after the accident.

7. The two statements are not consistent. In his statement to the police the first defendant said that he was travelling at about 20 m.p.h. along the road in question, and it was raining. Suddenly, a man ran out in front of him from his left-hand side. He braked but could not stop in time to prevent an impact and the man - obviously the plaintiff - was knocked down. He then stopped and "just at this time" he said he was bumped into from behind by a second car - the car driven by the third defendant.

8. In the letter to his wife he reduced his speed by two miles per hour. And adds two important points (1) that the man who ran out from the pavement did not look to see if any traffic was coming from his, the first defendant's direction and (2) in his own words (in translation) "I applied brakes immediately and as I was doing this, the vehicle that was following mine crashed into the rear of the vehicle, following which the injured man was knocked". By these words I understand him to say that the impact with the plaintiff was caused by the car of the third defendant crashing into the back of his own vehicle with the effect that his car knocked the plaintiff down.

9. I do not think that either the account of the accident of the plaintiff nor of the first defendant is true.

10. What happened in fact clearly emerges from the evidence of a witness called by the plaintiff name CHEUNG Sheung Yuen, from the evidence of the third defendant and from the sketch plan made at the scene, which has not been challenged.

11. Mr. Cheung said he witnessed the accident from a nearby tea stall. He said that it was drizzling at the time but it had been raining hard earlier on that afternoon. He said he saw what we now know to have been the car driven by the first defendant, come round the slight bend in the road going downhill and he estimated the speed to be about 40 m.p.h. It is pertinent to record that Mr. Cheung has been a driver for more than 10 years. He noticed that three persons were crossing the road from south to north. He said that the person who was knocked down was one of those three. He was walking behind the other two and walking at a normal speed. He saw the impact between the car driven by the first defendant and the plaintiff which caused the plaintiff to fall down. Immediately after he saw the second car, driven by the third defendant bump into the back of the first car. And it seemed to him that this caused the first car to move forward and to come into contact with the plaintiff a second time as he lay on the ground. At the time that Mr. Cheung saw the two impacts he was on the north side of Wor Chai Street and looking at the two vehicles obliquely from that side of the street.

12. Mr. Cheung gave his evidence in a clear and straight-forward manner. There was some suggestion in cross-examination that he had not been at the spot at all. I reject any such suggestion. And I accept his evidence with one exception which will be apparent.

13. The third defendant also gave evidence. He said he saw the first defendant's car suddenly stop. It was drizzling and the road was wet. He braked immediately he saw the braking lights of the first defendant's car but was too late to avoid bumping into the rear of the car in front. The impact caused the first defendant's car to be pushed forward but not by more than two feet or so. He said that his vehicle never came in contact with the plaintiff at all. It was in fact impossible for this to occur, because the first defendant's car was between his vehicle and the plaintiff who was lying on the ground.

14. The sketch map is a model of its kind and shows the two cars one directly behind the other. The distance between them is given as one foot. There is a mark on the plan showing where blood was found on the road. The distance between this and the front of the first defendant's car is marked as eight feet. The police officer who made the plan was called as a witness and said that it was drawn after the plaintiff was removed from the scene.

15. From the above, it appears that the first defendant was travelling at a high speed at the time of the accident. This is proved by the evidence of Mr. Cheung and the evidence that the plaintiff was thrown forward by the impact for at least eight or probably ten feet. It is obvious that the car of the third defendant never came into contact with the plaintiff. The plaintiff and the first defendant are wrong here. Further, it appears that the impact between the two cars only caused the car of the first defendant to move for a short distance - a distance shorter than that between the plaintiff as he lay on the ground and the front of the first defendant's car. I accept the evidence of the third defendant and the sketch plan as to this. As I have said, Mr. Cheung saw that the impact of the car of the third defendant pushed the car of the first defendant forward and towards the plaintiff as he lay on the road. He must have been mistaken when he said that the first defendant's car came into contact with the plaintiff a second time. I think his mistake is easily explained by the angle of vision of the accident Mr. Cheung had at the time.

16. It follows from what I have said that though the third defendant was negligent in his driving on that afternoon, his negligence did not cause any injury to the plaintiff.

17. The third defendant was prosecuted and convicted for driving a car with defective tyres early in 1973. But that, of course, is beside the point. In my view, there was no evidence that his negligent driving caused any injury to the plaintiff. The plaintiff has persisted all along that he was hit twice, once by each car involved in the accident, this is but a sick fancy. It could not have happened - the sketch plan alone clearly shows this for the two cars are immediately one behind the other.

18. The next question is: Was the first defendant negligent? I accept the evidence of Mr. Cheung as to his speed and it is obvious that he was travelling too fast. The force of the impact must have been very considerable. This is shown by the position of the body. Mr. Cheung and the plaintiff said that the plaintiff was walking across the road at a normal pace. The photographs show that a motorist coming round the slight bend in the road would have a clear view of the road in front of him. The accident happened in the middle of the road that is close to the broken white line and on the south side. I do not accept the evidence of the first defendant (which unfortunately has not been subject to cross-examination), that the plaintiff ran out from the pavement and there is no evidence that any horn was sounded. In my view if the first defendant had been keeping a proper look-out he would have seen the plaintiff and could have taken avoiding action.

19. The evidence clearly establishes that the first defendant was negligent in that he drove too fast and failed to keep a proper look-out.

20. The next question is whether the plaintiff himself contributed to the accident by his own negligence. The plaintiff said that two cars passed him before he began to cross the road and he looked to his right. However, the photographs as I have already said show what an excellent view a pedestrian would have when crossing the road. What it seems the plaintiff lacked to do was to pay regard to the traffic while he was actually crossing the road. I think he was negligent in that he did not keep a proper look-out.

21. I adopt the reasoning as to the difference between the duty of a motorist and a pedestrian with regard to keeping a proper look-out given in the well-known case of Baker v. Willoughby⁽¹⁾. I estimate the liability of the plaintiff for the accident to be twenty-five per cent. I think I should add that I have not arrived at that percentage because it was the percentage come to in Baker v. Willoughby⁽¹⁾. Each case depends on its own individual facts and I have based my estimate of twenty-five per cent on the facts of the present case.

22. The plaintiff received serious injuries. It is not necessary to detail them in this judgment. He received a severe head injury which included lesions to the brain, and he had to undergo major surgery. A portion of his skull was removed and replaced and he was hospitalized for a considerable period. An unfortunate result of this injury is that he now suffers from epilepsy and has been admitted to hospital on more than one occasion unconscious, suffering from a severe epileptic fit. He will be subject to such fits for the rest of his life and will always have to take pills at least three times a day. His mental processes have been markedly slowed down and he suffers from dizzy spells and headaches and cannot concentrate properly. He has lost strength in all his limbs.

23. Dr. Wedderburn who examined the plaintiff in January of this year estimate that the severe brain damage which the plaintiff has suffered has slowed down his mental and physical performance by at least 50%. And a medical board has estimated his incapacity at 40%.

24. These figures have not been seriously challenged.

25. I come now to the question of damages. The plaintiff has claimed $500 for travelling expenses for medical treatment and I will allow this sum which is modest. The plaintiff has had to travel to hospital on very many occasions. He has also claimed $40,000 for loss of earnings. This sum is based on an estimate that his earnings were $2,500 per month.

26. At the time of the accident the plaintiff was running a one-man business. He purchased rattan either on credit or for cash and made articles such as chairs which he sold, largely to export traders. He employed several workers who either worked in his dwelling place or in their own homes; the plaintiff supplying them with rattan and they supplying him with the finished articles.

27. The plaintiff kept no proper accounts but a considerable number of miscellaneous documents were produced to the court. These, while not very intelligible in themselves, were nearly completely useless since neither party sought fit to have them translated.

28. However, the plaintiff called one WONG Yiu Sun, his brother-in-law, who lives with the plaintiff. He estimated the earnings of the plaintiff to be about $2,000 per month. He said that each of the plaintiff's workers would earn between $700 to $800 per month. And he was helpful to the court in that he described the method of business of the plaintiff if 'method' it can be called.

29. This witness carried on the business of the plaintiff for him after the accident had rendered the plaintiff incapable. There was an immediate drop in the takings of the business but Mr. Wong continued to run the firm for about ten months. Then, due to a combination of circumstances the firm ceased business. The plaintiff was not there to make use of his personal contacts in the trade and there was a recession in the rattan business.

30. Mr. Wong produced evidence to show that the firm had, in fact, done considerable business. I do not accept the suggestion put forward in cross-examination of the plaintiff and of Mr. Wong that the business in fact was very slight.

31. Mr. Wong's evidence also agrees with that of Dr. Wedderburn that the plaintiff is now only capable of doing simple routine tasks. He cannot work as he used to. He has insufficient strength and cannot concentrate.

32. The evidence is that the plaintiff will be liable to epileptic fits for the rest of his life though if he continues to take the necessary medication such fits should be relatively rare. I think that the correct sum for pain and suffering and loss of amenities should be $60,000. In this sum is included a sum for future suffering including the consequences of the epileptic condition of the plaintiff. (See Jones v. Griffiths⁽²⁾).

33. As to loss of earnings I have taken a figure of $2,000 per month and a multiplier of 10. These two sums come to $300,000. This sum must be discounted in view of the fact that a lump sum is being received by the plaintiff and also for what are normally called the vicissitudes of life - which in this case includes fluctuation in the rattan trade. This reduces the figure to $240,000. Adding the special damages we get $240,500. The plaintiff is entitled to 75% of this sum which comes to $180,375. There will be judgment for this amount.

34. I will now hear counsel on the correct order for costs.

Representation:

D. Chang (Gunston & Chow) for Plaintiff.

W. Waung (J.S.M.) for 1st and 2nd Defendants.

H. Poon (T.S. Tong & Co.) for 3rd Defendant.

(1) (1959) 3 All E.R. 1528.

(2) (1969) 1. W.L.R. 795.