Leung Chi Kwong v. Tse Wai Hang and Another

HCA000464/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO.464 OF 1970

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Coram: Briggs J. in Court

Date of Judgment: 16.11.70.

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JUDGMENT

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1. In this case the plaintiff claims damages for negligence. The claim arises out of an accident which occured at about 7 p.m. as long ago as March 22nd, 1969. Witnesses have had considerable difficulty in recalling to mind what they saw and did at the time.

2. The accident occured in Cheung Sha Wan Road opposite a house numbered 750. At that time and place there were extensive road works in progress. A plan, made by a Corporal in the Royal Hong Kong Police Force, was agreed and put in. The Corporal himself gave evidence as to various details shown in this plan.

3. The first defendant was driving a station wagon belonging to his company the second defendant, and he struck and injured the Plaintiff. The first defendant was proceeding along the road towards Lai Chi Kok. At the part of the road in question there was an open space to his left hand side and the pavement had been dug up. On the open space was a lot of loose earth etc. A little further on still on the left hand side, there was an area at the side of the road which was bordered by a fence. The fence was 3 - 4 feet high and consisted of horizontal pieces of wood. It was so constructed that it slightly protruded into the road. Behind this fence a ditch had been dug. There was no pavement on that side of the road. At the corner was a notice stating 'Danger' and that there were Road Works Ahead.

4. To the right of the first defendant there were excavations down the centre of the road. In addition, the right hand portion of the road had been closed to traffic only allowing a passage for single line traffic. This passage was behind the excavations made in the centre of the road, which I have mentioned above. And it passed through the area of the excavation. That is to say there was a gap in the portion of the centre of the road which had not been excavated through which traffic - perhaps only single line traffic, could have joined that part of the road down which the defendant was travelling. I shall refer to this as "the gap" in this judgment. Both the passage above referred to and the portion of road used by the defendant served traffic going in one direction only, namely towards Lai Chi Kok.

5. There is a conflict of evidence about the excavations in the centre of the road. The first defendant said there were hoardings surrounding the excavations to the height of a man and that they were painted black and white. He said that he visited the spot the day following the accident and remembered this well. The Plaintiff said that there were no hoardings. The Corporal said that he did not remember any hoardings in the centre of the road either. I think it is safe to accept the evidence of the first Defendant here. Black and white hoardings would be very conspicuous especially as the defendant was travelling with dipped headlights and the road was straight. I think a motorist would be very likely to notice and remember such a matter. And it is also for remark that the plan of the Corporal suggests that the areas in question were fenced in some manner. Finally the parts described on that plan as "dug up" are right in the centre of an important road and it is to be expected that excavations of such a nature would be fenced.

6. The Plaintiff's story is very simple. He says he was walking along the road inside the fence which I have described as being in the left hand side of the road as one approached Lai Chi Kok. He, the Plaintiff was walking in the opposite direction i.e. he was walking away from Lai Chi Kok. He was not crossing the road and he saw no bicycle. Indeed he saw no car. He was struck, rendered unconscious and woke up in Hospital. He was emphatic that the fencing - which was described by the Corporal as consisting of two bands of wood - was between him and the road when he was struck.

7. The first defendant told a very different story. He said he was travelling at about 30 miles per hour. The road in front of him was clear of traffic at the time and he knows that road well. He was returning to his Company's factory premises. He said that the width of the road on which he was travelling was enough to take two cars abreast if they were carefully driven. His lights, that is dipped headlights, were on: it was dark. As he reached that part of the road where the fenced portion of the left hand side struck out slightly into the road, he came quite close to the left hand side i.e. to the fence. As he was passing what I have called the gap, a cyclist swerved in front of him, slightly to his right, and proceeded down the road ahead of him. The defendant braked and swerved to his left, and struck the Plaintiff with the side of his car not with the front of the bonnet. The person he hit was in the road not behind the fencing. The Plaintiff then jumped over the fencing or was pushed over it, into the ditch which was on the other side. The first defendant's car did not come in contact with the fencing at all. The first defendant said that it was necessary for him to swerve to avoid colliding with the cyclist and that his impact with the Plaintiff was an unavoidable accident.

8. The defendant remained at the scene of the accident until the arrival of the police to whom later he gave a statement, which was not put in evidence. Unfortunately he moved the car shortly after the arrival of an ambulance. It had been moved by the time the Corporal arrived. There was no evidence before me of any damage to the fence or of the state of the first defendant's car.

9. The first defendant said he first saw the cyclist when he, the cyclist, was about two feet to his right front. He did not see him come from the gap because of the high hoardings in the centre of the road. The cyclist was right in the middle of the road when he saw him. And somewhat remarkably he said he saw him turn round and smile at him. Later in his evidence he also said that at that time the cyclist was "quite far in front" of him - adding again, that the distance was two feet. As to the Plaintiff he said that he did not see him before the accident. Later in his evidence he corrected this and said he saw him one foot away. Also he said the Plaintiff was facing the side of his car when he was hit, he was not facing the front of the car.

10. These cases are always very difficult. This one is no exception. Both the Plaintiff and the first Defendant struck me as being persons who were trying accurately to remember what occured at the scene of the accident.

11. I think the Plaintiff was mistaken. He must have been in the road itself and not behind the fencing at the time of the impact. I say this because there is no evidence that the car hit the fence. I think that the car hit the Plaintiff and that the force of the impact toppled him over the low fencing into the ditch on the other side.

12. At that point the fence according to the Corporal did not run down the side of the road very far. It is not surprising that the Plaintiff gave a mistaken story in view of the injuries he suffered particularly those he suffered to his head.

13. From his injuries it is obvious, I think, that the Plaintiff was facing the on coming car. The injuries are to the head in front and to the left lower limb in front also. If he had been facing the side of the defendant's car his right side would have received injury in all probability. This was not the case.

14. The first Defendant said that there was room for more than one car to travel down that part of the road. Taking all the evidence available into consideration I think that what occured was that the first Defendant was travelling too fast in the circumstances and too close to the left hand side of the road. There was a notice board warning of danger: there were the fenced excavations and the road was sandy: there was no pavement on that side of the road: all circumstances pointing to the necessity for extreme care. The Plaintiff must have been on the extreme verge of the road, right against the fence for him to have been toppled over it. In my view the first defendant in his haste swerved too close to the left hand side of the road. He saw the cyclist before the impact because he said he saw him turn towards him and smile. The road was clear, it is difficult to believe that he only saw him two feet away and the Plaintiff one foot away. In my view he has misjudged those distances when giving evidence as he must have misjudged them at the time of the accident.

15. In the course of the trial the first defendant made certain marks on the plan of the scene to show the relevant position of his car, the Plaintiff and the cyclist. These are obviously wrong. For example the Plaintiff is placed in the wrong position. He was found over the fence past the gap. He could not have been where the defendant suggested.

16. The first defendant's case is that this was an inevitable accident. But I do not think that that defence has been made out. Dr. Lushington's famous definition of the defence of inevitable accident in "The Virgil"⁽¹⁾ reads thus "that which the party charged with the offence could not possibly prevent by the exercise of ordinary care caution and maritime skill." That definition has often been applied in cases of accidents on land as well as at sea.

17. In the present case it is my considered view that the first defendant could have prevented the collision with the plaintiff. He was travelling too fast and he swerved too suddenly. In short he was negligent in the circumstances.

18. The Plaintiff claims special damages under three heads: (1) loss of salary for six months at the rate of $900 per month; (2) medical expenses which he puts at $1,700 and (3) extra food and nourishment which he puts at $1,500.

19. The Plaintiff was in hospital for two months and the medical authorities gave him 72 days sick leave thereafter. The Plaintiff however chose to absent himself from work for a greater period. Mr. Lam the Accountant of the Plaintiff's employer said that the average wage earned by the Plaintiff was between $850 and $900 per month: though, curiously enough, he produced nothing in writing to substantiate this. As I understand it, the first defendant is in no position to object to this figure: but Mr. Ching suggests that a period of 4 1/2 months is the correct period upon which to access damages under this head. That is to say the period of two months in hospital and the leave period stated by the medical authorities.

20. I am of the opinion that the claim for special damages of the Plaintiff has been somewhat inflated. And I agree that the correct period to take is 4 1/2 months. However I will base the award on average of the two figures given by Mr. Lam i.e. at $875. The Plaintiff is entitled therefore to recover the sum of $3,937.50 under this head. When the Plaintiff left the hospital he was told to return 4 weeks later. He said that as he still was suffering from pain he consulted and was treated by a bone setter. The treatment lasted for 70 days and cost the considerable sum of $1,700 or $1,800. Both sums have been mentioned. These payments are unsupported by any documentary evidence though the Plaintiff said receipts were in fact given to him. Nor was the bone setter himself called as a witness.

21. I do not see how I can award the Plaintiff anything under this head. He was in the hands of the doctors at the Hospital and he could, if he had not felt well, have returned there at any time. I was not impressed by his statement that he did not think that the Hospital would have treated him during the four week period.

22. Further there is no evidence of what the treatment of the bone setter was. As the Doctor Lee said it might be that that treatment was not beneficial at all. That it did not effect a total cure is shown by the plaintiff's evidence of feeling the effects of the accident up to the present time. I will therefore award nothing under this head.

23. The same applies to the third head of special damages. The nourishing food taken by the Plaintiff was not taken under doctors orders and in part was taken when he was in Hospital. Again there are no receipts to evidence payment. And the details of what was consumed were meagre indeed. There will be no award under this head.

24. I now come to general damages. The Plaintiff is a married man of 44 and earns his living working as an ironer of woolen dresses in a factory. The Plaintiff's injuries were severe. He was rendered unconscious by the accident and was, as I have said, hospitalised for two months less, I think, one day. He had severe scalp wounds and the scar is clearly visible at the present time. He suffered a loss of blood which was replaced by transfusion. He also damaged his left thigh, knee cap and shin. He had extensive pain and there are still ill effects, He complains of dizziness and headaches and an inability to concentrate at work. And stated in the witness box and to Doctor Lee, who examined him very recently, that he suffers pain in his leg when he walks or stands for any length of time. He also has a pronounced limp. Unfortunately he has to stand in order to do his work in the factory.

25. Doctor Lee's evidence was distinguished by its restraint but he said that the Plaintiff had a permanent disability to the left knee. There is a limitation of flexion movement of as much as 40% and a limitation of extension movement of 10%. There has also been a considerable loss of muscle power in the left leg. He also said that there was a possibility that osteo-arthritis would develop in the left knee due to the multiple fractures which he sustained. Doctor Lee said that what he called the post concussional syndrome would disappear with time but that that might take a long time. The effect of the injuries to the leg would continue and might worsen.

26. The Plaintiff said that though he was back at work on roughly the same wages he found that he had to have frequent rests when he has to sit down.

27. As I have said, the Plaintiff is back at his old employment and making about the same wages as before. However he told me that he had to work for much longer hours to receive as much. I also was told that the Plaintiff was paid by the piece and that the rate had been increased since before the accident. The inference is that if there had been no accident the Plaintiff would be earning more than he now is.

28. After careful consideration of all the factors the doctor assessed the percentage of disability of the Plaintiff at 40%. It must however be emphasised that there has been no loss of earnings in fact. What the Plaintiff has suffered is that his earnings would have been greater had he not received the injuries he has. Or to put it another way he now has to work harder to earn as much as he did before the accident.

29. What has to be awarded is a sum which is reasonable compensation for what the Plaintiff has suffered, a sum which will put the Plaintiff in the same position as he would have been had he not suffered his injuries. It is necessary of course to take into consideration what is called the natural hazards of life, and the fact that the sum awarded is a lump sum immediately payable. And in my view though the present piece rate payments for the work of the Plaintiff are high and may even rise there is no evidence or guarantee that this will continue. The availability of work and the rate of payment fluctuate considerably from time to time. With all this in view I will take a multiplier of 15. This gives us $42,000 to this must be added a sum for pain and suffering etc. I will award $8,000 making a total of $50,000 to which must be added special damages of $3,937,50. These will be judgment for the Plaintiff for $53,937.50 with costs against both Defendants.

30. Stay of execution 10 days.

Representation:

A.J.J. Sanguinetti (David Tsang & Co.) for Plaintiff

Charles Ching (Brutton & Stewart) for both Defendants

Judgment read in Court