Lau Mui v. Kowloon Motor Bus Co (1933) Ltd

HCA000455/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 455 OF 1970

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Coram: Briggs J. in Court

Date of Judgment: 7th October, 1971.

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JUDGMENT

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1. This case arised out of a traffic accident which occurred as long ago as October 3 1967. The scene of the accident was the crossing formed by the Lai Chi Kok Road and Prince Edward Road in Kowloon.

2. The Plaintiff's case is simple. On the afternoon of the day in question he was riding a newly purchased push bicycle along Lai Chi Kok Road in the direction of Mongkok. He came to the crossing of that road with Prince Edward Road and proceeded across it in order to enter that part of Lai Chi Kok Road which lies on the further side of the crossing.

3. When he was proceeding over the crossing he was bumped into by a double decked omnibus from behind. He was knocked off his bicycle and sustained serious injuries to his right leg. The bus was driven by one Chan Ping who was employed by the Defendant Company.

4. It is not in dispute that the weather was fine and dry: and that visibility was excellent. Lai Chi Kok Road and Prince Edward Road are both main roads. There are three lanes for traffic marked in Lai Chi Kok Road in each direction, but where the roads cross one another these are not marked on the ground. In the centre of the crossing was a police pagoda but at the time of the accident this was not manned. The reason for this was probably because the accident happened in October 1967 when the police force was fully occupied with the maintenance of public order. The crossing was without traffic lights.

5. The Plaintiff in his evidence said that he did not notice whether there was a traffic policeman on duty or not. But the driver of the bus was certain that there was none. The Plaintiff said that when he approached the crossing he was in the near side traffic lane in Lai Chi Kok Road. He said that there was traffic in Prince Edward Road waiting to cross from his left hand side as he rode over the crossing. However there was no traffic in front of him or to his right: that is, in the centre traffic lane, parallel to him.

6. In cross-examination he said that there was traffic in front of him: that when he reached the crossing, seeing other traffic proceeding in front of him, he followed. He added that the bus was in the same lane as he was and bumped him from behind. He had no mirror by which he could see what was behind him.

7. A sketch map made at the time of the accident was put in evidence by consent of the parties. It was agreed that it was a not inaccurate depiction of the scene. It shows that the bus was travelling towards Mongkok and had passed the traffic pagoda in the centre of the crossing when the collision occurred.

8. It shows that the bus was in the equivalent part of the crossing to the middle traffic lane in Lai Chi Kok Road: that is to say if the bus had proceeded further, it would have entered the middle traffic lane on the further side of Lai Chi kok road. The collision occurred directly opposite to the middle traffic lane of Prince Edward Road coming from KowLoon City .The collision being between the rear of the bicycle, which was irreparably damaged, and the front left mudguard of the bus.

9. The Plaintiff was shown this sketch map and at first had great difficulty in understanding it. Indeed he contradicted himself several times. But I am quite satisfied that after patient questioning by his counsel he realised what it represented and he agreed that the position of the vehicles was correctly depicted.

10. Chan Ping, the driver of the bus gave evidence for the Defendant. He said he was proceeding down Lai Chi Kok Road towards Mongkok. There were three traffic lanes and he was making use of the centre lane. Just before he reached the crossing he changed down from 4th gear into third gear. At the time there was no traffic in front of him in the lane he was using. However there was traffic in the lane to his right. When he was about level with the safety island which was situated in the centre of Prince Edward Road to his left, he saw two bicycles parallel with each other on that side of him. They were travelling in the same direction as he was. His speed was not more than 20 miles per hour at the time.

11. He said he noticed that there was traffic in Prince Edward Road to his left coming from Kowloon City. There was no police control and no traffic lights and this traffic was pushing forward as much as it could. This, he said, caused the bicyclists to swerve to their right. The nearer bicycle which he now knows to have been ridden by the Plaintiff swerved in front of him without warning. He said that he first noticed this when the bicycle was 8 to 10 feet away from him. He applied his brakes at once and swerved slightly to his right. He could not swerve much because of the traffic to his right. The left front mudguard came in contact with the Plaintiff's bicycle and he was thrown off. There was no prosecution.

12. Though the parties agreed that the sketch map was correct the witnesses each criticised it. The Plaintiff said that the position of his bicycle was more to the left of where it was shown, going in the direction of Mongkok. The bus driver said that it did not show that he had swerved to his right.

13. Chan Ping was an excellent witness and said that he had been a professional driver for many years though he had only been driving a double decked bus for a period of just under two months.

14. The Plaintiff on the other hand was a muddled witness. He did not notice whether there was any policemen on duty at the cross road. He did not even know how many traffic lanes there were in Lai Chi Kok Road. All he really knew was that he was hit from behind by a bus while he was riding over the crossing.

15. I accept the version of the accident given in evidence by Chan Ping. I think that what happened was that the traffic coming along Prince Edward Road from Kowloon City caused the Plaintiff to swerve suddenly to his right. And in so doing the collision with the bus occurred. In my view the accident was caused by the negligence of the Plaintiff in so acting.

16. I have carefully considered whether the driver of the bus was guilty of contributory negligence. He said he was doing about 20 miles per hour. But he also said that he had a clear run in front of him. The crossing was clear and I do not think that that speed in the circumstances was excessive.

17. There will be judgment therefore for the Defendant with costs which are to be taxed in accordance with the Legal Aid Regulations.

18. It is usual in those cases to state what the measure of damages would have been if the case had given the other way.

19. The Plaintiff is a marine hawker aged about 52. As a result of the accident he suffered a compound fracture of the tibia and fibula of his right ...(illegible). He was admitted to hospital and remained there for about 51 days. He was discharged but had to be readmitted on two subsequent occasions when skin grafting was found to be necessary. His injuries have left very unsightly scars but the evidence as to any permanent effect to the Plaintiff was unsatisfactory. Two doctors were called. One examined the Plaintiff in May 1969: the other in May 1970. The former assessed a 20% permanent loss of earning capacity: the latter made no such assessment and detected a very slight wasting of the right calf as the only permanent injury. Strangely enough the former detected a shortening of the right leg by 1/4 to 1/2 an inch. While the latter expressly found that there was no such shortening.

20. Not only was this unsatisfactory but there was no reliable evidence of the periods in which the Plaintiff was actually in hospital.

21. Furthermore the Statement of Claim prays for damages for loss of earnings from the date of the accident until November 1968, a period of thirteen months: yet the Plaintiff himself in evidence said that he had not been able to work at all since the accident. There was some suggestion made that his business of Marine Hawker had been carried on by his wife while he was incapacitated. But his wife was not called as a witness. And I was not told how the Plaintiff has managed to provide for himself while out of hospital.

22. Certain minor amounts of special damages were agreed at $251. And the loss of earnings at $600 per month for thirteen months was not seriously challenged. This comes to $8,051 in all.

23. As to general damages the evidence is as I have already stated most unsatisfactory. However I will accept that the Plaintiff has a permanent disability of 20% of his earning capacity. He has also had a considerable amount of pain. I would assess general damages at $30,000. This makes a total of $38,051 in all, if I had found for the Plaintiff this is the sum I would have awarded. However as I have said there will be judgment for the Defendant with costs. The costs of the Plaintiff are to be taxed in accordance with the Legal Aid Regulations.

24. I cannot leave this case without commenting upon the course it has taken. The accident occurred on October 3, 1967. A Legal Aid Certificate was granted to the Plaintiff on May 27, 1968, which was extended to cover the institution of Court proceeding on April 2, 1969. By this time the Plaintiff had finished with hospital and had been examined by Dr. Chien doubtless with a view to bringing proceedings. Counsel was assigned on April 25 1969 yet a writ was not issued until one year (less 20 days) later i.e. on April 4 1970. The endorsement is of the briefest. A statement of claim was not filed till 9 months later, on January 22 1971. Both were settled by the same counsel. I hasten to add that counsel who appeared for the Plaintiff at the trial was not concerned in any of those delays.

Representation:

F.A.L. Eddis (Hastings & Co.) for Plaintiff

Martin Lee & Patrick Fung (Johnson, Stokes & Master) for Defendant

Judgment read in Court