Chan Hoa v. Lee Moon Fat and Others

HCA000594/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 594 OF 1970

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Coram: Briggs J. in Court

Date of Judgment: 26th November, 1971.

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JUDGMENT

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1. This case arises out of an accident which occurred in the early hours of the morning of May 31, 1969. The Plaintiff was a passenger in a truck numbered AF 2314 which was owned and driven by the 1st Defendant at the time. The second Defendant was the driver of a single-decker omnibus which was owned by the third Defendant Company. As a result of the collision of these two vehicles the Plaintiff received injuries for which he claims damages.

2. The Plaintiff was undoubtedly injured in the accident and as undoubtedly suffered injuries. It will be convenient to deal with the question of damages first and then to decide who was to blame for the accident occurring. The Plaintiff claimed certain amounts as special damages. In the statement of claim he asks for $40 as travelling expenses for visits to the Queen Mary Hospital. There were daily visits by his wife during the time he was in hospital. It is well known that a claim of this nature can only be entertained where it is proved that the visits were necessary to aid the recovery of the patient. I think that some visits of the wife must be allowed for as being necessary in the sense that the Plaintiff would have been worse off if his wife had never visited him. But the number of visits and the cost must be reasonable. I will allow the sum of $20 under this head.

3. The second item is $228 representing sums paid by the wife for special food. I do not think that the Plaintiff can recover this sum. He was under medical care and there is no evidence that he was ordered this special food. Nor is there any evidence that he himself paid for it. It was his wife's idea: she brought the food to the Hospital.

4. The next item is $30 for damaged clothing. On the Plaintiff's own evidence this should be $10.

5. Finally $2,500 is claimed as loss of earnings for 10 months at $250 per month. The Plaintiff said he earned $200 per month plus a bonus of a like amount which was paid annually. The correct sum under this head is therefore $2,166.

6. The total sum for special damage is therefore $2,196.

7. The Plaintiff is a man of about 50 years. He is married and has a family. At the time of the accident he was employed as a cook. As a result of the accident he was rendered unconscious and remained so according to himself, for some days. He was hospitalised for a month and eight days.

8. He suffered fractures to his right arm and he received injuries to his head, though his skull was not broken. An operation was performed on his arm and radiologically the fractures have united.

9. The accident has left the Plaintiff with a permanent limitation of movement in his right elbow, all movements of this elbow are limited and the muscles of the arm are somewhat wasted. He suffers from bronchial as thma and told the court that since the accident this has grown worse. He also said he was in poor health generally speaking.

10. After the Plaintiff had been discharged from Hospital he underwent physiotherapy for a period of two months. The doctors who examined him consider that the present limitation of movement in his elbow would have been less severe had he continued with treatment instead of suddenly stopping of his own volition. However he did say in his evidence that he performed exercises at home after he had ceased to attend the clinic. The reason he ceased to attend was that he had no money for the fares to and from the clinic. The Plaintiff's accident occurred on May 31, 1969. He left Hospital on July 7, 1969 and his last attendance for treatment as an outpatient was in September, 1969. Up to now he has not resumed work. He now lives on public assistance. He said that he had not gone back to his employers to ask for re-employment and that he was not fit for work. Apparently he still considers that he is not fit. For he remains at home looking after the children while his wife goes out hawking.

11. It is my view that the Plaintiff could get some work and could have secured employment some time ago. However he is entitled to general damages.

12. He suffered considerable pain when in Hospital and he still has occasional pain in the elbow. In addition there this permanent but not extensive limitation of movement in his elbow. Some allowance must be made for the fact that he ceased to undergo further treatment. I think taking all these circumstances into consideration that the sum to award for general damages should be $8,500. This brings the total damages to $10,696.

13. I will now deal with the question of liability. The Plaintiff's case is that either or both of the first and second Defendants are liable to him. The first and second Defendants blame each other.

14. The accident occurred on the Pokfulam Road. This road is restricted to traffic travelling at 30 miles per hour. It carries two lanes of traffic, one in either direction. A plan prepared by a Police officer was exhibited to the Court. I have also visited the spot. The road is some 24'6" wide at the scene of the accident. And there is a broken white line running approximately down the centre of the road. The road is slightly curved at this point and there is a left hand bend just past the place as one travels towards Aberdeen. Visibility however is good because the curving of the road is slight until you reach the bend. And the bend itself is not sharp. There is a bus stop just before you reach the spot coming from Central District.

15. At the time, the first Defendant was driving his truck AF 2314 from Aberdeen towards Central District. In his evidence he said he had 5 passengers including the Plaintiff and one Lai Ping in the cab of the vehicle with him. He said it was fine weather and that visibility was normal.

16. He was travelling at not more than 28 miles per hour as he came round the bend just before the place where the accident occurred. There was no other vehicle in front of him. He saw what he now knows to be the bus of the second Defendant coming towards him. He said it was going fast. He said that the bus had its front left wheel two feet on his side of the white line which runs approximately down the centre of the road.

17. The first Defendant said he lifted his foot from his accelerator but it was too late and his truck hit the right hand front portion of the bus.

18. The photographs show that the impact was severe. The hood of the first Defendant's truck was completely wrecked and the front part of his truck was severely damaged also. The front body work of the bus was also badly damaged.

19. Describing the impact, the first Defendant used a picturesque phrase. He said "it was like a mountain covering my lorry". He was knocked out by the impact. And his passengers including the Plaintiff suffered more or less severe injuries. He does not know what happened after the impact. He was taken to Hospital and remained there for 4 days.

20. In cross-examination the first Defendant admitted that he may have been travelling at 30 m.p.h. before reaching the place where the accident occurred but slowed a little to negotiate the bend. He added that he first saw the bus 5 or 6 vehicle lengths away from him.

21. It seems that after the impact the first Defendant lost control of his vehicle which came into contact with the left hand side of the road then careered across the road proceeding up against the hillside on the wrong side of the road, where it collided with another vehicle coming from Central District. Also it appears that the bus after colliding with the first Defendant's truck collided with another vehicle AN 545, which was proceeding along the road behind the truck of the first Defendant.

22. The driver of this vehicle No. AN 545 gave evidence and said that he saw the accident occurring immediately in front of him. He said that the first Defendant was travelling in front of him. He saw the bus of the second Defendant which was over the white line or his, the first Defendant's side of the road. He was sure that the first Defendant was inside the white line on his correct side of the road. He braked his own lorry but was hit by the bus in the side. After colliding with him the bus veered over to its correct side of the road. He put the speed of the bus at about 30 m.p.h.

23. The importance of the evidence of this driver is that he was positive that the first Defendant did not drive with part of his truck over the white line. We shall see that the second Defendant said that that was so. However this witness did say that the first Defendant was driving close to the white line towards the centre of the road.

24. The Plaintiff also called one Lai Ping who was a passenger in the truck of the first Defendant. He did not identify that vehicle but he said he was in a truck as a passenger at the time, and that there was no other vehicle travelling in front of him at the time of the accident. This puts him firmly in the truck of the first Defendant.

25. Lai Ping is a professional truck driver. He was sitting next to the first Defendant and had therefore a clear view. He said he saw the bus coming rather fast towards him. It was travelling in the centre of the road with its wheels over the white line on his, the witness', side of the road. This witness said that the first Defendant was travelling at 30 m.p.h.

26. The second Defendant gives a different version of the facts. He said he was driving his bus, No. AC 4776 towards Aberdeen. He set down a passenger at a bus stop near to where the accident occurred - in fact the stop is within a very short distance from the scene of the accident.

27. He pulled out from the bus stop changed up into second gear reaching the speed of 15 m.p.h. He saw a truck, which he now knows was being driven by the first Defendant, coming round the bend in front of him. It was, he said, going very fast. He gave the speed (not very helpfully) at between 30 and 40 m.p.h. but inclined to the latter figure. He said he saw that the first Defendant's truck was about one foot over the white line on to his, the second Defendant's, side of the road. This was as he came round the bend. And that he actually heard the skidding of the tyres. He denies that he was over the white line as Lai Ping, the witness called for the Plaintiff and the first Defendant deposed.

28. The second Defendant said he braked but it was too late and the collision occurred. This knocked him out and he lost control of the bus and does not remember the second collision with truck No. AN 545. He also said that there was no time for him to swerve so as to avoid a collision. The second Defendant was injured and admitted to Hospital for one day.

29. The first thing to notice is that there is ample room for two vehicles properly driven to pass each other on that part of the Pokfulam Road. The second is that there is a direct conflict of evidence between the witnesses called for the Plaintiff and the first Defendant and the evidence of the second Defendant.

30. I will say at once that where the two version of the accident conflict I much prefer that given by the Plaintiff and first Defendant to that given by the second Defendant.

31. I accept the former version and reject the latter. The two witnesses called by the Plaintiff were professional drivers and they gave their evidence with decision and clarity. I think that what occurred was that the second Defendant was cutting his corner and went over the white line. And that this at least partially caused the accident. I accept the fact that the first Defendant did not cross over the white line.

32. The second Defendant was prosecuted for careless driving but was acquitted. This does not carry the matter further. The burden of proof is a civil case like the present being on the basis of reasonable probability, and not beyond reasonable doubt.

33. I do not believe that the second Defendant stopped at the bus stop very close to the scene of the accident. But I do not think he was out to concort a perfect story to excuse his conduct when he gave that part of his evidence. All this occurred a very long time ago and the second Defendant received a very bad shock. There was no corroboration of the evidence of the second Defendant because the bus conductor who was on duty with him has since died and therefore could not be called. His death had nothing to do with the accident I hasten to add.

34. I must now consider whether the first Defendant was partially to blame. It is apparent that the impact was of great severity. This is shown from the photograph and from the evidence of all the witnesses called in this case. I think that I can safely rely on the witnesses' evidence that the first Defendant was travelling at 30 m.p.h. but I think that that was too fast in the circumstances. Not only that but there was ample room for the first Defendant to travel in the centre of his lane of traffic. His being so far to the centre though not over the white line and by going so fast, shows that he was not driving with proper care and attention. He was thus unable to stop in time so as to avoid a collision. I find therefore that both the first and second Defendants were partially to blame for the accident. However I do not think that the first Defendant was as much to blame as the second Defendant. I therefore apportion the liability at 20% to the first and 80% to the second Defendants.

35. There will be judgment for the Plaintiff for $10,696 with costs to be taxed in accordance with the Legal Aid Regulations. There will be judgment against the first Defendant for 20% of that amount and judgment against the second and third Defendants for 80% of that amount.

36. Costs of 1st Defendant to be taxed in accordance with the Legal Aid Regulations.

Representation:

Paul Fok (Peter Mark & Co.) for Plaintiff

Eddis (D.W. Ling & Co.) for 1st Defendant

Wright (Ngan & Wong) for 2nd and 3rd Defendants

Judgment read in Court