Chow On-shing v. Chan Hon-mou

DCCJ009410/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 9410 OF 1975

-----------------

-----------------

Coram: Judge Jones in Court.

Date of Judgment: 8th March, 1976

-----------------

JUDGMENT

-----------------

1. The Plaintiff claims damages for personal injuries and loss that he suffered in a road traffic accident that occurred on the 10th May, 1973 on the grounds of the defendant's negligent driving. On that date at about 11.00 p.m. the plaintiff was crossing Lok Sin Road by way of a studded crossing from south to north when he was knocked down by a motor car owned and driven by the defendant which was travelling in an easterly direction.

2. It is clear from the evidence that at the time it was drizzling, and the visibility was not particularly good.

3. The plaintiff said that he did not see any vehicles before he started to cross the road. He denied that he was running with his head bent forward as alleged by the defendant nor had his head covered with a newspaper.

4. Although the plaintiff said that the vehicle was travelling at a fast speed it is evident that he did not see the defendant's car before he was struck. The defendant said that when he was a distance of 20' from the crossing travelling at 15 m.p.h. he did not see anything. He then saw the plaintiff dash out from behind a stationary public light bus that was in front of the crossing on the opposite side of the road. The defendant said that the plaintiff struck the side of his car outside the studded crossing as he was running in a slanting direction. I accept the defendant's evidence that his windscreen wipers and dipped headlights were on at the time.

5. The defendant's cousin WONG Choung ho who was travelling in the defendant's car in the front passenger seat corroborated the defendant's evidence with regard to the manner in which the plaintiff dashed out. However, I do not place any weight upon Mr. Wong's evidence for I am quite sure that he was not paying attention in the way he described. I am quite certain that he did not see the plaintiff before the accident. I do not accept that the plaintiff was running in the direction alleged by the defendant for there are barriers erected on both sides of the road leading from the crossing. Upon the evidence I am satisfied that the plaintiff was on the studded crossing when the accident occurred. I accept the plaintiff's evidence that he was knocked down by the defendant's car, and did not strike the side as alleged by the defendant. As it was drizzling, I consider that the plaintiff was running as was suggested by the defendant and probably had a newspaper covering his head.

6. In any event I am wholly satisfied that when the plaintiff reached the middle of the road he did not look towards his left and that it is more likely that he did not do so before he started to corss. Had he looked at any time to the left he must have seen the defendant's car. Nevertheless I am equally satisfied that the defendant who was familiar with this section of the road was not keeping a proper look out, particularly at a place designated for pedestrians to cross. Although I do not find that the defendant was driving at an excessive speed I am satisfied he was not exercising proper control over his vehicle. I find that the defendant was in the circumstances driving negligently, but that the plaintiff was guilty of contributory negligence to the extent of 50%.

7. As a result of the accident the plaintiff who is now aged 43 suffered a fracture of the left tibia and fibula, haemarthrosis of the left knee, a laceration to the scalp and a fracture of the fourth lumbar vertebra of the spine. He was in hospital from the date of the accident until his discharge on the 22nd June, 1973. Following his discharge the plaintiff attended for out-patient treatment for ten weeks during which period he walked with the aid of two walking sticks. After these ten weeks he used one walking stick for two months.

8. The plaintiff returned to his occupation as a waiter on the 1st December, 1973, and he has continued to be so employed until the present time. He works for about thirteen hours a day which I consider to be most surprising as does Dr. Wedderburn in his agreed medical report of the 24th June, 1975. The plaintiff naturally tends to ache and feel weak at the end of the day. The fracture of the fibula has been united although it is slightly enlarged, and there is no distortion of the joint surface of the tibia. There is a 25% depression of the vertebra. Dr. Wedderburn is of the opinion that the plaintiff will develop osteo-arthritis in the left knee, and that his disability in the future may affect his earning capacity. He has assessed the plaintiff's permanent disability in the long term at 10%.

9. With regard to the claim for special damages, I am of the opinion that the plaintiff was unable to work from the date of the accident until the 1st December, 1973 so that he is entitled to his loss of wages for that period which amounts to $5,730.66. Items (iii), (iv) and (v) of the particulars of special damages were agreed. There was no evidence to support the claim for the plaintiff's wife's loss of earnings so that this item will be disallowed. In addition, there was no medical evidence to substantiate the claim for the cost of nourishing food with the result that it will also be disallowed. Accordingly the special damages amount to $6,005.66 which I will round off at $6,000.00.

10. Having considered the medical evidence and awards that have been made in other cases of a similar nature I am of the opinion that general damages should amount to $25,000. With the special damages the total award would therefore come to $31,000 which reduced by 50% will be within the Court's jurisdiction. However, Kelly v. Stockport Corporation (1949) 1 All E.R. P.893 is authority that where damages recoverable are limited by the jurisdiction of the Court as in this case to $20,000 it is that figure which has to be reduced. In his judgment at page 895 Tucker L.J. said "....... it is not the damage sustained, in fact, by the plaintiff, but the damages recoverable in respect thereof which must be taken into consideration in this connection."

11. Accordingly I assess general damages at $14,000. The total assessment with the special damages of $6,000 amounts to $20,000. Taking into account my finding of contributory negligence the damages will be reduced by 50% so that there will be judgment for the plaintiff for $10,000.

12. In accordance with the principles enunciated in Jefford v. Gee (C.A.) 1970 2 Q.B.D. at page 146 there will be interest on the special damages at 4% from the date of the accident the 10th May, 1973 and at 8% on the general damages from the date of service of the writ which was the 4th November, 1975. Costs to the plaintiff on the upper scale. The costs of the plaintiff and the defendant to be taxed in accordance with the Legal Aid (Scale of Fees) Regulations.

Representation:

Y.C. Yu of Yu, Tsang & Loong for plaintiff.

Peter Fan of W.K. Poon & Co. for defendant.