Li Tat Man v. Chan Tong and Another

HCA000594/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Action No. 594 of 1979

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Coram: Mr. Commissioner Bewley.

Date of Judgment: 17th January, 1980.

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JUDGMENT

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1. This is an action for damages for personal injuries suffered by the plaintiff in a traffic accident on the 8th February, 1977.

2. On that date, at about 8.45 p.m., the plaintiff, a learner driver, was driving his motor-cycle southwards along Tai Hang Tung Road, Kowloon. Ahead of him, proceeding in the same direction, was a public light bus driven by the 2nd defendant, as agent of the 1st defendant. Approaching the junction of Tat Chee Avenue, the public light bus made a right turn with the intention of crossing the opposite carriageway and entering a petrol station. As it did so, the plaintiff's motor-cycle collided with the off-side door of the public light bus. The latter came to rest in the middle of the opposite carriageway and the motor-cycle finished up on the pavement beyond. The plaintiff suffered a compound fracture of his left tibia and fibula.

3. On the 13th October, 1977, the 2nd defendant pleaded guilty in the Magistrate's Court to careless driving. The information alleged that the offence took place on the 8th February, 1977, at Tai Hang Tung Road, near Tat Chee Avenue. The only facts submitted to the court were that the defendant was turning right. The record, which has been put in by consent, indicates that he agreed with the facts stated. He was convicted on his guilty plea and was fined $130. Under section 62(2) of the Evidence Ordinance, Cap. 8, the burden is on the 2nd defendant to show, on the balance of probabilities, that he was not driving carelessly. (See Stupple v. Royal Insurance Co. Ltd.)⁽¹⁾. 

4. The 2nd defendant now denies that his guilty plea was a genuine admission of the charge. He said in chief that he had to plead guilty, as he did not wish to have an adjournment involving the loss of a day's wages. In Stupple's case the following passage appears in the judgment of the Master of the Rolls:-

5. In WONG Ting & another v. YUEN Hing-kwan & another⁽²⁾, Garcia, J. concluded that the principal cause of the accident was the failure of the car's brakes just before the accident and that the 2nd defendant could not have known of the defective condition of the braking system when he started his journey. The learned judge, therefore, considered that the 2nd defendant was not negligent and not liable for the accident. He came to this view despite the fact that the 2nd defendant had been convicted of careless driving, over the same incident, in the Fanling Magistrate's Court. The judge accepted the 2nd defendant's statement that he had pleaded guilty to save time, money and inconvenience.

6. It is, in my view, open to the 2nd defendant in the present case to seek to negative the effect of his conviction for careless driving. However, in the circumstances, I am not persuaded by his reasons for pleading guilty. His main concern seemed to be that, unless he did so, he would have to come back to court another day and this would mean the loss of a day's wages. When he was asked how much he earned, he replied that he sometimes made $100 and sometimes $120. As the fine imposed by the court was $130, this was not a very convincing argument. He also said he feared trouble if he pleaded not guilty, but it is not clear what he means by this. Finally, in cross-examination, he admitted that he was concerned when he received the summons and sought advice from his insurance company, which advised him that his plea was his own decision. He then gave a different reason for pleading guilty, namely that he did not have the money to engage a lawyer. I was not impressed by the 2nd defendant's attempt to evade the consequences of his conviction and I am satisfied that he has failed to establish that it was not a genuine plea.

7. Mr. Van Buuren raises another point in connection with the careless driving conviction. He points out that, as the only facts were that the 2nd defendant was turning right, the probability is that the gravamen of the offence was crossing the other carriageway, without paying due care and attention to approaching traffic. If so, the conviction would carry no weight as an indication of negligence towards the plaintiff, who was following behind him. This is an ingenious argument, but I cannot accept it. It is proved that there was an accident involving the plaintiff on that day and at that place. There is nothing to indicate that approaching traffic was imperilled, or even that there was any such traffic. In these circumstances I am entitled to infer that the carelessness alleged referred to the collision with the plaintiff. I therefore find that the presumption is triggered by the conviction and that the burden of proof is on the 2nd defendant.

8. A rough sketch, drawn by the police constable who arrived at the scene soon after the accident, together with a faired version, were put in by consent. The police constable himself did not give evidence and there is, consequently, some confusion about the measurements. It seems probable that these are in metres, but it is not entirely clear and the parties disagree about some of these measurements. They do agree that there was a line of parked cars on the left of the southbound carriageway and that it terminated shortly before the petrol station.

9. The 2nd defendant says this left room for only one lane. Intending to turn right into the petrol station, he was keeping close to the centre white line. He slowed down and put on his right indicator. Before turning right, he noticed the motor-cycle in his rear view mirror, but it was quite a long way behind. There was no traffic coming towards him and he turned right into the petrol station. As he did so, however, he heard a bang and the motor-cycle struck the driver's car door and bounced over onto the pavement.

10. Later that night, in the police station, the 2nd defendant made a statement, which is different to his evidence in court. He said in the statement that he saw the motor-cycle in his rear view mirror when it was only 10 feet behind him. He put on his right indicator and, at the same time, swerved to the right. He admitted that, at that time, he was only paying attention to oncoming traffic. He then heard the sound of the collision. When this was put to him, the 2nd defendant admitted that he turned right at the same time as he put on his indicator, that the motor-cycle was only 10 feet behind him at that point, and that he did not look again in his mirror.

11. The plaintiff's version of the accident was different. He was following the public light bus at a distance of about 30 feet and his speed was 25 m.p.h. There were four lanes of traffic and the public light bus was in the nearside lane. After passing the line of parked cars, the bus pulled farther to the left and the plaintiff found himself travelling level with the rear of the bus, which was 5 to 6 feet to his left. They were almost abreast. Suddenly, without any signal or other indication, except that the plaintiff did see the bus brake lights come on just before he made the turn, the bus turned right towards the petrol station. The plaintiff had no time to take any evasive action and his motor-cycle struck the driver's door. On impact the plaintiff was not immediately thrown to the ground. The handle of his motor-cycle caught on the car door and his leg was crushed against the bus as he was dragged, wobbling, across the other carriageway, before being thrown onto the pavement.

12. Dealing with this evidence first, it is obvious that the plaintiff's version cannot be true. He admits that the public light bus came to rest 10 odd feet past the line of parked cars. The bus could not possibly have slowed down from 25 m.p.h., and then, within such a short distance, have performed the manoeuvre described by the plaintiff. There was, moreover, no need for the 2nd defendant to have pulled to his left before turning right into the petrol station.

13. It does not follow that, because I reject the plaintiff's evidence, that I must accept that of the 2nd defendant. The latter was forced to admit that his statement to the police contradicts his evidence and is true. If he turned right at the same moment as he switched on his indicator, when he was aware that the motor-cycle was only 10 feet behind him, this is a clear admission of negligence. The defendant has, therefore, failed to rebut the presumption.

14. But the plaintiff was also negligent. If he had no time to brake or swerve, it means that he was travelling too close behind the public light bus. Not being able to brake or swerve to the left in time, he was naturally carried out into the opposite carriageway and the collision became inevitable. Such a finding is consistent with the 2nd defendant's conviction for careless driving. He turned right with insufficient warning to following traffic.

15. The evidence suggests that the plaintiff was not overtaking. If he had been doing so, one would expect (1) Injury to the plaintiff's upper body and (2) Damage to the door of the public light bus. The 2nd defendant admits there was no damage to the door. I think if there had been damage, he would not have said this.

16. I get the impression that the plaintiff has gilded the lily in order to bolster his case, but I do not intend to speculate. I must act on the evidence, and this suggests, on the balance of probabilities, that he was following the 2nd defendant, but too closely.

17. It was the 2nd defendant's negligence, therefore, that caused the accident. If he had looked in his mirror in time, he must have seen the plaintiff. He then had a duty to give proper warning. This he failed to do. The plaintiff, had he been keeping a reasonable distance behind the 2nd defendant, would nevertheless have been able to avoid the accident. I assess his liability at 25%.

18. The plaintiff was in hospital for 8 months. The fracture healed satisfactorily and he was discharged on 12th October, 1977. He was still in pain and, for 3 months, had to use crutches. Gradually his mobility increased and was accompanied by a lessening of pain. On 11th April, 1978, he returned to hospital for 14 days for removal of a plate.

19. The plaintiff now walks without a limp, but he says he gets tired easily and is not able to stand for long. Unfortunately, the most recent medical report is that of the hospital board held on 3rd May, 1978, and is consequently not very helpful. The pain in his leg is now only periodic, but he is affected by changes in the weather.

20. Before the accident his chief forms of recreation were swimming and photography. There is no reason, to my mind, why he should not still indulge in these activities.

21. Bearing the above matters in mind, and having regard to recent decisions in similar cases, I award the sum of $15,000 for pain and suffering and loss of amenities.

22. The plaintiff is now 19. At school he reached Form II and then worked for a time as a delivery worker, earning $900 per month. In November, 1976, he joined the police and, at the time of the accident, was half way through his 6 month course at Police Training School. His salary was then $1,230. He could have expected this to rise to $1,360 on graduation, but he was dismissed on 22nd February, 1977.

23. The plaintiff now works as a ticketing clerk. This is a sedentary job and he is able to put in long hours of overtime. His basic salary is $700 and his overtime has varied in the past 7 months from $131 to $649. On the evidence of his employer's return (Ex P2), he is doing an increasing amount of overtime and working on occasion up to 11.00 p.m., as well as on Sundays and public holidays.

24. He succeeded in finding this job, through the good offices of the Social Welfare Department, in May last year. Before that, he had applied unsuccessfully for work as a hotel security guard, hospital labourer and Housing Authority caretaker in March, 1978, November, 1978 and January, 1979, respectively.

25. It was suggested by Mr. Van Buuren that, in view of his lack of mobility, he should not have been looking for this sort of job. Instead, he should have been trying to get the same kind of job as he has now. In reply, the plaintiff, very fairly in my opinion, pointed to his limited education and lack of training for a desk job. I think the plaintiff was lucky to get his present job and I hope he manages to keep it.

26. I am satisfied that the plaintiff did his best to find employment as soon as he was able to get about with reasonable facility. He has done everything he could to mitigate his damages. I see no reason, therefore, to deprive him of the difference between his lost wages as a police constable and what he has been earning in his present job. This comes to $35,943.

27. In his statement of claim, the plaintiff claims $10.80 per day for travelling expenses. This represents visits by his mother to Queen Elizabeth Hospital. In evidence, however, he admitted that the return journey by taxi was only $4-5. Under this head, therefore, I allow the sum of $1,100.

28. The plaintiff also claims $1,500 for extra food and nourishment. There is no evidence that this was either necessary or recommended, but, as this item is not challenged by the defence, I will allow the nominal sum of $250.

29. The remaining items of special damages are agreed, namely items (a) (c) (d) (e) and (f) in the statement of claim, which total $6,258. Loss of income from the police under item (a) does not appear to take account of the one month's salary in lieu of notice, but, as this item has been agreed, I shall not interfere.

30. The remaining claim is for loss of future earnings. There is no reason to suppose that the plaintiff would not have passed out of Police. Training School as a fully fledged police constable and have enjoyed a career in the police force. It is not possible to look further ahead and envisage promotion; indeed Mr. Kwok does not ask me to do so. I therefore base my calculations on the salary that the plaintiff would have earned had he graduated from Police Training School, namely $1,360, less what he can be expected to earn in the future.

31. I do not think it is fair to expect the plaintiff to continue to work such long hours. Indeed, as time goes by, he is likely to get married and it will not be possible to do so much overtime. On the other hand, I think he is likely to work a certain amount of overtime. There is also the possibility that he will lose his present job. I think it is reasonable to estimate his probable future monthly earnings at $1,000. This gives a multiplicand of $360.

32. Taking all the relevant factors into account, I select a multiplier of 15, which gives a figure of $64,800.

33. General damages amount to $79,800 and special damages to $43,551. Allowing for the plaintiff's contributory negligence, there will be judgment for the plaintiff against both defendants for $92,513, with costs. I award interest on the general damages at 10% from the date of the issue of the writ and on the special damages at 5% from the date of the accident.

Representation:

Mr. Lester Kwok (John Ip & Co.) for plaintiff

Mr. Brian van Buuren (Johnny Cheng & Co.) for both defendants

(1) 1971 (1) Q.B. 50.

(2) HCA 727/77.