Shui Kai Ling v. Lim (or Lam) Sai Hung
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 144 OF 1972 ----------------- BETWEEN
Coram : Briggs, J. in Court Date : 5 June 1972 ------------------------ J U D G M E N T ------------------------ 1. This action arises out of an accident which occurred on December 30th 1970 in Connaught Road. 2. The Plaintiff claims damages for neligence. The Defendant denies negligence and counterclaims for damages for the negligence of the Plaintiff. 3. The accident occurred at approximately 7.30 p.m. It was dark. The street lights were lit. It was a dry night. At the time the Defendant was riding his motor cycle down Connaught Road, travelling from west to east. He was using his headlight. 4. The Plaintiff, a man of middle age and of some position in life was crossing Connaught Road from south to north: there was a collision and both parties were injured. 5. A sketch map made of the scene of the accident at the time shows that where the accident occurred, Connaught Road is divided into two halves, by a railing running down the centre of the road. This is to prevent pedestrians from crossing the road indiscriminately. The railings end at the junction of Connaught Road with Pedder Street, which is a one way street with traffic flowing into Connaught Road. 6. The traffic at this junction is usually controlled by a traffic policeman point duty: but it being a time when there is only little traffic, it was not so controlled at the time of the accident. 7. The Plaintiff said he had posted some mail in the outside mail box at the Main Post Office which runs down the west side of Pedder Street. He was on his way to Kowloon by the Star Ferry. He crossed Pedder Street from west to east and then crossed the first half of Connaught Road, namely as far as the end of the railing running down its centre. He then walked down and close to the railing towards the east, but only for a short distance. He then crossed or started to cross the second half of Connaught Road. He said the traffic was sparse but there were other pedestrians also crossing. He saw a motor cycle coming so he stopped in the second of four traffic lanes, which make up that part of the road. He said the motor cycle was a considerable way away when he first saw it but that he felt it might be dangerous to continue across the road, and so he stopped. He added that the motor cycle hithim and he fell down unconscious. 8. In his evidence he said he was hit on the head by the motor cycle. This of course cannot be so because of the relevant height of the motorcycle and the Plaintiff. 9. The Defendant said he was proceeding along Connaught Road on his motor cycle at about 20 miles per hour. There was traffic some way in front of him but none level with him. He was in the traffic lane which is the second fromthe railing in the centre of the road. Suddenly he said, hesaw a man dash out from the railing. When he first saw him he was only 10 feet away from him. 10. He at once applied his brake, his rear brake, and he swerved to his left to try to avoid him. There was a collision and the man fell to the ground. He, the Defendant, fainted. 11. I will say at once that in my view both parties were equally to blame for this accident. Both parties agreed that they were very familiar with the scene where the accident occurred. The Plaintiff must have known that he was crossing a road at a most dangerous place. No motorist would expect to see a person crossing from the place where the Plaintiff did cross. In his evidence he told his own counsel that he “tried to cross Connaught Road along an ordinary pedestrian crossing in front of Union House”. And he repeatedly referred to the railing which runs down the centre of Connaught Road as “an island”. 12. There is no pedestrian crossing at that part of the road and the railings are not an “island”. The Plaintiff was on his way to the Star Ferry and rather than take the proper way from a pedestrian, namely remaining on the south side of Connaught Road until reaching the underpass which leads directly under Connaught Road to the ferry, he took, as he admitted, a short cut. He said he first saw the Defendant’s motor cycle when it was nine yards from him but he was very hazy as to this distance. It is quite clear to me that the Plaintiff did not keep a proper lookout when crossing the road. 13. The Defendant was travelling down a straight road with his headlight on. He was not travelling fast. He could nothave been keeping a proper lookout unless the Plaintiff dashed into him. I do not believe that the Plaintiff did dash across the road. He himself denies it. And there was no need to hurry. In my view what happened was that the Defendant carelessly drove down the road as carelessly as the Plaintiff crossed the road. It is also for comment that the Defendant had only been driving a motor cycle for a short period of time. 14. I apportion the blame for the accident therefore equally between the parties. 15. The Plaintiff suffered an injury to his forehead and an X-ray revealed that there was a fracture to the frontalbone slightly to the left of the centre of the forehead. This has left a scar. He suffers from headaches and diplopia or double vision. 16. At first the diplopia was continuous. But treatment and the passing of time has much improved the position.By last October his vision had returned very nearly to normal. Dr. Soh, an eye specialist, said he did not expect any further improvement now. 17. The Plaintiff says that he sees double when he looks at objects which are a long way from him. And when he is looking at objects which are not directly in his line of vision. And he cannot read for any length of time without discomfort. He says that bright lights affect his vision. And he has had to cease going to the cinema: though of course he could use only one eye when there would be no double vision. More important is that he does not trust himself to drive a car: which he used to do before the accident. 18. The Plaintiff also lost his sense of smell as a result of the accident. He told the Court that this has partially returned. And Dr. Wedderbum said that this mayvery well mean that there will be further improvement, as it shows that the olefactory nerve has not been ruptured. There is no loss of the sense of taste. The fracture to the skull has completely mended. 19. There is no question here of loss of earnings. But taking into consideration the pain and suffering of the Plaintiff at and after the accident and also the disabilities from which he will always suffer I consider the correct amount of damages to be awarded is $29,600. A break down of this is as follows:- 20. I consider that the correct amount for the partial loss of the sense of smell to be $11,500: for the scar, the shock pain and suffering $3,600 and for the permanent disability $14,500. Special damages have been agreed at $2,710.80. This totals $32,310.80. The Plaintiff is entitled to recover 50% of this 21. The injuries to the Defendant were fortunately less severe than thosesuffered by thePlaintiff. He had a laceration over the right upper eyelid ¼of an inch long and an abrasion to his buttocks. He was two days in hospital. The Defendant said in evidence that he had and still has headaches which he described as occurring at irregular intervals at about twice a week. He said the headache would last for 5 minutes. No independant medical evidence was called as to this. And I do not have any evidence before me connecting the present complaint of the Defendant with the collision. There is evidence that he has had other spills from his motor cycle. I do not intend therefore to award any sum representing any permanent disability of the Defendant except for the scar on his forehead which is not very noticeable. I do not think that any other permanent injury has been proved.Again, there is no question here of loss of earnings. The Defendant is young but he must have suffered considerable shock and has had pain and suffering I will award the sum of $800 as general damages. Special damages have been agreed at $400. 22. This totals $1,200. 23. The Defendant is entitled to recover 50% of this, namely $600. 24. Setting one sum off against the other there will be judgment for the Plaintiff for $15,555.40. 25. No order for costs.
Eddis (Gunston & Chow) for Plaintiff Sakhrani (Peter Mark & Co.) for Defendant |