Wan Shun Tim v. Hui Wah Kit and Another
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 1206 OF 1970 ----------------- BETWEEN
----------------- Coram : McMullin J. Date : 21st June 1972 ------------------------ J U D G M E N T ------------------------ 1. On the 23rd of June 1968 the plaintiff in this action was walking down Lung Wah Street in the direction of a bus stop in BelcherStreet on his way to work when a lorry owned by the 1st defendant and driven by the 2nd defendant came into collision with him andcrushed him against a wall which abuts the roadway on the left as one looks downward towards the junction of Lung Wah Street with Smithfield Road. As a result the plaintiff suffered a fracture of the right first rib causing haemothorax coupled with distortion of the rib-cage on the right side of his chest. The lorry stopped and persons on it went backto assist him and he was taken to Queen Mary Hospital where he was admitted for treatment and detained for a period of ten weeks.His progress was slow and the treatment included a pneumothorax operation to drain free blood from the chest cavity. 2. The statement of claim gives the usual particulars of negligence the last of which pleads reliance upon the maxim “resipsa loquitur”. The defence pleads in paragraph 2 that the accident was caused wholly or in part by the plaintiff’s own negligence. The principal averment of negligence alleges that the plaintiff had suddenly and without warning stepped out from the side of the roadway and come into contact with the plaintiff’s vehicle. 3. The plaintiff gave evidence to the effect that he had been on his way to work from his premises in Kwun Lung Building at West Point, Hong Kong as was his custom at about 6.30 a.m. taking his usual route downward along Lung Wah Street in the direction of Smithfield Road. He said that he had been walking on the pavement which appears on the left hand side of the road in the photographs Ex. P1 - 9 and P 2A .. D and had come to about 20 feet beyond the point where that footpath tapers off andmerges with the wall and gutter (shown in the photograph Pl(ii)) at the point which he marked upon that photograph with an X in red. He said that it was there that, without warning he was suddenly struck by the 1st defendant’s lorry as it passed him very close to the wall. Prior to the impact, he had been walking only a few inches from the wall and he said that the lorry, as it went past, brushed his right arm and shoulder with its wooden “tray” rolling his body anti-clockwise against the wall and crushing him in the process. He fell to the ground at once after it had passed but did not lose consciousness. 4. Neither the 1st defendant nor his driver gave evidence in the case. As far as the matter of liability was concerned, Mr. Ching was content to suggest that no question of res ipsa loquitur could arise since there was no evidence that the lorry had behaved in any unusual way asfor instance by mounting the pavement and putting itself in a position in which it should not have been. He asked me to say that it was the plaintiff who was … (illegible) negligent by walking on theroadway with hisback to traffic coming from his rear. Mr. Arculli replied that whether or not the maxim should strictly apply there is plain evidence prima facie of negligence on the part of the driver who should, in the terms of the particulars of negligence pleaded, have been keeping a proper lookout given the time and place in question. The plaintiff gave a reason for notwalking on the far side of the road where there is a proper pavement. It appears that ever since he lived in the Kwun Lung Building that pavement has been obstructed by taxis belonging to the Express Taxi Company which are parked upon the pavement in a row obstructingpedestrian use thereof. 5. I do not think it necessary to delay upon the question ofliability. On the plaintiff’s evidence, and in view of the course taken by both the defendants in this case, I am satisfied that the plaintiff was properly and reasonably walking upon the roadway in question and that the accident can only have happened as a resultof the driver of the … (illegible) too close to the wall. 6. One oddity in the case might be mentioned. It appears that the plaintiff some two or three … (illegible) after he was admitted to hospital made a statement to the police describing what had happened. He admits this is the case but when matter wasread to him from an English translation of what, or so it would appear, was recorded from him by a police constable in Cantonese on that occasion, he said that he could not clearly remember what he had told the police. The matter was the subject of argument in the course of the hearing and I permitted Mr.Ching to cross-examine from this document on the basis that it was a document disclosed by the plaintiff in his affidavit of documents and referred to as a statementmade by the plaintiff to the police. I also admitted the document in evidence while reserving to the plaintiff the right to challenge anythingthat appeared therein on the basis that it had not been shown to be the actual words of the plaintiff but only an English translation of something that he was said to have spoken in Cantonese on a previous occasion. This statement appears to disclose that the cause of the accident was that the lorry was compelled to swerve to its left in the fact of an oncoming truck ascending the hill in the opposite direction. Neither of the defendants, however, has chosen to make any explanation either by way of avowal or denial of the suggestion made in that statement and I regard what is contained therein as being of no importance in relation to the case. Whatever remotor cause may have affected the situation, it appearsabundantly clear that the driver of the lorry did not, in the circumstances keep a sufficient lookout or give a sufficient warning or take necessary avoiding action in respect of a person whom he might very reasonably have expected to find upon the road in that place and at that time. There is no rule which forbids a pedestrian in any circumstances to walk upon the margin of the public road. “Dwindling” pavements of the sort shown in the photographs are all too common in Hong Kong and are a virtual invitation to the pedestrian to continue, if it be possible, on his way without crossing to the other side of the street. In addition I accept his evidence that the pavement on the other side of the street was so obstructed that it would have been impossible for him to travel upon it without a great deal of unnecessary difficulty. 7. Mr Ching asked me to say that, in anyevent even if his client had been negligent there was contributory negligence in the plaintiff. On the topic of contributory negligence in relation to a person run down from behind by a motor car the following appears at page 303 ofthe 4th Editionof Mazengarb’s Negligence On The Highway :- 8. “There is no presumption of negligence in favour of the pedestrian who is run down by a motor car. When a person is run down frombehind,however, it may usually be said that, unless inan exceptional circumstances, the responsibility is with the driver.” 9. This passage is followed immediately by a quotation from the case of Page v. Richards (unreported) in which Rowlatt, J. is recorded as having said the following :- 10. “It seems to me, that when a man drives a motor car along the road, he is bound to anticipate that there may be things or people or animals in the way at any moment, and he is bound to go not faster than will permit of his stopping or deflecting his course, at any time to avoid anything he sees, after he has seen it. If there is any difficulty in the way of his seeing, like a fog, for instance, he must go slower in consequence. In the case like this where a man is struck without the driver seeing him, the driver, the defendant, is in this dilemma; either he was not keeping a sufficient lookout, or, if he was keeping the best lookout possible, then he was going too fast for the lookout that could be kept. I really do not see how it can be said that there is no negligence in running into the back of a man. If he had had better lights or had kept a better lookout, theprobability is that the accident would never have happened.” 11. These remarks seem to me to be entirely apposite in relation to the circumstances of the present case. I find that the 2nd defendant was wholly responsible for the accident and I absolve the plaintiff from any responsibility in contributory negligence. 12. The plaintiff is a fitter by trade. He was apprenticed to the Kwun Lung Factory in 1954 and was employed on a full-time basis by that factory, after graduation, between 1958 - 61 at a wage between $200 - $300. Thereafter he moved steadily up the ladder in his chosen trade and had jobs with various firms, being employed at the date of the accident by a firm known as Sum Yick at an initial salary of $600 - $620. His employer in the Sum Yickhad decided to send him to work in the subsidiary company owned by Sum Yick in Taiwan, the Acme Metal Co., and he was to receive a wage of $700 plus living allowance of $150 i.e. $850 in all. His travel documents in respect ofthis new job had been issued to him and he was to work in Taiwan for a contract period oftwo years. He was due to travel to Taiwan to take up his duties there on the 26th June, i.e. three days after the date ofthe accident. As a result of the accident he not only lost that prospect but also lost hisjob with Sum Yick because, according to him, after his period of convalescence he went back to his old firm and was given a test at his previous work by his employer but was unable to maintain his customary performanceand was advised by his former employer to take further rest. 13. His job as a fitter in the various firms which he mentioned had necessitated the making of moulds out of scrap steel. The job required that he would from time to time lift such mould, some of which might be as much as 100 catties in weight, onto a pressingmachine to which he would fit the mould and then test it by producing one sample of the object which the mould was intended to make in order to see whether the mould itself was perfect. These moulds which might vary in weight from 10 lbs. to 200 lbs. were made by the fitters employing hand-saws, power drills, files, hammers and such like equipment. They were used for the mass-production of a variety of objects such as electric torches, plastic buckets, radioparts etc. The plaintiffhimself categorized this work as heavy work and Doctor Fang PW3 (whose report appears as Exhibit P 8 in the case)agrees with this opinion. Obviously a good deal of strenuous work was required in the production of one of the larger of such moulds. 14. Between August 1968 and March 1969, after his discharge from Queen Mary Hospital on the 31st of August, the plaintiff was convalescing at his own home. During this time he says that he had constant pain on his right side both externally and internally. He was depressed and weak and felt pessimistic as to his future. Sometime about March or April 1969 he obtained employment with the Mei For Semi-Conductor Company as a mechanic on a monthly basis at $400 per month and he stayed with this firm for one year. This was lighter work than he had been accustomed to. After this he went to another firm called the Kai Tap Semi-Conductor Company and was there paid a wage of $500 per month also upon a monthly basis. He stayed with this firm for about one year and then he got a job at his previous work as a fitter with a firm called the Po Yuen Factory where he was earning $22 to $23 per day. He stayed with this firm for one and half months. It was his evidence that he could do only 20 days out of the 30 possible working days per month because of his reduced vitality and capacity. When he quitted this job, he took up his present employment with Fairchild Semi-Conductors on the 12th of April, 1971. This work is similar to his work as a fitter but he is engaged in making objects of a much lighter type. They are in fact small parts for transistor radios and the like, a sample of which he showed to the court in the course of the evidence. He started at Fairchilds at a wage of $590 and at the present moment he is receiving $709 per month pursuant to a regular incremental systems in operation at that company. The court was given evidence that one of his long time colleagues a Mr. Wong who started with him as an apprentice fitter; and was junior to him at that time in 1955, is now earning $1,350 as asupervisor at Fairchilds and the plaintiff was of the opinion that had he not been injured he could now be earning something in the region of a thousand of eleven hundred dollars per month. He added that a fitter can now earn $1,500 to $1,800 per month including overtime. He saidthathe enjoyed the work and would not have changed his occupation had the accident not occurred. Formerly he had hobbies, he used to play table tennis, a little football and was a keen swimmer. At present, as a result of his injuries, he finds it difficult to take any form of strenuous exercise or to exert himself unduly at work since any unusual exertion makes breathing difficult and causes pain in his chest. He admitted in cross-examination that even before the accident his swimming had not amounted to more than about one trip to the sea per month. The court is also satisfied that the other hobbies cycling, ping pang, footballetc. were occasionalpastimes rather than keen interest sports.This however is not to deny their genuine utility to him as a source of relaxation and pleasure. 15. Doctor Harry Fang, the orthopaedic specialist, who gave evidence in the case gives an account of the effects of the accident and the progressof the patient between the time of his admission to hospital and the 6th February 1971 which is not seriously contested in any particular. (See Exhibit P 8). The principal residual effects of the accident, according to Dr. Fang, are the considerably restricted breathing capacity of the right lung and the reduced strength of the right arm which, although improved from its condition immediately subsequent to the accident, is still not as strong as the left although it was his leading arm. The doctor showed the court certain X-rays which graphically explained the situation in relation tothe right lung. It appears that a thickening of the pleura within the chest cavity has resulted in virtual adhesion of the lung to the inner surface of the chest wall thereby restricting its normal capacity to move upon inhalation of breath. The doctor said that although the anaemia caused by the injuries has cleared up it is likely that the patient will continue to suffer from dizziness and pallor because of the diminution of the movement of the chest wall which interferes with the circulation of the blood. 16. Doctor Fang clearly took the view that the work normally performed by the plaintiff was work of a heavy character and that his capacity to do such work was considerably reduced.Mr.Ching who appeared for the defendants made much of an admission in the course of the evidence on the part of the plaintiff to the effectthat he was physically capable of doing the work he had formerly done at Sum Yick before the accident. It appears that the kind of moulds which the plaintiff was required to manipulate in Sum Yick were comparatively light, varying in weight from six or seven catties to twenty catties and the plaintiff agreed that he would easily lift 15 or even 20 catties but added that sometimes the strenuous part of the work was the actual making of the mould and not the lifting of it on to the press. Mr. Wong, the plaintiff’s colleague at Fairchilds, says that the plaintiff is not a satisfactory worker inasmuch as he is not available for overtime and he added that he also lacks a sense of responsibility.Mr. Ching rightly points out thatthere is no specific claim made in relation to altered personality or anything of that kind and I am not disposed to rely upon this piece of evidence in coming to an assessment of damages. In the upshot, however, I am satisfied that although the plaintiff may well be able to return to the same kind of work that he originally did, provided he has the assistance of power machinery and block and tackle equipment, his capacity to do such work successfully is, as a result of his injuries, considerably reduced.In this regard I place special emphasis upon the distortion and deformation of his rib-cage resulting in reduced breathing capacity in the right lung and the diminished power of his right arm. I think that Dr. Fang’s assessment of his present and continuing disability at 20% is a fair and reasonable assessment I will accept Mr. Arculli’s suggestion that the degree of diminution of his earning capacity for the foreseeable future will remain roughly the same as it at present is. I accept the evidence that he could but for his disability be earning something in the region of $1,000 whereas he is in fact earning only $709. This is likely to increase somewhat over the remainder of his working life but theimpairment differential is likely to remain much the same comparing him with a fitter of normal capacity rising on the labour market during the same period side by side with him. 17. The plaintiff is now 32 years of age. He has returned to work of a character similar to that which he formerly had although it is not so heavy and I am satisfied that the reduction in his general efficiency will as Dr. Fang has suggested in his report, be permanent. Although,as I have said, I am not prepared to countenance the suggestion of ome marked personality change resulting from the accident, it nevertheless appears to me not unlikely that the deterioration in the plaintiff’s physical condition has resulted in a deterioration in his performance which is in part physical and in part psychological. It may be, as Mr. Ching suggests, that the position of supervisor may be open to him. In such a situation, no doubt, his expertise would be employed in a manner altogether less strenuous than any previous work which he has done and even less strenuous than that which he at present performs. I have had no evidence however as to the probability of such a result and I would think that promotion to such a grade under any employer is more likely, in any event, to fall to the lot of a fit and efficient worker who has proved himself not only capable but especially keen in the carrying out of his duties. I think, therefore, that it is only fair to take the view that the plaintiff is unlikely to reach such position and that he is more likely to continue doing the kind of work which he at present does with the probability that his earning capacity will not improve as a result of promotion and that he will not better his financial situation in any manner other than by such general rise in the market rates for work of that description as may occur in future years. 18. The principal head of claim therefore is the claim in respect of prospective loss of earnings resultant from the injuries. He is at the moment earning about $140 less than he would have been earning in 1968 had he been able to take up the employment in Taiwan. His colleague and former subordinate as an apprentice is earning somewhat more than $600 per month more than the plaintiff. Although the plaintiff himself does not allege that, had he not been injured would have been in that wage bracket today, contending himself for saying that he should be able to earn $1,000 to $1,100. Dr. Feng’s estimate of him as a man 20% incapacitated by his injuries should, I think, be regarded also as a reasonable estimate of the degree of his loss of earning capacity. As between his immediately pre-accident prospect of $850 and his post-accident earning of $709 the difference is roughly 1/5th – 1/6th of the former figure i.e. about $160. Assuming that, had he not been injured, he would have risen to the peakearning capacity for a man in his trade and, assuming for the purpose of argument that would be in the region of $1,500, 1/5th to that figure is $300. It would therefore be reasonable to take a figure intermediate between160 and 300 as representing the probable regular monthly loss of earnings over the remainder of the plaintiff’s working life. In those circumstances I think a figure of $200 would be a reasonable estimate. This gives $2,400 as the annual loss. In view of the plaintiff’s age and the general circumstances of the case I think a multiplier of ten, one of the possible multipliers suggested by Mr. Arculli, would be reasonable. This would give therefore a figure of $24,000 and to this by wayof an award for paying suffering and loss of amenity I add a further figure of $3,000. 19. That leaves the question of special damage to be dealt with. The major item hereis the alleged loss of wages from the time of the accident up to the date of filing of the writ. Subsequent loss from the date of filing of the writ up to the conclusion of the action is to be included with general damage under the heading of prospective loss and that has already been dealt with. The plaintiff was in hospital from the 23rd of June until the 31st of August 1968 thereafter he stayed at home during a period ofconvalescence which lasted until March or April 1969 when he went back to work at a lighter job. Mr. Ching rightly relies on the principle that the defendant must mitigate his damage and suggests that this long period of convalescence was unnecessary and that the plaintiff should have sought and obtained light work earlier than he did. I think there may be some substance in this, the defendants’ evidence on the matter was not wholly satisfactory.When asked if he had sought other jobs as soon as he had been released from hospital, at least at the end of his period of attending the out-patients clinic, he said that he had not thought of that and then went on to say that he did ask friends about work and look in the newspapers and further that he doesn't remember when he first decided to look for work. He couldn’t remember even approximately when he first decided to look for work. I feel that his period of convalescence was unnecessarily long drawn out and that the suggestion of Dr. Albert Cheung that a man in his condition should have been able to seek work involving moderate physical exertion within five months of discharge should be regarded as reasonable in the case of this plaintiff. This would give in all a period of about 7 months. This at a rate of $850 per month (his prospective wage in Taiwan which is in my view the relevant figure) gives a figure of $5,850 covering the period from the 23rd of June to the 23rd of January 1969. From thatto 31st of July (the date of issue of the writ) is a period of six months. From March onward during that period his wages had fluctuated from $450 to his present wage of $709. The evidence on the matter …(illegible) not particularized this loss with the desirable degree of accuracy but, taking his expected pre-accident wage of $850, his loss would, I think, work out at an average figure in the region of $300 and that is what I award. For partial loss of wages resultant from his injuries there will be a further $1,800 that is to say $7,650 in all for actual loss of wages. 20. The plaintiff claims the enormous sum of $4,980 in relation to special food. This item always causes trouble in these courts and there have been recent decision in which claim in relation to special food had been totally disallowed on the basis that they were not supported by medical testimony to the efficacy of and necessity for such diet. In Munkman’s Damages for Personal Injuries and Death 4th Edition at page 76 the learned author deals with this question in the following terms :- “‘Extra nourishment’ is an item which, for many years, has been included in the claim for special damages and allowed by the court almost as a matter of common form. Authorityfor the practice, if any is needed, may be found in Shearman v. Folland, (1950) 1 All E.R. 976. 21. If this item is challenged, it must be substantiated by showing that money has been or will be spent on recognised invalid foods - such as chicken broth, bovril, invalid port, calves’ feet, jelly, Horlick’s malt milk - or on a special diet prescribed by medical advisors.” 22. Claim in respect of such special diet are also very frequent in this territory. The plaintiff in the present case felt, as many Chinese feel in similar circumstances, that he was justified in fortifying himself by a steady diet mainly of a soup made from snake-head fish which is an expensive luxury in the ordinary course of events. It appears also that this special diet is still being taken by the plaintiff. No itemized account of expenditure on this has been put before the court and no medical specialist or herbalist has been called to support the plaintiff’s opinion that this was an advisable prescription. I allow the sum of $500 in this regard. 23. The claim for damage of clothing is allowed at $50. Mr. Arculli agrees that in respect of medical expenses only $69 have been proved and that is therefore awarded. The rate claimed for travelling expenses and taxis seems to me to be too high. Also the actual number of trips is vague and the plaintiff has kept no proper record of them I allow 15 journeys in respect of his travels between his home, the Violet Peel Clinic and Queen Mary Hospital on the basis of $15 per round trip. That comes to a figure of some $285. The said sums amounting in all to $35,269.00 to be paid to the plaintiff or his solicitors within 7 days of today’s date. Costs to plaintiff to be taxed in accordance with Legal Aid Regulations.
Ronald Arculli instructed by Philip K.H. Wong & Co. assigned for plaintiff. Charles Ching instructed by H.A. Hoosenally & Co. for defendants. |