Cheung Choy Wing v. Ho Kam Shing and Another
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 1136 OF 1971 ----------------- BETWEEN
----------------- Coram : Briggs, J. in Court ------------------------ J U D G M E N T ------------------------ 1. This is a running down case. And, as is not uncommon in such cases, the version of the accident given by the Plaintiff in his evidence differs considerably from the version given by the Defendant. 2. The Plaintiffs case is as follows. At about 9.30 p.m. on December 17th 1970 he was riding his motor cycle, a Honda 90 c.c., along Argyle Street in Kowloon. This is a very wide street which is divided down the centre into two halves. Each half contains three traffic lanes. The Plaintiff said he was travelling in an easterly direction. And he was in the middle of the three lanes. 3. When he reached the crossing with Forfar Road and Fu Ling Street he stopped, because the lights were against him. At the time, that half of Argyle Street immediately in front of him was closed to traffic. However the Plaintiff wished to turn to his left at the crossing and to proceed up Forfar Road. When the lights were green he proceeded to do this. He had just entered Forfar Road when he was run into from behind by a minibus driven by the first Defendant. Forfar Road is a narrower road than Argyle Street. It is a one way road and has two lanes of traffic only. 4. The Plaintiff said he was knocked to the ground and the minibus ran over both of his legs. He was on the ground with his legs underneath the minibus. He said the Defendant told his passengersto leave the bus, which they did. And then the Defendant left. An ambulance arrived and took him to Hospital. 5. The Plaintiff said that before he made the turn into Forfar Road there was a private car in the traffic lane to his left. At the time he was travelling at 15 m.p.h. at the most. 6. The Plaintiff’s whole case is that he was hit directly from behind. He did not know from which direction the minibus had come from. He was emphatic that the bus had run over both of his legs. His motor cycle was a write off. 7. The Defendant tells a different story. He said at the time in question he was driving his minibus down Argyle Street in an easterly direction. It was his usual route and he was familiar with the traffic conditioner. He was in the middle lane. He had to stop his bus at the crossing in question. In front of him was one taxi. To his left were a private car, level with the taxi which was in front of him, and two motor cycles, one red andone black. The motor cycles were behind the private car, and level with his bus. Whenthe lights became green, he proceeded to make the turn into Forfar Road. Before doing this he flashed his left traffic indicator. As he was in the middle lane he intended to make use of the right lane of traffic in Forfar Road going in his direction, which is north. He had just engaged second gear, was doing about 15 m.p.h. when he reached the mouth of Forfar Road. He felt and heard a bump and stopped. 8. He found that the Plaintiff had collided with the front left mudguard of his minibus with his motor cycle. He said the private car and the red motor cycle which he had seen in Argyle Street vanished up Forfar Road. So did the taxi which was in front of him. The Plaintiff inswervingfrom the inner lane of traffic in Argyle Street, into the right hand lane in Forfar Road, came into collision with his minibus. 9. The Defendant alighted from the minibus immediately. He said he saw the Plaintiff at the back of his bus near the rear left back wheel, sitting on the road. No part of him was under the bus.The bus had not run over him. The Defendant immediately phoned for an ambulance. 10. Of the two versions given I much prefer the version of the Defendant to that of the Plaintiff. The Defendant was a most impressive witness. He gave his evidence in a straight forward manner, without hesitation or equivocation. And I believe him to be a witness of truth. 11. I cannot say the same of the Plaintiff. He said for example that the bus ran over both his legs. This is not borne out by the evidence of the doctor who said that the injuries to the Plaintiff werenot at all consistent with this; that they were more consistent with a bump into a hard object, such as the road or the minibus. 12. Further the Plaintiff exaggerated his claim. For example in the Statement of Claim a “complicated fracture of the left ankle” is given as one of the particulars of the injury suffered by the Plaintiff. I do not understand this. The medical report which was put before the court by agreement, was in the solicitor’s hands at the time the Statement of Claim was drafted. That this is clearly so is shown from its adoption of some of the wording of that report. And yet the report mentions only a fracture. And, according to the doctor who gave evidence for the Plaintiff, it was not a serious fracture at all, it was a “minor fracture”. The Statement of Claim also claims as one item of damage permanent injury because of “tiredness and inability to take a full day job”. This was not mentioned during the trial. Finally, it is stated that the Plaintiff stayed at home for 3 months yet 4months salary is claimed as loss. 13. This simply is not good enough as a matter of pleading. And it looks very much as if the claim was expressly inflated in order to put the Plaintiff in a better bargaining position before trial; especially when the very inflated sums mentioned as items of special damage are considered. 14. I have no hesitation in accepting the version of the accident given by the Defendant. I believe him when he says the Plaintiff was in the inner lane of traffic in Argyle Street and not in the middle lane: that the Plaintiff turned into Forfar Road with the intention of making use of the right hand lane, swerved in order to do this, paying insufficient attention to the traffic to his right and so came into contact with the minibus of the Defendant.I am quite satisfied that the minibus did not run into the motor bicycle from the rear. And I amalso satisfied that the accident was due to the negligence of the Plaintiff. I can find no evidence of any negligence of the Defendant. 15. There will be judgment therefore for the Defendant with costs. The costs of the Plaintiff are to be taxed in accordance with the Legal Aid Regulation. 16. In case this matter is taken to a higher court it will be as well for me to state what sum I would have awarded the Plaintiff had I found in his favour. 17. The Plaintiff was at the time a married man with two young children. He was a Ladies tailor earning $1,000 per month. 18. No evidence was given of any permanent injury or loss of future earnings. The Plaintiff suffers from abrasions to both knees and his left ankle was fractured. He was admitted to hospital immediately after the accident and was x-rayed but not retained. The x-ray showed a hairline fracture which at first was not thought to be recent. However, later, it was decided that it was recent so he was asked to return to the hospital on the following day. The Plaintiff did not go. He preferred to be treated by Chinese Herbalists and there is no reason why he should not do so. I will deal with this aspect of damage when I deal with the claim for special damages. 19. So far as general damages are concerned the Plaintiff was shocked and also suffered some pain for about three to four months. The correct sum to award is $4,000. 20. The first four items of special damages - namely damages to clothes, a wrist watch, the provision of a medical report and an x-ray have been agreed at $210. It would have been better if the last two of those items, the medical report and the x-ray had been included as items in the bill of costs. 21. Items 5 and 6 are devoted to special food and total $2,960. The period covered is about 20 weeks. This is far too great a sum to claim for a man earning $1,000 per month and there are no receipts. The food was not ordered on the advice of a doctor or a herbalist. I see no reason why the Defendant should be asked to pay these sums. Counsel for the Plaintiff made reference to the well known custom of the people of Hong Kong to indulge themselves thus when a bone is broken or a flesh wound is received. There is no harm in that, but they must pay for their own indulgence. I have said this so many times in so many cases that I am at a loss to understand why these two items were included in the special damages in this case. I would allow nothing under these two items. 22. The next, the 7th item, is $1,400 for a domestic servant for 3 months. The Plaintiff lived alone with his wife and 2 children. The wife gave birth to the younger child one month before the accident. I would allow the item though the sum is rather high. However, the quantum has not been challenged. 23. The 8th item is $900 for the attention of a Chinese herbalist. The Plaintiff prefer Chinese to European medicine. He only went to the Queen Elizabeth Hospital because the ambulance took him there, and only returned to that hospital when asked to do so by an officer of the Legal Aid Department. He was not, so far as he was concerned, under the orders or directions of a European doctor at all. I would therefore allow the $900 claim for the herbalist. The sum as a sum is relatively modest. 24. I would also allow the last two items, the $200 for travelling expenses and the $4,000 for loss of earnings for 4 months. The former sum though it appears excessive, was not challenged as a sum. The total is $6,710 for special damages. The grand total would be $10,710 in all. In the event, this is academic as there will be judgment for the Defendant.
Peter Chan (H.M. So & Co.) for Plaintiff Dannis Chang (Johnson, Stokes & Master) for Defendants |