Tse Kung Fu v. Yip Hing Ling and Another
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO.1165 OF 1972 -----------------
----------------- Coram : Pickering, J 5th December, 1972 ------------------ JUDGMENT ------------------ 1. It is common ground that the plaintiff in this action, whilst walking on a pedestrian crossing of the zebra type, was knocked down by a light van driven by the first defendant and owned by the second. Similarly there is no dispute as to the fact that the first defendant was subsequently the subject of a successful prosecution for careless driving in respect of this occurrence. 2. At the trial counsel for the defendants did not seek to show that there was no regligence on the part of the first defendant driver, but fought the action on the basis that there was contributory negligence on the part of the plaintiff, and upon the quantum of damages. 3. The plaintiff’s evidence was that he was walking along the pavement in Chatham Road intending to cross the road in the direction of Hok Yuen Street; that at that point the road was designed to carry three lanes of traffic in each direction, the flow of the three lanes closest to the pavement which he was using, being from west to east; that before he stepped on to the pedestrian crossing he looked to his right (that is towards the west) and caw a stationary bus in the lane closest to his pavement with three stationary vehicles behind it; in the centre lane there were one or two stationary vehicles the front one being a private car. It was the plaintiff’s evidence that these vehicles had stopped on account of the pedestrian crossing. He stated that he stepped off the pavement on to the pedestrian crossing in order to cross the road from north to south, being the first of several pedestrians attempting to use the crossing. At that time the plaintiff’s five-year-old grandson was walking at the plaintiff’s loft with the plaintiff holding the child’s hand. 4. The three lanes of eastbound traffic occupied some thirty feet of the road’s width and the plaintiff said that, accepting that measurement which was taken from an agreed plan, he must have walked a little more than twenty feet when “all of a sudden a car came and hit me. It was travelling in the farthest of these three lanes….., when I caught sight of this vehicle it had already hit me on the right side of the face. I was sent a distance away – knocked in the direction the car was travelling”. After the accident the plaintiff was conscious and it was his evidence that the first defendant attempted to drive away but that he, the plaintiff, prevented him saying “this is a zebra crossing; why did you not stop?” to which the first defendant replied that he was in a hurry to deliver freight to the airport. The plaintiff’s wife, who had been crossing the road on the same pedestrian crossing but behind the plaintiff, gave evidence corroborating the position of the stationary traffic at the time and said that she also spoke to the first defendant asking him why he should be so careless and why he was speeding; the first defendant replied that he was in a hurry to get to the airport and was making delivery of goods there. 5. Neither defendant gave evidence nor was there any eye-witness evidence as to the accident on the part of the defence. Mr Bokhary, for the defendante however, suggested that there was contributory negligence on the part of the plaintiff in that, having passed in front of the stationary bus in the near-side lane and the stationary car in the centre of the three eastbound traffic lanes, he should have looked to his right before proceeding over that part of the pedestrian crossing which crossed the third traffic lane. 6. The only case which counsel had been able to find dealing with circumstance in any way similar, was that of Gough v Thorne(1) about which I will only say that it is not the fault of counsel, if his industrious research turned up but one case and that one from which I could not really derive assistance on its facts. 7. I am not prepared to say that in the circumstances of this case there was contributory negligence on the part of the plaintiff. He stepped on to the pedestrian crossing in the knowledge that two lanes of traffic had come to a halt in order to accord to him his rightful precedence on the crossing. There was no evidence of any traffic in the third lane just short of the pedestrian crossing at the time the plaintiff left the pavement and in my view the plaintiff had every reason to expect that any oncoming traffic in that lane would have been put on notice, not merely by means of the distinctive zebra surface of the road and the flashing yellow beacon, but also by the fact that two lanes of traffic and already come to a halt. The first defendant, in a hurry to get to the airport, ignored these indications with predictable results. I find that the admitted negligence on his part is not tempered by any contributory negligence on the part of the plaintiff. 8. It remains to assess the damages. As to special damages, I have had the benefit of an agreement between counsel except as to loss of earnings. That arrangement is in the sum of $6,699 and relates to hospital expenses, doctor’s fees, damage to clothing and travelling expenses, items to which it is unnecessary for me further to allude. 9. Turing to the plaintiff’s loss of earnings, the accident occurred on the 21st of November, 1971 and he did not return to work until the 1st of April, 1972. Although Mr Bokhary, for the defendants, had endeavored by cross-examination of the plaintiff to show that the plaintiff might reasonably have returned to work before that date, after hearing medical evidence to the effect that the plaintiff in fact remained at home until the 1st of April, 1972 upon his doctor’s advice, counsel conceded that he could not pursue that line of argument. The plaintiff was employed, from 1st July 1971, as a salesman by three associated companies manufacturing cardboard boxed and the evidence was that his average salary and commission during those five months prior to the accident (the fifth month being a broken month as a result of the accident) as $5,462,26. Mr Bokhary said that he was reluctant to accept this average since the month on October showed earnings of commission more than double those of September and since the figures for the five months did not show a constant rise; counsel suggested that in place of the average earnings of commission of 33,362.26 per month put forward by the plaintiff ($2,100 per month of his total earnings was in the form of salary and so – called “travelling expenses”), the average monthly commission should be taken to be something slightly less than $3,000. This attempt to dilute the plaintiff’s earnings by way commission was a hold one, for the figures cannot basically be disputed as they are there, in evidence, stark and blunt and, if the October 1971 commission was high, that is not to say that in isolated months commission will be again from time to time be high. Counsel did his best but, with the materials at his disposal, his attack upon the plaintiff’s average earnings before the accident, was necessarily week and I accept the average earnings prior to the accident as being $5,462.26 per month. The plaintiff has, however, limited his claim for loss of earnings during the period of his unemployment to $5,000 per month or a total of $21,250 and his is entitled to an award in that amount in respect of the period from 21st November, 1971 to 31st March, 1972. 10. Restraint in advocacy being infinitely more effective than hyperbole, and certainly more appealing to the court as being better calculated to reduce areas of difference and lead to justice between the parties I would not wish that which I am about to say be construed by any counsel as an invitation to overstate his claim for damages. Having said that I am bound to observe that in this particular instance Mr Donnelly, for the plaintiff, appeared to me to pitch his argument upon continued loss of earnings in a very low key, submitting that the plaintiff must have lost “something” after being unable to approach his customers for 414 months. I have already deals with the claim for loss of earnings during the period in which the plaintiff was unable to attend his work as a result of his accident and I am now concerned with the period from and after the 1st of April, 1972. It seems to me that the plaintiff’s continued loss of earnings since March 1972 and projected into the future, is by no means inconsiderable, and is indeed the largest constituent element in his claim. 11. As against pre-accident earnings of more than $5,000 per month, the evidence of the plaintiff’s post-accident earnings was that in the seven inclusive months from April to October of 1972 his total earnings were $17,700. In contrasting that figure with his presumed earnings over the same period had there been no accident, I think it right to adopt the figure of $5,000 a month adopted by the plaintiff as the basis of his claim for loss of earnings during the period of his unemployment. On that basis he lost, over the seven months, some $17,300, that is, his probable earnings of $35,000 had there been no accident, less $17,700 actually earned. The plaintiff gave as reasons for his loss of earnings since his resumption to work, the fact that his right leg, injured in the accident, still causes him discomfort and inhibits him from walking for periods longer than half an hour without having to rest, thereby reducing his ability to call on customers, and also the fact that, during his absence from work, two of his best customers deserted him in favor of other sources of supply. Mr Bokhary suggested that there was a strong inference that these two customers had not returned as customers of the plaintiff because they were receiving better service from now suppliers than they had obtained from the plaintiff. Whilst that may or may not be so (and one must allow for some degree of inertia in again changing suppliers) it seems to me that the inference is at least equally strong that had the plaintiff not been debarred from according to these two customers the attendance and service which they had formerly enjoyed from him, they would not have deserted him. I think that the reduced custom obtainable by the plaintiff since his return to work can fairly be said to be directly attributable to the accident and, in respect of the seven-month period from April to October, 1972 inclusive, I would award the plaintiff $17,500 for loss of earnings. 12. That figure, like the figure of $21,250 representing loss of earnings during the plaintiff’s period of unemployment, is ascertainable from the figures before the court by an ordinary process of mathematics. No such assistance is to be found however, in regard to future loss of earnings, the assessment which is necessarily far more speculative. The defendants cannot be expected to subsides the plaintiff for the rest of his working life on the basis that his earnings will never again improve; it is likely that when he has accommodated himself to his disability, he will be able to obtain fresh business; in addition there is the possibility of recovering some or all of the business which he lost as a result of his absence from work. His loss of earnings in the first seven months of his re-employment since the accident has been in excess of $2,400 a month but that does not assist me to forecast for how long and to what degree a loss of earnings will persist. So lacking in guide lines is the attempt to make any such forecast that the court’s approach to this aspect of the plaintiff’s claim must necessarily be almost empirical. It is not the function of the court to punish the defendants but to compensate the plaintiff, whose task it will be to mitigate this head of damage in the future. In all the circumstances I consider that if I assume an average loss of earnings of $1,000 per month projected over the next twelve months, that will do broad justice to the paruies. 13. Turning to the claim for general damages, the plaintiff suffered a fracture of the 6th and 7th ribs, fracture of the right fibula, multiple bruises over the right side of the face with hematoma around the right eye, abrasions over the right forearm and wrists; and hematoma and bruises over both knees and the left leg. In addition he sustained a fracture of the zygomatic arch. 14. Medical evidence was to the effect that although the plaintiff was not knocked unconscious as a result of the accident, he suffered quite server pain for more than a week afterwards; the fracture of the plaintiff’s 6th rib has still not united and he still has pain at times over the right chest; he complains also of pain in the right leg after standing for any length of time, a condition which Dr HSU Fong-kung describes as likely to continue for “one or two years at least”. The damage to the zygomatic arch has left the plaintiff with a deformity in the shape of a protuberance near his right eye described by the doctor who examined the plaintiff as “a bony swelling over the right side of the face just in front of the ear”. The right zvgomatic arch in fact bulges out abnormally and is unsightly and, although likely to occasion less distress to the plaintiff than such a condition would produce in a woman, it is a positive deformity. 15. Mr Bokhary, for the defendants, was content to leave the issue of general damages to the court whilst Mr Donnelly, for the plaintiff, whilst frankly admitting, that he could not offer much assistance, referred as to a few cases which, perhaps, best served to underline the difficulty of arriving at a proper sum in respect of general damages – a difficulty to which my brother Briggs specifically referred in one of the cases referred to : CHOW Siu-yin v. Sin Kuen(2). Mr Donnelly submitted that the figure to be awarded in respect of general damages should be in the region of $10,000. The plaintiff suffered considerable pain, will suffer discomfort for some years to come and has been left with a facial deformity apparently incapable of disguise. I do not think that counsel over-reached himself in suggesting the figure of $10,000 and that is the amount I award in respect of general damages. 16. The result is that the plaintiff is to receive $6,699 agreed special damages, $21,230 in respect of loss of earnings whilst unemployed; $17,300 for loss of earnings in the months of April to October 1972 inclusive, $12,000 in respect of future loss of earnings and $10,000 general damages. The total is $67,249, and there will be judgment for the plaintiff, who is also entitled to his costs, in that sum. Donnelly (Johnson, Stokes & Master) for Plaintiff. Bokhary (H.A. Hoosenally) for 1st & 2nd Defendants. (1) (1996) 1 VLR 13X7. (2) 1996 H.K.L.R. 432, 437. |