Yip Kam-wan v. Li Leung

CACV000189/1980

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Coram: Sir Alan Huggins, V.-P., Leonard and Cons, JJ.A.

Date of Judgment: 19th February 1981.

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an appeal against a finding of liability and award of damages in an action for damages for personal injuries as a result of a collision between a ten-ton motor lorry and a bicycle, the bicycle being ridden by the Plaintiff.

2. This accident took place at the 24½ milestone on the Castle Peak Road at a place where there are three petrol stations. The lorry was coming from Yuen Long and was going into the middle petrol station to pick up, as the judge says, petrol, but probably diesel fuel. The lorry-driver found that the petrol station was full of vehicles when he arrived and he could not drive straight in. The Defendant. who was both the driver and the owner of this lorry, therefore turned in towards the petrol station. The petrol station itself was set back from the kerb, according to the evidence, some fifteen feet, although I have my doubts whether it was quite as much as that, but I must, I think, accept that that is the position. He then stopped with the front of his lorry one-third to one-half of the way across the paved area between the kerb and the petrol station. The rear of his lorry was protruding into the road some nine or ten feet. This paved area was a very rough area which was apparently a continuation of an earth path which came from Yuen Long and stopped at the first of the petrol stations. Nevertheless the evidence clearly was that the paved path was used by cyclists who had come along the earth path from Yuen Long and intended to ride past the petrol stations in the direction of Tsuen. Wan. That was precisely what the Plaintiff did: he came along the earth path on to the paved area and had the misfortune to arrive at the petrol station in the middle just at the moment when one of the vehicles in the petrol station drove away leaving space for the Defendant to go in and at the time when the Defendant started his lorry in order to move up to a pump.

3. The evidence seems to be that the Defendant was riding his bicycle not on the left of the paved area, but in the middle, and it was that fact which brought him in line with a point one or two feet from the front of the lorry. The complaint of the Plaintiff, of course, is that the Defendant, by starting his lorry at the moment when the Plaintiff was approaching, was negligent and that he started because he failed to keep a proper look out. I agree with that conclusion which was reached by the judge that the Defendant was negligent. The fact is that he did not take the precautions which he ought to have taken to ensure that when he moved he was not going to damage anybody. I have some sympathy with him, as I do for all drivers of large commercial vehicles. His field of vision was very limited. He had a large and uncomfortable vehicle to drive. He had no attendant. Nevertheless, I think it was his duty to take more care than he did to ensure that the road was clear. He knew well that the paved area was used by bicycles: he was a frequent user of this petrol station. He could have leant over to his left and looked out of what I will call "the passenger's window" to ensure that the road was clear. He did not do so. The road was not clear and I think he was negligent and must suffer the consequences.

4. The judge found that the driver of the lorry was 90% to blame, but found the Plaintiff 10% to blame in contributory negligence. That finding is attacked and it is suggested that the greater part of the blame attached to the cyclist. Undoubtedly in my view the cyclist was contributorily negligent. His evidence, which was clearly disbelieved by the judge, was that he did not even see this lorry, a ten-ton lorry which was half way across the paved area. Not only must he, as the judge found, have seen this lorry, but he must, if he had any intelligence at all, have realised that this lorry was there waiting to get into the petrol station and he must, therefore, have realised the possibility that the lorry would start up. That does not mean that he was necessarily to expect that it would start up without consideration for himself, but his error lay in riding in the middle of the path instead of on the left hand side, because on the evidence it was quite clear that, even if the lorry had not moved, he would have passed within a distance which could readily be measured in inches from the front of the lorry, thus allowing himself no leeway if the lorry did move. In my view the learned judge's estimate of the negligence of the cyclist is too small. I personally would have assessed it at 40%, as against the driver's 60%. My brothers take an even more favourable view in favour of the driver and they would hold the parties 50% to blame each. I do not feel so strongly that I am prepared to dissent from that assessment.

5. There then comes the question of damages. The learned judge awarded $30,000 for pain, suffering and loss of amenities. The Plaintiff was in hospital for two months. He had comparatively minor injuries on his right hand, rather more serious injuries on his left and two serious fractures of the pelvis. In the first instance it was the left hend which appeared to cause him the more trouble. In fact it was the pelvis which was the more serious injury and which had resulted in the greater permanent loss of function. We have been referred to a number of cases where smaller sums were awarded, sometimes for injuries which appear to be greater. It is always difficult to assess pain and suffering and loss of amenities in dollars and cents. This man undoubtedly did suffer considerably. Unfortunately he was temperamentally unfitted to cope with this type of injury and he suffered a neurosis as a result. I think that possibly the $30,000 was on the high side, but I am not satisfied that it was so high that we would be justified in interfering.

6. Secondly, it is said that the judge was wrong in allowing the Appellant to have the full rate of loss of earnings up to April of 1979, which was just over two years after the date of the accident. The fact is that the neurosis to which I have referred led the Plaintiff to think that he was incapable of work. I agree with the passage which has been cited to us from Griffits v R. & H. Green & Silley Weir Ltd. (1948) 81 Lloyds' Rep. 378 and I feel that I am bound by the decision of the trial judge that the Plaintiff was not malingering, and, that being so, I do not see that we can interfere with the conclusion that the Plaintiff was entitled to maintain that he could not work until April of 1979 and that he was not at fault in not obtaining employment which would mitigate the damage.

7. The one matter upon which I disagree with the learned judge as to the damages is in his figures as to the probable earnings of the Plaintiff if he had not been injured. He was at the time earning $70 a day in a twenty-five-day-average month. The learned judge then awarded increases annually to $90, $110 and then to $120. This was based on the Plaintiff's own evidence, but that evidence in my view was manifestly unreliable and contradictory. He said that his son, who had been a bricklayer but had become a carpenter because bricklayers earned less, was at the time of the trial earning only $110 to $120 a day Quite clearly then it was wrong to end up with a figure of $120 a day for the Plaintiff, and I would therefore alter the assessment by taking $70 for the first year, $80 for the second, $90 for the third and ending with $100. I have worked out those figures and I will give them in a moment.

8. The final point raised was that the judge in assessing the loss of future earnings deducted a sum of $50 a day, which he thought was a proper figure in relation to wages obtainable for a sedentary job. The judge admitted that this was a figure which he had plucked out of the air: that was all he could do because there was no other evidence before him. It is argued that, if the other wages would have gone up, so would that wage and therefore more should have been deducted. I think that in view of the uncertainty of the figure in the first place it was justifiable to take a round figure of $50 and I would not interfere with it.

9. Therefore, I would allow the appeal to the extent that I have indicated - fixing the liability at 50% and the loss of earnings to be reduced as I have indicated.

Leonard, J.A.:

10. I agree that this appeal should be allowed and that the liability of the Defendant should be reduced to 50%. It is abundantly clear that the Respondent must have seen this very large truck on the right and almost in front of him. It was stationary with its engine running. He, nevertheless, intended to pass within a matter of one or at most two feet in front of it. He himself in the witness-box recognized the degree of negligence involved in such an operation when he was asked if he had seen the truck at the kerb waiting to enter the station would he have taken any particular care or taken any particular precaution and he answered "Of course, I would have done so". Had it not been for the fact that the driver of the truck was in possession of what must be regarded as a highly lethal instrument when compared with a bicycle I should have been disposed to regard the Plaintiff as being substantially more to blame for the accident than the Defendant. Therefore I consider that it is proper that the liability be reduced to 50%. I agree with what my Lord has said concerning the reduction of damages.

Cons, J.A.:

11. I agree with what my Lord President has said. I would only like to add a word as to the general damages. It has been suggested that awards for pain and suffering and loss of amenities made in this Colony are too low, that is not only in the few cases which were specifically drawn to our attention, but generally speaking in all cases. I agree there was a time when the amount of litigation for personal injury which actually reached the courts of this Colony was so small that no pattern of damages could be readily discerned. But that is not the position now and it has not been the position for may years. For a long time cases of personal injury have been brought in abundance before the courts. I would think their number in relation to other cases is not disproportionate to the figures in other similar jurisdictions. The decisions in these cases have been fully reported, not only in the official reports but in that excellent periodical the Hong Kong Law Journal. From those decisions a standard has been evolved, a standard upon which judges rely to make their decisions and upon which counsel rely to advise their lay clients. It is, of course, a Hong Kong standard, it is not the same standard as is adopted in United Kingdom. There is no need for it to be, because the two are completely different places. It has often been said before, both in this court and in courts of first instance, that the decisions and awards made in the United Kingdom are to be treated here with very great reserve.

12. The standard here, of course, is not static. The awards are bound to increase, and are in fact so doing all the time, by reason of inflation in the Colony and the general decline in the purchasing power of the dollar. I do not accept the suggestion that it will be directly affected by variations in the rate of exchange between the Hong Kong Dollar and foreign currencies, although naturally those variations may be reflected in the rate of inflation.

13. In my view it would be quite improper at this stage for this court to say that that standard, which has been relied on by the judges and the profession, should now be changed. For my part I would like to think that these comments will put a quietus to suggestions of this kind.

14. Applying that standard to this case I agree that $30,000 for pain and suffering and loss of amenities is on the high side and I think it would be dangerous to use it as a precedent. However bearing in mind the considerable discomfort in hospital I think it is not so high that we ought to interfere with it.

15. I agree that the appeal should be allowed and an order made upon the lines suggested by the Lord President.

19th February 1981.

Representation: