CHOW WAI KEUNG AND OTHERS v. HUI KWOK TO AND ANOTHER

BETWEEN

___________

JUDGMENT

____________

1. This is an action for damages for personal injuries and loss suffered in a road traffic accident.

2. On the 23rd August 1980 at about 6.00 p.m. the infant plaintiff was crossing Ho Pong Street, Sun Fat Estate near Tuen Mun when he was knocked down by a goods vehicle owned by the 2nd defendant and driven by the 1st defendant as the servant or agent of the 2nd defendant.

3. The plaintiff was born on the 8th December 1974 so that he was aged 5 years 8 months at the time of the accident. The plaintiff suffered severe personal injuries to his right leg and foot which were crushed when he was run over. Understandably the plaintiff when he gave evidence had little recollection of the accident. However, in a statement that he made to the police a month after the accident he said that he was walking slowly across the road and had gone two paces before he was knocked down.

4. The 1st defendant testified that he was driving along Ho Pong Street which is a one way street at a speed of about 20 m.p.h. He was travelling on the right side because there were some bins of rubbish on his left side. He saw a child suddenly run out from behind some flower pots on his right hand side about 3 feet to 4 feet away. He applied his brakes swerved to his left, but his off side front wheel went over one of the boy's legs. He claimed to have stopped in a distance of 8 feet. At the time of the accident the 1st defendant was returning to his shop which was situated in the estate and where he was also living. In fact, the 1st defendant had lived at the estate for about 7 or 8 years. There was no evidence that the 1st defendant sounded his horn. There were no independent witnesses to the accident.

5. Although the plaintiff said that he was walking, I prefer the evidence given by the lst defendant that he was running.

6. Mr. van Buuren who appeared for the defendants submitted that the 1st defendant was driving in an area where he would not expect people to cross the road. However, the 1st defendant was familiar with the neighbourhood, and would have been aware that children played in the park on the opposite side of the road in which direction the plaintiff was going. If the 1st defendant's evidence that he was travelling at 20 m.p.h. is correct, it would not have been possible to have stopped within a distance of 8 feet as he alleged, for the overall stopping distance at this speed according to the Highway Code is 40 feet. Further it is difficult to reconcile his evidence that he saw the boy coming from his right hand side when the plaintiff's injuries were on this side. It is more probable that the plaintiff after dashing out saw the vehicle coming towards him and had turned to run back when he was struck. Accordingly I do not accept the 1st defendant's evidence that there was a virtually instantaneous impact. In my judgment the 1st defendant saw the plaintiff earlier, tried to avoid a collision, but reacted too slowly. I do not consider that the sounding of the horn in this case would have made any difference see Moore v. Poyner (1975) R.T.R. 127.

7. The uncontradicted evidence of the plaintiff's father shows that the area is frequented by a number of pedestrians as there are factories situated nearby whilst the park is well patronised by older people and children. The road was not a quiet residential lane as was the case in Moore v. Poyner.

8. Should the 1st defendant have anticipated that a child would dash out into the road in these circumstances. I consider he should have realised the likelihood of such an occurrence. In my view the accident was caused as a result of the negligence of the 1st defendant by his failure to keep a proper look out and his failure to slow down in time.

9. Mr. van Buuren cited Ho Kwai-loy v. Leung Tin-hong (1978) H.K.L.R. 72 as authority that a child of 6 years of age is capable of contributory negligence. In So Loi-mui v. Tang Shiu-gay (1977) H.K.L.R. 181 a child of 7 years of age was held to be 40% to blame when she was knocked down by a motor car as she was running across a road. Miss Kwan who appeared for the plaintiff contends that the contributory negligence in this case should be assessed at between 10% to 15%. Upon the evidence there was a high degree of contributory negligence on the part of the plaintiff which I assess at 40%. As a result I find the defendant was 60% to blame and the plaintiff 4o%.

10. The plaintiff suffered a compound fracture of the lower end of the fibula and tibia, open dislocation of the ankle joint, and loss of much soft tissue and skin over the main wound. He was in hospital for five months during which period he had several operations. He returned to school at the end of January 1981.

11. According to the agreed medical report of Dr. Wedderburn of the 24th October 1983, the plaintiff will have to wear a caliper for the rest of his life. However, as he grows up Dr. Wedderburn considers that because of pain and discomfort in adult life a decision will have to be made whether to replace the ankle joint with a prosthesis or to arthrodese or fuse the ankle joint which will result in a 30% impairment of the leg. Dr. wedderburn expressed the view that the plaintiff's disability taking into account his youth relating to earning capacity at 20%. He will be unable to perform manual labour of a strenuous nature, but will be fit to work in a factory where only limited standing and walking is necessary, and where he will not have to manipulate or carry heavy weights.

12. Mr. O'Donovan in his report of the l6th May 1984 sets out his conclusion as follows:-

On the principles laid down in Lee Ting-lan v. Leung Kam-ming (1980) H.K.L.R. 657 it was agreed by the parties that the sum of $90,000 should be awarded as general damages for pain and suffering and loss of amenities under the category of substantial injury. I agree that this amount is appropriate. Having regard to the plaintiff's background Miss Kwan submitted that a claim for loss of future capacity was not justified. Indeed there was a paucity of information to support such a claim.

13. Special damages of $345 for hospital charges and $575 for travelling expenses were agreed. The plaintiff's father claimed $3,600 for one and a half months' loss of earnings as a hawker to enable him to visit his son in hospital. At the time of the accident there were two other young children of the family living at home who were cared for by their mother whilst the plaintiff's grandmother was also living at home. I consider that a period of two weeks to be reasonable, and I will allow a sum of $1,200.

14. No receipts were available to support the claim of $3,000 for nourishing food nor was there any medical evidence to support this item. However, it is customary to allow a nominal sum, and I shall award $1,500.

15. The total amount of damagesis therefore $93,620. Having regard to the finding of contributory negligence this sum will be reduced by 40% which leaves an award of $56,172 for which judgment will be entered for the plaintiff. Interest is awarded on the general damages at 2% from the date of service of the writ and at 7% on the special damages from the date of the accident. There will be an order for the damages to be paid into court to be invested by the Registrar in his absolute discretion as he thinks fit until the plaintiff attains his majority. Costs will be to the plaintiff together with the usual Legal Aid taxation.