HO CHI KIN v. CHAN HOI SHING

Personal injuries - road traffic accident - duty of pedestrian to take care to avoid accidents caused by careless drivers - contributory negligence where pedestrian fails to discharge duty - Held: 1. Accident caused by defendant's negligence; 2. contributory negligence of plaintiff assessed at 15%; total damages of $220,762.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

H.C. Action No.7161 of 1984

BETWEEN

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JUDGMENT

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1. On 30th May 1983 the plaintiff was walking along an internal road of the carpark at Hing Ping House, Tai Hing Estate, Tuen Mun carrying his two year old daughter in his arms. As he approached the pedestrian exit leading to the pavement and thence to the entrance to Hing Ping House, he was overtaken by a van which drove past him on his left hand side. The van stopped opposite the pedestrian exit and a passenger alighted. The plaintiff continued to walk towards the exit but when he reached the parked van, he stopped in a position near the driver's door, intending to wait until the van had driver off before crossing to the pedestrian exit. When the van moved off it had to make a right hand turn to follow the carpark's internal road system before reaching the vehicle exit. As the van moved off and turned it collided with the plaintiff who fell to the ground.

2. As a result of the fall, the plaintiff had a trochanteric fracture of the right femur, spent a period in hospital and while he has now returned to his same job as a tally clerk, is in receipt of a reduced income. The plaintiff has claimed damages for his loss. At the trial the defendant disputed both liability and quantum.

Liability:

3. The plaintiff stated that he deliberately walked to the off side of the vehicle near to the driver's door before he stopped to ensure that the driver noticed his presence, rather than stopping towards the rear of the van. The defendant, in his statement to the Police, stated that he stopped his van outside the pedestrian exit for a passenger to alight. After turning his head to the nearside door to ensure that his passenger had alighted, he looked in the reflecting mirror to his rear and commenced to drive off. The defendant agreed that he did not look to the offside of the van towards where the defendant was standing. The incident occurred at nightime just after 9 p.m. I am satisfied that the defendant did not see the plaintiff before he drove forward and commenced his right hand turn.

4. In those circumstances I find that the defendant was negligent. I recognise that it is somewhat surprising that as a consequence of the collision the defendant fell in such a manner as to suffer the serious leg injuries described in the agreed medical reports. Counsel for the defendant during the trial conceded that the defendant was negligent but submitted that the evidence also established that the plaintiff was guilty of contributory negligence. The defence suggested that the degree of contributory negligence was 30%. It was submitted that the plaintiff should have used the adjoining pavement, which apart from the pedestrian exit, was protected from traffic on the internal road by a series of railings; that the plaintiff if he were to use the road should have walked along the near side of the van; or stopped to its rear; or walked , across to the pedestrian exit at the same time as the passenger alighted while the van was still stopped.

5. The plaintiff stated that he was returning home from the Tai Hing Shopping Arcade some distance from Hing Ping House and had taken a short cut through the carpark. Under cross-examination, he stated that apart from taking the short cut he could not in any event have used the pavement without following an alternative very circular route as the direct entrance to the pavement, nearer the Arcade, had been sealed off. I accept that while he could have entered the pavement earlier through the railings, if he had been walking by himself, as he was carrying his daughter it was easier to walk through the carpark towards the pedestrian exit.

6. I am satisfied that it was reasonable for the plaintiff to have taken a short cut through the carpark and to have attempted to leave the carpark through the pedestrian exit. I am also satisfied that drivers of motor vehicles in the carpark should reasonably expect pedestrians to be walking both in the inner carpark area and on the circular internal road which separates the parking area from the surrounding pavement. However, pedestrians walking through a carpark, particularly when using the internal road system, should anticipate the presence of moving cars, and are under a duty to keep a proper lookout for motor vehicles using the carpark facilities. I was referred to Waller v. Levoi (1968) 112 Sol.Jo. 865; The Times 16.10.68, where the Court of Appeal held that a driver owed a duty to avoid accidents by careless drivers. As between different drivers involved in a motor accident the Privy Council in Chop Seng Heng v. Thevannansan (1975) 3 All ER 572 cited Waller v. Levoi with approval as recognising such a duty. I hold that a similar duty exists on the part of a pedestrian who is liable to suffer injury due to the careless driving of a motorist.

7. Whether a pedestrian in a given instance has discharged that duty will, of course, depend on the facts of each case. The curious factual position in the present case is that the plaintiff having stopped to wait until the van drove off, was still hit by the van as it commenced to make what could not have been an exceptionally sharp right hand turn. There was no element of excessive speed. The plaintiff stated that he stood away from the van at a distance a little over 1 foot from the outside reflector mirror affixed to the driver's door. That distance would have been a little under 2 feet from the door itself. These estimated distances were confirmed by the demonstration carried out by the plaintiff in Court.

8. I accept that while it was reasonable for the plaintiff to walk through the carpark, he could reasonably have adopted the various alternatives put forward by the defence instead of waiting on the offside of the van. However, I equally consider the decision to wait in that location was not unreasonable. But, he was aware that the van, as it moved off, would have to make a right hand turn which would bring it closer to his standing position. In all the circumstances I consider that the plaintiff was contributorily negligent in electing to stand so close to the van. The remaining issue on liability is the degree of that contributory negligence. I was cited a large number of cases on percentages determined in other cases. In this field findings in other cases, while often interesting, are never decisive. However, I have given them due consideration. On the instant facts I find the degree of contributory negligence on the part of the plaintiff to be 15%.

Quantum:

9. The accident occurred on 30th May 1983. The plaintiff remained in hospital until 23rd June 1983. The fracture was fortunately below the hip joint and he will not develope osteo-arthritis of the hip. On 2nd June 1983 he was operated on when a bone plate was inserted secured with an angled prong and five bone screws. He was granted sick leave until 16th December 1983 and was readmitted into hospital on 6th March 1985 for removal of the bone plate and screws. The operation has left an 8 inch scar. There has been wasting of the thigh muscles and 10 degree loss of rotation of the leg. The undisputed medical evidence establishes an 8% impairment of the leg or 5% of the whole man. The medical evidence also assessed the effect of that impairment on employment at 10% if he continued work as a tally clerk and 7% to 8% if he found lighter work. The plaintiff was aged 43 at the time of the accident and medical opinion was that because of his permanent disabilities he will probably seek alternative employment when he attained the age of 50 years.

10. The nature of the plaintiff's employment was important in relation to quantum. For many years the plaintiff has been employed as a tally clerk by A Wing Transportation Co. which also arranged additional work for him on a part-time basis with other transportation companies. The plaintiff carried out his duties on cargo ships anchored in the harbour. Daily he travels by wallah wallah to the bouys where the ships are anchored and then boards the ships by ladder. Once aboard he has to check the cargo before it is unloaded. The cargo is in part conventional and in part containerised. Before the accident his duties required him to examine cargo in the holds and on the deck including climbing up stacks of containers situated on the deck. I accept the observation in the medical reports there must be few jobs, other than heavy manual labour, more unsuitable for him than boarding ships in the harbour, often in choppy seas, and climbing over cargo.

11. During cross-examination there arose some confusion as to the precise income of the plaintiff before and after the accident. On the balance of probabilities I find that the plaintiff's varying income is that he described in his evidence in chief which is confirmed by the documentary evidence supplied by his employer in the agreed bundle. On that evidence I find that before the accident he received $3200 per month from A Wing Transportation Co. plus a further $900 per month from his part-time employment making a total of $4,100. He has now returned to his former employment with A Wing Transportation Co. and is at present earning $2,100 per month plus a further $400 from part-time work which produces a total monthly income of $2,500. At one stage in cross -examination the plaintiff did agree that the reduced income from his primary source of employment was due to the reduced work available as a consequence of less shipping business. However, that admission stands in isolation and is inconsistent with his other evidence which is also reinforced by the medical evidence. Further, he consistently maintained that the more than fifty per cent reduction in his part time earnings was due to the injuries he sustained.

12. Earlier he stated that he did not now accept work on ships which involved excessive climbing. Even on those ships which he now boared the arrangement with his employer is that he no longer climbs stacked cargo. The plaintiff is to be commended for his determination to resume his former employment and so too is his employer, for accepting the fact that plaintiff's services have been reduced as a result of the accident. I am satisfied that the reduction in working days per month since the accident stems from the fact that because of his injuries he is unable to accept all the jobs he previously undertook.

13. The disputed damages items were pain, suffering and loss of amenities where the opposing stance of the parties ranged from $55,000 to $45,000. I award $50,000. $3,000 was claimed for tonic food.  The defence admitted $1,350. I award $2,000. The remaining disputed claim was for loss of earnings. The plaintiff quantified the monthly loss at $1,600 being the difference between pre and post accident income. The appropriate multiplier advanced was 10. After allowing for 2 years past loss of income of $72,072 the plaintiff, for remaining calculation purposes adopted a multiplier of 8 to produce a figure of $153,600.

14. In relation to the first 2 year period the defence accepted that $34,072 might properly be awarded for loss of earnings from 30th May 1983 to 9th February 1984 at $4,100 per month. The defence was also prepared to recognise that the plaintiff was entitled to a sum of $20,670 for reduced earnings at $2,000 per month for the period from 10th February 1984 until 20th April 1989 by which time it was submitted the plaintiff had fully recovered after the removal of the plate. Thereafter, the defence submitted, he was not entitled to any damages for loss of earnings as any reduced earnings were due to the drop in shipping work and not to his injuries. I confirm that I have rejected that latter allegation as being the reason for the plaintiff's current reduced income. I find that a prime multiplier of 9 is appropriate which on the basis of the present claim is for calculation purposes, reduced to 7. In the result I assess the plaintiff's loss as follows:

General damages:

Special damages:

15. From the total sum of $259,720 there must be a reduction of $38,958 for the plaintiff's contributory negligence which has already been determined at 15%. As a result I award total damages of $220,762.

16. There will be interest at 2% a on the damages of $42,500 for pain, suffering and loss of amenities from the date of service, of the writ to judgment and interest at 5.6% on special damages from the date of the accident to the date of judgment.  The plaintiff is entitled to his costs to be taxed if not agreed in accordance with the Legal Aid Regulations.