WONG MAN KIT MICHAEL v. WONG FONG WOON

1985, No. A283

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G E M E N T

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1. The plaintiff's action is for damages for the injuries he sustained, inter alia, to his left leg which was fractured and had to be amputated above the knee, allegedly due to the negligent driving of the defendant, which is pleaded in the statement of claim as follows :

"1. On the 20th day of March, 1983 at about 1550 hours the Plaintiff was travelling as a front seat passenger in a Toyota Statioin wagon registration number CW 3788 driven by the Defendant along the Sai Kung-bound carriageway of Hiram's Highway, when, near Po Lo Che, the station wagon swerved to the left and rammed into a lamp post allegedly in an attempt, the existence of which the Plaintiff does not admit, to avoid ahead-on collision with an unknown motor vehicle which suddenly changed carriageway in order to overtake the traffic in front."

The negligence alleged was : failing to keep any or any proper lookout to observe in time or at all the said unknown car, driving too fast, failing to apply his brakes in time or at all or so to steer or control his station wagon as to avoid the violent encounter with the lamp post.

The plaintiff further relied on "the doctrine of res ipsa applied to establish the Defendant's negligence."

2. The defendant denied any negligence or that res ipsa loquitur applied. Paragraph 3 of the defence states:

"3. The said collision was caused solely by the negligence of the driver of a motor car (the name and identity of the driver as well as the registration number of the motor car are unknown to the Defendant) who, whilst the Defendant was driving his van registration number CW 3788 along the Sai Kung bound carriageway of Hiram's Highway with due care on the proper side of the road suddenly and without warning drove the unknown motor car onto the wrong side of the road (i.e onto the opposite carriageway on which the Defendant's van was travelling) to overtake a tourist bus travelling in front of the unknown motor car. In order to avoid a head-on collision with the said unknown motor car the Defendant in the emergency thereby caused was forced to brake and swerve to the left, but the Defendant was unable notwithstanding the exerices of reasonable care and skill on his part to avoid the Defendant's said van colliding with the lamp post.

3. The plaintiff, who gave his date of birth as the 17th March, 1965, was returning home to Tai Mou Chai, Sai Kung, in the defendant's van after attending a dog show in Happy Valley at which the defendant, who is a dog trainer, had entered two of his Great Dane dogs for competition. Sitting in the front seat in between the plaintiff and the defendant, who was the owner/driver of the van, was the defendant's son, and in the rear were three other passengers and the two dogs. The plaintiff said that the weather was cloudy when he boarded the wan for the return journey at about 2.30pm. He dozed off when they were outside the Cheng Chik Chi Middle School at the junction of Clear Water Bay road with Hiram's Highway and woke up later in hospital.

4. The defendant said that as he approached Sai Kung, it was "rather dim and misty." The highway rises to a crest just before the junction with the Po Lo Che Village access road to the left, after which it slopes down towards Sai Kung. It was misty and wet as he went downslope in third gear at a speed of about 20 M.P.H. He said that he saw a coach coming up the hill from the opposite direction at a distance of 70 feet, behind which about 90 feet from him was a blue Daihatsu Charade car, which started to overtake the coach. On seeing this he immediately stepped on the brake pedal and swerved to his left. He said that when he first saw the Charade it was 90 feet away and very soon it was 20 feet from him. So he swerved to avoid a head-on collision with it, as a result of which he hit the lamp post.

5. PC 3242 (PW2) arrived at the scene at about 4.45pm and made a sketch plan, Ex.P2. Based on it, he made another the following day and it is Ex.P3. He took the various measurements which appear on Ex.P2 and he also took the eight black and white photographs, Ex.Dl(A-H), which show the final position in which the van carne to a rest, lying on its offside diagonal to the kerb facing Kowloon side. The constable did not see any brake marks. He said that from Po Lo Che to the steps (indicated on both sketches) the road towards Sai Kung is straight until it comes to a gentle right handed curve where the Mobil Service Station is situated. According to the Official Street Map of 1979, that distance is 200 meters.

6. In so far as the weather conditions at the material time are concerned, the police officer was at an obvious disadvantage of not having the police file of this accident, as it was destroyed in accordance with the Police Regulations on 7th February, 1988. Both Counsel were able to 'reconstruct' the police file from copies of the various documents in their possession, and by agreement the police officer was able to refresh his memory from such reconstructed record He was able to say that at the material time it was very foggy and visibility was not good He said that the road surface was good but slippery.

7. There being nothing contrary to the weather and road conditions as described by the defendant and the police officer, I accept their evidence that visibility was not good due to the fog and the road was wet and slippery.

8. The plaintiff seems to know nothing about what happened : he was asleep when the accident occurred and, according to the medical evidence, was rendered unconscious. It was submitted by Miss Pinto for him that the maxim res ipsa loquitur applied in the circumstances of a violent swerve on a downhill straight stretch of the highway, the collision with the lamp post by the side of the road and the flipping over of the vehicle on its offside. In my opinion those factors suggest a reasonable probability of negligence in the driver of the van and the maxim will apply in these circumstances.

9. This will lead on to the next issue, that of the burden of proof. This is well established and I direct myself in terms of NG Chun-pui and Others v. LEE Chuen-tat and Others, (1988) 2.H.K.L.R. 425 (P.C.) where Lord Griffiths said at p.427 :-

"So in an appropriate case the plaintiff establishes a prima facie case by relying upon the fact of the accident. If the defendant adduces no evidence there is nothing to rebut the inference of negligence and the plaintiff will have proved his case. But if the defendant does adduce evidence that evidence must be evaluated to see if it is still reasonable to draw the inference-of negligence from the mere fact of the accident. Loosely speaking this may be referred to as a burden on the defendant to show he was not negligent, but that only means that faced with a prima facie case of negligence the defendant will be found negligent unless he produces evidence that is capable of rebutting the prima facie case."

10. Here the defendant did give evidence and to put it tersely, his explanation is that faced with a perilous emergency created by the blue Charade in overtaking the coach in the face of on-coming traffic, he acted the way he did by simultaneously braking and swerving to his left to avoid a head on collision with the overtaking vehicle, ending up with hitting the lamp post.

11. Miss Pinto argued that the explanation relied on by the defendant was not only unreasonable but was wholly incredible. Her submission is based in the main upon factors of the estimated speed and the travelling distances. It is conceded however that such estimates need to be considered with some caution in view of the time of well over five years that has' elapsed since this incident.

12. The defendant would have been able to see the coach only after he had gone over the crest of the hill beyond the Po Lo Che access road junction. He maintained that he saw the coach because of the Charade which suddenly started to overtake it, adding that had the Charade not done so, it would not have bee necessary for him to bother about the coach. I think this is quite reasonable for the coach, which was in its own carriageway, was in no way posing any threat to him. The fact that he was able to see the Charade at a distance of 90 feet indicates, as I see it, the possible extent of the visibility which was available in the prevailing foggy conditions.

13. The defendant was confronted with the statement the made to the police on the 24th February, 1983. Despite objections from Mr Barretto I allowed the statement do be used for purposes of cross-examination. The defendant agreed that he told the police :-

"After my vehicle had passed Po Lo Che, all of a sudden a private car drove on to my carriageway from the back of the tourist coach and overtook the tourist coach. At that time it was 10-20 feet away from my vehicle. I therefore immediately braked my vehicle and swerved to the left to avoid a collision."

14. He explained that the distance of 90 feet which he mentioned in evidence but admittedly not in his statement was the distance when he first saw the blue Charade, whereas the distance stated in the statement referred to the gap between his van and the blue Charade "just when the accident was about to occur."

15. Pausing here, I should mention that learned Counsel for the plaintiff sought to rely on the omission of the distance of 90 feet from the statement as one of the factors going against the probability of the defendant's, version. Notwithstanding that he statement does not form part of the evidence, it must be said in fairness to the defendant that he did mention in the paragraph preceding the one that was put to him the distance of 70 feet when he first saw the coach. I do not think that the omission which learned Counsel prays in aid is of any material significance touching upon either his credibility or the probability of his version for having mentioned the distance of 70 feet and the car emerging from behind the coach to overtake it, besides showing consistency, it points to the probability that the Charade was some distance behind the coach as he said in evidence before it started the manoeuvre of overtaking.

16. He was asked why he did hot brake when he first spotted the Charade braking only when it was 10 - 20 feet from him He said :-

"I was already stepping on the brake pedal. I thought that if the coach would slow down there could have been enough time for the private car to go back into its own lane."

17. What this indicates to my mind is the first reaction of he defendant upon seeing the course that the charade had adopted suddenly. I view this in the light of his evidence that although be had seen this car from a distance of 90 feet, then "very soon", which he later said was a matter of a second or two, it was about 20 feet from him.

18. Learned Counsel for the plaintiff argued that, on the basis of the defendant's speed of about 20 M.P.H. and his estimate of the speed of the Charade of about 40 R.P.H. being equivalent to 29.33 feet and 58.66 feet respectively per second and their combined travelling distance being about 87 feet per second, the distance of 90 feet which separated them would have been covered in just one second and they would have collided without any doubt. Likewise, if the coach was, doing at least 30 M.P.H., as the defendant estimated, which is 44 feet per second, and the Charade was overtaking it at 40 M.P.H. or 58.66 feet per second the Charade would overtake the coach at the rate of 14.66 feet per second. At this rate, it would take the Charade about two seconds to yet past or draw level with the front part of the coach. In the same two seconds the Charade would have travelled 117.32 feet and the defendant 58.66 feet from the other direction. Pitting their combined travelling distance of 175.98 feet per second against the distance of the overtaking straight stretch of 109 feet as worked out by Mr Barretto [ie. the distance between the righthand side of the steps to the lamp post - 79 feet - plus 30 feet between the lamp post and the on-coming van], there would be no zero feet available for the Charade to squeeze through, and the position would be the same going by the distance of 69 feet between the Charade as marked on the sketch Ex .P3 and the lamp post.

19. Without doubting the accuracy of these calculations I think, with great respect to learned Counsel, that her submission begs the question. The fact remains that the Charade escaped, which is obviously incompatible with the outcome suggested by those figures. Had the defendant held his course a head-on collision would above been a certainty and the consequence indicated by those figures would have been proved correct. The fallacy of the argument lies in that the calculations worked out by learned Counsel, while strictly stating the obvious as far as these figures go, ignore the probability that either of those drivers might have taken some evasive step to provide sufficient space for the other to go by. That the Charade was able to drive through is, in my opinion, sufficient cogent evidence pointing to the probability that the defendant took some step to avoid a head-on collision as be has maintained throughout, rather than to its improbability.

20. I find that the defendant found himself in a situation, not of his own creation but brought about by the negligent driving of the Charade of overtaking the coach in the face of on-coming traffic, which was perilous not only for his own safety but also for the passengers in his van. On his account as well as the calculations referred to above, the utmost limit of time between the defendant becoming aware of the threatening approach of the Charade and the moment of a possible head-on collision with it was not more than a second and a half. Quite clearly in my opinion he was in the agony of an impending collision Charade from the moment he spotted it.

21. It is trite to say that the actions of some one placed in a situation of danger like the defendant are not to be judged with the benefit of hindsight to see whether what he did was the best way to extricate himself. The law does not require drivers to exhibit "perfect nerve and presence of mind, enabling him to do the best thing possible"; it does not expect men to be more than ordinary men - Mazengarb on Negligence on the Highway, 4th edition p.338. As Lord Hailsham put it :-

"Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence : the Plaintiff has no right to complain if in the agony of the collision the Defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances" - Swaddling, v. Cooper, (1931) A. C. 1,9.

22. The suggestions made against him are that he was going too fast in the circumstances and should have braked immediately he saw the Charade. His speed of about 20 M.P.H. was within the estimate of the police officer of 25 - 30 H.P.H. as a safe driving speed for that location in the prevailing road conditions, which he opined should be reduced to 15 - 20 M.P.H. approaching the bend or where the ability to see for a distance was blocked by traffic. I find that the defendant was not driving at any speed which was excessive or , otherwise unsafe in the circumstances. With regard to braking, considering the distances and the respective estimated speeds which were mentioned, Miss Pinto's own calculations indicate that en if the defendant had in fact braked as she suggested, the collision would nevertheless have occurred. Faced with that emergency heat once stepped on the brake pedal, then simultaneously braked and instinctively swerved to his nearside which obviously was the only direction he could turn to. It is mainfest that at that critical moment of swerving the Charade was able to squeeze through, as Mr. Barretto put it, with the skin of its teeth.

23. There is sufficient authority including Brandon v. Osborne Garrett, (1924) 1 R.B. 548, Tocci v. Hankard, (1966) 110 S.J. 835 and NG Chun-pui's case (supra) that one ought not to be too critical of what was done instinctively on the spur of the moment in a situation of extreme danger. Considering the evidence as a whole, I find that the defendant acted in a manner in which a reasonably careful driver would fairly be expected to act in the circumstances and was not negligent and accordingly is not liable for the unfortunate consequences of his action in which the plaintiff was injured.

24. This action is dismissed with costs.

25. Had it become necessary for me to consider the issue of damages, in this case I would have accepted that the plaintiff was born on the 17th March, 1965.

26. He was admitted to the United Christian Hospital, having sustained the following injuries in the accident on the 20th Match, 1983 :

    l) a 4 cm laceration over the left side of the forehead;

27. 2) a compound fracture of mid-shaft of the left femur; and

28. 3) a compound fracture of the 1/3rd left tibia.

29. In his report dated the 25th June 1984, Dr Wedderburn stated the extent of the factures as follows:

"On 20.3.83 after a traffic accident he was admitted to the United Christian Hospital He suffered a fracture of the left femur, bone of the thigh and a compound fracture of the tibia. The arterial supply to the leg was damaged and the leg became gangrenous and was amputated on 15.4.83. He remained in hospital until September and an artificial leg, or prosthesis was supplied in mid June and he was trained in its use. He reported back in October and his sick leave terminated six months after the accident."

30. The disability for purposes of the Workman's Compensation was assessed at 70%.

31. The amputation was above the knee and left a stump which Dr Wedderburn described as "7" long to its margin and 8" to the end of the stump". Dr Mao (PW1) measured the stump at 11" from a fixed point of the pelvis above which is the anterior superior spine of the iliac bone. However, both doctors found the stump to have very good muscle and soft tissue roller over the end of the bone. In the early stages of the use of the prosthesis the skin of the stump was easily torn and, the plaintiff had to treat the would with alcohol. He suffered also from the phantom limb symptoms which Dr Wedderburn said usually disappear after two years. He considered that the upper end of the prosthesis could be shortened slightly because the patient tended to take the weight in the groin. Dr Mao says in his report of the 25th September 1986 that the left leg with the prosthesis on was shorter than the right leg by at least two inches, as a result of which he had to twist his back pushing his right hip upwards and his left leg downward because of which he could not walk normally. The patient had put on 30 1bs by then and Dr Mao suggested that he had a new prosthesis. Both doctors were of the opinion that he should register with the Labour Department so that he could benefit from the training provided by the Selective Employment Services.

32. The new prosthesis was fitted sometime after May, 1987. He can now walk for about 15 minutes without discomfort after which he has to sit down for one or two minutes rest, or put pressur' on the normal leg. He limps slightly but can manage to go up and down steps, taking some rest while going up. During Dr Mao's recent examination of the plaintiff he found that his use of the new prosthesis was very good. Compared with a normal person, Dr Mao said that the plaintiff cannot do any heavy work whatsoever that is, moving and bearing weight; he cannot do any work which requires him to move quickly on his legs; as a young man he cannot enjoy himself in activities which young men enjoy like games, and dancing and he will have to look after the artificial leg for the rest of his life.

33. The plaintiff has since obtained a driving licence and intends to apply for a taxi licence. After he finished working for the Yau Lee Store in 1985, he registered with the Labour Department who offered him a job in an electronic factory in Kwun Tong which he turned down due mainly to the transportation problems. He said that he used to play football and basketball and went out jogging and fishing. His recreation now is limited to fishing only.

34. It was suggested by Mr Barretto that the plaintiff had done nothing to mitigate his damages after getting the first prosthesis. As has been seen, the first prosthesis did not fit properly and gave him considerable trouble and discomfort. Dr Mao thought it was reasonable for him to wait for a new artificial leg which quite obviously was far better. I am inclined to agree with Dr.Mao's opinion and would have rejected this submission.

35. Before the accident he was earning $120.00 per day working for the Woo Sang Construction Co. as an odd job worker, putting in on average 24 days a month. His employer (PW5) said that he found him a good worker and had he not had the accident he would have continued to employ him. He said that the present salary for a worker doing the kind of job the plaintiff did is $220.00 per day. It was suggested to him that it was only $208.20. PW 5 said that due to shortage of manpower it is difficult to get such workers even for $250.00 per day. I would have accepted this evidence and found that the plaintiff's present salary would have been $220.00 per day.

36. The plaintiff worked as a shop assistant at the Yau Lee Store for some five months from September 1986 at a salary of $600.00. He was unemployed in March 1987 and for the next four months worked for the Hong Kong Glory Association Ltd. as a cleaner in a billiard hall at a salary of $1000.00 per month From 1st August, 1987 he has worked for the Susannah Cafe, starting with a salary of $1,200, getting an increment of $300.00 in Decembe, 1987 and another of similar amount in May, 1988, bringing his present salary to $1,800.00.

37. It was put to Madam CHAN Kwai-chu (PW4) that the salary she was paying the plaintiff as a bar attendant was low compared with $3,794.00 which a barman would get. She explained that there were a number of aspects of work which the plaintiff cannot perform, like for example climbing up to the loft to get things, or carrying loads or moving quickly when the bar was busy. I would have accepted her evidence and found that the salary she was paying was quite commensurate with the services which the plaintiff could perform. Considering his limitations that figure represents his present earning capacity.

38. Based on the initial figure of $120.00 per day or $2,880.00 per month of 24 working days and making allowance for 10% annual inflation every March which Miss Pinto suggested and I find acceptable as a rule of the thumb, I would have accepted her detailed calculations for the pre-trial loss for the period 20th March 1983 until 30th November 1988 as follows :-

    1.Woo Sang Construction Co.

2.   Yau Lee Store

3. Out of Work

4. Billiard Hall

5.    Susannah Cafe

39. For the post-trial loss of earning Miss. Pinto suggested a multiplier of 18, this based on the table of accident multipliers published by the Hong Kong Law Journal. Mr Brretto suggested multiplier of 14, based on his present age of 23. I would have accepted the multiplier of 18, which seems to be in line with the cases cited there. On the basis that he would have now been earning $220.00 per day or $5,280.00 per month of 24 working days but for the accident, the loss of earnings comes to $3,480.00 per month (ie. $5,280 minus $1,800.00), which times 18 gives $751,680.00.

40. The following items also form part of his future loss :-

    1. Future cost of replacement of the prosthesis. According to Dr Mao the plaintiff is using a wooden and fibreglass type prosthesis which costs $2,200.00 and would last at least four years. Miss Pinto asked for a higher amount of $7,500.00 replaceable every three years. I do not think that the plaintiff is entilted to a higher cost of a model which is more expensive, but in my view is entitled to a replacement of similar type that he is now using. I would have allowed $9,900.00 for this item.

    2. Cost of maintenance and regular checks on the prosthesis including travelling expenses. This is itemised at $500.00,which I find reasonable and I would have allowed it at $9,000.00.

    3. Cost of special socks for use with the prosthesis at $20.00. The plaintiff said that he uses five pairs in a year. I would have allowed this item at $1,800.00.

41. Other items of special damage are claimed under the following headings :-

42. 1) Plaintiff's travelling expenses to hospital for follow up and checks on the prosthesis. He said that he made not less than 20 such trips at S50.00 per trip. Accepting his evidence, I would have allowed this item at $1,000.00.

43. 2) Damage to the plaintiff's clothing at $318.00, which was agreed. I would have allowed this-item.

44. 3) Travelling expenses of members of hi s family to visit him in hospital. This refers to daily visits by his father and/or his sister for which he claims $50.00 per trip. Accepting this as reasonable I would have allowed this item at $9,000.00.

45. 4) Cost of the prosthesis and replacement parts of $6,550.00 which is admitted. I would have allowed this amount.

46. 5) Tonic food. Relying on the case of Yu Ki (1981) H.K.L.R. 419, Miss Pinto asked for a nominal amount of $20.00. The plaintiff said that he was given such food once every two or three days a week. I could have allowed this item at the rate of $40.00 per week for 24 weeks, which equals $960.00.

47. 6) For two months after leaving hospital, he was nursed at home by his mother who had to give up her baby-sitting job which paid her $1,500.00 per month. Accepting his evidence I would have allowed this claim at $3,000.00.

48. With regard to general damages for pain, suffering and loss of amenities, I accept that his injury to the leg falls in the category of substantial injury in terms of the decision in LEE Ting-lam, (1980) H.K.L.R. 657, for which the revised compensation suggested in the guidelines in LAU Che-ping, Civil Appeal No. 12/88 is $180,000 to $225,000. Considering the extent and effect of the injury and the consequent restrictions it has imposed on him, I would have agreed with Miss Pinto that a sum of $200,000 would represent a just and fair compensation under this head. She asked that to this be added a further 10% for the inflation element. That judgment was delivered on the 22nd July, 1988. I am not persuaded that sufficient time has elapsed for it to be effected by inflation to that extent.

49. With regard to interest, Miss Pinto asked for interest at the rate of 2% on the pre-trial general damages and 3.5 to 4% on pre-trial special damages. She submitted that there was no unreasonable delay in bringing this action which was commenced after his condition stabilized with the fittings of the new prosthesis. Mr Barretto said that there was a period of time between February, 1985 when pleadings closed to Setpember, 1987 when a notice of intention to procced with the action was served on the defendant's solicitors during which the suit was dormant. He said that there was no adequate explanation for a delay of almost two years. I think that this is correct and following CHAN Yin-pan v. Eastern Time Ltd., HCA No. 7922/82, the plaintiff should be disallowed interest on the general damages for that period of time when the action was left to lie dormant. I would have awarded interest at 2% on damages for pain and suffering from September 1987 to judgment, and at 4% on special damages from the 20th March 1983 to judgment.