HO YUK YIN AND OTHERS v. LAU AH LUNG AND ANOTHER

Personal injuries - proof of careless driving conviction reverses the burden of proof of negligence - for defendant to disprove negligence but weight to be given to conviction matter for Court - where infant plaintiff test of contributory negligence remains same as for an adult but is to be assessed in relation to the degree of care which can reasonably be expected of a child of the same age -

Hold: 1. Defendants negligent; plaintiff 25% contributorily negligent;

          2. Damages $187,000.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Action NO.2141 Of 1984

BETWEEN

___________

JUDGMENT

___________

1. The plaintiff while crossing Kwai Foo Road, Kwai Chung, New territories on 1st March 1982 at about 10.5 a.m., was involved in a traffic accident with a goods vehicle registered number CH 8281 as a result of which she suffered personal injuries. The goods vehicle was owned by the 1st defendant and driven by the 2nd defendant.

2. The plaintiff was a schoolgirl aged 11 years at the date of the accident. As a result of the accident her right foot was severely degloved exposing the underlying tendon and bone; the distal phalanx of the right big toe was fractured; there were also fractures of the 2nd, 3rd and 5th metatarsal bones. During treatment she has undergone two major operations. The first operation, immediately after the accident, involved debridement and open amputation of all toes of the right foot, a free neurovascular myocutaneous flap operation was performed to cover the main raw area of the right foot followed by a split thickness skin graft operation. Skin was taken from the right and left thighs for the skin graft operations leaving substantial scarring. More recently, on 17th July 1985, a further revision amputation operation was carried out to improve the skin cover over the stump of the right foot.

Liability:

3. The plaintiff claims that the accident was due to the negligence of the defendants. The defendants deny the allegations of negligence and in the alternative plead that the accident was caused wholly by or contributed to by the negligence of the plaintiff. The plaintiff pleaded that the 2nd defendant on 7th and 14th July 1982 respectively had been convicted in the Tsuen Wan Magistracy, on his pleas of guilty, of careless driving contrary to Section 14(1) of the then Road Traffic Ordinance, Cap.220 and of driving a goods vehicle with a laden weight in excess of the laden weight shown in the vehicle registration book for such vehicle contrary to Regulations 96(1) and 169 of the then Road Traffic(Construction and Use) Regulations. The facts in respect of the latter conviction indicated that the maximum permitted laden weight of Goods Vehicle No.CH 8281 was 374 hundredweight but that at the time of the accident the laden weight was 435 hundredweight being 61 hundredweight in excess.

4. The 2nd defendant did not dispute the facts of the latter conviction and it is of minimal importance it the present action. The conviction for careless driving was admitted but evidence was adduced in support of the pleading that the conviction for careless driving was irrelevant. I find that the conviction for careless driving has been proven. It is therefore necessary to pause to consider the consequences of a conviction for careless driving being established in a personal injuries action for damages. Section 62 of the Evidence Ordinance, Cap.8 is similar to the provisions of Section 11 of the English Civil Evidence Act 1968 which had the effect of reversing earlier law. Our Section 62 now makes the conviction admissible for the purpose of proving negligence which is the primary issue to be determined in this action. Once the conviction is proven the important practical consequence is that the burden of proof then shifts to a defendant to disprove negligence.

5. The 2nd defendant disputed negligence on a twofold basis. First, he attempted to neutralise the effect of an undisputed conviction, following a plea of guilty, by explaining the circumstances on which that plea was entered. Secondly, he submitted that the whole of the evidence before this Court negatived negligence on his part. Alternatively, if he were found negligent the plaintiff was at least 50% contributorily negligent but more probably was negligent up to 60%.

6. Dealing first with the conviction, the record of the Magistrate's Court proceedings established that the defendant both admitted the facts and pleaded guilty. In the circumstances it is desirable to set out the material part of the admitted facts in full:

"At about 10.05 hours on 1-3-82 (Monday), Deft. was driving a 10-ton goods vehicle CH8281 along a straight undivided two-way mono-carriageway at Kwai Foo Road in the direction of east. On reaching outside the main gate of Kwai Chung Police Station, Kwai Chung, the dft. got a clear front view and noticed a 11-year-old pedestrian C/Girl HO Yuk-yin standing on the centre continuous double white lines at a reasonable distance in front, showing the intention of crossing his path from right to left. However, the deft. failed to take evasive action and continued to proceed. Doing so, the offside front wheel of the Deft.'s goods vehicle ran over the right foot of the C/Girl pedestrian who was crossing the road at a normal pace and had been walking on the road for sometime?

7. On the oral evidence before me there was a conflict between the witnesses as to the manner in which the plaintiff had crossed the road and the plaintiff invited me to give weight to these admitted facts in making a finding both on credibility and negligence in favour of the plaintiff. The defence attack on the Magistrate's Court proceedings was twofold. First, it was submitted that the charge and the facts were interpreted in Cantonese but the 2nd defendant speaks Mandarin. Secondly, that he pleaded guilty because he agreed his vehicle had injured the plaintiff and in view of the fact that he had only previously had experience of the legal system of the People's Republic of China he wrongly believed, he was obliged to plead guilty.

8. The 2nd defendant had been born in Indonesia but emigrated to China before later coming to Hong Kong in 1977. Before coming to Hong Kong he had driven in China for 2 years and has been employed as a driver since coming to Hong Kong. At the date of the accident he had been in Hong Kong for 5 years. In this action he gave evidence in Mandarin. The facts admitted in the Magistrate's Court, which I am prepared to accent were read out in Cantonese, were read out to him again in this Court but this time in Mandarin. The 2nd defendant before me admitted that they were the same facts which were read out to him in the Magistrate's Court. I am satisfied from that admission that he understood what was alleged when they were read out in the Magistrate's Court. The second allegation might have been stronger if the facts were extremely brief and limited to an allegation that the plaintiff was injured by the vehicle. However, the facts go into considerable detail.

9. I am satisfied that when those facts are taken into account with the charge, the 2nd defendant well knew that it was alleged that the accident was caused by his carelessness. I am further satisfied that the 2nd defendant's earlier residence in China does not reduce the effect of the conviction. The other evidence adduced at this trial may, of course, negative negligence on his part and even if it does not I may have to give consideration to the issue of contributory negligence which was not relevant in the Magistrate's Court proceedings. The effect of the conviction therefore remains. Accordingly it is for the 2nd defendant to disprove negligence. The weight to be given to the conviction is similarly a matter for this Court after it has heard the whole of the other evidence.

10. Turning to that other evidence, both the plaintiff and her elder sister, HO Shuk-yin, gave evidence of what occurred at the time of the accident. Some time earlier they had crossed Kwai Foo Road to enter the Kwai Chung Police Station in order to renew their Junior Police Club memberships. The Police Station fronts Kwai Foo Road and both girls left the Police Station by its main entrance, intending to recross Kwai Foo Road. I was informed from the Bar that the defence no longer disputed that the place chosen to cross the road was not unreasonable, although this had earlier been disputed. I note from the plan produced that on the Police Station side of Kwai Foo Road road works were underway for some distance either side of the entrance to the Police Station but the entrance from Kwai Foo Road was not affected by those works. As a consequence the entrance to the Police Station was the only available place, within reasonable vicinity of the Police Station, for pedestrians to use who wished to leave the Police Station and cross to the other side of Kwai Foo Road.

11. According to both sisters, as the plaintiff left the Police Station she walked ahead of her elder sister, HO Shuk-yin; on reaching the kerb the plaintiff stopped; then safely crossed the west bound lane; on reaching the centre line she stopped. The elder sister stated that she herself approached and stopped at the kerb while the plaintiff was crossing the first lane. Both the sisters and the 2nd defendant are agreed that the west bound land next to the Police Station as congested. All three witnesses agreed that the traffic in that lane was stationary and that there was a wide gap between the stationary vehicles immediately opposite the entrance to the Police Station. On the evidence the width of that gap varied from a distance equal to the entrance to the Police Station to a slightly wider distance. I find that the distance was at least equal to the width of the entrance to the Police Station which was 12 feet.

12. There was a substantial conflict of evidence of what occurred once the plaintiff reached he centre line separating the west and east bound lanes. The plaintiff stated that she stopped, looked to her light and left and saw the 2nd defendant's vehicle slowly approaching about 30 feet away. According to her, the vehicle was approaching very slowly and gradually stopped about 1 to 2 paces to her left. In the same lane ahead of the vehicle were other vehicles which at that stage were also stopped. The plaintiff stated that on observing the 2nd defendant's vehicle stop she commenced to cross the centre line into the second lane when she heard her sister call out to the not to cross. At this stage her right foot had just crossed the centre line and she to look back towards her sister. At about the same time the front right or off-side wheel of the truck ran over her right foot.

13. The elder sister HO Shuk-yin, except for one answer in cross-examination, confirmed the plaintiff's evidence. She not only stated that she remained on the kerb and observed the plaintiff walk ahead of her but she also observed the 2nd defendant's vehicle enter Kwai Foo Road from a side road adjoining the Police Station, cross the first lane and turn right into the east bound lane before proceeding along that lane to where the accident occurred. She stated that the plaintiff stopped at the centre line and looked both ways before commencing to enter the second lane. In evidence in chief she stated that the vehicle stopped a short distance ahead of the plaintiff before the plaintiff commenced to enter the second lane. She further stated that the vehicle then started to move off again, at which stage she shouted to the plaintiff. She repeated this evidence in re-exmination. However, in cross-examination, when it was put to her that the vehicle never stopped, she replied that before the accident the vehicle was moving very slowly as if it were going to stop and that was why the plaintiff went on from the centre line.

14. The 2nd defendant stated that he was familiar with this particular portion fo Kwai Foo Road which he had entered from a nearby side road as the elder sister HO Shuk-yin had earlier described. Because of the congestion in the first lane, he had stopped at the junction of the two roads until he was able to cross and make a right hand turn into the second lane. After entering the second lane he changed up into third gear and attained a speed of between 15 m.p.h. and 18 m.p.h. According to him the opposite westbound lane was heavily congested but there was no congestion in his lane. The road ahead of him was both straight and clear. On approaching the Police Station he stated he saw two girls dart out in front of him one ahead of the other. In those circumstances he only had time to apply the brakes. He did not sound the horn or attempt to take other evasive action such as steering to his left. The right front wheel of the vehicle ran over the plaintiff's right foot. He immediately got out of the vehicle and picked up the injured plaintiff carrying her across to the Police Station.

15. The police plan, which was produced, showed rear wheel brake marks on the road surface of only 0.8 metres. Obviously the 2nd defendant stopped his vehicle very quickly. His Counsel accepted that before he braked he must have been travelling much less than 15 m.p.h. However, when allowance is made for his reaction time the braking evidence is still consistent with the vehicle never having earlier completely stopped. Certainly if it stopped only 3 to 6 feet in front of the plaintiff it could not, in its overladen state, have reached a speed which would have resulted in these particular braking marks, before the collision occurred. Either the vehicle merely slowed down and did not stop or it must have stopped at a greater distance than 3 to 6 feet from the plaintiff. Precise speeds and distances are notoriously difficult to estimate even for experienced drivers and particularly for children even if highly intelligent. This was certainly emphasised by the evidence on such details by both sisters and the 2nd defendant.

16. However, from the oral and the documentary evidence what happened is tolerably clear. In reaching my conclusions I was generally impressed with the evidence of the plaintiff and her elder sister who were obviously two intelligent girls. I accept their evidence that the plaintiff stopped on reaching the centre line and would have reached that finding on the oral evidence alone. I also record that the 2nd defendant admitted that fact in the Magistrate's Court although he disputed that fact in this action. I also accept their evidence that the second or east bound lane was also congested. I recognise that the attempt of the sisters and the 2nd defendant to estimate precise speeds and distances has resulted in some figures which simply cannot be resolved.

17. I consider it unsound to attempt to resolve those differences with comparable artificial precision. The proper course is to approach those elements of evidence broadly. I infer that if the 2nd defendant did not stop before the collision that he was travelling at a much slower speed that he alleged. If he did not stop then I am satisfied that he slowed down to such a low speed that it appeared that he was about to stop. I am satisfied that the elder sister HO Shuk-yin, standing on the kerb, was in the best position to observe what occurred and unlike the other witnesses who observed the accident she was less directly involved. When I consider the whole of the evidence and particularly the elder sister's evidence on this issue, I am satisfied that when the 2nd defendant came to a stop, or near stop, the plaintiff elected to cross from the centre line and at about the same time the vehicle ahead of the 2nd defendant moved off and he then also either moved off or accelerated.

18. The evidence, quite apart from the conviction, establishes that it was more probable than not that the 2nd defendant was negligent. The defence in addition to claiming that the plaintiff darted out into the second lane, submitted that the stopped vehicles in the west bound lane substantially reduced the 2nd defendant's visibility to his right. But the gap between vehicles in the west bound lane was substantial. Even if the vehicles on either side of that gap were of the size the defence claimed, they would not have substantially affected the view of the 2nd defendant to his right. No matter how close the plaintiff may have walked to the rear of the vehicle to her left, as she crossed the first lane, once she reached and stopped on the centre lane, those vehicles would not have restricted the 2nd defendant's view of her.

19. The 2nd defendant was on his own evidence familiar with this portion of Kwai Foe Road and should have been aware that persons were likely to be leaving the Police Station from that major entrance and that those who wished to cross the road would probably do so at that point. The 2nd defendant, who admitted that there were stationary vehicles in the congested west bound lane, should also have been alerted to the possibility that pedestrians might appear from between the stationary vehicles. Once the accident happened the 2nd defendant behaved in an exemplary manner for which he deserves credit. I appreciate too that the extent of the injuries suffered were far greater than might have been anticipated. However, that does not affect his prior negligence.

20. On liability the remaining issue is whether the plaintiff was contributorily negligent.   The law is well settled that if a child fails to exercise reasonable care, which could have avoided the accident, she is negligent. But in considering what is reasonable care the age of the child must be taken into account. Here the plaintiff was 11 years old at the time of the accident. The test of what is contributory negligence remains the same as for an adult but it must be assessed in relation to the degree of care which can reasonably be expected of a child of that age.

21. I have already held that it was reasonable for the plaintiff to select this particular part of the road as a crossing place. I further find that she exercised due care in crossing the first lane and stopping at the centre line. However, I am equally satisfied that it was unreasonable for her to attempt to cross the second lane until she could do so safely. I appreciate that her sister HO Shuk-yin was both older and in a position from which, to some extent, it was easier to gauge the risk of crossing. But the fact remains that the elder sister was able to observe from that far more distant position, that the 2nd defendant was proceeding forward. I am satisfied that the plaintiff should reasonably have made a similar observation. As to the degree of her negligence the defence submitted that the plaintiff was at least 50% negligent and invited me to find that her negligence was as high as 60%.

22. I was again in this action, as in others, referred to a long list of authorities including factual findings of differing percentages in other cases. The assessment of the degree of contribution is always a question of fact and never a purely statistical exercise, even where the facts are similar. The reality is that facts invariably differ. I recognise that other decisions are a help towards achieving some reasonable consistency as between cases but they are never decisive. I expressly refrain from citing any of them. After considering the present facts against the background of the cases cited, I find that the degree of contribution is 25%.

Quantum

23. The plaintiff entered hospital on the day of the accident, namely 1st March 1982 and remained in hospital for 3 months. After discharge she attended an orthopaedic specialist clinic. Six months after the accident she resumed schooling but was obliged because of her walking difficulties to change to a school nearer her home. Because of the interruption to her schooling she had to repeat Primary 4. Unfortunately, the wound to the right foot continued to weep and, she was unable to walk for more than 10 or 15 minutes without pain. The condition of the would complicated and lengthened the period of convalescence. In March 1985 the wound became infected, the pain intense and she developed a fever. She was readmitted to hospital for days and treated with intravenous feeding and antibiotics but some discharge from the wound persisted. On 17th July 1985 she again entered hospital for the revision amputation earlier mentioned. There is now good skin coverage over the stump and no evidence of infection. There is a possibility, although slight, that a further revision amputation may be necessary before her metatarsal bone growth ceases, in about her 18th year.

24. Before the accident the plaintiff suffered from no physical disability. Now she has permanent disability of her right foot together with substantial scarring of her leg and thighs in the donor areas for the skin grafts. The amputation of part of her right foot represents 70% impairment of the foot and 21% impairment of the whole person. The amputation of all the toes of the right foot and the consequent deformity of the foot means that she is deprived of a vital part of the spring in walking as well as stability of the foot in weight-bearing. I accept that she feels pain if she walks any considerable distance and that her ability to participate in sports has been substantially reduced. The plaintiff appeared to minimise, rather than emphasise, the effect of her injuries. I am satisfied that at school she only takes part in limited warming up physical education exercises and is unable to attend Junior Police Club camps and other physical activities.

25. I adjourned into Chambers to view the bared stump and the scarring remaining over the donor areas of both legs and thighs. The stump is ugly. The scarring is surprisingly extensive. I appreciate that by another two years the keloids should resolve leaving flat scars but some of this remaining scarring will be visible if she wears dresses. I accept that she is unlikely to be able ever to wear fashion shoes. Fortunately, she is a highly intelligent girl and should be able to obtain non-manual employment which will reduce the effect of the injuries on her employment. But they will remain a factor. Her present limp will remain permanent. The permanent cosmetic damage will remain substantial.

26. As was the case in considering contribution, Counsel cited a large number of cases on quantum. I again find those cases of assistance for background purposes and as indicating current damages trends. However, if a detailed attempt is made to adjust the degree of injuries and the amounts assessed to the different facts of the present action, it can lead to over analysis and an appearance of accuracy which, at best, can be misleading. In the hope of not excessively encouraging that practice, while I found the cases cited helpful, and have taken them fully into account, I do not propose to expressly refer to them in this judgment.

27. When the injuries suffered are considered against the categories of injuries which have been judicially established in personal injury claims in Hong Kong, I find that the injuries lie at the top end of the serious category. Leaving aside for one moment the cosmetic injuries, I am satisfied that after allowing for inflation since the original categories were formulated, the appropriate damages would have been in the region of $120,000. The cosmetic damage is relatively more extensive than in most of the other recent cases which were cited and when I take this element into account, it increases the damages for pain, suffering and loss of amenities to $170,000. I assess loss of earning capacity at $50,000. Special damages were agreed at $32,000. This increases the gross damages to $252,000 made up as follows :

General damages:

28. From that sum of $252,000 there must be a reduction of $63,000 for the plaintiff's contributory negligence which has already been determined at 25%. As a result of that deduction I award total damages of $189,000. There will be interest at 2% on the net damages of $127,500 for pain, suffering and loss of amenities from the date of service of the writ to judgment and interest at 6% on the net special damages of $24,000 from the date of accident to judgment. The balance of the judgment sum, after allowance is made for the payment into Court by the defendants of $50,000 on 25th April 1985, shall be paid into Court within 14 days. Upon payment in there shall be payment out to the plaintiff's mother and next friend Lee Ha Nui of the sum of $17,625. The balance shall be invested by the Registrar for the benefit of the plaintiff in terms of R.S.C. Order 80 Rule 12 subject to a first charge in favour of the Director of legal Aid under the Supplementary Legal Aid Scheme. The plaintiff is entitled to her costs to be taxed if not agreed under the legal Aid Ordinance with particular reference to the Supplementary Legal Aid Scheme. Liberty to apply in relation to any other consequential matters i reserved.