CHAN SI MUI v. KONG HUNG KEUNG AND OTHERS

1991, No.A4977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The plaintiff brought these proceedings against the defendants for damages for personal injuries she suffered from a traffic accident that occurred on 8th September 1989 at Chun Wah Road near the junction with Jordan Valley South Road, Kowloon. The coach that was involved in the accident was owned by the 2nd defendant and driven by the 1st defendant on the material day. Though both the 2nd and 3rd defendants were initially legally represented, they were left without legal representation at the trial. However, despite not being able to act in person at the trial, both defendants being limited companies, they were present via their respective directors during the trial. Judgment was given, after trial, against all defendants with reasons reserved. I now hand down reasons for the judgment.

2. The plaintiff's evidence was succinctly summarised in her witness statement dated 17th March 1994 that she affirmed to in court. She said :

"I got off the minibus, which had stopped at its terminus stop and walked in front of it, with a view to crossing Chun Wah Road. As I did so, the maxicab moved forward so that it was at my back. It stopped again and I found myself standing about half-way down the maxicab's length. At the same time I saw a large tourist bus coming towards me at high speed, so I turned, and tried to run towards the front of the maxicab to escape from the oncoming tourist bus. However, before I cleared the length of the maxicab, the tourist bus trapped me by the chest and shoulders. I cried out for help, and then fainted."

However, in her cross-examination, she admitted that thought initially the coach was coming towards her at high speed it had to slow down just before the impact because of the congested traffic condition immediately ahead of the point of impact. She also agreed it was wrong for her to cross the road at that location since there was a controlled pedestrian crossing nearby. Though she agreed that there was also a footbridge at that stretch of the road, she complained that it was far away from the spot where she was. She said the sky was turning dark as if about to rain, so she was "forced" to cross the road at that spot as soon as possible. She also said that she was not alone in crossing the road in that manner as people would frequently do what she did. She also said that when she saw the coach approaching she turned around trying to retreat back towards the front of the maxicab, that is retreating towards the narrowing gap between the 2 vehicles as the coach pulled in after overtaking the maxicab.

3. Furthermore, in her statement to the police taken on the same day as the accident, instead of alleging that she had just alighted from the stationary maxicab, she said she was walking along on the pavement when she saw that maxicab pulled up. She said she crossed the road in front of the maxicab. But the maxicab then drove up behind her when she had reached a position between the slow and fast lanes of the carriageway. She said she then stopped and the maxicab also stopped behind her. She said it was at this juncture that she saw the tourist bus approaching on the fast lane. She told the police that when she walked out in front of the maxicab she saw that there was no vehicle at all on the fast lane, but she was not aware if there was any traffic behind the maxicab. Consequently, the plaintiff had given different versions as to how she managed to put herself between the 2 vehicles.

4. PW4, Lee Kam Wah, the driver of the maxicab that was involved in sandwiching the plaintiff, told a different story. He said the plaintiff was not a passenger of his maxicab and did not alight from his maxicab and walked round its front as she alleged. He said he had stopped his maxicab and had turned around to collect fares from his passengers when some of the passengers shouted that there was someone walking along the right side of the maxicab who was about to be crushed by a large tourist bus that was overtaking on the right. He looked into the rear view mirror and saw the plaintiff about halfway down the length of his maxicab walking towards the front of his vehicle. As he saw the coach pulling in after overtaking his maxicab, he sounded the horn to warn the coach. However, the coach failed to stop and trapped the plaintiff between the 2 vehicles. As PW4 had turned around to collect fares from his passengers, he would be able to tell whether the plaintiff was his passenger that had just paid him and alighted from his maxicab. I prefer his evidence to that of the plaintiff who I find to be an unreliable witness having a tendency to exaggerate and to say anything she believed would enhance her case. A classic example is her allegation that both the 1st defendant and PW4, who were total strangers before the accident, laughed at her after the accident and said they would "do her in". She called both of them the devil amongst other things.

5. It is PW4's evidence, given at the criminal hearing during which the 1st defendant was convicted of careless driving, that the coach was cutting into the left lane in front of him at a low speed. At the trial before this court, PW4 said the plaintiff would not have been trapped had she not walked towards the narrowing gap.

6. The 1st defendant said he was travelling at a speed of less than 3 kph as there was traffic congestion ahead at the traffic light. He was passing by the stationary maxicab intending to cut into the left lane in front of it to pick up students. He said he did not notice any pedestrians attempting to cross the road from the right side of the maxicab as his coach passed it. However, he did admit that after the front of his coach had passed the maxicab and prior to his turning the steering wheel towards his left to commence pulling to his left he did not take any further look to his left towards his back to ascertain the condition regarding the space between his coach and the maxicab. He had simply assumed that the condition remained the same as he saw it when he was passing the maxicab. He admitted that he was wrong in failing to keep a more constant lookout regarding the condition between the 2 vehicles whilst pulling into the left lane at such close proximity to the maxicab.

7. I accept that the 1st defendant was driving his coach at a very low speed in pulling into the left lane after passing the stationary maxicab. I also accept that the plaintiff had not yet walked out onto the carriageway to the position to the right of the maxicab before the coach commenced to pass the maxicab. Thus the 1st defendant was not negligent in failing to notice her at that point of time. Somehow, the plaintiff, in her attempt to cross the road in a hurry, walked towards the narrowing gap between the 2 vehicles as the coach was passing the maxicab. As the plaintiff's evidence indicated that she intended to cross the road to reach the pavement to the west of the junction of Jordan Valley South Road, she, in all probability, was walking in the direction from the rear of the maxicab towards its front rather than in the reversed direction as she alleged. This conclusion would be consistent with the evidence of PW4 that when he saw the plaintiff she was walking towards the front of the maxicab. The plaintiff was attempting to cross a dual carriageway with 4 lanes in total at the location of the accident instead of taking advantage of the controlled pedestrian crossing or the footbridge nearby. She had ventured out onto the carriageway and walked along the right side of a stationary vehicle in a position that put her between 2 lines of traffic, i.e. in the middle of the westbound carriageway. She had put herself in a most dangerous position by walking between the narrow gap between 2 vehicles in the middle of a 2 lane carriageway when at least one of the vehicles was moving, albeit very slowly. She had failed to notice that the coach had put its left indicator on thereby giving notice that it would be pulling towards its left. She had, probably out of panic when she discovered the dangerous situation, walked into the narrowing gap between the 2 vehicles. The 1st defendant on the other hand had failed to keep a vigilant lookout regarding the condition to his left when cutting into the left lane at such close proximity with the maxicab. As he had been driving on that particular route for sometime, he ought to be aware that pedestrians often took the short cut to cross the road at that vicinity. In the end, I found the plaintiff and the 1st defendant equally to blame for the occurrence of the accident. I, therefore, apportioned liability for the accident amongst the parties equally and held the 1st defendant to be liable for the claim to the extent of 50%.

8. The plaintiff suffered a fracture of the neck of the left humerus and was treated with a collar and cuff. She discharged herself from hospital after 3 days. However, the collar and cuff was kept on her for 2 months. She attended a bonesetter after discharge from hospital. She also attended the outpatient unit of the hospital for about 10 months.

9. The plaintiff claimed a total loss of earning capacity as a result of the injuries she suffered from the accident. She said she was 63 at the time of trial and was too old and incapable of working. She worked as a cleaner in a rent-an-hour apartment. She alleged that as a result of her inability to return to work after the accident the business had to close down. She alleged the boss was not able to cope with the business without her. However, her former employer (PW3) gave evidence contradicting such claims. PW3 agreed that when the plaintiff returned to work she said she had no strength to discharge her duties properly and thus resigned after a few days. After that PW3 arranged to have the other cleaner on a different shift to extend her working hours to cover part of the plaintiff's shift, and she herself filled in the rest of the shift. She said she finally closed down business because her children asked her not to carry on such kind of dishonourable business anymore.

10. The plaintiff has, since the accident, been living on public assistance, and is living at public housing accommodation provided for old people. According to the latest medical evidence produced by the plaintiff, she has a 1% impairment of the whole person due to disability resulting from the fracture of the left humerus. It was Dr. Mao's opinion that there is "no reason why she should not be able to carry out her previous work or do any work in a factory such as sorting out or packing light articles". And, upon hearing complaint from her about shortness of breath that prevented her from working, the doctor observed that "she is also very much overweight and it seems she has been smoking cigarettes for the (?) last 30 yrs.". Medical evidence initially suggested the blueness of the neck and head after the injury could possibly have been caused by a fractured rib causing emphysema. However, no such fracture was subsequently found on the X-rays. I am not satisfied that the alleged shortness of breath has any causal link with the injuries she suffered from the accident. I am satisfied that the plaintiff could have returned to her previous job or some other form of jobs as the doctor opined. She had not attempted to find any job after resigning from her former employment. In the premises, the plaintiff was awarded pre-assessment loss of earnings for the period between the date of the accident and the time when the doctor found her to be able to resume employment. She earned about $4,000.00 in her job as a cleaner prior to the accident. Her pre-assessment loss of earnings was thus $72,000.00 ($4,000 x 18 months). No award was made for the period from March 1991 to the date of trial. I accept a multiplier of 3 is appropriate for a female cleaner aged 63 at the time of trial. I do not accept the doctor's opinion of a 3% loss of earning capacity as being a matter that is not quite within his sphere of expertise. In view of the age of the plaintiff and the nature of the work she is capable of discharging, I was of the view that her loss of earning capacity should be in the region of 15% instead. The multiplicand of $4,000.00 was increased by 20% to reflect the influence of inflation. Loss of earning capacity was thus assessed in the sum of $25,920,00 ($4,800 x 36 x 15%). Though the plaintiff was not able to produce any receipt for her bonesetter treatment and nourishing food, I accept that $5,000.00 would be a reasonable amount in view of the nature of her injury, her age and the period of medical treatment. I also accept the propriety of the claim for $376.80 for medical expenses and $376.80 for travelling expenses. Her claim for pain and suffering and loss of amenities was assessed in the sum of $55,000.00. That would give a total assessment of $158,670.80 on the basis of full liability. Taking into account the 50% contributory negligence of the plaintiff, she was awarded the total sum of $79,335.40. Interest on general damages of $40,460.00 will accrue at the rate of 2% p.a. from the date of writ until payment, whilst interest on special damages of $38,875.40 will accrue at the rate of 5% p.a. from the date of accident until payment. After hearing argument on the scale of costs, costs were awarded to the plaintiff on the High Court scale notwithstanding that the action could have been brought in the District Court. Oral reasons for the costs order were delivered at the time and are not to be repeated here.

11. The 3rd defendant alleged in its defence that though the 1st defendant was "usually employed" by it as a driver, he was not in the course of employment with it at the material time as he was driving a coach belonging to the 2nd defendant. The 2nd defendant admitted in its defence that the 1st defendant was driving its coach as its servant or agent at the material time.

12. The 1st defendant said in evidence that one Chan Sing Chiu gave him orders as to which coach to drive on which route on a particular day. It would appear from his evidence that the business operations of the 2nd and 3rd defendants were virtually inseparable and were closely intermingled. Coaches belonging to the said 2 defendants would be deployed on the routes operated by them in accordance with the necessity of the situation and not in accordance with ownership of the coaches.

13. The 1st defendant was said to be the employee of the 3rd defendant in the two I.R. Form 56B filed by the 3rd defendant for the years 1988-1990. However, for the subsequent year 1990-1991, the 1st defendant was said to be the employee of one Hung To Transportation Co., a company operated by the said Chan Sing Chiu as a sole proprietor at the same address as the 3rd defendant. The said Chan Sing Chiu was, at all material times, also the controlling shareholder of both defendant companies. The business of the said defendants was so intermingled and closely owned and run that it would be wholly artificial to attempt to draw any distinction between the two in respect of the issue of control over employees. I was satisfied that though the 1st defendant was on record the employee of the 3rd defendant, in reality he was under the control of both defendant companies; both exercising equal and inseparable control over him at the same time. In the premise, the 1st defendant was held to be under the control of both defendants at the material time via the agency of the said Chan Sing Chiu. Both defendants are therefore to be vicariously liable for the negligence of the 1st defendant. Judgment was therefore given against all defendants in the sums set out supra.