LIU JIANHUI v. MAYHO GRAHAM

IN THE COURT OF APPEAL

1996, No. 25
(Civil)

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J U D G M E N T

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Ching, J.A. (giving the judgment of the Court) :

1. At about a quarter past eleven on the morning of 9th July, 1993, the Plaintiff was run down on the Clearwater Bay Road by a motor car owned and driven by the Defendant. He was awarded damages on the basis of 100% liability in the total sum of $983,386.20 with interest and costs. The Defendant now appeals against that judgment on three bases. The first is that upon the evidence he should not have been found liable at all. Secondly, he asserts that the Defendant was contributorily negligent. He says that the point was open to him on his pleadings and that the Judge was wrong to hold to the contrary. Alternatively, he argues that the Judge was wrong in refusing him leave to amend. In case she was wrong on these points the Judge apportioned 25% of the blame to the Plaintiff and 75% to the Defendant. The Defendant argues that even those proportions were wrong. Finally he disputes the quantum awarded.

2. The Plaintiff was aged 29 at the time of the accident. He was born in China where he lived until he came to work for his uncle in Hong Kong in September, 1992. On the morning in question he had gone to visit a friend who worked at the Park 'N' Shop on the Clearwater Bay Road. When he left he intended to cross the road to a bus stop. He walked across a grass verge of about 20 metres between the building and the road and stopped at the kerb. At that point the road ran straight and uphill in both directions for about 100 metres each way and his view of the traffic was unobstructed. He gave evidence that he looked to his right and then to his left but saw no vehicles. He then walked into the road and the next thing he remembers was waking up in hospital. He had not seen the Defendant's vehicle which was approaching from the right and which struck him.

3. The Defendant was driving his wife home along a road which he had used every day since his arrival in Hong Kong in January, 1993. His evidence was that he was "covering" the brake. He explained that by this he meant that he had his foot on the brake pedal and was operating it on and off so as to maintain a steady speed. The Judge found that the Defendant was driving too fast but made no finding as to the actual speed at which he was travelling. All of the evidence was that it was about 50 k.p.h. That was in fact the speed limit on that stretch of the road. Remarkably, he gave evidence that he was travelling about 12 inches from the left hand side of the road. However that may be, he says that he saw the Plaintiff walk across the grass verge, stop at the kerb and look left but not right. He assumed that the Plaintiff intended to cross the road and he accepts that the fact that the Plaintiff had walked to the edge of the road and stopped was a sign to him that he should be careful. The Plaintiff was about 30 metres from the car when he stopped at the kerb. He walked out into the road. The Defendant braked and swerved to his right but there was a collision between the Plaintiff and the front passenger door of the car. He says that there had been no time to sound the horn, slow down, stop or otherwise to avoid the accident.

4. The Plaintiff's allegations of negligence in paragraph 3 of the Amended Statement of Claim were in what may be described as common form. They were that the Defendant had driven too fast in the circumstances, had failed to keep a proper lookout, had failed to give any adequate warning of his approach and had failed to stop, slow down, swerve or in any other way to manage or control the car so as to avoid the accident. Nothing further need be said of the allegation that he failed to keep a proper lookout. The evidence is that he was vigilant. He saw the Plaintiff walking towards and stopping at the kerb. He saw that the Plaintiff did not look in his direction. He assumed that the Plaintiff intended to cross the road. He appreciated the danger but he did nothing except to maintain his speed and the distance at which he was driving from the side of the road. It may well be that the Plaintiff walked into the road at a time when there was nothing that the Defendant could have done to avoid him. Common sense, however, required the Defendant to make his presence and his approach known to the Plaintiff by sounding the horn. This he did not do and in the circumstances he was clearly liable. This was not a case of a previously unseen pedestrian suddenly emerging from behind an obstruction as in Lau Shun Hing v. Ng Ching Hung (1991) 1 HKC 179 or Baker v. Willoughby (1970) AC 467.

5. On the evidence as it emerged, the Plaintiff was clearly guilty of contributory negligence. On his own evidence he looked right and then left but did not look right again. The Judge commented that he probably did look right but if so it must have been fairly early on when he was crossing the grass verge. She found that he could not have looked right in the eight seconds immediately before stepping into the road. Clearly he was negligent if he did not look. Equally clearly he was negligent if he did look but did not see or ignored the approach of the Defendant. The facts are strikingly similar to those in Williams v. Needham (1972) RTR 387. The Defendant there was found liable, in the words of the headnote,

"..... since the driver knew that the pedestrian was about to cross the road and had not seen the car approaching, he was negligent in not drawing attention to his approach or taking some precaution against the possibility of an accident occurring if she were to cross without looking in his direction."

The Plaintiff had alighted from her car. She intended to cross the road and looked to her right. She had a view of 100 yards and saw nothing approaching. She looked to her left and began to cross without looking to her right again and was struck by the Defendant's car. The Defendant was found to be one third to blame and the Plaintiff two thirds.

6. The circumstances of cases vary considerably and it would not be right to rely upon the apportionment of liability in them as precedents. An examination of the decided cases shows that the range of contributory negligence found on the part of pedestrian Plaintiffs varies between 25 and 75 percent. The Judge below in the present case would have found contributory negligence on the part of the Plaintiff to the extent of 25 per cent had she found the point to be open to the Defendant. We have had some misgiving in the fact that in coming to that apportionment she may have taken into account her finding that the gradient down which the Defendant was driving was equivalent to an angle of 45 degrees. That would be an alarmingly steep gradient the driving upon which would call for the most demanding standard of care. In common sense, however, that gradient cannot be right. While this has caused us some disquiet we do not feel justified in upsetting her apportionment on the totality of the evidence, the apportionment being primarily a matter for the trial Judge. In these circumstances we proceed on the basis that if the question of contributory negligence was open to the Defendant at all the Plaintiff ought to have been found 25 per cent to blame.

7. Paragraph 3 of the Amended Defence denied paragraph 3 of the Amended Statement of Claim and then continued,

"The accident was caused solely by the negligence of the Plaintiff in that he:-

(i) Failed to keep any or any proper lookout.

(ii) Failed to heed the presence of the Defendant's motor vehicle lawfully travelling along Clearwater Bay Road sufficiently or at all.

(iii) Stepped into the path of the Defendant's vehicle when he knew or ought to have known it was unsafe to do so.

(iv) Failed to take any or any sufficient care for his own safety."

The words in the introductory part of the paragraph are "was caused solely", omitting the words "or in part". Mr. Thomas Lai, who appeared for the Plaintiff both here and below, took the view that no question of contributory negligence was raised. In the course of his opening in the Court below he said,

"The Defence is that the whole accident was caused solely by the negligence of the Plaintiff and nothing else."

A short while later the Judge asked,

"..... I am anticipating that the defence is that the entire accident was caused by (the Plaintiff's) lack of care?"

To this Mr. Neal Clough, who appeared for the Defendant both here and below, replied in the affirmative. That was an accurate answer for that was indeed the defence but neither the question nor the answer related to contributory negligence.

8. It was only during the closing address of Mr. Clough in the Court below that contributory negligence was mentioned. He said that the contributory negligence on the part of the Plaintiff was massive and that if he was not the sole author of his own misfortune he had to be "hugely responsible". This eventually drew an objection from Mr. Lai that no question of contributory negligence was open on the pleadings. While maintaining that the point was indeed open to him Mr. Clough then applied for an amendment which was resisted by Mr. Lai. The Judge gave no separate ruling on this but in her judgment she held that contributory negligence had not been pleaded and refused leave to amend.

9. The objection to the proposed amendment was based on two things. First, if the amendment were allowed witnesses would have to be recalled. Those witnesses, or any new witnesses, would know what had already transpired and might be able to tailor their evidence one way or the other. That may well be true and in the appropriate case it may well be that the danger that this may present would be such that the discretion of the Judge will be exercised against allowing that to happen. In the present case, however, it is difficult to see how the witnesses who had already given evidence or otherwise could have tailored that evidence. Secondly, Mr. Lai asserted that if contributory negligence had been a live issue he would have conducted his case differently. That is easy to appreciate. Absent any pleaded allegation of contributory negligence Mr. Lai would be justified in conducting his case on the basis that any negligence on the part of the Defendant over and above that which could be described as de minimis would suffice to show not only liability but liability to 100% on the part of the Defendant.

10. In refusing leave to amend the Judge adverted to the fact that the Defendant had had expert advice and that the failure to plead contributory negligence had been the result of a conscious decision. She referred to the fact that Mr. Lai had opened his case on the basis that the Defendant was either 100% liable or not at all. She appears to have accepted Mr. Lai's submission that he would otherwise have conducted his case differently. She held that to allow the amendment at that late stage would be prejudicial the Plaintiff. It is not apparent how any real prejudice could have been occasioned to the Plaintiff at all. The position that arose was unfortunate. An allegation of contributory negligence is a positive allegation which ought to be clearly pleaded. There was some ambiguity in this respect in the Defendant's Amended Defence but surely the proper way of conducting the litigation would have been to seek further and better particulars as to whether the Defendant was in fact raising that plea. None was sought. It may also be said that the Defence should have intervened during the opening for the Plaintiff and made it clear that contributory negligence was in fact being alleged. That, too, was not done. In the end, it is clear that the amendment, however late, should have been allowed subject to terms if indeed an amendment were necessary at all.

11. It would be unfortunate if pleadings were allowed to become lax and to leave to be inferred allegations which should be specifically pleaded. In the present case the allegations of negligence on the Plaintiff's part as pleaded in paragraph 3 of the Amended Defence, particularly subparagraph (iv) thereof, were apt as much for an allegation that the accident was caused in part as they were for an allegation that it was caused solely by the negligence of the Plaintiff. Positive allegations were made and all that was omitted was the words "or in part". To say that an accident was caused solely by the negligence of the Plaintiff surely cannot debar the Defendant from showing that it was caused partly by that negligence. The standard form claim of a Plaintiff in a running-down action is to the effect that the accident was caused by the Defendant without an assertion that it was caused partly by the Defendant. Yet it would be unheard of that he should be deprived of relief on the basis that he himself was partly to blame. The Courts exist to do justice, so far as they are able, between the parties. It now appears that the Defendant intended his pleading to allege contributory negligence and, however unsatisfactory his pleading may have been in this respect, it would not be right to hold that he was debarred from doing so.

12. In the end, the conclusion is that an amendment on suitable terms should have been allowed if necessary but it was in fact unnecessary. This appeal therefore succeeds to the extent that we hold that the Plaintiff was contributorily negligent to the extent of 25%. It remains to deal with the question of quantum.

13. The injuries sustained by the Plaintiff fell within four broad categories. First there were the head injuries. He suffered a laceration over the scalp which required suturing. He was concussed to the extent that in March of 1995, nearly one and three quarter years after the accident he was still complaining of frequent attacks of dizziness, headache and loss of memory. The Judge accepted that he was suffering from post-concussional syndrome and that the head injuries affected his ability to work. She accepted also that because of his impaired intellectual capacity his work contract was not renewed in September 1994. Secondly, there was an injury to the shoulder which remains in a dislocated position due to ossification. The Judge accepted that this resulted in permanent injury of eight per cent. Thirdly, there was a fracture of the ankle which had not properly healed and which the Judge accepted resulted in five per cent permanent impairment. Finally, there was chest injury with fractured ribs complicated by pneumothorax from which there has been a full recovery.

14. The main attack upon the judgment as to the injuries related to those on the head. Each side called medical evidence from orthopaedists. For the Plaintiff, Dr. Danny Tsoi referred to the Plaintiff's complaints and said that the relevant permanent disability as well as the loss of earning capacity should be more appropriately assessed by a neurosurgeon. For the Defendant, Dr. Lau Hoi Kuen said that he observed the Plaintiff to be neurologically intact and to be no longer suffering from post-concussional syndrome. The Plaintiff came to Hong Kong under a contract describing him as an accounts clerk but it is clear that he was involved in manual work delivering goods. Dr. Tsoi gave evidence that he could resume work as an accounts clerk. The Judge below pointed out that Dr. Lau was not a neurologist and therefore attached little weight to his evidence as to whether or not the Plaintiff was suffering from post-concussional syndrome. She had the evidence of the Plaintiff himself and of his employer who was his uncle and who said that he had not renewed the Plaintiff's contract because he could not work, he could not write coherently and could not discern things. She concluded,

"The Court would no doubt have benefitted from medical evidence from a neurosurgeon regarding the Plaintiff's head injuries but none was adduced. Nevertheless, the absence of such medical evidence is not fatal. The Plaintiff clearly sustained head injuries during the accident: he was treated for it. He has consistently and repeatedly complained of his dizziness. There is, in my view, sufficient evidence for me to make a finding that the Plaintiff did sustain head injuries which clearly affected his ability to work. I do not accept Dr. Lau's finding that Mr. Liu's neurological complaints are unfounded."

We agree with that and cannot interfere. We proceed on the basis that the Judge below was correct in her assessment of the injuries and turn to the question of damages.

15. Sensibly, the parties agreed that we should delay this judgment until after the five member Court of Appeal had determined the appeal in Chan Pui Ki v. Leung On (Unreported, 1995 No. 263, Civil) in which some of the major and basic principles of awards in personal injuries cases were to be considered. That appeal has now been heard. The relevance of it goes first to the award of general damages for pain and suffering and loss of amenities. The Judge found that in the present case the injuries cumulatively took the case into the lower end of the "serious injury" bracket as set out in Chun Yat Nam (1995) 1 HKC 218. The range there set out was $250,000 to $335,000. She added 10 per cent for inflation since that judgment and therefore arrived at a figure of $275,000. Having regard to the decision in Chan Pui Ki (supra) the award under this head should now be $400,000.

16. At the date of the accident the Plaintiff was earning $7,550 per month and the Judge found that but for the accident his contract would have been renewed at $9,920 per month. On the basis and deducting $14,800 salary received the pre-trial loss of earnings was $252,100. These findings are unimpeachable. So too, are her findings as to post-trial loss of earnings. She found that the Plaintiff's employment in Hong Kong would cease in September, 1998, when his work permit expired. On that basis he would have worked here for a further period of 31.76 months. While there was no evidence that his work permit would have been renewed, the Judge was entitled to draw the inference that it would not be. He would be unable to work in Hong Kong. But for the injuries his earnings in China would have been about RMB1,500 per month which has now been reduced to RMB300 to 500 per month. She accepted that he had therefore lost $9,420 per month for 31.76 months and arrived at a figure of $299,179.20. She did not discount for accelerated payment but the time scale is a short one and, as there is necessarily no absolute certainty in these figures, we do not interfere. So far as loss of earning capacity is concerned the Judge estimated a loss of RMB1,100 per month. The Plaintiff was aged 32 at trial and she chose a multiplier of 12 years giving a total of RMB158,400. She used an exchange rate of RMB1.00 being HK$0.912 and came to a figure of $144,460 which she rounded up to $150,000.

17. With three minor figures of special damage the Judge arrived at the total sum of $983,386.20. Increasing this by $125,000 for general damages for pain and suffering and loss of amenities we come to the figure of $1,108,386.20 on 100 per cent liability. This is reduced by 25 per cent for the Plaintiff's contributory negligence and the award is therefore $831,289.65 and the appeal succeeds to that extent.

18. We will hear counsel as to costs.