FAN SHUIT LUI v. SHING WAH CHAI AND ANOTHER

BETWEEN

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JUDGMENT

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1. This is a claim for damages for personal injuries sustained by the Plaintiff in a traffic accident occuring on the Tuen Mun Road at 1330 hours on 8th January 1983. He is now aged 30. He claims against the 1st Defendant as the driver and against the 2nd Defendant as owner of the Suzuki goods vehicle which collided with the Plaintiff whilst he was changing the front off-side wheel of his employer's goods vehicle on the carriageway. If the 1st Defendant is liable to any extent, the 2nd Defendant concedes that he is vicariously, jointly and severally liable also for any damages so payable.

2. It is agreed that the 8th January 1983 at 1330 hours was not only broad daylight but good weather, and that the road surface at the place of the accident was good and dry. With the papers put before me by agreement is a copy of the sketch plan made by the police officer attending the scene after the accident who also gave evidence before me and his evidence was to the effect that the vehicles had been moved when he arrived and the Plaintiff had also been removed to hospital. This sketch shows that the road way at the scene is in a slight left hand curve and that it comprises three lanes of traffic in each direction; according to the scale the entire westbound carriageway is 10 metres wide so that each lane of traffic would be 3.3. metres wide approximately. The officer who drew the sketch said that each lane was 3.5 metres in width and that the road was level at the scene and that the Plaintiff's vehicle if stationary at the spot where it was described to him would have been visible, as he said to a driver with normal vision from 300 ft. away. Visibility, he said, was up to 500 ft. There was a 40 m.p.h. limit on that stretch of road at the material time. When asked in cross-examination what a driver should do if his vehicle gave trouble on that road this officer said "He should first try to pull into the lay-by at the left; if he could not do so then he should put his hazard lights on, and then with the vehicle stationary he should put an object behind the vehicle to warn drivers approaching from the rear of an emergency ahead of them."

3. The officer's view was that the driver should not try and repair his vehicle on the roadway. He did not think it advisable to post a lookout to the rear -from the point of view of the safety of the person so posted. This road is, as I understand, one of the new fast motorways built in Hong Kong, the driving standards on which caused so much debate at one time but I was told also that there are no specific motorway regulations such as there are in force in Britain. The officers's views are therefore his own, but I venture to say that based on common sense nevertheless, and if there are no regulations yet in force this case reinforces the need for such.

4. As the speed limit was 40 m.p.h. on that stretch of road and the weather conditions were good, then the overall stopping distance quoted by Bingham (Bingham's Motor Claims Cases 8th Edition p. 112) would be 120 ft. for a vehicle with tyres in good condition, travelling at the maximum permitted speed. There was therefore on the officer's evidence no reason for a driver keeping a proper lookout, even travelling at the maximum permitted speed, to be faced with any sudden emergency simply because the Plaintiff's vehicle had stopped ahead of him.

5. Neither of the Defendants gave evidence. The 1st Defendant had been convicted of careless driving at Tsuen Wan Magistracy and fined $750. It was incumbent on him to show why I should not regard that conviction as evidence of lack of care and he has not done so. Indeed I do not think it unfair to Mr. Leung who appeared for the Defendants to say that the 1st Defendant's negligence was not a live issue. What was contended for and asserted by the pleadings and by Mr. Leung was the extent to which the Plaintiff himself contributed to his accident by his own failure to take care of his own safety.

6. I found the Plaintiff to be a candid and credible witness, and a man of energy and resourcefulness, and who did not appear to me to attempt in any way to exaggerate his injuries.

7. I now turn to the Plaintiff's description of the events: he said he was driving in the middle lane of the highway. His employer's vehicle was a 2½ ton Isuzu platform truck with an engine of 2 litres capacity, and a load of timber projecting to the rear with a red cloth attached thereto. He had checked the tyres before he started the morning's work that day, and found them to be alright, and he was in fact in the habit of personally changing any tyres which were faulty, since he was in charge not only of this vehicle that he was driving on the day of the accident, but also of his employer's other vehicle.

8. Whilst travelling from Tsuen Wan towards Tuen Mun this Plaintiff was driving this vheicle which was registration No. BV 8919, accompanied by his van boy FAN Chu sitting on his left, when, he said, he was driving at "30 m.p.h. or more" and in fourth gear he heard a vibrating noise and sensed a puncture. He described how he stiffened his arms to hold the steering wheel and the vehicle straight and that he prevented it from swerving; a technique he said he had learnt from the cinema whilst watching war films of vehicles being shot at. He said the vehicle's movement was erratic so that he did dot stop it at once. He agreed in cross-examination that vehicles with sudden and unexpected flat tyres do tend to swerve. He brought the vehicle however to halt and slanted slightly to the right he said; that is towards the fast lane. When the vehicle came to a halt he found that he could not move it, when he let in the clutch the engine stalled and he could not move the vehicle, which had a full load.

9. He said he finished up with his vehicle still in the middle lane and with a gap of 1 ft. between the offside of his vehicle and the outside lane. The legend with the agreed police sketch shows his vehicle to be 2 metres wide so that in the middle of the centre lane, there would be ¾ metre free on either side of the vehicle if the lane is as the officer said 3.5 metres wide. It would not need much of a swerve therefore to take up ¾ metre and this is the first point I have to resolve, that is to say whether the vehicle at rest finally projected into the offside lane. The Plaintiff said he kept it at all times in the middle lane but slightly slanting to the offside.

10. The van boy FAN Chu who was not himself a driver, said in evidence in chief that when stopped the Plaintiff's vehicle slanted at an angle and protruded a foot or so into the third, fast lane. He was confronted in cross-examination with a statement he had made to the police immediately after the accident in which he said the Plaintiff's vehicle protruded 3 or 4 ft. into the fast lane. FAN Chu was illiterate and whilst the statement was read to him he says that it was not properly recorded. The Defendants have chosen to give no evidence and I accept FAN Chu's sworn testimony to the effect that the vehicle's front offside corner projected a foot or so only into the fast lane when it finally came to rest. I so find.

11. The Defendants by their Defence raised various heads of contributory negligence to which I shall refer later; but having found the Plaintiff's vehicle finally came to rest diagonally across the middle lane and projecting into the fast lane slightly, I must consider whether it was reasonable for the Plaintiff to leave it there, and then if it was reasonable to attempt to change the wheel, and further if the way he did so was safe. The Plaintiff dismounted as did FAN Chu when the vehicle finally came to a halt, and the Plaintiff found that the outer casing of the tyre had come off the wheel and was fouling the axle; this prevented the vehicle from moving. I accept that, and it follows that the Plaintiff could not drive his vehicle off the road; he was not negligent at that stage.

12. The next stage was for him to attempt a repair at all - was that so dangerous as to amount to a lack of care for his own safety? The police officer said so, and he did not feel that by posting a lookout to the rear that the operation was thus made safe.

13. There was no evidence of any telephone in the vicinity but I think it must be the case that to attempt any repair on the highway is a hazardous operation at the best of times, in the middle lane there was a risk of vehicles passing close on both sides, but the Plaintiff says, and I believe him, that he thought he could change the wheel in about 5 minutes, and had nearly done so when he was struck. But 5 minutes is a long time to be exposed in the middle of the road and working as he would have to be at the side of the projecting part of the front of the vehicle, meant he would have to be in or at the very edge of the fast lane, whilst he was alternately standing and bending with his side and back to the traffic. I take into account his zeal and courage in attempting the repair at all, and the fact that he posted a lookout to send traffic past him on the other, near side, but nevertheless I come to the conclusion that beginning to work on the-vehicle was dangerous and amounted to lack of care of his own safety. FAN Chu the van boy, never noticed the hazard lights on at the rear of the Plaintiff's truck and the Plaintiff says that in broad daylight with a coating of dust they were perhaps not visible - he had not checked himself to see that they were operating to the rear. He said it occurred to him that it would be sufficient if he sent FAN Chu to the rear to warn traffic. He never saw the vehicle which struck him and he was, I imagine, absorbed in his job, having nearly completed the wheel change, he was in the act of tightening the wheel nuts when he was struck, so that he was not attempting to keep a weather eye open for any vehicle that overtook on the offside. The Plaintiff's evidence was that the Defendants' vehicle was the only one to pass on that side; if the Plaintiff's vehicle had been stopped in the fast lane, so that he could work with some protection from the central division, it might not have been so hazardous, but I find that, whereas he projected only slightly in the fast lane whilst working, the Plaintiff had assumed that having sent FAN Chu to the rear he could then safely get on with his job of changing the' wheel. FAN Chu had the red flag which was previously tied to the projecting load in his hand, but of course no authority to direct traffic to either side. Had he been a police officer, then it might have been safe for the Plaintiff to assume that he would safely direct the traffic.

14. FAN Chu describes the Defendants' vehicle as approaching fast then skidding in both directions before it passed on the offside. He attempted to estimate its speed at 50-60 m.p.h. but I discount that because FAN Chu is not a driver. I had no evidence from the 1st Defendant as to the reasons for passing on the offside. The Defendants' van was a small one, 1.5 metres wide according to the particulars of the legend on the police sketch, and he may have misjudged the width of road available to him. I do not know, but it does not affect the degree of contributory negligence I have to attribute to the Plaintiff.

15. That the van boy FAN Chu managed to divert all the other vehicles except the Defendants and that the Plaintiff had nearly completed the wheel change, is some indication that the measures introduced by the Plaintiff nearly succeeded in preventing a collision, but in my judgment his decision to attempt to change the wheel at all in those circumstances is evidence of a degree of lack of care for his own safety which is compounded by the fact that the Plaintiff never saw the vehicle which struck him; that indicates that he passed all responsibility for his safety to his van boy FAN Chu, and so I come to the conclusion that the Plaintiff was guilty to contributory negligence to the extent of 25% and the amount of the award I eventually make for his injuries will have to be reduced accordingly.

16. The Plaintiff was struck from the left; he suffered fractures of 2 ribs, of the pelvis in four places, and whilst these fractures have united the right pelvis is rotated slightly, and he has a½ inch shortening of the right leg and limitation of the left hip joint movement.

17. Dr. R.G.M. Wedderburn says he will suffer some permanent residual pain and discomfort, and that it will not be safe for him to drive a heavy truck as he would not be able to lift heavy items. His job was defined as a driver-delivery man, so that he had not only to drive vehicles but to unload or load, or help with such.

18. Dr. Wedderburn regards his maximum lifting capacity as being in the region of 20 lbs. Taking into account the various impairments to his hip and leg, Dr. Wedderburn regards the total impairment of the whole man as 11%, but because of the nature of his pre accident employment his disability when related to his earning capacity amounts to 15% of the whole man.

19. The Plaintiff had been in the same job for about a year before the accident and was earning $2,500 per month together with the value of meals and overtime giving a total in money or money's worth of $2,875 a month plus the right to a Chinese New Year bonus. His employer's evidence was that his basic earnings would have increased so that at the time of trial he would have been earning a basic salary of $2,700 plus his overtime and a slightly larger meals allowance and of course the Chinese New Year bonus; so that his monthly average earnings in the same employment would but for the accident now be $3,575.

20. After the accident the Plaintiff was paid by his employer for six months but was then unable to resume his work as such; then he had a variety of jobs, including hawking, acting as a salesman, and more continuously working as a decorator. At one stage he considered becoming a taxi driver and acquired a licence, but says he is not mobile enough to compete in crowded streets, for fares which entails not simply driving but a constant lookout and movement of the upper trunk, whilst so looking for passengers, and I imagine includes parking and reversing and manoeuvring of his vehicle rapidly. The Defendants suggest that he should pursue the possibility of driving a taxi as he could on his own evidence earn $3,000 or more a month by so doing. I accept his evidence however that he does not feel up to it for the reasons I have given.

21. I found the Plaintiff to be a good witness, candid and forthcoming and I am satisfied that he has done what he can to reduce his own loss of earnings. He has had periods of work but that is a natural consequence of being unable to follow his chosen job. He has tried to get jobs as a driver, but not very hard because, he says, a driver alone who does not help with leading and unloading can only command a salary of about $1,600 per month. His former employer thought that he might get about $2,300 a month as a driver but he did not employ any such drivers.

22. As a decoration worker the Plaintiff is now getting $2,000 per month on the average, but with no overtime, meal allowance or Chinese New Year bonus. He prefers the freedom it gives him, of working 20 days or so in a month to being tied to the job with only one or two days' a month off. Whilst that is understandable and to some extent a natural consequence of being thrown out of his chosen job by this accident, I think that it is hard for the Defendants to have to pay for the elements of freedom which he prefers and so I propose and so find that he could without injury to himself earn as much as $2,500 per month as a decorator if he chose to work as many days as he did previously. And I calculate therefore that his continuing loss of salary or earnings to be in the region of $1,075 per month.

23. He has not been in employment up to the trial to the extent that he is not in nor able to resume continuously his pre-accident employment, and so I agree with Miss Bridges that it would not be a case for me simply to include a figure in the general damages for his future loss of earnings. I should adopt the multiplier which I consider appropriate. Bearing in mind that Dr. Wedderburn forecasts an onset of pain and discomfort in the pelvic area by the age of 40, and the restriction of his activities by the age of 50, I think that this is likely to affect his future earnings and that the multiplier should be slightly higher than I would otherwise affix. Whilst the vicissitudes of life normally envisage disasters rather than windfalls, this man will be worse off at an early age and this is likely to affect his earnings and so I propose to raise the multiplier to 14 which means that for his future loss of earnings I calculate these to be $1,075 x 12 x 14 which equals $180,600.

24. The Plaintiff's loss of earnings to the date of trial had been calculated by Miss Bridges to be in the sum of $108,037 which I accept and from this he has to deduct his actual earnings of $53,900 leaving a net figure of $54,137.

25. There are certain other items of special damage which have been geed being :

26. The Defendants have contested one other item of special damage, in the sum of $2,580 being an expense occurred to the bone-setter on 5th April 1983 for Chinese medicine. The herbalist who prescribe the medicine was called and told me this was a single "one off" prescription of Korean Ginseng and Deer Horn as a final convalescent tonic. The herbalist had been treating the Plaintiff for the pains in his chest consequent upon the fracture of his ribs, and I cannot see that this treatment overlapped the orthodox western treatment the Plaintiff had for the fractured pelvis, and as I am satisfied the Plaintiff actually spent the sum, I will allow it, so that there is an additional item of special damage (iv) $6,825 to be added to the three items above making a total of $9,829 for the (iv) items.

27. The total special damages are (ignoring cents):

28. For pain suffering and loss of amenity the Plaintiff contends for a figure of $100,000. Whereas the Defendant contends for a figure of $60,000 -$70,000. This Plaintiff is I am quite satisfied resilient and will overcome as far as possible his disability. He has had to give up his chosen job and would not be able to return to it, he will have pain in the pelvic region within 10 years and have to curtail his activities within 20 years and of course his present athletic activities are somewhat restricted already. In all these circumstances allowing for his period of 6 weeks in hospital and 6 months convalescense, and bearing in mind he is a single man of 30 now, I consider that the appropriate award for general damages is $80,000.

29. The total award therefore will be as follows:

General damages: $80,000 with interest at 2% p.a. from the date of the writ namely 12th September 1984 to the date hereof.

Special damages: $63,966 together with interest at 4% from 8th January 1983 to the date hereof.

Loss of Future Earnings: $180,600.

This makes a total of $324,566 plus the interest on the various components of the award but from that there must be deducted 25% representing the extent to which I have held the Plaintiff liable for his own contributory negligence.

30. And from that net sum there is yet another deduction to be made in the sum of $18,882 being compensation received by the Plaintiff pursuant to the Employees' Compensation Ordinance.

31. When the Plaintiff has calculated the interest, and made the necessary deductions judgment can be entered accordingly.

32. Delivered by me in court this 30 day of April, 1986.