LEE KWAN FONG v. LEUNG CHI HUNG

BETWEEN:-

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JUDGMENT

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Preliminary

1. On the 31st August 1982 the Plaintiff was walking northward in Wah Shing Street, on her way to do some shopping. She was struck by a private car driven by the Defendant and suffered a broken ankle which required surgery. She was in plaster for some time and has now lost 10^o of the normal flexion of her left ankle. At the time of the accident she was a licensed ice-cream vendor, using a mobile cart supplied by Watsons.

Liability

2. I am satisfied from the evidence which has been called today and from the medical reports, the record of proceedings in the Magistracy, the sketch and the other documentary evidence that this accident was caused primarily by the negligence of the defendant.

3. He was driving his car along a road which, as unfortunately is so often the case in Hong Kong, had parked vehicles on both sides. He said in evidence and in his statement to the police that he saw the plaintiff walking ahead of him with two other pedestrains with her back towards him. She was on the road. She said she was there because the pavement was blocked and she had no alternative. The Defendant said there was a container lorry coming towards him in the opposite direction and that it was going at a substantial speed. Nevertheless, I am satisfied that if he was going slowly, as he said he was, he should have stopped before he reached these pedestrains but that what happened was that he was passing pedestrains at the same time as the container lorry also went past him on the other side and to avoid them he moved to his left and struck the plaintiff.

4. I am also however satisfied that there was some degree of contributory negligence on the part of the plaintiff. Contributory negligence should be specifically pleaded, but the Defendang has denied liability. He is unrepresented and I think that I can take account of any contributory negligence. I am satisfied that the plaintiff knowing that it was a busy street and having been forced out onto the roadway should have kept a look-out and she was not entitled to simply walk along with her back to traffic coming from behind her. Although I do not find this was a very substantial fact of causing the accident, I do find her negligent to the extent of 10%.

Damages

5. So far as loss of earnings is concerned I accept the report prepared by Dr. Wedderburn that if the plaintiff had so wished she could have returned to the job after about one year. As to her income there is no documentary evidence in support of her claim whatever and I would have thought that such records could have been available, or that somebody from the ice cream company could have given evidence as to sales made to the plaintiff and what they would expect her to return. I take $120.00 a day as the loss of earnings during the period of one year when the plaintiff could not work. On the basis she works everyday during the summer but less in winter. She would on average work 25 days a month.

6. So far as loss of earning capacity is concerned Dr. Wedderburn says that there is in fact very little loss of earning capacity. He says that she has made a very good recovery and if she so wished that she could operate her cart much as before. I accept his figure of 4% loss of earning capacity. The special damages are not really in dispute but I do not propose to allow the fees from the bone-setters because she was getting proper medical treatment. I only allow nominal amount of $200.00 for special food as to pain, suffering and loss of amenities she has made a good recovery and there is no prospect of arthritis in the joint. However she undoubtedly did suffer some pain and inconvenience for a period of one year. It is very difficult to assess a figure for this. I will award $10,000.00 under that head. There will therefore be the following damages.

All damages will be reduced by 10%.

7. There will be interest at 2% on the award for pain and suffering from tje date of accident to date of judgment and at 6% on loss of past earnings and on the special damages from date of issue of writ.

8. The plaintiff is entitled to her costs to be taxed in accordance with the Legal Aid Regulations.