FAN LAN FONG v. DAWSON JAMES EDWARD

1996, No. PI 714

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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Damages for personal injury

1. This lady, now 34 years of age, was injured in a collision with a motorcyclist on 14 December 1990 at about 8.30 in the morning. She was crossing the southbound carriageway of the Clear Water Bay Road on foot when she was struck by the defendant's motorcycle, which was proceeding in the direction of Kowloon.

2. The defendant has not appeared in these proceedings. Originally he was represented by solicitors, no doubt upon the instructions of the Pacific Insurance Company, and a defence and counter-claim was filed in which he sought damages for the injuries sustained by him consequent upon the collision with the plaintiff. He did not, however, attend the pre-trial review on 26 June 1996, his solicitors having ceased to act for him in early February 1996 when he gave notice to act in person. Documents were subsequently served upon him at the address he gave in that notice and he was aware of the date and place of trial some months ago.

3. On this morning the plaintiff was following her usual practice of crossing the road from the Pik Uk side to the side on which Razor Hill Road meets the southbound carriageway of the Clear Water Bay Road. The sketch plan prepared by the police officer who visited the scene was used in the Magistrates Court proceedings against the defendant. I will return to that aspect later.

4. The photographs taken by the police photographer for the purpose of the Road Traffic Ordinance prosecution are of some significance since the layout of part of the junction has been significantly changed since the accident, particularly the designated crossing area for pedestrians. There is, however, no photograph showing the lateral view, that is, from one side of the road to the other, and reliance has to be placed upon photographs number 9 and 10 correlated to the sketch plan.

5. The provision for pedestrians incorporates a break in the barrier on the Pik Uk side of the Sai Kung bound carriageway, which is designed to permit pedestrians to cross the carriageway and enter a collection corral on the central reservation, bound also by metal barriers, with a designated entry and exit gap as shown more clearly in photograph 10. The entry and exit gaps are diagonally opposite each other, no doubt so as to form some regulating means and to prevent a headlong dash from one side of the road to the other.

6. The plaintiff successfully crossed to this central reservation. Having done so, her view to her left towards Sai Kung from which traffic would come, was at best downhill and curving to the left. She was near or at the crest of the uphill climb from Sai Kung. The range of visibility for the defendant, as he drove towards that point, was about 80 yards.

7. The plaintiff's recollection is that she checked to her left as she always does and began to cross the southbound carriageway, directly opposite the corresponding break or gap in the barrier fencing, also shown on the sketch plan but not shown in any photograph. As best she can recall the road was clear and she considered it safe to cross. All she then remembers is being hit and hurt and ending up in hospital. Her injuries were extensive and very serious. I am not at all surprised she has no recollection.

8. Although the defendant did not appear to give evidence at this trial, he made a statement to the police and also gave evidence in the proceedings against him in the Magistrates Court. He was 19 years old at the time and had only a provisional licence. He was not displaying L plates. He was not entitled to be travelling on a road on this vehicle at that time of day. He was clearly inexperienced. He was travelling in the outside lane, overtaking some cars in the inside lane. His speed, he said, was about 50 kilometres per hour going uphill. The speed limit is 70 kilometres per hour. None of the occupants of the other vehicles allegedly overtaken by him saw the accident. Certainly no such vehicle was impeded by an accident which must have taken up the substantial part of the carriageway. Either those vehicles which he overtook were some way back down the carriageway nearer to Sai Kung, or there were none. Whatever the position, it is difficult to understand why he remained in the outside lane.

9. In evidence at the Magistrates Court he described seeing the plaintiff standing in the middle of the carriageway and that he was 15 feet away. In his statement he says his motorcycle was at the junction with Razor Hill Road. That cannot be correct, as can be seen from the sketch plan which bears his asterisked marking of his position when he first saw her. This means that she had reached the middle of the road by the time he first saw her. There can be no reasonable excuse for his not seeing her earlier. His visibility was about 80 yards as he approached the crest. He would have had ample opportunity to see her much earlier. In any event, he said he was familiar with the road and had seen people passing, that must mean crossing, there. He, therefore, approached this junction with experience of its layout and of the existence of a crossing for pedestrians.

10. Having reached the middle of the carriageway safely, the plaintiff should have been in no danger from the defendant who, according to him, was in the outer lane. He says a number of things which cannot be reconciled. In his statement he says he sounded his horn and swerved to his right. If she was in the position he described, and he was in the outer lane, there was clearly no reason for him to swerve. He simply did not need to do so. He says she ran back into his path, an action which seems quite inexplicable. I cannot believe that that happened. When he was cross-examined in the Magistrates Court he said, "I would say she was on the white line", ie the middle of the carriageway, "I could not stop to let her cross first." If he had been in the outside lane there would have been no need for him to stop.

11. I accept the plaintiff's evidence entirely. When she started to cross the road I am satisfied that either the defendant was not in her immediate and reasonable sphere of vision, or his speed and position deceived the eye and his speed was, in any event, excessive. He had failed to take any account of the possibility or likelihood of any pedestrians crossing that road at the designated point. He had certainly failed to see the plaintiff at any point until shortly before his motorcycle struck her. I do not believe that the plaintiff, on seeing him, ran back. That defies logic and is in conflict with my impression of the plaintiff. I think that this is a story concocted by the defendant to explain away the collision.

12. It is far more likely that the plaintiff had reached the middle of the road, that the defendant was not in the outside lane but may have been straddling the two lanes, or even in the inside lane. He was too inexperienced to cope with the emergency which he had created, and had probably lost control of his motorcycle some time before the impact with the plaintiff. He had failed to take account of the pedestrian crossing area, the junction on his left, the presence of the public light bus, if indeed there was one in the position he described, and the pedestrian plaintiff in the road. His speed was far higher than the 50 kilometre per hour which he claims. His negligence is clear cut.

13. Having considered all the evidence, direct and indirect, and the inferences which may reasonably be drawn from the evidence, there is nothing to convince me that there was any contributory negligence. I find fully for the plaintiff on liability.

14. Before I go on to consider the question of quantum, I ought to state that there is bound to be some risk to pedestrians crossing at this point. I can detect no traffic sign for Kowloon bound vehicles which warns them of the existence of a designated crossing area. There is, of course, no marking on the road itself, but there should be some painted warning on the road, warning such traffic that it is approaching an area where pedestrians cross, as well as a mounted sign on the nearside verge and on the central reservation giving the same warning. There exists a standard sign to that effect. I am not in a position to say that there was no sign at the time, but the record of the proceedings in the Magistrates Court shows that it was never suggested to the defendant that there were such signs, nor was evidence to such effect adduced from the reporting police officer. I can see a very strong argument being advanced in certain circumstances that the Highway Authority is negligent and in breach of its duty where it fails to provide adequate warning to motorists of their approach to a crossing area. However vigilant pedestrians may be, they will continue to be at a higher risk until such warning measures are implemented.

15. Quantum: Pain and suffering and loss of amenity. I propose to deal with this aspect under three separate headings, although inevitably the consequences of one area of injury extend into those of another, and since there is inevitably an overlap to some extent which varies and is never accurately quantifiable, a composite figure must be arrived at.

16. Oral maxillo facial injuries: the expert evidence in relation to these comes from Dr LEUNG, the orthopaedic surgeon and Dr CHAN, the dental consultant. Dr LEUNG was also able to carry out an examination of the plaintiff this morning. She suffered principally bilateral fractures of the mandible and was wired for six weeks. There was obviously simultaneous damage to many teeth which could not be satisfactorily treated until the jaws had healed fully and the wiring had been removed. Madam FAN still experiences difficulty in opening her jaws to the fullest extent.

17. The necessary dental and periodontal treatment has ultimately resulted in bridge work involving nine units and root canal treatment and capping involving two other units. I have to bear in mind that the predicted life of bridge work, and sometimes of capping, is of the order of about ten years. Nearly six years have elapsed since the original dental work caused by the treatment, and so replacement expense will be incurred in about four to five years' time. There will also be the discomfort, inconvenience and probably pain when that work is carried out apart from necessary dental work, from time to time over a longer period, consequent upon the injuries.

18. She had mydriasis of her right eye, a contusion of her head and neck and a laceration of her lower lip which has left a scar and a swelling which slightly distorts her lip though not in an unattractive fashion. It is more of an irritant and a reminder when she uses make-up.

19. Abdominal skeletal: she suffered bilateral fractures of the pubic rami, an open fracture of the left ilium and dislocation of the right sacro-iliac joint. The injuries amounted to a complete destruction of stability. She was in intensive care for three days. These were the life threatening injuries, and no doubt of necessity, the other injuries were initially treated conservatively, for example, the fixation of the jaws was revised three days after admission when the other fractures had been fixed.

20. When she was delivered of her first child, almost two years after the accident, she was advised to have caesarean section. She would have preferred a natural delivery. She says she will not have another child because she does not want to experience caesarean section again. I am not at all surprised. It must have been a very uncomfortable time for her, and in view of her serious pelvic injuries she is unlikely to be able to give birth naturally. I have, therefore, to bear in mind that whereas she may have wanted to have two children at least, she will not now have any more unless there is a radical change in her outlook, and perhaps some improvement in her physical condition. There is substantial scarring across her hips and abdomen. She will continue to experience discomfiture in her pelvic region in certain weather conditions for some years yet.

21. Lower limbs: there were severe lacerations of both lower legs including an extensive degloving wound of the right leg. The wound to the left leg required some grafting. She developed a deep vein thrombosis of the left leg causing persistent swelling. There is other less significant scarring, relatively speaking, of the upper legs. The scarring is overall unsightly and for the purposes of this judgment I do not think it necessary to seek to describe the scarring in any detail. There are areas clearly vulnerable to further injury.

22. She is naturally self-conscious and no longer wears short skirts or swimming costumes. Although married that will remain a source of great sensitivity. There will be no improvement. She experiences swelling. She is surprisingly balanced about her catalogue of injuries, but having seen her give evidence, and having observed her carefully, there is no doubt that all these substantial injuries have upset her life substantially too. They have affected her job satisfaction, her line of promotion and responsibility, her capacity to have a full family life, her recreational activities, particularly swimming and hiking, and her ability to enjoy all the pleasure of dressing to please herself, never mind anyone else.

23. She gives the impression of making the most of life despite her substantial injuries, but there are moments when the effect of this catalogue of serious injuries touch her emotionally. The fact that she has made such a relatively good recovery is in no small measure due to her positive attitude and efforts.

24. I have had regard, of course, to the Court of Appeal's decision in LEUNG On and CHAN Pui-kee. I consider the appropriate figure for general damages, pain and suffering and loss of amenity to be one of $600,000, and that is the award under that head.

25. Future loss: she is only 34 years of age. She was back at work, albeit in a different capacity in July 1991, remarkably quickly given the nature and extent of the injuries. I attribute that to her determination as well as, no doubt, to the question of need.

26. She had been employed as a manager with Mannings since 1982. She had been promoted during the course of that employment and has, in fact, also been promoted since she returned to work in her new capacity. There is every reason to think that she would have continued to work till she reached the age of 60 years, perhaps beyond that. The appropriate multiplier is at least 14 and up to 15. There is always some risk that by virtue of the need to have sedentary work that her employment may not be quite as secure as it would have been in a managerial capacity, and that that would mean the award for future loss should reflect the principle in Moerlicker v. Reyrolle, or Smith and Manchester as the authority is more popularly used. In view of her obvious value to her employers, and her interest in her work, I have decided to ignore such a risk, for which there is no real evidence in any event at this stage, and I consider it appropriate to apply the multiplier of 15 to meet the position. The figure for future loss of earnings is, therefore, $820,800.

27. The special damages have also been readily determined in the figure of $38,616, which includes some medical and dental expenses and other items, and the calculated net pre-trial loss of earnings in the sum of $208,389. That figure for pre-trial loss of earnings reflects a calculation, or a calculated deduction for income tax. In view of all the circumstances there is no deduction for income tax in respect of her future loss, quite simply because the circumstances indicate that she has not paid any tax, is not liable to pay any tax, and in future there are no indications that she will then be liable to pay any tax on her earnings by reason of their level.

28. As a consequence, and assuming my mathematics are correct, the overall award is one of $1,667,805 and there will be judgment entered for the plaintiff for that sum against the defendant with costs...