YIP WAN CHUN v. JIM HON TAK AND OTHERS

1982, No. 11640

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The Plaintiff claims damages for injuries which she suffered on 2nd April 1981 when she was knocked down by a lorry. The lorry was driven by the 1st Defendant. The 3rd Defendant was the 1st Defendant's employer. The 2nd Defendant was the owner of the lorry. For the Plaintiff it was conceded by Mr. Payne that in the absence of any contract between the 1st and 2nd Defendants the 2nd Defendant simply as the owner of the vehicle cannot be liable. The claim against the 2nd Defendant is therefore dismissed with costs.

Liability

2. At the time of the accident the Plaintiff was a hawker helping her husband at their stall in the Heung Che Street Market in Tsuen Wan. At about 10 a.m. the Plaintiff at the request of her husband went out into Heung Che Street to see whether there were any vegetables worth buying from a lorry which delivers vegetables from the wholesale market at Cheung Sha Wan. The Plaintiff crossed the street to where the lorry was double parked. She was then standing at the middle of the rear of the lorry about a foot from the tailboard. At this time the driver, the 1st Defendant, was sitting on the ground. However he shortly after got into the lorry, started the engine and began to reverse. The Plaintiff had time to take only a step or two to the right before she was struck on the left side of her head by the rear offside corner of the lorry. She was knocked to the ground.

3. The 1st Defendant's version of events was rather different. He said that he delivered vegetables to the Heung Che street Market about 3 times each day. He would drive into Heung Che Street which is a cul-de-sac and un-load his goods near the market. Once the goods were unloaded and delivered he would leave the vehicle there and go for tea. This would take about half an hour. On the morning in question he returned to his lorry at about 10 a.m. He found that the turning circle at the end of the street was obstructed by parked vehicles. He was therefore obliged to reverse almost the full length of Heung Che Street to the main road, a distance of about 300 feet. Having looked to the rear to ensure that no one was behind the lorry, he began to reverse along Heung Che Street. He drove very slowly at about 4 m.p.h. keeping about 1 foot from the vehicles parked on his offside in order to ensure that he did not obstruct traffic coming in the other direction. The lorry itself was fitted with external mirrors on the right and left, and he looked from mirror to mirror as he reversed.

4. After he had reversed for about 100 feet he saw in his right exterior mirror the Plaintiff falling to the ground by the rear offside corner of the lorry. He had not seen the Plaintiff before the impact and did not know where she had come from. He immediately stopped the lorry, alighted and called the police.

5. The 1st Defendant was subjected to a careful cross-examination. To his credit he was frank in his answers. I have no hesitation in accepting his evidence as an accurate version of what happened on the 2nd April.

6. The Plaintiff's account was inherently unlikely. In essence, she asked the Court to believe that the 1st Defendant had suddenly jumped into the lorry, started the engine and reversed without any warning or taking any care whatsoever. The Plaintiff's credibility is undermined by the fact that she told three different versions of her story. In her examination in chief, she said the 1st Defendant had been sitting on the ground when she came to the lorry. Then he got into the lorry and started to reverse. In cross-examination, she said that the 1st Defendant had been removing baskets of vegetables from the back of the lorry. The baskets of vegetables were placed on the roadway on either side of the lorry so that the hawkers could drag them away with hooks. When the lorry had been unloaded, the 1st Defendant jumped from the rear of the lorry, climbed into the cab and began to reverse while the Plaintiff was still standing behind the lorry. The hawkers would have seen this. Finally, in a statement made to the police on 23rd April after she had been discharged from hospital, the Plaintiff made no mention of seeing the driver but simply said that the moment she arrived behind the lorry and started to look over the tailboard the lorry began to reverse.

7. According to as sketch made by Sergeant 12022 the lorry at the time of the accident (for there is no real dispute that the lorry was not moved after the accident) was somewhere between the market and the main road. It was not directly outside the market. That is why presumably the Plaintiff also said in cross-examination that she crossed the road after leaving the market, walked along the opposite pavement and then between 2 parked cars out to where the lorry was double parked on the roadway. It seems to me improbable that a hawker, for such is the Plaintiff, would have been so meticulous in approaching the lorry. It is much more likely that she would have taken a direct route along the roadway itself. At the same time, there is nothing anywhere in the evidence to show that Heung Che Street was so busy that the 1st Defendant could not have parked his lorry opposite the market rather than some distance away along the street. This would have facilitated delivery of the goods. The scene is therefore much more consonant with the 1st Defendant's explanation.

8. Even on his own evidence, however, the 1st Defendant embarked upon a course which was inherently dangerous. To attempt to reverse a goods vehicle some 300 feet down a street lined with parked vehicles on either hand is to court disaster. Indeed, the 1st Defendant himself conceded that it would be safer to have turned round. He said that he seldom reverses but on this occasion turning space was not available. However, he would not agree with Mr. Payne that he should have had a lookout at the rear of the lorry to assist him with this dangerous manoeuvre, notwithstanding the recommendation to this effect in the Highway Code.

9. Where the Plaintiff came from or what she was doing I shall not speculate. But even putting her actions at the worst so that she simply walked out from between 2 parked cars without paying attention, the 1st Defendant's conduct remains the substantial cause of the accident. The 1st Defendant was in breach of his duty to other users of the road by reversing for an excessive distance without taking proper precautions. Had he been driving forward he would have had a clear view to his front. He would undoubtedly have seen the Plaintiff and been able to sound a warning or take evasive action. As it was, looking quickly from one mirror to another the 1st Defendant, simply and inevitably failed to see the Plaintiff in time. The Plaintiff, of course, contributed by her conduct. Taking into account the very dangerous manoeuvre being carried out by the 1st Defendant, I apportion 80% of the liability to the 1st Defendant and 20% to the Plaintiff.

Quantum

(a)    Pain, suffering and loss of amenities

10. As a result of the accident the Plaintiff received two injuries about which there is no real dispute. First she received a cut about 10 cm. long which extended from the left temple down beside and under the left eye. This was stitched after the Plaintiff was taken to hospital where she remained for 3 weeks. It is now faintly visible. It is not what I would describe as a substantial disfigurement but nonetheless causes the Plaintiff some concern.

11. Secondly, the Plaintiff's left collarbone was fractured. The Plaintiff is now left with a loss of some 20^o of abduction, that is, she is unable to raise her arm the last 20^o into a vertical position, and some 10^o out of a normal 80^o of external rotation, external rotation being demonstrated by putting one's hand to the back of one's head in order to comb one's hair. These restrictions are because the collarbone has not united in the normal manner. There is an overriding of some half an inch by the bones themselves, while the fracture is united by fibrous tissue. However, other than leaving a slight swelling and some tenderness, this is of no real significance. According to Dr. Wedderburn, and this has been conceded by the Defendants, it was reasonable that the Plaintiff should have been off work until the end of 1981.

12. The Plaintiff is now almost totally deaf. Whether or not the accident caused this is in dispute. Communication with the Plaintiff in the witness box was difficult and achieved by the use of an electronic loud-hailer directed immediately into her right ear.

13. Dr. T'ang gave specialist evidence about the deafness. He said that he had carried out tests which showed that the Plaintiff is suffering from severe sensori neural deafness in both ears with total deafness in the left ear and a loss of up to 95 out of a possible 100 decibels in the speech frequencies in the right ear. He also said, and this was not challenged, that the Plaintiff is not malingering. He said that in his opinion this deafness was caused by the accident. His explanation is that the left temporal bone was fractured as a result of the impact. The fracture would have severed the cochlear nerve which would produce immediate and complete deafness in the left ear. At the same time the impact caused concussion of the nerve cells of the right ear. This led to gradual atrophy of those cells and loss of hearing as experienced by the Plaintiff in her right ear. This situation is probably permanent.

14. Unfortunately there are three factors which Mr. Lai, on behalf of the Defendants, asks me to accept as showing Dr. T'ang to be wrong in his opinion. First, Dr. Wedderburn examined the Plaintiff on 20th October 1982. The Plaintiff then complained that she had had a blood and water discharge from her left ear following the accident. Dr. Wedderburn examined her left ear and established that there was a perforation of the eardrum. However he had no cause to suspect any deafness and had no difficulty in communicating with the Plaintiff. He was very surprised therefore, when he received Dr. T'ang's examination report in October 1983, to learn of the Plaintiff's degree of deafness. He examined the Plaintiff again in November 1983 when it was necessary to communicate with her by shouting into her right ear. Dr. Wedderburn concluded that there had been a chronic infection of the Plaintiff's left ear before the accident, probably dating from childhood. The accident had simply lit up this infection and thus contributed to but not caused the deafness in the left ear. As to the right ear, Dr. Wedderburn was of the view that the deafness vas sheer coincidence.

15. Secondly, the Plaintiff herself made no complaint about deafness in her left ear until after her first examination by Dr. Wedderburn.

16. Thirdly, the Plaintiff produced a short written report by Dr. Choa whose specialist qualifications are equal to those of Dr. T'ang. In this report dated 28th February 1985 Dr. Choa concluded that there was some deafness in the Plaintiff's left ear before her accident.

17. Mr Lai also submitted that Dr. T'ang was clearly an academic rather than a practical doctor. He contrasted him with Dr. Wedderburn whose expertise in personal injuries cases is well known and whose common sense and clear explanations have so often been useful to this Court. Taking this and the three factors which I have just mentioned into account. Mr. Lai asked me to accept that Dr. Wedderburn is correct in his assessment of the Plaintiff's deafness.

18. Mr Lai pointed out that Dr. T'ang described a number of causes of the type of deafness suffered by the Plaintiff. He suggested that as none of these causes have been discounted I should not accept Dr, T'ang's opinion in preference to that of Dr. Wedderburn. In the absence of any evidence to suggest that the Plaintiff had had previous trouble with her ears I see no reason why I should not accept Dr. T'ang's explanation. As far as evidence of previous ear trouble is concerned the Plaintiff was cross-examined about this. She said, and I accept her evidence on this, that she had not had trouble with her ears before the accident.

19. Dr. Wedderburn, in giving his opinion about the Plaintiff's left ear, relied upon a note which the Plaintiff had obtained from the Yaumati Specialist Clinic in which there was a reference to evidence of chronic in-fection. The maker of that note was not called. The Defendants did not choose to have the Plaintiff examined by a specialist of their choice. On the evidence as it stands, I see no reason to find that the Plaintiff had preexisting trouble with her ears.

20. Dr. Wedderburn was as usual fairness itself. When dealing with the question of the Plaintiff's deafness he was at pains to emphasize his lack of qualifications in this field and to urge the Court to consider specialist opinion. I have heard that specialist opinion from Dr. T'ang. Dr. T'ang's opinion was clear, convincing and rational. I am unable to accept that, at least as far as the right ear is concerned deafness occurred by coincidence when there exists a rational explanation.

21. The Plaintiff of course did not effectively complain about trouble with her left ear until after she had first been seen by Dr. Wedderburn in October 1982. Because of that Mr. Lai submits that Dr. Tang cannot be right in his explanation. However, in fairness to the Plaintiff, I think I cannot overlook paragraph 1 of Dr. Wedderburn's first report dated 21st October 1982. In that report he said "and some deafness in the left ear". True Dr. Wedderburn did not mention this in his evidence. Nonetheless he apparently recorded this at the time. The Plaintiff is a woman of humble origin. She had experienced an unpleasant accident. I think it perfectly possible that, as long as her right ear remained unaffected, the Plaintiff did not remark upon the loss of hearing in her left ear.

22. Finally, there is Dr. Chows short report. He was not called to give evidence. In his report there is some confusion between the two ears in that he said "Patient can hear words spoken loudly into this ear'' referring to the left ear. It is the right ear which has some residual hearing capacity.

23. I do not think that either alone or in conjunction the matters to which Mr. Lai has referred undermine Dr. T'ang's opinion. On the balance of probability I find that the Plaintiff's deafness was caused by the accident.

24. The Plaintiff also complained or at least her husband did about blurred vision. This was not seriously pursued. I discount it.

25. The Plaintiff also suffered from tinnitus and giddiness. As a result she alleges she has been unable to resume work with her husband. I shall refer to this later. However, the Plaintiff says that she is afraid to go out without assistance and that she spends a great deal of time in bed. The medical evidence about this was sketchy. Dr. T'ang said that the giddiness would indicate damage to that part of the hearing mechanism which deals with orientation. But neither he nor Dr. Wedderburn made any positive findings, which would of course he extremely difficult with such a subjective complaint. Therefore while I accept that there must be some continuing discomfort other than the simple inability to hear, I am unable to accept that the Plaintiff is as incapacitated as she and her husband suggest.

26. There is little authority on quantum for deafness. The most recent local authority appears to be the case of Ashley Middleton & Anr v Cheng King-Ying & Anr H.K.L.J. (1982) 389. In that case the Plaintiff suffered a 45% hearing loss in the left ear. This impaired his ability to discriminate speech from the left which caused some social embarrassment. There were some interference with the Plaintiff's enjoyment of music. For pain, suffering and loss of amenities the Plaintiff was awarded $50,000. That was in 1982.

27. Clearly the Plaintiff's injuries in this case are much more severe. The Plaintiff is cut off socially. She is unable properly to communicate with her children which for any mother must be a most bitter disappointment. Even if she can return to work, she will be unable to communicate with the customers at her husband's stall. This is not only a serious business drawback but deprives the Plaintiff of the gossip which is characteristic of any transaction in a small shop or at a stall. Indeed, I accept the Plaintiff's evidence that her life effectively centred on the stall. In addition, the Plaintiff spent 3 weeks in hospital following the accident, has a scar which is still faintly visible and had to spend almost 9 months recovering from the injury to her collarbone as to which she has a 4% impairment of the whole man. I assess damages on this head at $200.000.

(b)    Loss of future earnings

28. The Plaintiff tried to return to work at her husband's stall in January 1982. She could not do so then because she found it too painful to lift the weights which she had been accustomed to moving around the stall. This is now compounded by the fact that she cannot hear customers and therefore does not know what and how much the customers are ordering, and because of her giddiness is unable to go to the stall.

29. As I have said, I am not persuaded that the Plaintiff's giddiness is as bad as she suggests. In her evidence the Plaintiff said that after she was discharged from hospital she was frightened even to see moving vehicles. I think that this fear has now been extended to general contact with the outside world. As her hearing grew worse and her contact with others became more difficult, the Plaintiff naturally became more and more withdrawn. If she and her husband will make the effort, I am satisfied that the Plaintiff will be able to lead a normal life in so far as that is possible with the handicaps which I have found. Certainly the Plaintiff, with the assistance of her husband, was able to attend court on three successive days and to sit both in the witness box and in the public seats without any apparent discomfort.

30. Therefore while I am satisfied that the Plaintiff will not be able to assist her husband as fully as before the accident, I see no reason why she should not be able to assist around the stall by tying up vegetables for customers, tidying up and indeed looking after the stall while her husband is away during the quieter hours in the morning.

31. In the circumstances, I do not think that there should be an award for future loss of earnings but rather as Mr. Lai has suggested a lump sum for loss of earning capacity. As far as the lump sum is concerned Mr. Lai has suggested that there have been awards of $20,000 and upwards, Mr. Payne simply asks that if there is to be such an award it should be as generous as possible. I award $30,000.

(c)    Special damages

32. There will be judgment for the Plaintiff against the 1st and 3rd Defendants in the sum of $242,895.00 together with costs. This will be apportioned in the ration 80:20. There will be interest at 2% on general damages from the date of Service of the writ to judgment and on the special damages at half the rate currently prescribed by the Chief Justice from the date of accident until judgment.

33. The Plaintiff's own costs to be taxed.