WONG KAM MAN AND OTHERS v. WONG KAM CHUEN

HEADNOTE

Personal injuries - Fracture of right humerus and right tibia and fibula - Both broken limbs were in plaster and fractured tibia was secured with a bone plate and screw which were later removed - Plaintiff at first used crutches, later stick and finally walked unaided - No personal impairment except spells of dizziness - Earnings more than before accident - Responsibility for the collision as to four-fifth to Defendant and one-fifth to Plaintiff - Award : Special damages of $23,954.00 and general damages of $24,000.00.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. Plaintiff claims damages for personal injuries sustained on 23rd December 1981 when he was knocked down by a private car owned and driven by Defendant. Being aged 19 in 1981, Plaintiff sued by his father and next friend, Wong Wai-Ping.

2. On the date of accident Plaintiff was employed to push a barrow of concrete obtained from a mixer and dump the concrete into a trench of a construction project in Tai Hang Village, Taipo, New Territories. On that day he completed overtime work at 8.00 p.m. and walked to Taipo Road nearby with the intention of catching a bus of Route No. 71 or a public light bus to go home in Kowloon. That stretch of Taipo Road is a dual carriageway, with the lane nearest to Plaintiff's site being for traffic proceeding to Fanling and the other lane for vehicles going to Taipo and Kowloon. Plaintiff thus had to go to the other side of the road to wait for public transport and, as street lighting was not available, looked to his left and right to make sure that there were no oncoming vehicles before embarking on his journey across the highway. Having satisfied himself that the road was clear he slowly stepped forward and momentarily paused at the centre of the road to look at his left before continuing his trip. However, he stated that when he was near the opposite kerb he was hit by a vehicle, suffered a blackout and only regained conciousness some 5 days later in a hospital bed.

3. Defendant's account of the mishap is that he well knew the area involved and passed by it almost every day on his tray to and from work. On the evening in question he was driving his private car Mazda No. CK 7255 towards Fanling and was going at 40 m.p.h. with headlights on. As he neared Tai Hang Village he rounded a slight bend and it was at that juncture that he noticed a man in his lane and at 40-60 feet ahead of him. On noting that that pedestrian halted and then kept on walking Defendant sounded his horn, flashed his beam lamps and applied brake. Those steps were too late and ineffective and resulted in the nearside front part of his vehicle hitting that moving man who was later known as Plaintiff.

4. Having seen and heard these two witnesses I believe that Defendant was cruising at much more than 40 m.p.h. that he claimed he did at the material time. This high speed, in my view, explains his sudden appearance from beyond Plaintiff's visibility of 100 meters where, according to PC 21657 Chow Chi-Yung of Traffic Accident Section of Taipo police station, the bend ended and the straight Taipo Road began. I further find that after Defendant had negotiated that bend in a very rapid manner he spotted Plaintiff's presence on the road and made an unsuccessful bid to avoid Plaintiff by veering to his right and pressing hard on his footbrake. The upshot was that his car eventually came to rest in the middle of the wrong lane and had left behind brake marks in a slanting position of 18 meters and 20.8 meters respectively. In this regard I reject Defendant's contention that before braking he had given a warning to Plaintiff by means of horn tooting and light flashing. I hold, from the evidence, that Defendant was negligent in having failed to take precaution to avoid colliding with Plaintiff who was on the road and had covered no less than half way of its width (Williams v. Needham (1972) R.T. R 387). In short I have no doubt that the substantial and real cause of the accident was Defendant's negligence.

5. As far as Plaintiff is concerned it was his admission that he did not look left and right once he had set out on his slow journey across the road. Furthermore, form the sketch drawn up by PC 21657 the collision was consistent with Plaintiff being knocked doom at the centre of the road and not near the kerb as Plaintiff stated. I thus feel that had Plaintiff paid attention to traffic on the highway in his stride rather than fixing his eyes to the opposite side he could have observed the lights of Defendant's approaching car and could have taken some steps to avoid a collision with Defendant's vehicle. In the circumstances, I am drawn to the view that there was a lack of care on the part of Plaintiff, so that he must bear a portion of the responsibility for the accident. In the event I have come to the conclusion that Plaintiff and Defendant should share the blame in the proportion as to one-fifth for Plaintiff and four-fifth for Defendant.

Special damages

6. Both Plaintiff and his father maintained, without proof, that they earned the same daily wages of $150.00, although the son was a casual labourer and the father a mason/carpenter of the same organisation. For his part Defendant called a statistician of the Hong Kong Government to produce statistics on average daily income of manual workers supplied by construction companies. Those data disclose that in December 1981 daily wages of a concretor's labourer and a heavy load coolie were $105.50 and $135.70 respectively. I am of the view that Plaintiff's job was what can be termed a "hybrid" of those two occupations and would therefore put Plaintiff's earnings on 23/12/81at half of the combination of those

7. Since both sides agreed on 214 as being the number of days Plaintiff was out of work on account of the accident, Plaintiff's pretrial loss would be ($120.60 x 214 days) = $25,808.00.

8. Plaintiff's father, Wong Wai-Ping, stated that he had separated from his wife and was responsible for the raising and supervision of their two children, of whom Plaintiff is one. Wong Wai-Ping thus felt that it was incumbent on him to resign from his job to daily visit and bring nourishing food to Plaintiff during Plaintiff's hospitalization of 55 days. There is no dispute that such visits were necessary, although not to the extent of daily ones. From the circumstances of the case I am prepared to accept that paternal concern and attendance could be sufficiently manifested by visits on alternate days, less those visits that could have been made on Wong Wai-Ping's holidays at the rate of one day a week. (''Yu ki v.Chin Chit-Lam

9. As Wong Wai-Ping was only allowed one visiting hour each day between 2.00 p.m. and 3.00 p.m. and he was off duty for the whole day, there is no reason why ho could not make use of bus and public light bus, instead of taxi, as his means of transport. As regards nourishing food, I think, in the absence of proof, that $20.00 each time is adequate. Calculations of damages relating to Wong Wai-Ping are therefore as follows:

General damages

10. Agreed medical evidence discloses that Plaintiff had a concussion, a period of post-traumatic amnesia, dizziness, a compound fracture of the right humerus (bone of upper arm) and a fracture of right tibia and fibula (bones of the lower leg). The broken limbs were in plaster and the fractured tibia was also secured with a bone plate and screw. These metal aids were removed a few months later. Plaintiff at first walked with crutches, then with a stick and could finally do without them. Following treatment plaintiff was found to suffer no permanent impairment by Dr. Wedderburn, although he still complains of having sporadic spells of dizziness, particularly after long working hours. Here, I am inclined to accept Plaintiff's evidence on his health. In the light of medical findings and Plaintiff's condition I consider that a sum of $30,000.00 for pain, suffering and loss of amenities to be reasonable (Chan Wing-In & anr. v. Fonnie Co. Ltd. & anr., HCA No. 7175 of 1982). Plaintiff is now a driver of bulldozer and earns monthly wages of $3,100.00, which are more than pre-accident income. Consequently the question of loss of future earnings does not arise.

11. To recapitulate, awards are set out below:

Special damages

12. There will be judgment to Plaintiff against Defendant and awards will be in the sums of (a) $23,954.00 for Special damages, with interest thereon at 5% per annum from the date of accident, i.e. 23/12/81 to judgment and (b) $24,000.00 as General damages with interest thereon at 2% per annum from the date of the writ of 29/3/83 to judgment.