YIP PUI KWAN AND OTHERS v. TSUI KWOK HUNG AND OTHERS

1983, No. 6169

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. The plaintiff, who was aged 10 years when the cause of action arose, was injured by a concrete mixer truck driven by the 1st defendant from a construction site at the depot of the Hong Kong & China Bus Company Limited in Tokwawan Road while she was passing along the pavement adjacent to the entrance to the site. The 2nd defendant was both the registered owner of the vehicle and the employer of the 1st defendant.

2. Originally the plaintiff suing by her father and next friend instituted proceedings for damages for personal injury against the 1st and 2nd defendants only. The defendants then issued a third party notice against Tom Construction Company alleging it to be the site contractor at the time of the accident. The plaintiff followed by joining as defendants the 3rd, 4th and 5th defendants.

3. In response to paragraph 1 of the amended statement of claim which alleged, inter alia, that the 3rd and 4th defendants were the employees, servants or agents of the 5th defendant and that the 5th defendant was engaged in the construction work at the depot. The 3rd, 4th and 5th defendants in their joint amended defence resorted to the curious pleading that, subject to satisfactory proof, paragraph 1 of the amended statement of claim was admitted.

4. None of the counsel before me, Mr. Chan for the plaintiff, Mr. Mumford for the 1st and 2nd defendants and Mr. Kwok for the 3rd, 4th and 5th defendants was able to offer a concluded view as to what this pleading meant. It was agreed however that it should be taken to amount to a denial of paragraph 1 of the amended statement of claim.

Liability

5. The plaintiff testified that on the day of the accident, 12th September 1980, she had left school and was walking home along the middle of the pavement on the western side of Tokwawan Road near its junction with Ma Tau Wei Road when the concrete mixer truck suddenly emerged without warning from the Hong Kong and China Gas Company depot and knocked her down pinning her left leg to the pavement. As a consequence of the injuries she sustained to her leg she was hospitalised for almost a year.

6. According to her she had been walking along the pavement at a slightly brisk pace and that although she had been looking around her she had not been aware of the presence of any other pedestrians on the pavement nor did she see any flagmen as she approached the depot. She conceded that she had been able to see down part of the laneway from which the vehicle had emerged but that as it had been driven out from the side closest to her she had not seen it coming and had only become aware of its presence when it struck her. Independent evidence in the form of an agreed police sketch revealed that the point of impact was probably a little over the centre and on the outer side of the 4.3 metre wide footpath. The plaintiff also readily admitted in response to a question from the court that at the moment immediately prior to the accident she had been looking at the ground.

7. The undisputed evidence was that a high brick wall separated the pavement from the construction site at the depot and that high brick walls flanked the 5.2 metre wide laneway from which the vehicle had emerged. The view of the driver of any vehicle leaving the laneway was thus obscured as to pedestrians approaching the site until the moment he actually emerged onto the pavement. Likewise, pedestrians approaching from the driver's right were unable to sight his vehicle until the very last moment.

8. The plaintiff agreed in cross examination that she had frequently passed along that stretch of pavement on her way home from school but said that to the best of her recollection the gate to the laneway had been closed on the occasions on which she had passed by and that she had never seen vehicles emerge from the site.

9. In cross examination by counsel for the 1st and 2nd defendants she denied that she had seen either a flagman with a red flag on the road or another cement mixer truck that was alleged to have emerged from the site onto the road when she approached. She also denied seeing a second flagman with a red flag who was alleged to have been standing either on the pavement or on the edge of the road.

10. The 1st defendant testified that he had made a few trips to the site in the previous two months and that on the day of the accident, after he had delivered a load a cement to the site, another cement mixer truck which had been waiting behind him in the laneway preparatory to delivering its own load of cement, drove out of the laneway onto the road in order to clear the way for him to leave the site.

11. According to the 1st defendant he followed the other truck at a speed of between 3 and 5 miles per hour and was approximately 10 feet behind that vehicle at the moment that its rear wheels were about to enter the roadway. The 1st defendant then momentarily drew to a halt and looked to his right. Although he did not have a clear view of the entire width of the pavement he was unable to see any pedestrians on that part of it that was visible to him. He then looked to his left. He observed that a flagman on the carriageway had halted vehicular traffic in order to enable both trucks to clear the site. It was not until he actually reached the mouth of the laneway that he caught sight of the other flagman whose duty he said it was to control pedestrian traffic. According to the 1st defendant this flagman was standing approximately in the middle of the pavement at a point slightly more than a metre to the south of the southermost corner of the entrance to the laneway and was facing him with his right arm extended. The 1st defendant interpreted this to be an attempt by the flagman to intercept any pedestrians who might be present on the pavement. At this stage both vehicles were moving.

12. Seeing the vehicle in front of him proceeding onto the roadway and the flagman on the pavement standing with his right arm extended, the 1st defendant, without looking again to his left, decided that it was safe to move out from the site. As he was driving out he observed from the corner of his eye something that he described as a shadow suddenly dashing towards him from some 2 to 3 feet from his right. He immediately applied his foot brake but was unable to halt his vehicle in time. The right front wheel of the vehicle ran over the plaintiff's left leg and pinned her to the pavement.

13. The 1st defendant testified that his understanding of the system by which concrete mixer trucks were to leave the site was that it was the duty of one flagman to halt vehicular traffic and that of the other to stop pedestrian traffic on the pavement. Traffic could only proceed from the site when a flagman was present on the pavement to prevent the passage of pedestrians. There were no lights on the pavement to regulate pedestrian traffic nor was there in operation a system whereby the pedestrian flagman would hold a rope across the pavement to bar pedestrians from crossing the site exit while vehicles were emerging.

14. The 1st defendant maintained that he considered that in making the decision to drive out onto the road he had been entitled to rely both on the flagman on the pavement to halt pedestrian traffic and on the fact that the vehicle in front of him was in motion.

15. In a statement which the 1st defendant made to the police immediately after the accident he said that one of the two flagmen was responsible for "barring the way of the pavement" so as to make way for vehicles to emerge from the laneway. He did not however refer to the position at which that flagman had been standing when he drove onto the pavement but merely stated that he had driven out of the exit because not only had he seen vehicles stopped on the roadway but had clearly seen that there were no pedestrians is sight on the pavement.

16. The 3rd defendant gave testimony which starkly contradicted material parts of a statement which he made to the police immediately after the accident. In the statement he claimed that he had been the flagman who had halted vehicular traffic on the road and that he had not seen how the accident occurred. In his evidence he not only claimed that he had been the flagman on the pavement but gave an account of how the accident actually occurred. His explanation for this contradiction was absurd and manifestly untruthful. In the result I attached no weight to his testimony. It was plain to me that for some reason best known to himself he was attempting to shelter the 4th defendant who was a relative of his.

17. The 4th and 5th defendants did not give evidence. However the statement which the 4th defendant made to the police immediately after the accident formed part of the agreed bundle of documents. In that statement the 4th defendant said that the 3rd defendant had been concerned with stopping traffic on the roadway whilst he, the 4th defendant, had been standing on the pavement with a red flag, that seeing that there were no pedestrians on the pavement, he went to the road to assist the 3rd defendant to halt the traffic, that after one truck had emerged from the site onto Tokwawan Road and as the second vehicle was preparing to drive out he heard a scream from a girl and that on turning around he then saw her lying under the right front wheel of the second vehicle.

18. I do not accept the evidence of the 1st defendant that there was a flagman on the pavement as he was emerging from the site. Although it is true that at the moment immediately prior to the accident the plaintiff had been looking at the ground it was not disputed that she had been looking around her prior to that point of time. I accept that this is so and that she had not seen any flagman. She impressed me as being a completely truthful and reliable witness.

19. I am satisfied on the evidence before me that there was no flagman present on the pavement at the relevant time and that the 1st defendant after having taken a cursory glance at such part of the pavement on his right as fell within his severely restricted field of vision and having seen the vehicle in front of him drive onto the roadway, formed the opinion that it was safe to proceed across the pavement and did so without taking any further precautions.

20. I am satisfied that notwithstanding his evidence to the contrary the 3rd defendant was not acting as the flagman responsible for pedestrian traffic but had been directing vehicular traffic on the roadway. Accordingly no liability can attach to him.

21. Although I am satisfied that the 4th defendant was the flagman responsible for pedestrian traffic and was not present on the pavement when the accident occurred there was no credible evidence before me that he should have been there at that time.

22. It seems to me that in the circumstances it would have been entirely reasonable that after the first truck had safely emerged from the site, the flagman on the pavement should move to the roadway to assist the other flagman to control the traffic so as to enable that truck to withdraw a sufficient distance across the roadway in order to allow the truck driven by the 1st defendant to clear the site, and that having done this he would then return to the pavement to halt any pedestrian traffic before signalling the 1st defendant to emerge. Had there been any credible evidence that the 4th defendant had been on the pavement and had actually signalled to the 1st defendant to emerge from the site I would have concluded that some liability for the accident attached to him. In the event there was no such evidences

23. I have come to the conclusion that the blame for the accident rests entirely on the 1st defendant. He admittedly drove onto the pavement without first personally ensuring that the pavement was either clear of pedestrian traffic or that such pedestrians as might be present were not in danger and he blindly assumed that because the first truck had cleared the pavement it was safe for him to proceed.

24. In my view the plaintiff had been walking in a reasonable manner along the pavement. The more fact that she happened to look down at the pavement at the moment immediately prior to the accident does not constitute negligent conduct on her part. I find that she acted reasonably and without negligence.

25. It follows therefore that the plaintiff's claim on the question of liability must succeed against the 1st and 2nd defendants but fails as against the 3rd, 4th and 5th defendants.

Quantum

(a)     Special damages

26. These have been agreed at $9,791.

(b)     Pain and suffering and loss of amenities

27. Dr. Wedderburn testified that the plaintiff had suffered a number of severe injuries. She had a fracture of the left hip joint socket in the pelvis, a compound fracture of the left femur, a fractured left tibia and fibula, a fracture of the pelvis and had lost approximately two thirds of her left quadriceps muscle.

28. A few days after her admission to Queen Elizabeth Hospital skin from her right thigh was grafted onto her left thigh. She was treated by traction to the left leg with a pin driven through the tibia and her lower leg was enclosed in a plaster cast. The traction and plaster cast were maintained for 12 weeks, after which the plaintiff underwent physiotherapy for 6 weeks and was then transferred to Kowloon Hospital for further physiotherapy. The total time she spent in hospital fell barely short of a year.

29. The range through which she can bend her left knee from the straight position has been reduced by 20% and the range of dorsiflexion in her left ankle has been reduced by 50%. The pelvic fractures have resulted in a mild distortion of her pelvis. This will not prevent her from having either normal sexual intercourse or a normal pregnancy but delivery will have to be by ceasarian section thus limiting to three the number of children to which she may safely give birth.

30. She has developed a convex lower lumbar spinal curvature due to a shortening of her left leg which is at present 2½ inches shorter than her right leg but by the time she reaches the age of 19 years will be three inches shorter than her right leg. She walks with a limp and is likely to have severe episodes of back pain in adult life.

31. Dr. Wedderburn assessed that the plaintiff has suffered a total of 46% impairment of her left leg comprised of 25% due to shortening of the leg, 7% due to loss of knee joint movement and 4% from loss of ankle joint movement. This amounts to an 18% impairment of the whole man.

32. The scar on her right thigh due to the skin graft operation measures 9 inches by 4 inches but is mainly flat. The gross loss of muscle tissue from the left leg so markedly distorts her thigh and alters the shape of her knee that she would never wish to appear in public in a swimming costume. Her chances of marriage are grievously prejudiced as a consequence of her disfigurement. Dr. Wedderburn assessed that there was a 10% impairment due to this cosmetic factor making a 28% total impairment of the whole man.

33. On the credit side the plaintiff has so applied herself to her studies since the accident that she has risen from the middle of the class to 3rd in her present class of 40. She would therefore ultimately qualify for a white collar job but would be unable to perform any work which required her to stand for more than 10 to 15 minutes at well spaced intervals, to lift moderately heavy objects or to walk around freely. Her inability to move with freedom prevents her from engaging in sports and social activities that require mobility.

34. Bearing in mind the lengthy hospitalisation which the plaintiff underwent, the considerable pain she must have suffered for a long period of time, her greatly reduced mobility, her serious disfigurement and with it her severely diminished chances of marriage I have come to the conclusion that a proper aware under this heading would be one of $135,000. In other words the award would be at the middle of the substantial injury category referred to in Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657. The sums specified in that case have now been revised upwards by 50% as a consequence of the decision in Li Ping-sum v. Chan Wai-tong & ors Civil Appeal No. 53 of 1983.

Loss of earning capacity

35. This is an area in which a court can only arrive at a figure after making an intuitive and speculative guess. This is particularly so where the plaintiff is a young person who has not yet embarked on any career. Whatever imponderables there may be there can be no doubt that the plaintiff's options in the labour market have been restricted to those of a clerical nature. Bearing in mind that care must be taken not to duplicate the sum pertaining to loss of amenities I have come to the conclusion that I should award a sum of $50,000 under this head of damages.

36. I therefore give judgment for the plaintiff against the 1st and 2nd defendants in the sum of $194,791.

37. I will hear the parties as to what interest should be paid on the award and on the subject of costs.

38. Having heard the parties I award the plaintiff costs against the 1st & 2nd defendants. There will be no order for costs in respect of the 3rd and 4th defendants. I award the 5th defendant costs against the plaintiff and the costs of the third party proceedings. Costs will be taxed if not agreed. The plaintiff will be entitled to recover from the 1st and 2nd defendants the taxed costs she pays to the 5th defendant. The general damages of $185,000 will be paid into court to be invested and administered by the Registrar at his sole discretion during the plaintiff's infancy. Should the plaintiff or her guardian require payment from time to time an informal application may be made to the Registrar.