CHAN KAM SUM v. HO CHUENG SHING AND ANOTHER

HCPI 828/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 828 OF 1999

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J U D G M E N T

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Introduction

1. At about noon on 21 April 1998, a traffic accident occurred at Kwan Mun Hau Street, Tsuen Wan when the minibus driven by D2 knocked down the Plaintiff. The Plaintiff, then aged 59, was crossing the road with his son. His son walked a short distance in front and crossed the road safely. The Plaintiff considers the said accident was caused by the Defendants' negligence and commenced this action on 30 July 1999. The Defendants dispute both liability and quantum.

Liability

2. D2, the driver, does not dispute at trial he was negligent. Neither does D1 dispute he should be vicariously liable for D2's negligence. The only issue is whether the Plaintiff was contributorily negligent. Para. 5 of the Defence sets out the alleged contributory negligence. Further, para. 9 and 10 of D2's Chinese witness statement deal with this issue as follows:-

"當去到仁濟醫院門口前約十米左右,我見有兩名男子由左起第二線行入左起第一線 ... 該兩名男子距離相約一米左右[sic] , ...

在行駛到意外位置前約7-8米時,我見 ... 在前面的一名男子已行上了行人路,而另一名比較年長的男子就 ... 行到近行人路邊約一米左右 ... 但當[我]駛到該名比較年長的路人時,我見到該名路人雖已接近行人路邊,但是該名路人突然轉頭返回我右邊方向,行到去左邊第一線,我於是立刻煞車,但是該小巴的前方依然撞向該名路人" (emphasis supplied).

3. At stated above, the accident occurred at noon time in broad daylight. From the photographs produced at trial, it can be seen the stretch of the road in question was straight and there should not be any difficulty for a driver to see the condition quite some distance in front of his vehicle, including the place where the Plaintiff crossed the road. Indeed, none of the above was disputed by D2 when he testified.

4. The place where the Plaintiff crossed the road was not a place designed for pedestrians to do so. In fact, on one side of the road an iron railing was erected along the kerbside intended to prevent pedestrians from doing so. The opening of the railing on the other side was apparently intended for the bus-stop there, that is, to enable people to get on and off buses. However, the testimony of the factual witnesses for both sides was that that was a place frequently used by pedestrians to cross the road.

5. In para. 9 and 10 of D2's witness statement, D2 agreed that as he was approaching the scene of the accident, he saw the Plaintiff (and the Plaintiff's son) crossing the road ahead of his vehicle from his right side to the left. It is implicit in D2's witness statement that had the Plaintiff walked straight ahead, the accident would not have occurred. D2 blamed the Plaintiff for suddenly turning back; hence coming into the path of D2's vehicle and causing the accident.

6. When D2 testified, however, he frankly abandoned this allegation. Instead, he admitted the allegation that the Plaintiff suddenly turned back was a lie. He accepted he was travelling too fast and was not paying proper attention; therefore he only saw the pedestrians at the last moment. He also accepted that was the reason why he was unable to stop in time and the school bus hit the Plaintiff.

7. When one examines the photographs produced, one can see that the damage to the minibus supports D2's testimony. There was a dent at or just next to the left front corner, and above the left headlight, of the vehicle. The windscreen above the dent was also cracked.

8. In these circumstances, one may be surprised that the defence still persists in pursuing a case of contributory negligence. Ms Lau for the defence does so on 2 bases. One, she argues that the facts of the case justify such a finding and that the testimony of Mr Chan Fei (the Plaintiff's son) is not credible or reliable.

9. As regards Ms Lau's first point, that is, the facts of the case justify a finding of contributory negligence, her arguments are as follows:-

(a) the existence of the railing on both sides of the road would suggest to all pedestrians it was not a proper place to cross the road;

(b) there was a pedestrian-light controlled crossing about 50 meters away and the Plaintiff could have crossed the road there;

(c) Mr Chan Fei was inconsistent in his testimony as to the distance between him and D2's vehicle when Mr Chan first saw it. Mr Chan said it was 100 meters in court but he said it was about 70 feet away in his police statement and witness statement. This discrepancy is consistent with a failure on Mr Chan's part to keep a proper lookout;

(d) Mr Chan testified he was keeping an eye on the Plaintiff while crossing the road. This also shows that Mr Chan has failed to keep a proper lookout of the oncoming traffic;

(e) Since it is unknown if the Plaintiff was keeping a proper lookout, it can be inferred from (c) and (d) that he also failed to do so.

10. With respect, I do not agree with her arguments because:-

(a) her points (a) and (b) above must have rested on these assumptions: (1) failure to use a place intended for pedestrians to cross the road, and/or (2) crossing a road at a place not intended for such purpose, would per se be contributory negligence. The validity of these assumptions would in turn have to depend on the nature and extent of the duty of a pedestrian in law when he crosses a road;

(b) as regards her point (c) above, I do not find Mr Chan's testimony to be incredible or unreliable. On the contrary, I consider him to be an honest and reliable witness. He has explained the so-called "discrepancy" in his description of the distance to be the result of his returning to the scene to ascertain the actual distance after the commencement of this action. I accept his testimony both regarding this explanation and other matters relating to the issue of liability;

(c) Ms Lau's point (d) above was denied by Mr Chan and I accept his testimony;

(d) for the above reasons, I do not infer that the Plaintiff failed to keep a proper lookout but rather infer from D2's testimony that the accident was not caused by the Plaintiff's negligence.

Other matters were also relied on by Ms Lau, such as the absence of a skid mark. I do not consider them to be good reasons for changing my conclusion.

11. As stated earlier, there are 2 bases for Ms Lau's arguments that there should be contributory negligence. The second limb of Ms Lau's argument is founded on the decisions in the following cases:-

(a) Liu Siu-ping v. Yip Ping-chun [1980] H.K.L.R. 565;

(b) Chun Sung Yong v. Au Sze Hung Christopher [1991] 1 H.K.C. 556.

12. In Liu Siu-ping, the plaintiff crossed Nathan Road using a studded pedestrian crossing which was controlled by a traffic light. The plaintiff stopped at the pavement and noticed the traffic light was in her favour. She therefore crossed the road but was hit by the defendant's vehicle. The learned Commissioner found the defendant negligent but opined that had the plaintiff used reasonable care she would have noticed the defendant's car in time to avoid the collision and that she failed to keep an observation on approaching vehicles to make sure that they were going to stop. He concluded the plaintiff was 10% to be blamed.

13. In Chun Sung Yong, the plaintiff was crossing Nathan Road near Kimberley Road when he was knocked down by the defendant. He did so using a pedestrian crossing with a traffic light in his favour. He said he only looked at the traffic light and needed not look at other things when crossing the road. The learned Judge concluded that contributory negligence of 25% was justified. He came to such conclusion on the grounds that the plaintiff failed to stop before walking out onto the road or (having walked out) failed to keep a lookout for traffic (despite a traffic light in his favour): see pp. 562I and 563F of the report.

14. In order to determine whether this limb of Ms Lau's arguments is correct, the relevant principles have to be examined:-

(a) "It has been suggested that, 'it is both in accordance with common sense and with good morals to hold that a man need not pay as much attention to his own safety as he does to the safety of others,' with an illustration given:

'thus the inadvertence of a pedestrian who may step from the pavement into the road is not comparable to that of a driver who is proceeding at such a speed that he cannot stop within a reasonable distance. It is one thing to take a slight inadvertent risk with one's own life, even though one is not entitled to endanger it deliberately; it is an entirely different thing to risk the life of another by taking insufficient care'":

Charlesworth & Percy on Negligence (1990) 8th Ed., para. 3-13, text to n. 38;

(b) "it has been laid down that a foot passenger, though he may be infirm from disease, has a right to walk in the carriageway and is entitled to the exercise of reasonable care of the part of persons driving vehicles along it":

Charlesworth, para. 9-292, text to n. 36 (Boss v. Litton (1832) 5 C. & P. 407);

(c) "it has been held that a pedestrian can cross a highway, wherever he chooses to do so, provided that he takes reasonable care for his own safety. He is not obliged to cross over at an adjacent light-controlled crossing only. Furthermore, as he is entitled to assume that vehicles on the road will drive lawfully, observing road signs and signals, he owes no duty to a motorist who is speeding beyond the limits or has crossed a red light" (emphasis supplied):

Charlesworth, para. 9-296, text to n. 47 (Tremayne v. Hill [1987] R.T.R. 131);

(d) "it has been held that for a motorist to allow his wing mirror to strike a pedestrian, who either was standing on the kerb or had his back to traffic or, even, had gone an inch or two into the roadway, amounted to negligence and, further, that such a pedestrian was not guilty of contributory negligence":

Charlesworth, para. 9-218, text to n. 52 (Chapman v. Post Office [1982] R.T.R. 165).

15. I entirely agree with the decisions set out in (b) to (d) above. They would most probably be based on the principle set out in (a) above. Further, a "pedestrian crossing" with a traffic light in the pedestrian's favour (and against the motorists) is a place where one can reasonably expect there is no vehicular traffic. If a pedestrian were under a duty vis-à-vis the motorists driving on the road to keep a lookout for oncoming traffic when he is walking at such a place, it would mean that the pedestrian has the same (or a similar) duty to keep a lookout when he is walking on the pavement. I do not think that a pedestrian should be subject to such duties. Although both are part of the road, they are places where a pedestrian can reasonably expect he does not need to look out for traffic.

16. For the above reasons, without disrespect to the learned judges in Liu Siu-ping or Chun Sung Yong, I will decline to follow these decisions. I may agree with them if there are special circumstances, such as there are signs apparent to any reasonable person that a vehicle is clearly out of control and is already quite close to the "pedestrian crossing" and yet the pedestrian still fails to notice it, or having noticed it, ignores the obvious danger. I conclude that the Defendants are negligent and there was no contributory negligence. They are therefore fully liable to the Plaintiff.

Quantum of Damages

17. This will be dealt with under the sub-headings set out below. The Plaintiff was born on 10 September 1938; he was 59 years old at the time of accident and 61 at the time of trial. Before the accident, he worked as a labourer in construction sites or a decoration worker. The witness statement of the Plaintiff's son, Mr Chan Fei, stated that the Plaintiff worked 20 days per month on average.

(1) The Plaintiff's Injuries and Pre-Trial Treatment

18. The fact that the Plaintiff suffered injuries as a result of the accident and the treatment he received is undisputed at trial.

19. The injuries suffered included the following:-

(a) severe head trauma with traumatic subarachnoid haemorrhage;

(b) fractures of the left temporal bone, left maxilla (cheek bone) and skull base;

(c) fractures of the left clavicle and left third rib;

(d) gliosis along the right temporo-parietal of the brain.

The Plaintiff's present permanent disability is mainly dementia.

20. The Plaintiff's psychiatrist opined that the Plaintiff's dementia is between moderate and severe. He has the mental age of 4- to 5-year olds and needs care and attention. The Defendants' psychiatrist opined that the Plaintiff's brain damage is serious and irreversible and the percentage of the impairment of the whole person is 60%. Thus, leaving aside the differences in description, the parties' experts agreed that the Plaintiff suffered serious injuries to his brain and severe disability resulted.

(2) Pain and Suffering and Loss of Amenities

21. I agree with Mr Lim's submission that the Plaintiff's disability fits into the "disaster" category referred to in Lee Ting-lam v. Leung Kam-ming [1980] H.K.L.R. 657. This is because the extent of his brain damage resulted in his having a mental age equivalent to 4- to 5-year olds. The "disaster" category in Lee Ting-lam was said to cover:-

"... where the victim requires constant care and attention and is incapable of ever leading or appreciating an independent adult life. This bracket includes ... those ... left with the mental age of very young children" (at p. 660).

22. Ms Lau argues that "very young children" only means children of about 1 or 2 years old or at most 2 to 3 years old. I totally disagree. As a result, there is no need to consider the decisions she refers to in relation to awards made in the "gross disability" category. I also agree with Mr Lim that the appropriate award for this head of claim (with adjustment for inflation and so on) should be $1.1 million.

(2) Pre-Trial Loss of Earnings

23. This head of claim is agreed at $10,000.00 per month. The total amount of award is thus agreed at $260,000.00 ($10,000.00 x 26 months).

(3) Miscellaneous Special Damages

24. This head of claim covers hospital maintenance fees ($1,156.00), travelling expenses of the Plaintiff's wife and children to and from hospital ($8,100.00), the Plaintiff's travelling expenses for attending follow-up treatment ($850.00), fees for the relatives' services for attending the Plaintiff ($35,500.00), nourishing food ($12,022.50), diapers ($2,230.00), loss of earnings of the Plaintiff's daughter and her travelling expenses ($4,030.00 and $1,290.00), consultation fee and Chinese medicine ($1,380.00 and $2,156.00) and medication ($1,589.50). The total claim is $70,304.00.

25. The Defendants agree to this claim to the extent of $33,214.50. The only items disputed are the fees for the relatives' services ($35,500.00) and medication ($1,589.50). I agree with Mr Lim's submission that since no cross-examination has been made on these matters, there is no basis for me not to accept the testimony adduced for the Plaintiff regarding them. I will make an award in the sum claimed by the Plaintiff, that is, $70,304.00.

(4) Loss of Future Earnings

26. The testimony of the Plaintiff's son, Mr Chan Fei, is in short that he is a contractor and that because of his good connection with clansmen, he would be to get work quite regularly and steadily. Mr Chan said he would have engaged the Plaintiff to work as an odd job worker and paid the Plaintiff $500.00 per day if the Plaintiff had been able to work.

27. The Plaintiff asked for the sum of $513,600.00 (based on a monthly income of $10,700.00) in the "Further Revised Statement of Damages". In his written Final Submissions, Mr Lim asks for the sum of $480,000.00 (based on a monthly income of $10,000.00 and a multiplier of 4): see para. 3.2 of the Plaintiff's written Final Submissions. I agree with Mr Lim's multiplicand of $10,000.00 taking into account the evidence adduced for the Plaintiff at trial.

28. The Plaintiff was born on 10 September 1938; he was 59 years old at the time of accident and 61 at the time of trial. The Plaintiff's son also testified that the Plaintiff used to enjoy good health and he expects the Plaintiff to be able to work up to 67 or 68. On this basis, Mr Lim asks the Court to adopt a multiplier of 4. As stated above, the total amount the Plaintiff seeks under this head is $480,000.00 ($10,000.00 x 12 x 4).

29. Ms Lau asks me to reject the testimony of Mr Chan on the ground that it is unsupported by documentary evidence or the testimony of other witnesses. She contends that I should conclude the Plaintiff was only able to work about 20 days in a month at the time of accident: see para. 31 of her skeleton Closing Submission. On that basis, she proposes a multiplicand of $5,000.00 per month (that is, a daily income of $250.00).

30. I consider that Mr Chan testified in a fair and reliable manner. The version he gave regarding the Plaintiff's employment and his own source of work is inherently plausible and believable. Despite Ms Lau's cross-examination, I do not detect any sign that his testimony has been shaken. In these circumstances, I accept Mr Chan to be an honest and reliable witness as regards quantum save as to the matter below.

31. As regards the multiplier to be adopted, Ms Lau submits that it should be 2 instead of 4. Hence, the award should be $120,000.00 ($5,000.00 x 12 x 2).

32. The Plaintiff did not testify or turn up at the trial. As a result, it is unclear whether he is in fact a healthy person. Taking into account the possibility that his son might have been over-optimistic about the length of the Plaintiff's employment life, and the vicissitudes in life, I find that the Plaintiff should have been able to work up to about 64 to 65 years old. For this reason, I consider a multiplier of 2 should be adopted and an award of $240,000.00 ($10,000.00 x 12 x 2) is appropriate. In coming to this conclusion, I have already taken into account the "comparable" decisions referred to by the parties regarding the multiplier to be used in this case.

(5) Loss of Earning Capacity

33. No claim is made under this head.

(6) Costs of Future Care and Attention

34. The following items are claimed under this head:-

(a) costs of 1 domestic helper to look after (or to assist looking after) the Plaintiff;

(b) costs of 1 professional nurse during the time day;

(c) costs of better accommodation for the Plaintiff;

(d) costs of psychological counselling for the Plaintiff's wife;

(e) costs for the Plaintiff's psychotherapy and medication.

35. The defence accepts the need for items (a) (domestic helper) and (d) (counselling for the Plaintiff's wife) but disputes the quantum claimed.

36. In relation to item (a) above, the Plaintiff argues that a multiplier of 8 should be used whereas the defence argues that 5 is appropriate. Mr Lim informs me that the multiplier of 8 was based on a life expectancy that the Plaintiff can live up to 75. I rather consider that the correct figure should be somewhere in-between and a multiplier of 7 should be adopted. The award for item (a) (domestic helper) should therefore be $44,040.00 + 750 = $44,790.00 x 7 = $313,530.00.

37. As regards item (b) (nursing care), the defence does not accept this need nor that the nurse should have psychiatric experience (as the Plaintiff's expert proposed). It is undisputed that the Plaintiff is now a person with dementia but has not shown any sign of aggression, or behavioural problem. The Plaintiff's psychiatrist agreed that the Plaintiff is docile. In the 2-year period since the accident up to the time of trial, there was no sign of deterioration.

38. The Plaintiff's expert suggested the use of a nurse with psychiatric experience because he considers that the Plaintiff needs appropriate stimulation in order to prevent deterioration of his condition. On the other hand, defence expert opined that dementia patients (whether because of old age or trauma) with no aggression or behavioural problem are usually taken care of by family members.

39. Despite the evidence of the Plaintiff's expert, I am not satisfied that the Plaintiff needs the care of a nurse with psychological experience. Experts for both parties agree in essence that the Plaintiff has the mental age of a very young child. The Plaintiff's expert says that a nurse (whether one with psychiatric experience) is necessary to provide the stimulation the Plaintiff would need but the expert has not specified exactly what type of stimulation can only be provided by a nurse but which ordinary people (such as family members or a domestic helper) cannot.

40. Mr Lim asks me to decide in the Plaintiff's favour for another reason. He relies on McGregor on Damages (1997) 16th Ed., para. 322 for the proposition regarding the mitigation of loss:-

"Although the plaintiff must act with the defendant's as well as with his own interests in mind, he is only required to act reasonably and the standard of reasonableness is not high in view of the fact that the defendant is an admitted wrongdoer ... The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty to him has acted reasonably in the adoption of remedial measures and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken".

41. Mr Lim asks me to conclude that while it may be open to the Plaintiff to take care of himself through less costly means, such as being looked after by his wife, obtaining the services of a nurse falls within the range of reasonable remedial measures referred to in McGregor. With respect to Mr Lim, I do not agree (even though I agree with the principles stated in McGregor). I have already allowed the costs of employing a domestic helper to look after (or assist looking after) the Plaintiff. As stated below, I will also allow a sum for improving his living condition. In these circumstances, I consider that the Plaintiff should be adequately taken care of without the need to employ a nurse.

42. For the above reasons, the claim regarding the employment of a nurse is disallowed.

43. The Plaintiff's expert considered that better accommodation would help prevent the deterioration of the Plaintiff's medical condition. The defence disputes this and argues that there was no sign of deterioration of his condition during the past 2 years or so. Defence psychiatrist states that the Plaintiff's awareness is limited and he did not appear to be happier with the new environment. I rather agree with the Plaintiff's expert the Plaintiff's condition would be helped by providing him with a better environment.

44. Ms Lau also contends that even if an award should be made for obtaining better accommodation, the monthly amount should be either $9,000.00, or at most $10,500.00, instead of $12,000.00 (asked for by the Plaintiff at trial). Ms Lau's proposed figure of $9,000.00 is based on the testimony of the Plaintiff's wife that she might be able to get a suitable flat for that sum. There is however no evidence if that sum already included rates and management fee. The $12,000.00 asked for by the Plaintiff was the expenses for renting a flat nearby in the same district. In these circumstances, I consider there is a good reason to find that a sum in-between the 2 sums claimed should be awarded. The award for item (c) (better accommodation) should therefore be $10,500.00 x 12 x 7 = $882,000.00.

45. There is no dispute that the Plaintiff's wife needs psychological counselling. The Plaintiff says that she would need this for the next 2 years while the defence says that she only needs 12 sessions of counselling. When Mr Lim cross-examined the defence expert, he suggested to him that at the end, the difference was nothing more than a matter of difference of opinion. I consider that that must be the case. Ms Lau submits that if the matter is only a difference of opinion, then only the sum agreed to by the defence ought to be allowed because the Plaintiff fails to prove the need is reasonable. Mr Lim, on the other hand, submits that once the defence agrees to this item, the issue becomes one regarding mitigation of loss and therefore the burden of disproving the Plaintiff's sum lies with the defence.

46. The agreement or concession of the defence is only made out of goodwill and fairness. Its purpose is to help expedite the proceedings by limiting the issues which need to be determined and should not be seized upon as a reason for saying that somehow the burden of proving the need for this item shifted to the defence. I therefore disagree that the matter became an issue of mitigation of loss. Since I am unable to determine whether the Plaintiff's sum or the Defendant's is more appropriate, I find that the lesser sum of $30,000.00 should be awarded (for item (d)).

47. As regards the need for psychotherapy and medication for the Plaintiff (item (e)), I agree with the defence that this should be disallowed. Even according to the Plaintiff's expert, the Plaintiff only has the mental age of a very young child. I therefore fail to see how psychotherapy would help the Plaintiff. Item (e) is thus disallowed.

(7) Expenses for Management and Investment Advices

48. Mr Lim refers to Chan Pui Ki v. Leung On [1996] 2 H.K.L.R. 401, 422H to 423B and argues that a sum for "investment and management advice" should be awarded. This part of the judgment in Chan Pui Ki said:-

"The object of the lump sum award is to compensate the plaintiff, once and for all, ... But, to achieve that purpose, that sum must be wisely invested ... the defendants [agree they] should not be called upon to find further moneys to assist the plaintiff in the proper administration of the award which, in itself, affords adequate compensation.

It is that last proposition which is questionable. The reality is that the award, in the plaintiff's hands, will not achieve its intended purpose ... unless it be wisely invested. The award for future loss of earnings is of a rather different nature ... ".

In the end, the Court of Appeal concluded that such an award should be made regarding the loss of future earnings.

49. Chan Pui Ki involved a claim brought by a 10-year-old girl. The Plaintiff in the present case has the mental age of a very young child. For this reason, I agree with Mr Lim that an award should be under this head. The sum awarded for the loss of future earnings is $240,000.00. I find 10% of that sum to be the appropriate amount, that is $24,000.00.

50. Mr Lim argues that the award should also cover pre-trial loss of earning. I do not agree because the element of investment was not involved.

(8) Interest

51. This is agreed as follows:-

(a) 2% per annum on general damages from the date of issue of Writ to the date of judgment;

(b) 5.77% being half judgment rate per annum on special damages from the date of accident to the date of judgment.

Costs

52. The parties also agree that a costs order nisi can be made pursuant to R.H.C. Ord. 42 r. 5B(6). There is no apparent reason not to apply the usual rule that costs should follow the event. Costs of this action are to be paid by the Defendants to the Plaintiff to be taxed if not agreed.