LEE CHAN WING v. LEE WING PING

H.C.A.2475/87

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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1. The plaintiff's action is for damages for the injuries he sustained in a traffic accident in Tai Shu Ha Road East in the vicinity of lamp post H2590, allegedly due to the negligent driving of the defendant of a 7-seater van, registration number CL4513, which is pleaded in the re-amended statement of claim in the following terms :

"2. On the 6th day of November, 1985, at or about 6.05 hours, the Defendant so negligently drove managed and controlled the van, which was driven in a northerly direction along the road, that he caused or permitted the same to collide with the plaintiff, who was standing on the kerb near the lamp post, whereby the plaintiff sustained serious personal injury."

The negligence alleged was : failing to keep any or any proper look out; failing to heed or observe the plaintiff and other pedestrians in time or at all; failing to display any or any adequate lights on the van; failing to drive on the nearside and slow down, swerve or stop or apply his brakes so as to avoid the collision; and driving at a speed which was excessive in all the circumstances.

2. The plaintiff further relied on the principle of res ipsa loquitur.

3. In his defence the defendant admitted that at the material time he was driving the van in a northerly direction towards Yuen Long but denied that the accident was caused his negligence as alleged or at all. In the alternative, the defendant averred that the accident was caused either wholly or in part by the plaintiff 's negligence in failing to : (i) keep a proper look out, (ii) show or display any adequate lighting or reflector on the trolley, (iii) give any or any proper or sufficient signal or warning of his presence, (iv) take any or any adequate steps to warn other road users of the presence of the trolley on the road; and in standing in long grass at the side of the road and allowing himself to be obscured thereby.

4. The plaintiff gave his present age as 67. At the time of the accident he was a vegetable farmer in Sung Chun village, near Yuen Long, and took his farm produce to a vegetable market for sale daily or every other day. He took some vegetables to the market early in the morning of the 6th November, 1985 and was on his way home pushing his empty trolley, which was similar to but smaller than the one seen in photograph F at p.95 of the bundle. It was then about 5.55 a.m. and the plaintiff maintained that it was "very bright", there being day light and also light from the street lights. On photograph Ex. P4, he marked the line he took in pushing his trolley, which is close to the verge on the left. The lamp post is a little beyond the lay by or passing space. On photograph Ex. P2, he marked his position immediately before the accident, which is just beyond the end of the passing place where the verge straightens out. He said that he first saw the van approaching him when he reached the position which he marked on the two photographs Ex. P3 and P4, which is just before one reaches the lamp post near the iron gate. The plaintiff said that upon seeing the van he tried to push the trolley on to the 'pavement' which really is the grass verge, and, according to his demonstration in court, he stepped on to the grass verge, tilted the trolley and had managed to get its left half on to the verge when the van struck the other part of the trolley which was still on the road. The trolley then knocked him down into a small ditch. He said that he lost consciousness for a short time and was later taken to hospital.

5. Also adduced in the plaintiff's case is the statement (Ex. Pl) which the defendant made to the police about an hour later. In it he explained how the accident occurred as follows :

"At about 06.05 a.m. on November 6, 1985. I was driving CL4513 along Tai Shue Ha Road East from Tai Shue Ha in the direction of Tai Tong Road. At the material time there was no passenger in my vehicle, as I had intended to go to Yuen Long only for tea. Before reaching the scene (of the accident), I was driving at 4th gear at around 30 M.P.H. When I reached the scene, suddenly I saw a male pushing an iron cart towards me from the roadside on my right. He was only about 10 feet away. So I applied the brakes once but it was already too late. Consequentially part of the right front wheel of my vehicle rammed into the right corner of the said iron cart. Then the said male fell onto the ground and was injured on his leg (s). Both vehicles were damaged. Later I reported to the police. Soon afterwards an, ambulance and a police car arrived at the scene and took the injured to hospital. I stayed at the scene to help in the investigation. (Q) At the material time, was it dark or bright? (A) It was not yet bright. The street lights were still on, and my headlights were still on. (Q) Did you blast the horn before the accident? (A) No, as it came all of a sudden."

6. The defendant elected not to give evidence in his defence but called a doctor on the issue of the plaintiff's eye condition, to which I shall come presently.

7. It is not disputed that the Tai Shu Ha Road East is a single track 2-way road, which has some passing places for vehicles travelling south to move into to let the on-coming traffic through. This is an indication of the extent of accommodation for two motor vehicles passing each other on the entire width of the road. According to the police sketch plan, which is an agreed document at p.5 of the bundle, the width of the road is shown as 1 1/2 squares which is equivalent to 3 meters, the width of the van is stated as 1.6 meters and that of the plaintiff's trolley as 0.4 meters. These measurements and indeed the position of the van where it came to stop after the accident, all being agreed are of significant importance in considering the evidence.

8. Another document which is agreed in the memorandum from the Director of the Royal Observatory dated the 9th February, 1987, stating the weather conditions on the day in question. The Director states that there are no meteorological stations operating near the location of the incident. However, the time of sunrise that day is stated as 0630 hours.

9. Mr Ismail for the defendant submitted that the plaintiff was shown to be an unreliable witness, based on some inconsistencies and omissions in his evidence in the magistrates' court on the 6th May 1986 at the trial of the defendant for careless driving, and in what he is alleged to have told the various doctors about how the accident had occurred. The record of the proceedings in the magistrate's court is short and the magistrate found no case to answer at the end of the prosecution case which comprised of only the plaintiff's evidence. It is true as learned counsel pointed out that the plaintiff had there said on oath : (1) he was pushing the iron cart on what he "thought" was the left side of the road; (2) be saw nothing the defendant ran into him and he "thought" he came from his front, the vehicle hitting the cart and he fell to one side unconscious; (3) it was very bright; (4) he disagreed it was dark at the time. He could not say if the street lights were on but he would not agree that they were on; (5) he was on the kerb next to which was long grass. He said he was not pushing but had gone up to the long grass, adding that he was in the long grass.

10. When confronted with the evidence he had previously given in the magistrate's court the plaintiff said repeatedly that his head was muddled. The fact that he lost consciousness was also brought into issue. It is to be noted however that in the report of Dr. Chow dated the 23rd December, 1985, there is mention of the plaintiff's complaint upon admission to hospital of having lost his consciousness for about 20 minutes. It also finds reference in the report of Dr. Ng Shi Hon (P.W.5), the neurologist, dated the 19th April 1988 where under the heading "HISTORY" it is stated :

"At the present he couldn't remember whether he had lost conscious (sic.) or not at that time. However, in view of the report of Dr. Chow stating that he complained of loss of consciousness for about 20 minutes and, that currently he couldn't recollect clearly what had happened in the first hour after his injury, I estimated that he probably had a loss of consciousness for about 20 to 30 minutes."

Dr. Ng's comment was that the loss of consciousness was due to concussion of the brain with the post-concussional syndrome of his complaint of poor memory and power of concentration which, in his opinion, would improve with time. However when he saw the plaintiff again on the 27th February, 1989 the same complaint persisting more than 3 years after the accident the neurologist was of the opinion that "these higher mental deficit will probably be permanent".

11. It is in this light that I view Dr Mao's first report dated the 24th July 1987, which was before the plaintiff was seen by the neurologist, that the plaintiff told Dr Mao that he was "couscious but dazed". In his report of the 17th March, 1989, Dr Mao records that the plaintiff had "suffered a loss of consciousness for perhaps 20 minutes and it is possible that he had concussion too". By the time of his second report, Dr Mao would have had the benefit of Dr Ng's previous two reports.

12. Considering the nature of the other injuries sustained in this accident as set out in Dr Chow 's report, namely, a deformed left leg with 1 cm laceration, a painful swollen shoulder, fractures of the left clavicle and lower 1/3 of the left tibia and fibula, and relating those to his first complaint to the hospital concerning loss of consciousness, I find that there is sufficient evidence to prove on the balance of probabilities that the plaintiff had lost his consciousness for some 20 - 30 minutes upon being knocked down which, accepting Dr Ng's opinion, was due to concussion of the brain.

13. I accept also that the post-concussional syndrome is responsible for the plaintiff's poor memory and power of concentration which still persists as was apparent when he was testifying and, upon Dr Ng's assessment, I find that the probability is that his impaired memory will be permanent.

14. Having said this, it is not surprising, considering also the time that has since elapsed, that there should be such inconsistencies in his evidence vis- a-vis what he said earlier in the magistrate's court and to the various doctors. Looking at the various matters raised, I find that even in the magistrate's court his consistency on some aspects remained intact. For example, he had been pushing the cart along the road before the accident and that he was on the kerb at the time of the collision. He was not asked, and he did not mention, about the position of his trolley at the material time. There is the apparent inconsistency about the street lights, but the defendant's statement makes it quite plain that those were on. This admission by the defendant renders that inconsistency of no avail in my opinion.

15. Learned counsel for the defence emphasised the fact that the plaintiff had told Dr Mao that he was on the left side of the road on the pavement, to Dr Wong he had said that he was pushing his cart along a country lane. With respect, I do not detect any inconsistency here; the fact remains and the defendant also supports this, that going in a southerly direction as he was the plaintiff was on the left side of the road, and to the defendant who was going in the opposite direction, the plaintiff would be on his right side. That the plaintiff described it as a "country lane" and not a road is neither here nor there. It is not disputed that the accident occurred on the Tai Shu Ha Road East.

16. Likewise, learned Counsel relied on what the plaintiff said in the magistrate's court in that he saw nothing and was not sure but thought that the vehicle came from the front; to Dr Mao he said it came down on the opposite side of the road veered across and collided with his cart, whereas in this court he said that he saw the vehicle coming which led him to push his cart on to the kerb. It is manifest that one thing that has remained constant is the presence of the van which collided with his trolley. I keep in mind that his memory has been impaired since the accident but the fact remains that the defendant admitted in his statement that he was driving in the opposite direction when the collision occurred, which admission renders those so called inconsistencies of little or no avail in my opinion.

17. In so far as the plaintiff's account that he had been pushing his trolley along the kerbside on the left of the road as indicated by his marking on Ex. P4 is concerned, I pause at this juncture to consider the defendant's version which, in his statement, is stated thus: "…. swuddenly I saw a male pushing an iron cart towards me from the roadside on my right." It never was the defence allegation that the plaintiff had at any time pushed his trolley on the road surface towards the path of the coming van; the only matters pertaining and set out as indicating contributory negligence on the part of the plaintiff were, inter alia, he had failed to take any or any adequate steps to warn other road users of the presence of the trolley an the road and that he was obscured by the tall grass in which he was standing. So on the face of it, the defendant's reference in his statement to seeing a man pushing an iron cart towards him from the roadside on his right must necessarily be to a point in time immediately before the collision for quite obviously if the man was standing in the grass at the time, he would not be on the road pushing the trolley. Accordingly, I find that the plaintiff was pushing his trolley on the left side of the road by the kerbside and had gone beyond the passing place and reached the position which he marked on the photographs where the collision occurred.

18. Looking at the various photographs, it is clear that there is some vegetation on the left side of the road and on the right side is a pavement. The vegetation looks quite thick at the point where the accident occurred. The plaintiff said that behind him where he was trying to pull his trolley away from the road, there was some grass 2 to 3 feet high. Learned defence counsel pointed to his evidence in the magistrate's court where he had described the grass in which he stood as "long". No body asked him to specify the height of the grass and the only evidence about it is what the plaintiff said before me. However, the significance of this was said to he that the plaintiff was in a position which made him invisible to the defendant because : (1) he stood in tall grass, (2) he was wearing dark coloured clothing, and (3) the vegetation behind him was thick.

19. In considering this argument, I take into account that this incident occurred on a long straight stretch of the road 3 metres wide, and the street lights were then on, as were the van's headlamps. I need to revert to the meteorological report that sunrise that day was at 6.30 a.m. Learned counsel for the defence sought to argue that as such, contrary to what the plaintiff said, there would have been no natural light at the material time. Mr Pritchard, for the plaintiff, asked me to rely on my own experience that there always is light before sunrise. Here we are talking of a gap of some 20 minutes to sunrise and keeping in mind that it was in the countryside I am of the opinion that it is in everyone's knowledge and is a common observation that on a clear morning as the 6th November was, there normally is some light immediately preceding dawn, progressively getting stronger towards sunrise time. The fact that the street lights were still on is not conclusive to say that it was absolutely dark at the material time. I find that in view of the very short gap of time to sunrise the probability clearly is that there was some pre-dawn light at the time. The other sources of light were the street lights and the van's headlamps. It was in those lighting conditions that I consider the submission.

20. It was not submitted that the plaintiff had no right to be where he was only that he would not have been apparent to the plaintiff. Relying on Moore (An infant) v. Poyner (1974) RTR 127, Mr Ismail submitted that the only way the defendant could have avoided colliding with the iron cart and the plaintiff behind it would have been for him to drive at a snail's pate, say 5 M.P.H., whilst constantly looking out for persons or things to his right (in the dark or dark shadows) along the entire stretch of the long straight road as well as constantly looking ahead for vehicles and looking out for pedestrians on the pavement to his left. That case is easily distinguishable on facts and I need only cite the brief headnote of the report which reads :

"Negligence child - car driven at 30 M.P.H. in quiet residential road on sunday - Driver aware of children playing in area - Large coach parked on nearside - Unseen child running into road in front of coach - Duty on driver - whether to slow to 5 M.P.H. - whether to sound horn." It was held that "the maximum legal speed of 30 M.P.H. was safe in all the circumstances and the defendant was not negligent in not reducing his speed; that the defendant's duty of care was to be tested not by what the plaintiff actually did, but whether, if the defendant had reasonably anticipated that a child might run into the road, he should have reduced his speed so as to enable him to stop instantaneously to prevent the accident occurring; that such a speed would have been 5 M.P.H, which was not a reasonable assessment of his duty of dare as the risk of the impact happening at the precise moment he was passing the coach was so slight that it did not require him to slow down to such an extent." Here of course the defendant had a long stretch of road ahead of him with nothing impeding his view. The situation in the case cited was vastly different and with respect, I do not derive any, assistance from it.

21. Much was said about the plaintiff being "invisible" or not "apparent" to the defendant. About the street lights, Mr Ismail invited me to take judicial notice that shadows are cast by street lamps which cause considerable difficulty in seeing objects on the road. This is based on the utterance of Mcnaghten, J. in the Divisional Court in Tidy v. Battman (1934)1 K.B. 319. His judgment on appeal from the County Court was upheld by the King's Bench Division. The learned judge had said :

"At night time the visibility of an unlighted obstruction to a person driving a lighted vehicle along the road must necessarily depend on a variety of facts, such as the colour of the obstruction, the background against which it stands, and the light coming from other sources. It is common observation that lights placed in the footway beside a road cast shadows which cause considerable difficulty in seeing objects in the road; and indeed for that reason on many roads, where there is considerable traffic, the light is suspended from the centre of the road so as to obviate, as far as possible, the difficulty in which even the most careful driver is placed, by shadows cast by lights at the roadside."

Pausing here. I may point out that the unlighted obstruction there was a motor lorry which was drawn across a road in such a way as to obstruct the passage of, about two-thirds of the road. With great respect, it seems to me that learned counsel for the defence has misread the comment concerning the street lamps in that case. That reference was, as is readily noticeable, to "lights are which placed in the footway beside a road" and the observation of the learned judge with reference to such lights casting shadows was not only reasonable but was in accord with common sense. But that is not the kind of lights we have in this case where the light was attached to along pole, in other words, hanging up above by the post illuminating the area within its reach down below on the road and the roadside kerb. Such lights, rather than casting shadows, obviate the kind of problem which Mr Ismail envisaged and are an appreciable aid to better vision head of the kerbside and the dark vegetation beyond, depending of course upon the strength of the light and its ambit of reach.

22. In developing his argument further, Mr Ismail submitted : "It is no use saying that the defendant ought to have kept a proper look-out if it cannot be shown that if he had kept a proper look-out he would have been able to see the cart and the plaintiff in time to have avoided colliding into it or him. Likewise, it is no use saying that the defendant ought to have driven at a slower speed if it cannot be shown that if he had driven at a slower speed he would have been able to stop in time to avoid colliding with the iron cart and the plaintiff once he saw it or him." Mr Pritchard commented that this indeed was the nub of the case.

23. As I have indicated already the street lights were not the only source of light. In the lights of the van, and I must take it that both headlights were working properly, aided by the street lights and some natural light, I find a distinct probability that any reasonably cautious driver keeping a proper lookout would have had no difficulty in spotting the trolley way ahead of him on his offside edge of the road before the point of the accident. That trolley was not an obstruction, unlighted though it was, of the nature of the lorry in Tidy v. Battman (supra); it was out of his way, hugging as it were the kerb on his offside. While it is true, as Mr Ismail pointed out, there was no evidence that the plaintiff was illuminated by then street lamp, the fact remains that he was not very far from it either. And, as I have said, the van had its headlamps on. Keeping in mind the width of the road it is probable that the whole of the road surface would be illuminated in front of the driver. Even if the plaintiff standing in the grass, 2 - 3 feet high and the plaintiff being taller than that, in all the circumstances and in the light that was thin available I am of the opinion and so find that the action of the plaintiff in trying to get his trolley off the road would in all probability have been visible to the driver. As such the case of Knight v: Fellick (1977) RTR 316, where the plaintiff who was wearing dark clothing and was sweeping the pavement on a dark morning, there being no street lighting, was hit by a motorist who was following another car with his head-lights on but had failed to see the plaintiff, is clearly distinguishable on facts.

24. Having arrived at these findings I now turn to consider whether the presence of the trolley on the defendant's extreme off side posed any obstrcution or imminent danger to the defendant. Mr. Ismail suggested that the plaintiff's fault or negligence could be tested by considering what would have happened if he had left the trolley with its right front and rear wheels on the road overnight and the defendant had run into it at 6.05 a.m. on the 6th November. 1985 and was injured. He relied on Tidy v. Battman (supra) and Fotheringham v. Prudence, The Times. May 16, 1962. With great respect I decline to accept this invitation to base my decision on such a hypothetical basis, and I prefer to deal with the case on the basis of the evidence which is before me.

25. A close scrutiny of the police sketch plan and the various measurements mentioned on it, shows at once, as indeed was pointed out by Mr Pritchard, that with proper pushing of the trolley and proper driving of the van they could easily pass each other in that road. The fact remains that this did not happen and the only obvious and probable explanation why it did not is to be gathered from the position of the van as indicated on the sketch plan, it being closer to the offside kerb than it is to the defendant's nearside. It is manifest in view of the relative width measurements, that is, of the road, the van and the trolley, the trolley being, as I have found it to be, the left half of it on the kerb the right half on road surface, that, had the defendant kept to his proper nearside of the road, there being nothing in his path ahead of him, he would have gone past without having to execute any avoidance manoeuvre for there was nothing for him in the path ahead of him to avoid . In my considered opinion it was not a situation of danger emerging or the defendant being suddenly placed in a situation of grave imminent danger by the actions of the defendant, like a driver overtaking another vehicle in the face of on coming traffic as was the case in Wong Man-kit Michael v. Wong Pong-woon H.C.A. No. 283/85.

26. Looking at the evidence in its totallity and in view of my findings I conclude that the defendant had strayed from his proper position of steering on the nearside and gone over to the offside in circumstances in which, as I have found, any reasonably cautious driver would have spotted both the trolley and the plaintiff. I find that there is no other acceptable reason disclosed by the evidence before me for the defendant to end up on his offside in the position as marked on the sketch plan.

27. For these reasons, I find the plaintiff's evidence credible and I accept it as substantially truthful.

28. Mr Ismail submitted that even if the plaintiff's testimony were accepted, he was at least two-thirds to blame for the accident. The burden of proving contributory negligence is on the defendant and it is not for the plaintiff to disprove it. It is for the defendant to prove first that the plaintiff failed to take ordinary care of himself, or in other words, such care as a reasonable man would take for his own safety and, secondly, that his failure to take care was a contributory cause of the accident. I keep in mind also that in order to discharge his burden of proof it is not necessary for the defendant to give evidence about such matters, because contributory negligence can be inferred from the evidence adduced already on the plaintiff's behalf or from the primary facts, so found by the court on a balance of probabilities.

29. Having considered the evidence in its totallity and in view of the findings at which I have arrived I am not persuaded that the defendant has discharged his burden of proving contributory negligence in the plaintiff.

30. I find that the defendant was to blame for this accident which was due solely to his negligence.

31. As I have indicated above, upon admission to the Princess Margaret Hospital (PMH) on 6th November, 1985 after the accident, his physical examination showed that he had a deformed left leg with l cm laceration and a painful swollen shoulder with decreased movement range. X-rays revealed a fracture of the lower 1/3 of the left tibia and fibula and another, fracture of the left clavicle. A figure-of-eight bandage was given for the clavicle fracture, while the left leg was treated conservatively by closed reduction and long leg plaster.

32. On 25th November, 1985 he was transferred to the Caritas Medical Centre but three days later had to be re-admitted to PMH for a change of plaster which had become lose. However, the figure-of-eight bandage was removed after 6 weeks and the leg plaster taken off on 23rd January, 1986, after which he received physiotherapy daily. According to Dr Woo's report (P. 33 of then bundle) his condition progressed slowly from non-weight bearing walking to full weight bearing walking. Dr Woo states in his report : "He was discharged on 17.3.86 when we were satisfied that he was able to manage his activities at home. The degree of recovery was within our expectation."

33. On 17th September, 1986 the Medical Assessment Board considered his case. By then, he had an obvious limping gait and was able to walk with a stick. He complained of some pain over his left knee joint. The Board noted the following conditions : (1) 2 cm shortening in the left tibia; (2) mild stiffness of the left ankle both in dorsiflexion and plantiflexion, and (3) marked crepitations in the left knee joint suggesting osteoarthritis. Some residual symptom of pain in his left shoulder joint was also noted. The Board assessed his permanent disability at 6%.

34. Dr Mao (P.W.4) saw him on 31st March, 1987 and in his report dated the 24th July 1987 - Ex.P7 - he assessed a total impairment of 9% of the upper extremity, i.e. the left arm, and 18% impairment of the lower extremity in relation to the left foot which together with the shortening of the left leg of 1 l/2" represented an impairment of 16%. He assessed impairment of the whole person being 16%. The doctor said that although the plaintiff had already increased the left heel to obviate the shortness of his leg it was not possible for the plaintiff to resume his work. To the doctor the plaintiff said and he repeated the same in court that he could not walk for more than 10 minutes without a rest. Dr Mao assessed his loss of earning capacity at 25%.

35. The plaintiff was next seen by a neurologist Dr Ng (P.W.5) on 13th April, 1988. To him the plaintiff complained of poor vision, and poor memory and power of concentration. Dr Ng found that he was fully conscious and orientated with a mild degree of impairment in recent memory and power of concentration, which he ascribed to the post-concussional syndrome resulting from his unconciousness for a period of 20 - 30 minutes after the accident. Dr Ng thought that his condition would improve with time and it was usually reversible eventually. He did not think that his concussion was severe enough to account for the gross visual blurring and suggested an examination by an opthalmologist. With regard to the fractures, his limping gait and limitation of movements of his left arm and leg. Dr Ng said that those "gross deficit may be partly due to his lack of intensive follow-up management (especially without any physiothrapy)" after his discharge from hospital and recommended that the plaintiff re-attend the orthopaedic department of PMH to see if the deficit could be improved by further treatment such as physiotherapy and occupational therapy. Finding that the assessment made by the Medical Board was "a bit too low", he agreed with Dr Mao's figure and fixed his loss of earning capacity at about 25 – 30% excluding the visual blurring factor.

36. An opthalmologist, Dr Wong (P.W.3) saw the plaintiff on the 4th May, 1988. He found no signs of previous external injury to either eye. Fundal examination showed the presence of exduates and mild scarring of the macular region in both eye which caused the defective vision. He said in his report that such changes are irreversible and the impairment in the vision was permanent. In view of the conflict over exudates and an opinion by Dr Macrobert (DW1) different from that of Dr Wong, I need set out the latter's explanation about the exudates comprehensively :

"Pathologically, exudation is caused by effusion of serous fluid from blood vessels in and around the macular region. The macula is the most sensitive part of the retina which is the photo receptive layer of the eye-ball. Although in area it is only one percent of the retina the macula is responsible for ninety percent of our vision. Therefore minute changes in the macula will have serious effects on vision. The exact cause of exudation cannot be established with certainty but there are some well known circumstances which may predispose to exudation, viz., functional straining of the eye, trauma or contusion of the eye-balls or the head, physical or psychological strain of the body, prolonged periods of ill health, prolonged or severe general body illness. Although all these factors are non-specific, almost all of them did exist, in one stage or another, in Mr Lee's case. There was concussion of the brain (as noted in Dr Ng's medical report) with or without contusion of the eye-ball at the time of the accident, the physical and psychological stress and strain of prolonged hospitalisation and repeated treatment regimes and finally the depression and frustration during convalescence. Combination of all these factors is more than enough to lead to bilateral serous exudation in the macula resulting in scarring and blurring of vision."

Dr. Wong discounted the possibility that the maculopathy may have been present before the accident on the basis that there being no record of the plaintiff's pre-accident status or retinal picture "we have to presume (not without good reason thought) that his eye condition is related to the accident." He assessed the permanent disability due to impairment of visual function at 16 - 20% of total body disability.

37. Dr Ng (PW5) saw the plaintiff again for the second time on the 22nd February 1989. He noted that following his previous recommendation, the plaintiff had been to hospital for medical follow-up and physiotherapy in the meantime, leading to some marked improvement in the movements of his left arm and leg as well as in his visual function. Because the condition of impaired memory and power of concentration had persisted for more than three years, Dr Ng was of the opinion that these higher mental deficit would probably be permanent. He assessed permanent disability of about 15%.

38. On 16th March 1989, Dr Mao saw the plaintiff again. He found that his left shoulder movements were quite normal, and he could raise his arms easily up to above his head as well as backwards and forwards. There was normal medial and lateral rotation. He said that his previous 9% impairment of the upper extremity was therefore no longer applicable but impairment of the lower extremity, particularly the left foot, was 8%. Taking into account the shortening of the left leg, he said that the total impairment of the left lower extremity was 23%, i.e. 9% impairment of the whole person, which was an improvement of 7% compared to his previous condition. The total combined impairment of the whole person was assessed by him at 22%.

39. On 13th June, the plaintiff was seen by the defence consultant Dr Macrobert, and a fortnight later on the 28th June Dr Wong saw him for the second time. Dr Wong too noted a marked improvement in his condition and said that it was difficult to explain the cause of the noticeable improvement in his visual function in the past 12 months. He commented, "One can only say that time is sometimes the best cure in conditions we do not fully understand". Repeating his earlier comment concerning the presumption that his eye condition was related to the accident, he says :

"Personally I think the link between Mr Lee's eye condition and the accident is quite strong. With a serious accident causing generalised body injury including concussion and requiring prolonged hospitalisation and repeated painful treatment regimes, with the presence of definite retinal changes in both eyes, and with a host of all the predisposing factors to such retinal changes present, I would conclude that the relationship between the accident and the eye condition is almost overwhelming. Even if one is not as convinced as I am one certainly cannot deny Mr Lee the benefit of doubt under the circumstances."

In reaching this conclusion, Dr Ng prayed in aid the general improvement and said,

"One final point I would like to point out which would add more weight to my view : the improvement in visual function noted in the past year is in line with the tremendous improvement in general health and in other systems of the body. Should the eye lesion be due other causes not related to the accident, e.g. artero-sclerosis, one would expect Mr Lee's visual function to remain more or less the same, or even to deteriorate with age. The fact that there is commensurate improvement in all organs or systems which have been injured in the accident shows that eyes, without exception, has (sic.) been affected by the accident as well."

40. The plaintiff is now 67. He was about 63 at the time of the accident. Whereas his injuries to the shoulder and the left leg and the consequences thereof like his inability to walk for longer than 10 minutes without a rest, his inability to push a cart and his inability to kneel, as well as the impairment to his mental function are not disputed, the visual impairment is very much in contention because of the conflicting opinion of Dr Macrobert who examined the plaintiff on the 13th June and could not find any exudates as did Dr Wong. Explaining this condition he said that when a blood vessel leaks its content like water and protein is absorbed in the tissue but fat is usually left behind which takes years to disappear. Besides the deficient eye-sight which he was able to improve by increasing the power of his lenses, he found a glistening membrane covering both of his maculae which is known as the pre-retinal fibrosis or cellophane maculopathy. He said that while its causes are unknown any pathology inside the eye like a blow to the eye, haemorrhage or tumour can lead to this condition. As the membrane forms and contracts, it form puckered lines which distort the anatomy of the macula resulting in the consequential visual loss. In the history of this condition the membrane can actually separate from the retina and the distortion immediately goes away and the vision is restored. That this happened in Mr Lee, according to D.W.1, is to be seen in the dramatic improvement in his vision of 6/24 (right eye) and 6/18 (left eye) to 6/9 in both eyes. He said that a scar such as that mentioned by Dr Wong does not change, but in this case there was a change in the visual function for the better over the period of a year. He said that the pre-retinal fibrosis is a relatively common finding over the age of 60 and in the case of the plaintiff this condition was more likely to have been caused by old age than any other reason. In his report he says :

"The membranes that I can see could well be attributed to arterosclerosis as a different cause from the cause suggested by Dr Wong Tak-cheung. I stress here that I have the advantage of seeing the patient at a much, later date than he did. I would also point out the vision is 6/9 in both eyes. Normal vision is 6/6 in both eyes. So my conclusion is that it is unclear as to the original cause of the macula lesion but I am not at all sure that the accident and convalescence could have produced it. Many people have car accidents and suffer minor head and other injuries. Most of them do not develop this kind of macula lesions that Mr Lee has developed. Therefore, the accident may have been contributory but was by no means the only cause of his problems. In any event his visual loss is quite normal and his impairment in whole man terms is around 5%. Sorry that I cannot be more definite for you but I cannot say for sure that the accident did not cause the condition .…"

41. Dr Wong had said in his direct testimony that bilateral pathology in the macular is rare in the absence of diabetes, kidney disease or hypertension. Under cross-examination he said he took his blood pressure and pulse, adding that he is not a cardiologist. Regarding kidneys, he said it was not part of his field and: there is no evidence to show that this was investigated. About diabetes, he said that he only asked the plaintiff about his general health and according to the patient there was no such history.

42. Besides the fact that the plaintiff had for well over 30 years before the accident used non prescribed spectacles which he bought from street hawkers whenever he felt the need, Dr Wong was of his opinion that use of such spectacles did not cause the threshold of stress that would lead to exudates. One factor which separates the two experts concerns the macular scarring. Dr Wong noticed in early May 1988, Dr Macrobert did not find any in mid-June 1989. The point according to the latter is that if there is a scar normally it does not change, unlike the situation in this case where there was a change in the visual function for the better. Dr Wong found it difficult to explain the cause of the noticeable improvement and was content with saying that time sometimes was the best cure. Yet, quite surprisingly in my opinion, he employed the same unexplained improvement to lend support to his conclusion on the basis that the commensurate improvement in all organs or systems which were injured in the accident, showed that the eyes, without exception, were affected by the accident as well. The manifest fallacy of this argument is that he was unable to provide a sufficient medical basis for the proposition he was trying to rely on. Likewise, and with great respect, I find it quite fallacious to say that in the absence of the plaintiff's pre-accident visual status or retinal picture, one had to presume that his eye condition was related to his accident. This s made abundantly clear by the decision in Wilsher v. Essex AHA (1988)1 All E.R. 871 H.L., cited by Mr Ismail where it was, held :

"Where a plaintiff's injury was attributable to a number of possible causes, one of which was the defendant's negligence, the combination of the defendant's breach of duty and the plaintiff's injury did not give rise to the presumption that the defendant had caused the injury. Instead the burden remained on the plaintiff to prove the causative link between the defendant's negligence and his injury, although that link could legitimately be inferred from the evidence."

Here there were other possibilities which Dr Wong had mentioned but were not investigated or negatived so as to diagnose a cause other than those possible causes. Just as it was not a case for any such presumption as Dr Wong had in mind, equally it was not one of giving the plaintiff the benefit of doubt to resolve the conflict in the experts' opinions in favour of one and not the other. Quite clearly the plaintiff had some long standing eye problem to make him wear non-prescribed spectacles. There is nothing in the plaintiff's evidence of his experience of any strain or stress due to his injuries or resulting from the period of his hospitalisation or treatment regimens of such degree that it reached the threshold set by Dr Ng to lead to any exudates.

43. Considering the medical evidence I am inclined towards the opinion of Dr Macrobert as providing a cause for the plaintiff's eye problems due to the pre-retinal fibrosis which is commensurate with the plaintiff's age as well as the absence of any relevant evidence from him to indicate such a possible source of strain and stress acceptable to Dr Wong. I find that in all the circumstances the plaintiff has not succeeded discharging the burden of proving the causative link between the defendant's negligence and his eye problem.

44. This will leave his other physical injuries and the impaired memory and power of concentration. It was suggested that he did not mitigate his damages by not undergoing medical follow-up and physiotherapy treatment for some two years since his discharge from hospital, and when he did so following Dr Ng's recommendation on 13th April 1988, a marked improvement was noted in his general health. It seems that at the time of his discharge from hospital and until 13th April 1988 no other doctors had ever advised him that he should keep up subsequent medical follow up etc. Whilst it is true to say that physiotherapy did in fact improve his condition, it was in no way such as would have restored him to anything like his pre-accident condition to be able to resume his occupation of farming. Dr Ng was not surprised that he had not been able to do so because of his impaired mental condition. And Dr Mao likewise was of the opinion that the increase to his left heel to obviate the shortness of his leg had not made it possible for him to resume his occupation. In all the circumstances, I find that the plaintiff's working life, which he had hoped would be another 8 to 10 years had this accident not happened, was cut off by the physical injuries and the mental functional impairment resulting directly from that accident, notwithstanding the apparent improvement in his general health since April 1988. With those injuries and the mental funtional impairment and his age I am inclined to accept Dr Mao's opinion that it is unlikely that anyone would be prepared to offer him any employment, not even that of a caretaker.

45. Mr Pritchard submitted that those injuries fall in the category of "serious injury" as defined in Lee Ting-Lan v. Leung Kam-ming (1980) H.K.L.R. 657, 659. Considering the nature of those in juries I accept that cumulatively they amount to serious injury for which the revised guidelines in the recent case of LAU Che-ping v. Hoi Kong Ironwares Godown Co. Ltd., C.A. No. 12/88, suggest an award between $135,000 and $180,000. I assess the award at the lower end of that scale at $135.000.00.

46. With regard to the claim for loss of earnings, it was submitted by Mr Ismail that no award ought to be made because the plaintiff had not proved on a balance of probabilities that he could lawfully sell the vegetables he farmed in the market. He relies on Wong Ting & Another v. Yuen Hing-kwan (1979) HKLR 396. There Garcia, J., held that no award would be made for the claim for loss of income derived from hawking without a licence because being an illegal trade it would be against public policy that the plaintiff should benefit from her unlawful activity. Unlike the instant case where there is no such admission, in Wong Ting the plaintiff had admitted that she had hawked without a licence in the Lam Tei Market. After setting out paragraph 4(2) (a) of the Hawker (New Terriotries) Regulations, Cap. 132, the learned Judge said at p.406 :

"In asserting this claim, having regard to Tam Choi's case, the onus in my view, is on her to prove a fact essential to her claim, that is, that she comes under the exception provided in paragraph 4(2) (a) of the said Regulations, and that Lam Tei Market, which she says was where she plied her trade, was a place set aside under the said Regulations where a person may hawk without a licence."

Mr Pritchard argued that neither part of the plaintiff's means of livelihood, namely growing vegetables and selling them at a market, was ex facie illegal and in the absence of a pleading that would have put him on notice that legality was in issue or, alternatively, there was some indication in the evidence that the plaintiff made his living in an illegal way, the defendant was not in a position to take this point. He relied on North Western Salt Co. v. Electrolytic Alkali Co. (1914) A.C. 461 and Lipton v. Powell (1921) 2 K.B. 51.

47. This issue is covered by the Rules of the Supreme Court 0.18, r.8, the commentary on which is to be found in the White Book, 1988 at p.275 :

"This rule enforces one of the cardinal principles of the present system of pleading, namely that every defence or reply must plead specifically any matter which makes the claim or defence in the preceding pleading not maintainable or which might take the opposite party by surpirse or raises issues of fact not arising out of the preceding pleading. Put shortly, whenever a party has a special ground of defence or raises an affirmative case to destroy a claim or defence, as the case may be, he must specifically plead the matter he relies on for such purpose. 'The effect of the rule is, for reasons of practice and justice and convenience to require the party to tell his opponent what he is coming to the court to prove' (per, Buckley L.J. in Robinson's Settlement, Gant v. Hobbs, (1912) 1 Ch. 717, p.728) : but the rule does not prevent the court from giving effect in proper cases to defences which are not pleaded."

The rationale of the two cases cited by Mr Pritchard clearly is that where an agreement is objected to as illegal as being against public policy, unless this has been specifically pleaded, the court will only pronounce the agreement void on this ground if the contract and its setting are fully before the court; it will not do so where the contract is not ex facie illegal and the court is not satisfied that all necessary facts are before it.

48. The case of Lipton (supra) is quite apposite as the headnote shows :

"The plaintiff, a money-lender, brought an action in the county court on a promissory note made in her favour by the defendants, who did not deny that the sum claimed had not been paid. The defendants had not given notice that they relied upon the statutory defence that the plaintiff was not registered as a money-lender, and they were therefore prevented from setting up that defence at the trial. Nothing appeared on the face of the transaction between the parties or in the course of the proceedings to suggest that the plaintiff was not registered. The plaintiff's agent gave evidence on her behalf, stating that she was registered, and producing a copy of her return of particular for registration which he said had been obtained from the registration authorities; and the defendants did not attempt to shake his evidence by cross-examination or otherwise. The county court judge held that the plaintiff must give strict proof of her registration by an examined or certified copy therof, and, as she had not done so, he gave judgment for the defendants. On appeal to the Divisional Court : Held, that in the circumstances it was not necessary that the plaintiff should prove her registration by an examined or certified copy therof and that she was entitled to judgment."

49. Lush, J. said at p.58 that where an action is brought upon a contract and the point is not taken by the defendant that the contract is illegal there are two cases in which the judge may intervene and refuse to enforce the contract : (1) where the contract ex facie shows illegality, (ii) where the contract although ex facie legal, yet in the course of the proceedings an admission is made or evidence is given by which its illegality clear appears. He continued.

"In a case coming within either of these two classes of cases the court is apprised of the facts that it is being asked to enforce an illegal contract, and it may and ought to refuse it."

And McCardie J. said at p.64 :

"This case instead of being a prima facie case of illegality was a prima facie case of legality. The business of money-lending is legal at common law, and it is also legal under the Act if the money-lender be registered. In this case the county court judge was not entitled to require the plaintiff to produce a certificate of registration, and I am unable to adopt the position which he took."

50. This case should provide a complete answer to the submission sought to be made on behalf of the defendant on the issue of alleged illegality. The plaintiff was not challenged nor was there anything in the evidence which apprised the Court of the fact that it is being asked to assist a man to reap the fruits of an illegal activity. In Wong Ting (supra) the admission made by the plaintiff had brought out the issue of illegal hawking and the Court was apprised of it. The only consequent issue that remained was whether she as an unlicensed hawker fell within the exception provided by paragraph 4(2)(a) of the Regulations, which, for the plaintiff to suceed having already made the admission, was an essential element to prove her claim. On that basis and with respect I find myself in entire agreement with the decision on the burden of proof which the plaintiff had undertaken by her admission. In the instant case, the situation was vastly different, there being no admission of unlicensed hawking or any such burden as befell the plaintiff in Wong Ting, and in the absence of a specific pleading or notice in that regard, I am of the opinion that the defendant cannot rely on the statutory defence.

51. The way is clear now I think to tackle the issue of loss of earnings. The plaintiff claimed that his net monthly pre-trial earnings amounted to between $3.200 and $3.300. I will accept the figure of $3.250.

52. According to the figures compiled by the Census and Statistics Authority, the average monthly earnings of persons engaged in agriculture and fishing would have increased from the last quarter of 1985 to the first quarter of 1989 by 3.52% per quarter. I accept that by July, 1989 (16 quarters after the accident), his earnings would have increased by at least 55%, which is equivalent to $5.037.50.

53. The median of those two figures will be $4.143.75.

54. The plaintiff was about 63 at the time of the accident, and had hoped to continue working for another 8 to 10 years. Except for the non prescribed spectacles he wore, there is no other evidence to indicate or suggest that he was not otherwise in good health. I find his hope to be able to continue active farming for at least 8 years more quite reasonable in the circumstances. Mr Pritchard suggested a multiplier of 6 years and 8 months. I consider that a multiplier of is just and proper.

55. His loss of earnings will work out as follows, and those are the awards that I make -:

(a)     Pre-trial -

$4,143.75 x 44 ⁼ $182.325.00

(b)    Post-trial -

$5,037.50 x 28 = $141.050.00.

(c) The various items of special damages set out in the schedule pursuant to the Practice Direction dated 29th November, 1984 are all admitted, and are as follows :-

56. Interest on the special damages is allowed at 3.75% per annum from the date of the accident. There will be interest on the general damages at the rate of 2% from the date of the writ to the date of this assessment.

57. The plaintiff is to have the costs of this action and his own costs are to be taxed under the Legal Aid Regulations.