LI LAI FUN v. CHAN YAN

1987 No. A234

IN THE HIGH COURT OF JUSTICE

HONG KONG

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J U D G M E N T

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1. The plaintiff is a married woman now aged 32 years In 1974 she emigrated from Hong Kong to Canada. In October, 1984 she returned to Hong Kong to finalise details for her marriage which was planned for December 1984.

2. At approximately 2 p.m. on the 6th December 1984 the plaintiff left her parents' premises at Luen Shing Street Fanling to walk to her father's shop at 23 Wo Tai Street. It is her evidence that she first checked that Wo Tai Street was clear of oncoming traffic and then walked across the street on a slightly diagonal path. Wo Tai Street is a one-way street, the traffic flow being from the plaintiff's right side .There was no zebra crossing in the vacinity She checked again while crossing the street to ensure that the roadway was still clear and it was. Upon reaching the line of vehicles parked adjacent to the pavement the plaintiff turned left and walked alongside those vehicles looking for a gap through which to gain access to the pavement. Her evidence is that she was walking less than 1' from the side of the vehicles. After walking for a few paces she heard the roar of a motor cycle coming from behind her. She quickened her pace but before she could reach the gap between the vehicles she was struck by the motor cycle on her left side. The point of impact, which comes from the witnesses and the photographs, was very close to the side of one of the parked vehicles and near to a gap between that vehicle and the one in front of it. The plaintiff was knocked to the ground rendered unconscious and sustained injuries to her left leg and scalp.

3. It is not In Dispute the motor cycle was driven by the defendant.

4. Madam Lam gave evidence and described the manner in which the defendant drove his motor cycle. She saw him sitting on the cycle reving the motor loudly, he then set off along Wo Tai Street with the engine roaring, at a very fast speed and at the same time lifted the front wheel of the cycle off the ground. Madam Lam likened his actions to a rider at the Macau motor cycle races. The statement of another independent eye witness which was in evidence described the defendant riding as if he were in a side show or a motor cycle rally As the motor cycle came near to the plaintiff it veered to the right and collided with her. The inference I draw is that the defendant while riding in a very irrespongible manner lost control of his motor cycle

5. On the 27th June 1985 the defendant was convicted of careless driving. The defendant does not dispute that it was his negligence which was the principal cause of the accident but claims that the plaintiff was guilty of contributory negligence and suggests a reduction in the damages of 5% to 15%. It is the defendant's case that the plaintiff was negligent in not first checking whets the spaces were between the parked vehicles on the opposite side of Wo Tai Street before she commenced to cross. I can see no merit in this submission. The plaintiff crossed the street in a responsible and careful manner. She was walking in very close proximity to the parked vehicles for a stance of approximately car length she must have been clearly visible to the defendant, the weather was good and the road dry I do not consider that her actions in any way contributed to the accident which was solely caused by the gross carelessness of the defendant

6. As a result of the accident the plaintiff sustained a fracture of the left tibia and fibula and a small bruise over the left parietal region of the scalp. She was admitted to hospital where the fracture was secured by a long plate and screws and the leg put in a cast. She was discharged from hospital on the 19th December, 1984. As a result of the accident her marriage was postponed. The plaintiff was first able to walk with the aid of two crutches and then in. July 1985 was able to discard one crutch. The cast was removed after seven months and in October 1985 she was able to walk without aids.

7. On the 23rd June, 1987 the plaintiff had a second operation to remove the plate and screws. The fracture has healed in a good alignment and there is no shortening of the leg. She has a long vertical scar on the medial surface of the tibia and there is a slight restriction in the movement of her left ankle. This comes as a result of the left leg being immobilised for a lengthy period. Dr Mao, who gave evidence for the plaintiff, assesses her total impairment at 2%. Dr Horsfall a witness for the defendant, fixes it at 3%.

8. Prior to her return to Hong Kong the plaintiff had been employed as a waitress at the Holiday Inn, Harbourside, Vancouver. While so employed, in her own time she attended the Vancouver Community College and obtained diplomes in both ladies and mens hairdressing. From July 1984 until she left for Hong Kong the plaintiff worked in her own time as an apprentice hairdresser to obtain a hairdresser's licence. It would take her a further 18 months or so to complete the apprenticeship on a part-time basis. It is her intention to now return to Vancouver to resume full-time work as a waitress and part-time work as an apprentice hairdresser, with a view to eventually working as a hairdresser, possibly in her own business

9. It is not disputed that she was in receipt of monthly wages of CA$1,341.00 from the Holiday Inn. In addition the plaintiff gave evidence of receiving on average CA$40 per day in tips. There is no documentary evidence of the quantum of the tips although the plaintiff's tax return for 1984 does show a figure returned of CA$1,700.00 for a nine month period. This computes to CA$188.00 per month as compared with the plaintiff's claim to CA$880.00 per month. The plaintiff's explanation for this is that in accordance with the usual practice she only returned the amount of tips received through credit cards and did not return the amount of the cash tips. I accept that this was probably true but I do not accept that the plaintiff was in receipt of tips to a value of about two-thirds of her basic salary. In the absence of documentary evidence I can only make an educated guess as to the true figure. I propose to allow a claim for tips based on a figure of CA$440 per month.

10. It is the plaintiff's case that as a result of the accident she suffered cousiderable pain and discomfit and that this continued up to the time she had the plate and screws removed. Some pain still persisted but to a much lessened degree and relative to the weather. She did return to Canada for a visit in May, 1985 and for one day attempted to help in a coffee shop as a waitress. As she was then still using two crutches that attempt not ssurprisingly failed. It is her evidence that only recently has she felt capable of trying to resume work as a waitress and this is what she intends to do in the immediate future.

11. The plaintiff did not however sit idle while waiting for the plate and screws to be removed. From 20th November 1985 to 20th April 1987 she worked as an assistant hairdressing instructor for C.K. CHAO Company. In April 1987 she was promoted to Salon Administrator. On 23rd June 1987 she had her second operation and was absent without pay until 31st August 1987. From 1st September 1987 she was a salon manager for the company The plaintiff resigned on 27th November 1987 and has not worked since. The work that she was required to carry out, did not, particularly in the initial stages required her to spend long hours on her feet nor to carry weights such as loaded food trays. During the period of employment she had a baby and married the man she had planned to marry in December 1984.

12. The wages she received from C.K. CHAO Company are not in dispute and have been set off against the claim for loss of earnings.

13. It is the defendant's case that the plaintiff could have returned to full-time work as a waitress approximately a year after the accident and that any claim for loss of earnings should be limited to such a period.

14. Dr. Horsfall in his report dated 21st July 1987 stated that, on general principles, the plaintiff should have been fit to do light work or a part-time job eight months after the accident and that a few months later she should have been fit to take a full-time job as a waitress. He did, however, concede that it was not possible to state categorically that she would have been absolutely pain free one year after the injury. In evidence he explained his reservations were because it is difficult to make retrospective judgments regarding a person's ability to return to work and that pain is a subjective matter.

15. Dr Mao considers the fracture of the tibia and the fibula, weight bearing bone, to be a troublesome injury to treat and that care care is needed. In his opinion it would have been unwise, and could possibly have resulted in a slower healing or on healing at all, for the plaintiff to have undertaken work as a waitress prior to the removal of the plate and screws. Although he agrees pain is subjective he did not consider, given the nature of the injury and the necessary treatment, that the plaintiff was exaggerating when she said she suffered considerable pain for a long period. He was also of the view that the plaintiff would need a period after the removal of the plate before resuming full-time work as a waitress. Having considered the views of the two doctors, I am satisfied that Dr Mao's is the correct approach accept his opinion as to the convalesence period required before the plaintiff could safely return to work as a waitress.

16. The plaintiff also claims for loss of future earnings The fracture has healed well, she does have a slight loss of movement in the left ankle which is permanent and there is some chance that arthritis could develop There was however no evidence to show that the plaintiff's earning capacity will be affected by this disability Both doctors agreed she is fit to return to work as a waitress. I make no award for loss of future earnings.

17. In respect of general damages for pain and loss of amenities, I was referred to several awards in respect of injuries somewhat similar to those suffered by the plaintiff. Having regard to the medical findings including the scar, and inflation the sum of $40.000.is awarded under this head.

18. There will be judgment to the plaintiff in the following amounts:-

19. There will be interest on the special damages at the rate of 4% per annum from the date of the accident 6th December, 1984 to judgment and on the general damages at the rate of 2% per annum from the date of service of the writ to judgment. Costs of the action to the plaintiff to be taxed if not agreed.