WU KAM MAN v. KO SIU LUN

No. 10702 of 1983

IN THE COURT OF HONG KONG

HIGH COURT ACTION

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JUDGMENT

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1. This is a running down action, arising out of an accident in Tai Hang Sai Street on the 7th of February 1981 at something just after 7 o'clock in the morning. It was daylight, but there were not many people about. The Defendant was driving his private car in a south-easterly direction. Looking at the photographs it appears that he cone over a crest in the road, after which the road stretched out fairly straight in front of him. He failed to see the Plaintiff, a gentleman at that time in his mid-fifties who was, I find fairly severely handicapped by a previous stroke, who had stepped into the road from the Defendants near-side in order to cross over and, before the Defendant caught sight of him, had moved to a position towards the centre of the road and across the front of the Defendant's vehicle. The Defendant did what he could in the circumstances. He put on his brakes and swered to the near-side, but that was not enough for him to avoid making contact with the Plaintiff altogether who was struck by the off-side wing-mirror of the Defendant's motor-car and injured.

2. This account comes almost exclusively from the Defendant himself who was the only eye-witness of the accident who can remember anything about it. The Plaintiff, because of his previous disability and because of what has happened to him since, quite unconnected with the accident, has no memory at all of what took place. There were no other eye-witnesses and it was only because the Defendant gave a very frank, fair and helpful statement to the police, as it was his duty to do, that it has been possible for the Plaintiff to present his case on liability at all.

3. In the result the Plaintiff suffered a fracture of the tibia and fibula which had to be set in hospital. I am quite sure that but for his previous disability he would have been out of hospital within a matter of weeks. Prior to the accident, he had been able to get about to a certain extent. His son has told me that it was his practice in the morning to go out for a walk and come back with food for breakfast. I am satisfied that this accident, coupled with the pre-existing disability, delayed his discharge form hospital certainly for a period of time. But at some stage during his stay in hospital ha suffered a heart attack which is referred to in the report of Dr. Wedderburn dated the 10th of May 1983 and by the 9th of May, he had had, what I take to be, another stroke, though it is not entirely clear from the report whether the stroke, was suffered prior to or after the accident. The doctor does not, in his report, give any date for the coronary thrombosis, but I have to do the best I can, from the available medical evidence. If the Plaintiff had not been immobilized by the hemiplegia, he would have developed osteo-arthritis of the knee' but the accident has probably resulted in him being completely immobile without help, whereas without the accident he might still, as at the date of Dr. Wedderburn's report ill May 1983, have been able to walk very short distances within the house. And the doctor goes on to say he probably could have walked in the street with support. He did not think that the accident has significantly contributed to the shortening of the Plaintiff's expectation of life which is, in any event, thought to be very limited because of the other conditions from which he suffers. The view I take is that from being relatively inactive this Plaintiff has bean reduced for a period of time to almost total physical inactivity by reason of the accident. The difficult question is to define the period in terms of months or years. It is something less than 2 years, in my judgment. I think that the best I can do is to say that I find that that increased disability existed over a period of 18 months. That has to be regarded as a significant diminution in the quality of life for that period. I addition to that, at course, the Plaintiff has suffered the trauma of the accident and the pain and suffering associated with the fracture of toe leg.

4. Doing the best I can, I think the appropriate figure for general damages, that is for pain suffering and loss of amenity is $25,000.00. There is a claim for special damages. Hospital expenses are claimed at $5.00 a day.  There is ho credit given for cost of living expenses outside hospital which I would have thought, might have exceeded the figure claimed. It is not said nor has there been any evidence that the $5.00 a day in hospital is additional to the Plaintiff's living expenses had he not been put into hospital but the figure is modest and I am prepared to allow it in part. I am prepared to allow half the hospital expenses of $5.00 a day over the period of 18 months. $1,350.00 is also claimed for tonic food, but this gentleman was, in any event, in poor health, and I am not satisfied that the generosity of his family would not have been extended to him with or without the accident. There is no claim for loss of earnings, of course.

5. Now it only retrains for me to apportion liability and than everything will follow as a matter of arithmetical calculation. I think that had the Plaintiff been without disability the proportion which he would have had to bear of responsibility in this accident would have been greater. As it is, I take into account the fact that it was the Defendant who was driving the motor-car on whom there must always be a heavy responsibility to look out the pedestrians, particularly for those who are very young or very old or disabled. In my judgment, the Defendant was 80% to blame for this accident and the Plaintiff 20% and the damages recoverable must be adjusted proportionately. So there will be judgment for the Plaintiff, by way of, general damages after discounting for contributory negligence in the sum of $20,000.00 and for special damages of $1,080.00. There will be interest on the general damages from the date of the writ to judgment at 2% and on special damages from the data of the accident to judgment at 5 1/2%.

6. Costs to the Plaintiff on the Upper District Court Scale. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.