JACOB DAVID GODKIN v. SHIVSONS CORPORATION LTD AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. On the 29th September, 1978, at about 3.30 in the afternoon, in his attempt to cross a section of the Robinson Road near the Jewish Recreation Club, the plaintiff was knocked down by a Holden Premier driven by the 2nd defendant, Managing Director of the 1st defendant.

2. The plaintiff suffered a fractured right femur. He was taken to Queen Mary Hospital where he was put on traction for 5 days. He underwent an operation in which he had a metal pin inserted into his broken leg. He was hospitalized for a fortnight. He was on crutches, and thereafter he had the double misfortune of two falls, one in the bath in December of the same year and another in March the following year on ice when he was in school in England. He was put on stronger and stronger analgesics after each fall. His recovery was delayed.

3. Having come of age, the plaintiff now sues the defendants for damages. The 1st defendant company was the owner of the accident car and the 2nd defendant was its driver at the material time.

4. I will deal with the alleged negligence first. The 2nd defendant, Mr. Daswani, was travelling along Robinson Road towards Central. He had been living in Hong Kong since 1964 and was well acquainted with that locality. He had been the holder of a Hong Kong driving licence for 9 years with a clear record.

5. At the time of the accident, it was drizzling but the road condition and visibility were both good. The vehicle was satisfactorily functional and only "moderate damage to near side front mudguard" was detected after the accident.

6. In essence, the allegations were that the 2nd defendant was driving too fast in the circumstances, that he failed to keep any proper lookout, that he failed to notice the activities of both youths in preparation for boarding a taxi across the road, that he did not slow down and/or cover his brake and that he did not hoot his horn.

7. The 2nd defendant told the Court that he was coming up an incline along that stretch of Robinson Road. At the top, he observed two people standing on the pavement at a distance of about 50 yards. He was then travelling at about 15-20 m.p.h., and he continued with that same speed on automatic "Drive" until the left front bumper of his Holden Premier collided with the plaintiff.

8. In the 2nd defendant's statement to the police after the accident, he explained that because he was badly shaken up, the mention of the sighting of these people standing on the pavement at a distance of 50 yards was inadvertently omitted. At the end of his statement to the police, the 2nd defendant further said:

"When I first saw the victim, he was already in the middle of the road southwards to get a taxi. There was almost no distance. I realize (sic) I tried to turn my car away from him but he was just there".

9. The plaintiff described the 2nd defendant as looking distraught.

10. The 2nd defendant testified that he did not see the plaintiff summoning a taxi. He had not noticed what the plaintiff and his friend standing or the pavement were doing before the impact, but he saw them standing there while he was travelling that 50 yards. He did not notice, so Mr. Daswani elaborated, any movement or gesture from these two on the pavement suggesting that they were all set to cross the road. Hence, he did not expect them to step off the pavement. There was nothing in the circumstances to warrant the sounding of his horn or decelerate. Therefore, he drove on with his speed of 15/20 m.p.h. Capital was sought to be made of Mr. Daswani's evidence on the sequence of events immediately before the accident. But, a fair reading of it gives, in my view, a reasonably consistent account, viz. that the 2nd defendant did not see how the plaintiff came to be in front of his car, that the first time he noticed the presence of the plaintiff was when he was about 3-7 feet ahead before his left front bumper hit him and that he never saw the plaintiff "in the road" until after the accident. It all happened so suddenly. In the words of Mr. Daswani: "One of the youngsters jumped in front of my car as I drew closer".

11. It is common ground that immediately after the accident, the plaintiff told the driver "Don't worry, it is O.K. It was my fault". Counsel for the plaintiff conceded a minor degree of contributory negligence on the part of his client. The 2nd defendant was not prosecuted for any driving offences as a result of this accident.

12. If Mr. Daswani's viva voce evidence in Court were wholly accepted, the Court would be driven to the conclusions that he was not driving too fast, that his attention was appropriately divided between the traffic condition and the pedestrians on the pavement for the whole distance of those 50 yards after the plaintiff and Mr. Simpson had come into view, that there was no reason for him to expect any attempt to be made by these two to cross the road, that there was nothing to call for deceleration or the sounding of his horn and that the accident could not have been avoided although he did attempt to swerve to the right. Moreover, the plaintiff immediately owned up to his own negligence after the accident. In the version of Mr. Daswani's, the plaintiff was entirely to blame.

13. Both the plaintiff and his friend, Mr. Simpson gave evidence. After their stay in the Jewish Recreation Club, they came up to the Robinson Road for a taxi. It had been drizzling for some time in an overcast. They had been waiting for about 15/20 minutes. The plaintiff became quite anxious although Mr. Simpson was only prepared to say that they were frustrated. They both shared a child's umbrella of a diameter of 2½ feet, which was used to shield them both at an angle.

14. According to the plaintiff, the traffic in the opposite lane was slow with a taxi travelling in the midst of it. In examination-in -chief, he simply said he flagged the taxi down, but in cross-examination, he maintained that he kept on flagging the taxi with his left arm virtually until the moment when he stepped out.

15. The plaintiff also told the Court that he raised his umbrella and looked to the right for about 2-3 seconds. He did not feel free to concede that the small umbrella had been obstructing his vision, but there was no explanation offered as to why it was necessary to raise his umbrella to look to the right. The plaintiff would have the Court believe that the umbrella was sufficiently raised to enable him to look for any likely oncoming traffic from the right. But when he was asked in cross-examination whether it was possible that he hadn't raised the umbrella high up enough to have an unobstructed view to the right, his answer was far from being direct. His reply was: "I don't think so". In his statement to the police, however, he described the umbrella as having been raised "slightly".

16. The look to the right was admittedly brief. His friend, Mr. Simpson was taller than he was, but the plaintiff claimed to be standing slightly ahead of him. It's improbable that he could have stood too far away from Mr. Simpson with the two sharing the same small umbrella. The plaintiff did, however, also say that his friend was then bending down.

17. The plaintiff gave an estimate of a further 4/5 seconds before he stepped out onto the road. He also described this time lag as being "a small period of time". In cross-examination, he gave his impression of the whole incident as happening "extremely quickly".

18. According to Mr. Simpson, it was about 2 seconds for him to gather himself and bend "slightly" down to get his two plastic bags.

19. The plaintiff's overall estimate was 7 seconds or less. Mr. Simpson gave a further 6-7 seconds before the plaintiff was hit by the car, in all 8-9 seconds. During that latter time, he said he was looking across the road and also down at the bags, but he said he did not notice what the plaintiff was doing. If the plaintiff had been flagging down the taxi virtually up to the last moment, it would have been inconceivable that that could altogether escape Mr. Simpson's attention.

20. The Holden Premier stopped about 6-8 yards after the lamp- post according to Mr. Simpson. From the sketch, it is 9 metres from the left front of the car to the lamp- post, but with the body of the car at an angle to the kerb the left front was further ahead. Mr. Simpson told the Court that they were standing about 1-2 yards to the right of the lamppost. Therefore the vehicle driven by the 2nd defendant must have been brought to a halt in a distance of about 10 yards/11 yards or metres. Thinking distance and braking distance (i.e. stopping distance) for a speed of 20 m.p.h. as giving in the Highway Code is 40 feet. It is suggested that on a wet road, it would be considerably more. Much can be said in favour of Mr. Pirie's contention that on the figures in the Highway Code formulated in 1958, allowance must be given to the motor mechanical advancement all through these years. On a drizzling day, with a wet road surface and with only estimated but not dead accurate stopping distance, the approximate speed given by Mr. Daswani has not been demonstrated to be erroneous. On the contrary, all seems to corroborate his estimate.

21. The speed of 30/40 m. p. h. given by Mr. Simpson does not carry much weight. He was very unsure, and he only obliged counsel with an answer. Moreover, Mr. Simpson only saw the car a short time after impact. At the time, he was himself a non-driver.

22. At 20 m. p. h., it is 29.33 feet per second; at 15 m.p.h., it is 22 feet per second.   Taking an average of 25 feet per second arbitrarily, it would take 6 seconds to cover 50 yards. Mr. Simpson estimated the same distance as being 75-100 feet. I prefer Mr. Daswani's estimate for his age, experience and his familiarity with the locality.

23. Even on the evidence of the plaintiff and Mr. Simpson alone, it was quite probable that at the time when they took a quick look to the right, the 2nd defendant's car had not reached the top of the incline. According to the plaintiff, after the look to the right for 2-3 seconds, it took him 4-5 seconds to turn back to the centre and step off the kerb. Altogether, it could well be about 8 seconds although the plaintiff did mention at one time that it was 7 seconds or less. Mr. Simpson's version gave a further 6-7 seconds after he had bent down slightly to pick up his bags. As I have said, the Holden Premier would reach them in about 6 seconds. Even in these versions of and on behalf of the plaintiff, it was likely that when Mr. Daswani's car came over the top of the incline, Mr. Simpson had by then stood up and the umbrella had by then been lowered again. The traffic on the opposite side was slow moving, and there seemed to be little doubt that the taxi driver must have clearly seen the signal. The plaintiff himself was aware of it as he told his friend right at the beginning that he had got a taxi. There was no need for him to continue to flag the taxi down. Mr. Simpson also did not notice the alleged flagging. One of the plaintiff's answers was quite telling:

24. Therefore, even in these versions, it was quite probable that there was no sign warning Mr. Daswani of any of these two youths intending to cross the road.

25. The plaintiff had not checked the traffic on his side of the road again before he stepped out. As a matter of fact, his right foot was caught by the bumper of the car before he had even set it down.

26. The plaintiff admitted that he told Mr. Daswani, that he was the author of his own misfortune. The plaintiff explained that Mr. Daswani appeared to be distraught, shaking and he was very concerned. The plaintiff further explained that he was just saying anything which first came into his head as the result of a previous conversation with the father of his then girl-friend. The plaintiff retained his composure after the accident. I agree with counsel for the defendants that the plaintiff's explanations were, to say the least, curious.

27. Mr. Daswani was an impressive witness. I have no hesitation, in direct or inferential conflicts, in preferring his narrative before the Court. I accept his evidence. He was, I find, in no way negligent oh the 29th September 1978. In my view, the plaintiff was wholly to blame.

28. It is not strictly necessary for me to go further in the light of my conclusion. But I should, however, record my findings on the claims of the plaintiff. The plaintiff fell in the bathtub in December of the same year and on ice in England in March the next year. The plaintiff had bathed unaided previously. Both falls were probably due to his own negligence, and I so find. In fact, it was never suggested that any of the falls was an unavoidable accident. Therefore the further injury and/or interference with the existing one did not arise from any supervening illness or other non-tortious event. The effect of the injury sustained in the traffic accident was never submerged in or obliterated by any of these two falls. In fact, none of these subsequent falls was said to have caused any greater degree of incapacity. Strictly speaking, we are also not dealing here with a consequence of successive torts as the falls were caused by the plaintiff's own negligence. Hence, it is not on all fours with the case of Jobling v. Associated Dairies Ltd. [1981] 2 AER 752 or Baker v. Willoughby [1970] A.C. 467.

29. I must accord due recognition to two basic principles: The first is, the Courts should take into account the reality that a plaintiff's claim of loss in his earnings may be diminished by any independent cause happening in the vicissitudes of life; the second is, the Courts should not speculate any event which is known. "Cases of cumulative causation of damage can present problems of great complexity" per Lord Edmund-Davis in Jobling v. Associated Dairies Ltd., ante 759 d. If there was any loss of income in this case, I take the view that since the plaintiff himself negligently caused the two subsequent falls, the further injury or disturbance of the existing one should be his sole responsibility. The condition of the plaintiff was worsened not so much in the sense of gravity but in the process of his recovery. Therefore, delay in his recuperation should be no concern of Mr. Daswani's.

30. After his fall in England in March 1979, the plaintiff was not advised to take an X-ray. He was given stronger analgesics by his school doctor whose description was indorsed by another doctor. However, in the summer when the plaintiff returned to Hong Kong, Professor Yau had his wound X-rayed and found "a crack on the point of healing" on his right femur. The Professor discussed with the plaintiff two possibilities: One was to have a bone graft involving a further operation and the other was to leave the wound alone to heal. The Professor decided on the latter course. There was no evidence, of course, whether or not "the crack" would have been sustained, had the plaintiff had a normal healthy leg. In the result, the plaintiff was kept on stronger analgesics. He had the dented metal pin replaced in November 1979 when his pain became more tolerable. He had been using two crutches for 6 months and he still required the aid of one crutch until November 1979. The metal pin was finally removed in October 1982.

31. The plaintiff's fracture was attended to in Queen Mary Hospital. He was put on traction for five days and had an operation with a pin inserted. He was hospitalised for two weeks and he received physiotherapy. He was on crutches for quite a long time. Doctor Wedderburn opined that he would have recovered in seven months and that without any further injury to the wound, the pin would have been ready for removal after one year. The plaintiff was on milder pain-killing drugs before the two falls. He is now being left with scars, and his right leg is a quarter of an inch shorter than his left.  His total rotation movements are reduced but still comparable with a normal man. He is marginally affected in squash, and he certainly is not as good in competitive sports. Otherwise, his permanent disabilities are not even noticeable to the plaintiff himself. Dr. Wedderburn assessed a 2% impairment of the wholeman, and the doctor suggested, with reservations, the maximum of a further 2% for a low, again 2% risk of developing osteo-arthritis. I would not accept this additional 2% incapacity as proved. All in all, for pain and suffering and loss of amenities I would not be prepared to award a sum higher than $30,000 on full liability.

32. Dr. Wedderburn was adamant that there would not be any loss in earning capacity.

33. The plaintiff seeks loss of earnings for a year within the pay-structure of an electronic engineer which he claimed to have aspired to become.

34. The plaintiff's performance at school was less than satisfactory. There were and will be many imponderables in the avowed pursuit of his ambition. Without the two further falls, one in the bathtub and the other on ice, the traffic accident should not have prevented the plaintiff from school attendance for more than 4 to 5 weeks. Upon probabilities, the plaintiff's career and his academic attainment should not have been significantly hampered by a short leave of absence. I find that the plaintiff's claim for loss of income has not been substantiated.

35. The partial loss in the refund of his purchased air ticket is obviously too remote, a matter not within the forseeability of the defendants.

36. The other special damages are admitted and I find them proved.

37. I would also accede to the usual award of interests as suggested by counsel for the plaintiff.

38. In conclusion, the plaintiff had only himself to blame for the accident, and his claim for damages against the defendants must therefore be dismissed with costs. I order accordingly.