TSUI CHING CHEE v. SIU KWOK CHEE

bjbj HCPI 645/98 IN THE HIGH COURT OF THE HONG KONG SPEICAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES NO.645 OF 1998 ---------------------------- BETWEEN TSUI CHING CHEE Plaintiff and SIU KWOK CHEE Defendant ------------------------------- Coram : Hon Suffiad J in Court Dates of hearing : 5th - 11th November 1998 Date of judgment : 4th December 1998 ---------------------- J U D G M E N T ---------------------- The Plaintiff brings this claim against the Defendant for damages for personal injuries sustained by her when she was knocked to the ground by a taxi driven by the Defendant in Hing Fat Street on 7th March 1991 at about 6 p.m. The Plaintiff s case in a nutshell is that at the material time she was crossing Hing Fat Street, which is a one way street insofar as vehicular traffic is concerned. The Plaintiff was crossing over to the Victoria Park side of Hing Fat Street and therefore vehicles were coming from her left hand side. As she was actually crossing the street, the Defendant s taxi came from her left and collided into her, hitting her on her left knee or thigh. As a result of that impact, she fell down onto her right side, resulting in the fracture of the neck of her right femur. Although contributory negligence is pleaded, the main defence run in this case is that the taxi driven by the Defendant was not even in motion but parked along the pavement of Hing Fat Street, taking on a passenger at the material time when the Plaintiff bumped against the right front corner of the taxi in her attempt to cross Hing Fat Street, and as a result fell down on her right hand side and sustained the injuries that she did. It can readily be seen, therefore, that the main issue in contention between the parties, in so far as liability is concerned is whether or not the taxi was in motion when it and the Plaintiff came into contact with each other. Indeed, Mr Wong for the Plaintiff, has conceded in his opening that if the taxi was not even in motion, then at the end of the day, there can be no negligence on the part of the Defendant. The evidence of Chok Sin Yi Miss Chok was the passenger who was boarding the Defendant s taxi at the material time. Before dealing with her evidence, it is appropriate here for me to deal with some background leading to her being called as a witness by the Plaintiff. After the accident, Miss Chok, who was in a hurry to get to Tsim Tsui, left her name card with the policeman who first arrived on the scene and then left the scene. Subsequently, she was contacted by the Accident Enquiry Section and gave a statement to the police, the contents of which fully support the Defendant s version that the taxi had not even moved when the Plaintiff ran into the front of the taxi and fell down. From the contents of that statement, it would appear that she was a very important witness for the defence. After giving her initial statement to the police, solicitors for the Defendant was able to contact her by phone on a couple of occasions. However, Miss Chok intimated to them that she was reluctant, to say the least, to appear at the trial to give evidence. Thereafter, it became extremely difficult for the solicitors for the Defendant to locate her. So much so, that an application was taken out by the Defendant and heard by me for an order that Miss Chok s witness statement to the police (of which hearsay notice had been given by the Defendant) be admitted in evidence without the need to call her on the grounds that she could not be located despite all due diligence. Having heard arguments from both parties, I made the order sought by the Defendant in June this year. However, some time between the making of that order by me and the start of the trial, the Plaintiff s solicitors was able to locate Miss Chok and a subpoena was issued to her by them and Miss Chok, in answer to that subpoena, attended Court at the start of the trial. Under those circumstances, I would have expected that an application by the Plaintiff be made to me at the start of this trial for me to rescind the order that I had made in June in view of the fact that Miss Chok is now in attendance in Court in answer to this subpoena. Had that been done, the Defendant would have had to call Miss Chok to give evidence as a witness if they wanted her evidence. However, not only was no such application made to me at the start of the trial, instead, Counsel for the Plaintiff decided to call Miss Chok as his first witness. After she had given her evidence which followed closely the lines of her statement given to the police shortly after the accident, Counsel for the Plaintiff applied to me for leave to cross examine her. The basis of his application, if I understand him correctly, was that in view of the Order which I had made in June, the only way to get Miss Chok into the witness box was by calling her as the Plaintiff s witness and then to apply to cross examine her. I refused that application. Turning now to deal with the evidence of Miss Chok, she told the Court that at about 6 p.m. on 7th March 1991, she was on the pavement on the right side of Hing Fat Street, i.e. the right side to the direction of traffic flow along that street. She then got onto a taxi which had stopped by the right side pavement of that street. She got into the rear passenger compartment of the taxi and told the driver that she wanted to go to Tsim Tsui. Then she looked down into her handbag to check its contents. After checking her handbag, she looked up again as she was puzzled why the taxi had not yet started. As she looked up, she saw a shadow falling down from the right front corner of the taxi. She then got off the taxi and came to know that the shadow she had seen was that of an old lady who was on the ground near the front of the taxi. As she was in a hurry to get to her destination in Tsim Tsui, she did not stay behind at the scene of this accident. Later, she gave a statement to the police concerning this incident. She confirmed the contents of that statement to be true as at the time she did not feel that the taxi had moved. The evidence of the Plaintiff The Plaintiff gave evidence that on the day in question at about 6 p.m., she had just finished work. Her place of work being at Electric Road. From Electric Road there is a bend which emerges onto Hing Fat Street and it was around this bend that the Plaintiff walked. When she reached Hing Fat Street, she walked on the right side of the pavement, in the direction of the traffic flow along that street. On the opposite side the pavement, i.e. the Victoria Park side, there is a bus stop. The Plaintiff was intending to catch a bus at that bus stop to go over to Kowloon side to visit her friend and she was in some hurry as it was beginning to get dark. At the bend from which the Plaintiff came out onto Hing Fat Street, there is a pedestrian crossing. However, she did not use that pedestrian crossing as the route taken to the bus stop on the opposite side of the street was slightly longer. She went past the pedestrian crossing, went further down the street, and intended to cross from there. Before crossing the street, she said she had looked to her left and had seen vehicles which had stopped at the pedestrian crossing. The road being clear, she intended to cross. She had crossed one third of the road when suddenly she was hit by a vehicle on her left thigh near her left hip region. The impact caused her to fall onto her right side. Someone then helped her to her feet and popped her against the taxi. But she found that her right leg at the hip region was so painful that she could not stand. It was only then that she realised that the vehicle which had hit her was a taxi. She then asked the taxi driver why he did that to her and she heard a woman saying that they were in a hurry. The Plaintiff also gave evidence that at Hing Fat Street she did not speak with any police officer although she saw a police officer talking to the female passenger of the taxi. She also said that when she was taken to the hospital, she only sat on a wheel chair in the hospital, but did not say anything or give any statement to any police officer, nor was she asked anything by any policeman. In cross examination, she maintained that whilst in Tang Shiu Kin Hospital, she was not asked about the accident by any police officer but that she was only told that she had suffered a fracture of her hip and had to be sent to Queen Mary Hospital. She acknowledged that immediately before the accident, she was in a hurry to cross the road as she had seen the bus she wanted to catch had already pulled up at the bus stop opposite the road and she feared that if she missed that bus, she would have to wait a long time for the next one. She had no idea where the taxi which hit her came from as she had checked the road and found it safe to cross before she walked onto the road. She also acknowledged that in 1983 she had fractured the other hip, namely, the left hip, when she fell onto the ground during a typhoon. The Plaintiff also called one other witness, Auxiliary Police Constable 3533 Chung Sing Kuen, who was the first police officer to arrive on the scene of the accident. His evidence was that when he arrived on the scene, he saw the female passenger alighting from the rear door of the taxi. He then saw an old lady together with the taxi driver. The old lady was sitting on the kerb in front of the taxi. The old lady said that she had been knocked down by the taxi and was complaining of pain in her right buttock region. However, both the female passenger and the taxi driver told him that the taxi had not moved but that it was the old lady who fell to the ground. The female passenger was in a rush to leave and so she left her name card with him. From her name card, he could remember her name to be Chok Sin Yi. This witness told the Court that when he spoke to the old lady, he spoke in Cantonese and she replied to him in Cantonese which he could understand. All that the old lady told him was that she was going across the road to the bus stop to catch a bus. She did not tell him how she was knocked down. The old lady only complained of pain. He agreed with Counsel for the Defendant that that part of Hing Fat Street where the taxi was when he came onto the scene, was not a taxi stand but it was a part of the road where people can board or alight from vehicles and at times some taxis do stop there to wait for passengers. Evidence of PC 22338 PC 22338 of the Accident Enquiries Section was called to give evidence for the defence. He gave evidence that he came to the scene of the accident after 6 p.m. on 7th March 1991 and Auxiliary PC 3533 gave him the name card of a female witness. He saw the old lady who was injured and she was taken to hospital by ambulance later. He produced the sketch of the scene drawn by him to scale of 1:200. He also produced the witness statement of the old lady, Tsui Ching Chee, which he took from her at Tang Shiu Kin Hospital at 6:50 p.m. the same day. The statement was taken using punti dialect and he had no difficulty communicating with the old lady. He does not speak Amoy dialect. The contents of the statement came from the old lady herself and she had no difficulty answering his questions in punti. After the statement was recorded by him, he had got a Mr Lam (who was there visiting the old lady) to read it back to her in Amoy dialect before she put her thumb print onto the statement. He got the impression that Mr Lam was acquainted with the old lady, but Mr Lam was not introduced to him. The Defendant s evidence The Defendant gave evidence that at about 6 p.m. on the day in question, he was driving his taxi looking for fares. When he came to Hing Fat Street, he had stopped his taxi to wait for potential fares. The spot where he had stopped his taxi to wait for passengers was exactly as shown on the sketch drawn by the police after the accident. Apart from his taxi, there was no other taxi waiting there. Some time later, a female boarded his taxi and told him to take her to Tsim Tsui. He saw her getting in the rear of his taxi, then he heard the rear door closing. Just as he was about to move off, but before the taxi actually moved, he saw an old lady on the right front part of his taxi, trying to cross the road. At that moment, the old lady bumped her left leg into the right front corner of his vehicle and as a result fell down on the ground in front of his taxi. He then alighted from his vehicle, went up to the old lady and asked her what was the matter. The old lady said to him that her knee and buttocks felt painful. The passenger also alighted from the taxi and said that she was in a hurry, then left the scene. The Defendant was adamant, that he had not moved his taxi at all because he had not released his handbrakes. In cross examination he said that he had come from Electric Road, round the bend into Hing Fat Street. He also acknowledged that the place where he stopped waiting for passengers was a place that he could not have stopped there for long. On this occasion, he had waited there for some 4 minutes before the female passenger boarded his taxi. He also admitted that he did not see where the old lady came from. As he was initially paying attention to the passenger boarding his taxi, it was only when he turned his head forward after the passenger had boarded that he had noticed the old lady in front of his taxi on the right side. When he first saw her, she was near to the right mud guard of the taxi, trying to cross the road in a diagonal way and he had got the impression that she was running to cross the road in front of the taxi, it was then that she hit her left leg against the right front corner of his taxi and fell down. From what he saw, he believed that it was her left knee which had hit against his taxi. He agreed that this impression of his could also have come about as a result of seeing the old lady holding her left knee and complaining of pain after he had alighted from the taxi. He disagreed that the old lady had already completed crossing the 1st lane of the road when his taxi came into contact with her. He also disagreed that the old lady was on the road when he alighted from his taxi but said that she was already sitting on the pavement when he alighted from the taxi. He also said that after he was told by the old lady that she was feeling pain in the buttocks and leg, he intended to return to the taxi to call for an ambulance, but at that time he saw a policeman arriving, so he did not summon for an ambulance. Findings of facts on liability Firstly, in respect of Miss Chok Sin Yi as a witness, having seen and heard her give evidence, I have come to the conclusion that she is a completely neutral witness. Whilst it may be true that she is a busy business woman, and therefore did not wish to waste time by coming to Court to give evidence on a matter which did not really concern her, that in no way detracts from her credibility as a neutral witness. In giving the evidence that she did, I am of the opinion that she had no axe to grind. Moreover, she has been throughout consistent in what she had told the police, both at the scene and in her witness statement as well as the evidence given by her in Court. Furthermore, as a neutral witness, had the taxi driver, namely the Defendant, been at fault in knocking down the Plaintiff, I can see no good reason why Miss Chok would have given the evidence that she had given. There was nothing to stop her from pointing out the fault of the driver had that been the case. Coming now to the evidence of the Defendant, although he had been subjected to a lengthy cross examination, in minute detail by Counsel for the Plaintiff, at the end of the day, the crux of his evidence remains unshaken. Having heard and seen him in the witness box, I have formed the view that he was giving as accurate an account as he possibly could of the incident itself. On the other hand, the Plaintiff s evidence, I find, was full of discrepancies and indeed, there were certain parts of her evidence which caused me to doubt her truthfulness as a witness. I shall elaborate on these. Firstly, as to the discrepancies, a very major discrepancy coming from the Plaintiff is as follows : In her initial witness statement given to the police, it was stated therein that the Plaintiff herself was knocked down by the taxi when she was one step down from the pavement . However, in her witness statement prepared by her solicitors in respect of these proceedings, it is stated that she was knocked down several paces into the road . When the Plaintiff gave evidence from the witness box, her evidence was that she had crossed third of the road , the road being a three lane thoroughfare with traffic moving all in the same direction. This, in my view, is a major discrepancy between her evidence, her initial police statement and her witness statement as it goes directly to the spot where the Plaintiff was knocked down by the taxi. Her evidence given in the witness box is in direct contrast to that of the Defendant and also that of the female passenger, Miss Chok. The only reason I can see for this discrepancy is the Plaintiff s anxiousness to show that she was struck by a moving taxi, and not that she had bumped into a stationary vehicle. Another piece of independent evidence which supports the evidence of the Defendant and that of Miss Chok comes in the form of the police sketch plan made shortly after the accident. From this sketch plan, it can be seen that the position of the taxi is parallel to the right side pavement of Hing Fat Street, just about one foot away from the kerb. There is no evidence to show that this taxi had in any way moved or changed its position after the accident and before the sketch plan was drawn. Thus the position of the taxi shown on the sketch plan corroborates the version given by the Defendant as well as that of the female passenger. The other matter that I wish to make reference to in respect of the Plaintiff s evidence is this. When cross examined by Mr Sakhrani as to why in the Statement of Claim, it was initially pleaded that she earned a living as a scrap collector and that it was only very late in the day that the pleadings was amended to state that for the two months before the accident, she had worked as a dish washer for a restaurant, the Plaintiff answered saying that she was told by a clansman of hers, who had now passed away, that she had to make a claim and to tell the Court that she was a scrap collector so as to gain the sympathy of the Court. As a result of that advice, she admitted to having told that lie to her lawyer so as to gain the sympathy of the Court. This piece of evidence, or this admission, by the Plaintiff has seriously undermined her credibility as a witness. It has also highlighted the fact that she is a person who is capable of telling a lie in order to gain the sympathy of the Court. This coupled with the discrepancy which I had already referred to, between the Plaintiff s evidence, her statement given to the police, and her witness statement, and the fact that the evidence of the Defendant, corroborated by that of the female passenger as well as the police sketch, has driven me to the conclusion that on the balance of probabilities, I prefer the version of the incident as given by the Defendant and the female passenger to that of the Plaintiff. I therefore make the following findings of facts on liability :- 1. The Plaintiff came out from Electric Road, round the bend into Hing Fat Street after she had finished worked. 2. She had walked down the right side pavement of Hing Fat Street with a view to crossing that street further down in order to reach the bus stop opposite. 3. Having seen the bus that she wanted to catch stopped at the bus stop, she was in a hurry to quickly cross Hing Fat Street in order to catch that bus. 4. In her hurry to cross the road, she had focused her attention on the bus which had stopped at the bus stop opposite the street. 5. In the circumstances, she had failed to notice the taxi which had stopped along the right side pavement of Hing Fat Street and was picking up the female passenger, Miss Chok. 6. The Plaintiff, in her attempt to cross Hing Fat Street in front of the stationary taxi, and slightly diagonally had inadvertently bumped into the front right corner of the taxi with her left leg, thereby causing her to fall to her right side in front of the taxi. Consequently, her falling to her right side resulted in the fracture to the neck of her right femur. In the circumstances, I have come to the conclusion that the Plaintiff was wholly to blame for the injuries that she sustained, and that the Defendant is not liable to the Plaintiff in negligence. Consequently, insofar as liability is concerned, the Plaintiff s claim is dismissed with costs. However, should I be wrong in my finding on liability, I go on to deal with the question of quantum. Injuries suffered by the Plaintiff Basically the Plaintiff suffered a fractured neck of the right femur from this accident. As far as treatment goes, the medical report shows that three A.O. screws were inserted on 15th March 1991 in Grantham Hospital. Post operatively, she recovered fairly well with mild pain and weakness only and was discharged from hospital on 14th April 1991. However, she was given sick leave until, it seems, May 1998, when the Revised Schedule of Damages were prepared by her lawyers, and that sick leave is still continuing from that time onwards. Having seen her in Court, it may well be that this sick leave was given to her due to her inability to walk properly after the accident which is understandable given that the injuries she suffered was a fracture of the neck of her right femur for a person of her age. However, her injuries and resultant disability is further complicated by the fact that this Plaintiff has a medical history (both before and after this accident) which seems to be unconnected with this accident. Her medical history is as follows : In 1983, she had suffered a fracture of her femur in the left leg. On that occasion, she was initially hospitalised for over two months and a Moore s pin operation was performed. In April 1984, she returned to hospital and was hospitalised for a further 23 days when she had a further operation to remove the Moore s pin. In April 1985, she was again hospitalised for a week for the removal of stitches. In June 1995, she was admitted to the Orthopaedic Department of the Pamela Youde Nethersole Eastern Hospital due to multiple levels of collapse of the thoracolumbar spine and in May 1997 she was again admitted to hospital due to cough, whitish sputum, running nose, fever, chills, rigon, anorexia and malaise. On that occasion, she was found to have a few aspirations on both of her lung bases as well as kyphosis of her thoracic spine. Furthermore, chest X ray showed right lower zone hazziness, kyphosis, osteoporosis and multiple wedge collapse of spine. Dr Lo, who was called by the Plaintiff as a medical expert, explained that kyphosis means the spine bending forward which was consistent with ageing and that osteoporosis arises from brittleness of the bone which again is consistent with ageing, and that wedge collapse of the spine is again due to ageing or injury of the spine. Pain, suffering and loss of amenities In so far as this head of damages is concerned, I take into consideration only the fracture of the neck of the right femur and the resultant disability therefrom which has manifested itself in the form of the Plaintiff s inability to walk steadily. I take into account also the fact that in a person of her age, such an injury is liable to cause her a lot more discomfort and disability than it would in a younger person. I therefore take the view that it calls for a slightly higher award than in normal cases of injuries of this type. In this case, I think it proper award would be $350,000. Pre trial loss of earnings The Plaintiff s pre accident earnings as a dish washer in a restaurant was $4,000 per month. However, given her medical history which I have stated above, it would be difficult to imagine that even if this accident had not happened, the Plaintiff would have worked after 75 years of age. Therefore, in view of the sick leave granted, I will assess her pre trial loss of earnings for 5 years after the accident. Recognising that there could possibly be wage increases of $200 per year for the 5 years loss of pre trial earnings, I take the median of $4,500 a month. Also recognising that there could well be year end bonus of, say, one month s wage per year, I will multiply that median with 65 months. This gives the sum of $292,500 as the loss of pre trial earnings for 5 years. Loss of future earnings By reason of what I have said earlier that I cannot imagine this Plaintiff to be working after 75 years of age, there will accordingly be no award for loss of future earnings. Special damages Special damages has been agreed at $600 for medical, $1,000 for travelling and $2,580 for tonic food. This comes to totally $4,180. (A.R. Suffiad) Judge of the Court of First Instance Mr Charles Wong, inst d by M/s Au Yeung, Cheng, Ho & Tin, for the Plaintiff Mr A.K. Sakhrani, inst d by M/s Tsang, Chan & Woo, for the Defendant - PAGE - "@AB "@AB "@AB & 6" Alice N S Chau Normal Microsoft Word 8.0 Title _PID_GUID Microsoft Word Document MSWordDoc Word.Document.8