LAM YIN FONG v. TSANG KAM CHEONG

HCPI 1458/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1458 OF 2000

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ADDENDUM TO JUDGMENT
- ASSESSMENT OF DAMAGES

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1. Since the handing down of the above judgment the Department of Legal Aid has made representations concerning my decision not to make an order for a Legal Aid Taxation, the reasons for which were clearly set out but seem not to have been understood.

2. The Judgment on the matter of costs is quite clear. It seems that, as in many cases, the Department or the assigned Solicitors take the view that some costs incurred will not be recoverable, even on a Common Fund basis from the defendant. As in this case no reasons are given and it seems no attempt will be made to include such an item in the bill to be taxed. The Legal Aid Department, like Solicitors assigned, owe a duty to the Plaintiff to try and recover all such costs from the Defendant. The Plaintiff himself or herself is not and will not be in position to deal with the matter by him or herself.

3. If a Court simply allows a subjective unilateral decision to be made on the basis indicated in the letter, it will be neglecting its duty to a person under a disability. In any event the views of the Official Solicitor should be sought.

4. Common Fund costs are a generous basis of costs for taxation. In the cases that come before me, usually for approval of a settlement, I have expected the Solicitors for the Plaintiff to waive all claim for any costs over and above the common fund costs allowed on taxation. It has been part of the basis of the approval. In practice there should be none. Reasonable and necessary costs are covered by that basis. Costs not allowed on taxation on a Common Fund basis are therefore deemed to be unreasonable and unnecessary.

5. In those circumstances a Court would be neglecting its duty if it allowed lawyers to take costs which they should not have incurred, out of the damages of a Plaintiff under a disability, (or of any other Plaintiff for that matter). It would constitute a licence for lawyers to abdicate judgment and responsibility.

6. Accordingly there is no justification for an order for a Legal Aid taxation. A practice has grown up, of the Plaintiffs' Solicitors agreeing the Common Fund costs with the Defendants' Solicitors but then proceeding to tax what are purportedly described as legal aid costs. This practice must cease. It neglects a proper concern for the Plaintiff's interests and presents a somewhat misleading picture to the taxing officer.

7. If there is an item of costs which is not recovered on a Common Fund taxation the lawyers incurring such costs, i.e. Legal Aid Department or assigned Solicitors, will have to absorb it within the profit costs recovered.

Representation:

Miss Corinne Remedios, instructed by the Director of Legal Aid, for the Plaintiff.

Miss Josephine Pinto, instructed by Messrs Tang & So, Solicitors for Defendant.

HCPI 1458/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1458 OF 2000

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JUDGMENT - ASSESSMENT OF DAMAGES

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1. On 9 December 1997 this 7 year old girl (now 12 years of age) suffered life-threatening injures when she was knocked down and run over on a pedestrian crossing by a dumper truck driver by the Defendant.

2. She suffered a fractured pelvis, and right femur and a severe perineal injury. The abdominal injures were typical of the crush type. She was resuscitated on arrival at hospital and, following initial surgery on admission and further operation on 11 December, she was transferred to the Intensive Care Unit where she remained until 15 December. She was then moved to the general paediatric ward.

3. The laceration involving the perineal region was extensive and is demonstrated by a diagram in the medical reports. Understandably photographs of the extent of the resultant scarring in that area have not been taken but I can assess its nature and extent easily enough on the strength of the sketch and by reasonable deduction from the discreet photographs taken of other proximate or adjacent scarring. Initially external fixation was applied to her unstable pelvic fracture and a right calcaneal pin was inserted to deal with the fractured femur but it was necessary two days later, to perform open reduction and internal fixation.

4. An emergency laparotomy was performed to exclude any injury to intra-abdominal organs, but the other soft tissue injuries in the lower region required bowel and urinary diversion by means of colostomy and cystotomy. These were closed about four months later. In January 1999, just over a year after the accident, the surgical implants over her pelvis and right femur were removed.

5. This young girl suffered considerable pain as was apparent to Dr David Cheng from the drug charts, extreme shock and loss of blood, and was in a critical state. She also suffered a head injury evidenced by an entry in the hospital notes on 26 December, a little over two weeks after admission. Given her critical state on admission with blood loss and severe shock, it is perhaps not surprising that it was missed at the outset although one would have expected the A & E staff to be alert to the possibility of a head injury following such an accident. The entry reads: "occipital wound found ..." The remainder of the entry is unclear but it could be a reference to "head dressing". In any event she now has a permanent loss of hair over a 4 cm area corresponding to the injury in the occipital region.

6. In total this young girl has undergone five operative procedures at least and was an in-patient for seven months. She suffered recurrent urinary tract infections and extensive psychological and physiotherapy treatment in the appropriate paediatric units.

7. Her residual disabilities and problems are considerable and for the most part permanent. Orthopaedically she has made a remarkable recovery but that must not obscure the extent of her limitations.

8. Happily her right femur healed well without shortening, displacement or malalignment but the pelvic fracture was a serious one with resultant gross deformity and asymmetry, and a rotational deformity. It is this which accounts for the internal rotation of the right leg and a tilting of the lower lumbar spine.

9. She has right foot drop for which she needs to wear a splint. This was very likely due to an injury to the lumbosacral nerve plexus. Another obvious and chronic problem has been her sacral sore scar which is prone to breakdown.

10. She still has a poor walking gait with limp, difficulty in climbing stairs, and is unable to squat. Her participation in sports activities is severely limited. Although in the trusting environment of school and the Yan Chai Paediatric/Psychiatric Centre she indicates a greater degree of confidence in her physical ability than is displayed in other controlled environments, I think she is overstating her ability, to her credit.

11. She suffers from a neurogenic bladder requiring intermittent catheterization. This is likely to persist although she has adapted well to what, from anyone's view, is a significant and embarrassing condition, the more so for a young girl. As a consequence she needs permanent urological follow-up and monitoring. As she grows into womanhood this is bound to have a psychological impact.

12. Turning now to the gynaecological aspect, it is not difficult to anticipate the kind of future problems which she will experience. The report of Dr. Kenneth Chan is now three years old but its conclusions are valid for the future. It is mostly likely that any children she has in due course will have to be delivered by caesarean section. What he does not say, but which seems to me self-evident in view of her pelvic and leg injuries, is that she will have an uncomfortable time carrying a child in the later stages of pregnancy in particular.

13. The cosmetic aspect is set out fully in the reports of Dr. Gordon Ma dated 16 August 2000 (with photographs) and 26 May 2003. She has extensive vertical and horizontal abdominal scarring. There are smaller, but still noticeable surgical scars on the right and left sides of her lower abdomen.

14. The scars over both the iliac crests are extensive with the right sided one being particularly prominent owing to its concavity. The sacral scar is also extensive. A longitudinal scar over the outer aspect of the right upper leg is described as hyperpigmented.

15. I have not seen these scars for obvious reasons and neither counsel, exercising to my mind good judgment, has asked that I should. Dr. Ma also points out that the wearing of skirts and trousers will be troublesome as there is no bony support in the iliac region. Once again, for a girl and a woman in particular, this is a practical day-to-day disadvantage.

16. Some of the scarring can be improved by plastic surgery though it may well be some time before this young girl would be sanguine about embarking upon such procedures. The areas capable of improvement are: the bald occipital patch, the pulling scar over the right groin, and the sacral scar. It is reasonable to provide for the expense of these as an item of future cost not to be absorbed into the general damages for pain and suffering.

17. Finally I consider the psychiatric and/or psychological aspect. She missed a year's schooling. Her reports indicate, as in the case of many children of that age, ups and downs in performance both before and after the accident. She seems however to have settled back into a steady routine and performance. She clearly has her strengths and weaknesses. The former show that any cognitive deficit is minimal. Undoubtedly she has had, and still has to some small extent now, a degree of depression. I do not think I should set much store by her very diffident, monosyllabic and at times, barely audible evidence before me.

18. The very nature of a court, however relaxed we have all contrived to make it, is inhibiting for a young girl in her circumstances. She has had constant reminders of the accident and of the litigation from her home environment. Her parents have understandably been protective of her but have probably put enormous pressure on her as a result of which in their presence, I feel with some documentary support for my views, that she has underperformed. Miss Josephine Pinto for the Defendants has helpfully taken me to a considerable number of entries on the hospital records (I describe them thus in general terms) where this girl has demonstrated a degree of trust in and has confided in the staff with whom she has built up a very good relationship over time.

19. Of course, changing schools into the secondary level can be testing for many children, but I have to bear in mind that this girl, with her injuries and disabilities, finds acquiring friends and adjusting to the extent she can, to a new school curriculum and routine, quite difficult. At primary school her peers knew her before and after the accident and knew what she had endured. In her secondary school her peers have to acquire knowledge and understanding to enable her to make the transition but it will be slow-going at times.

20. Professor Peter Lee in a report of 31 January 2002, having been jointly instructed by both parties, carefully reviewed her then academic record. She had provided a conflicting clinical picture to him and it was clear that he had difficulty in reaching some objective conclusions. This did not indicate any lack of frankness on her part. The other objective assessments by those who have had her academic care and psychiatric/psychological care show her to be an extremely open, but troubled young girl who obviously wants to be as normal and participate in life as normally as she is allowed to. There is no doubt that she feels that she is an enormous burden to her family. Every effort must be made by her parents in particular, to remove this way of thinking from her mind. It is an obstacle to her continued progress and a significant exacerbating factor in her depression.

21. Professor Lee concluded that she is probably suffering from residual depression and post-traumatic stress disorder. In my view having reviewed all the independent record, the depression has a significant element which is not attributable directly or indirectly to the original negligence and the Defendants should not be saddled with liability for that element. The parents have passed on their concern about a number of matters which has caused a dilemma for their daughter and a degree of behaviour which is not the true consequence of depression. Professor Peter Lee was understandably reticent when he suggested that there was in her performance level in the cognitive tests a moderate to mild grade mental deficiency but that the impression given was likely to be highly inaccurate. Turning what we all now know, one can say, with relief, that there is no such deficiency. I accept his ultimate conclusion at paragraph 34.3 that:

"Her very poor performance, or lack of performance during my assessment of her cognitive and memory functioning are more likely due to her emotional difficulties and psychological problems rather than any genuine forms of cognitive or memory impairment".

In accepting his conclusion I am not dismissing that the undoubted head injury may well have been responsible for some short-term deficit.

22. I also resort to Professor Lee's perceptive assessment of the effect that the accident has had upon her:

"Yin Fong Lam ... suffered a drastic diminution in the quality of her daily life. She seemed to have been robbed of her childhood. She has become rather totally socially alienated. She has little sense of pleasure in her day to day living."

This is indeed a sad state of affairs. I discount for the purposes of this head of damages the degree of depression which was not caused by the accident and was not readily foreseeable as a consequence. Some degree of depression was clearly the natural consequence and must rank for compensation but that which persists is not, in my view on the evidence, the consequence of the trauma. It has its own specific cause.

23. There is however, as Professor Lee identifies, a number of factors which call for psychological treatment. Since his report she has benefited considerably from the skilled treatment at Yan Chai. As she goes through further phases of her development teenage and later womanhood she is likely to need some support and I must take this into account. The cost of such treatment is dealt with elsewhere in this judgment. It will be necessary for it to be provided in the private sector as there is no guarantee that the quality she has received in Yan Chai Centre will be replicated in an adult centre in a government hospital. It will I think require a specialist who needs to acquire her confidence and trust at these later stages of her life.

24. The final report of Professor Jack Cheng, dated 14 June 2003, underlines the extent of the physical disability. I have no doubt that if it is necessary to apply a category of injury introduced by the 1980 decision in Lee Ting-lan [1980] HKLR 657 then that of gross disability is appropriate. As I have indicated elsewhere, these categories do less than justice to the very broad range of injury, physical, mental and psychological which we now see in such cases. The full extent of the disability is not yet manifest but as I have indicated earlier it will appear in due course. It is not necessary to repeat the particular aspects. Anyone looking at this girl and reading the agreed reports would agree that the level of her injury and her disability is gross. In my judgment the proper level for general damages is an award of $900,000.

Past Medical & Travelling Expenses (Plaintiff & Mother)

25. These are agreed at $22,593.20.

Past Medical & Non-medical Consumables

26. These are agreed at $72,009.40.

Past Miscellaneous Expenses

Tonic Food

27. The sum claimed is $117,881. I think this is grossly excessive and although in the cultural context of Hong Kong it is, on the authorities, a valid item, there has to be some sense of proportion. Some of the items which make up this head of claim are normal nutrition. The Defendants are prepared to agree a sum of $20,000. In view of the length of time concerned over 5 years I will allow $30,000.

28. The value of personal effects destroyed is agreed at $500.

Past Value of Parental Care/Loss of Earnings

29. The amount claimed is $379,000. The Defendants are prepared to agree a figure of $350,000. In view of the nature of the Defendant's argument, I consider their figure reasonable. $350,000 is allowed.

Future Loss of Income/Loss of Earning Capacity

30. This is understandably the most contentious item. The loss of a year's schooling is difficult to make up. On present information, providing she has some extra tuition to help compensate for the interruption in her education, I think that she will not have missed out on her academic career although it is safe to assume that her earning career will have been delayed by one year.

31. There are obvious limitations on the type of job which she will be able to carry out. She will lack a degree of mobility. Her stamina may be affected. She will want to avoid a career which involves a display of her figure such as modelling clothes. The mobility problem alone rules that career out. She may thus need a sedentary job. This itself is likely to entail discomfort. Any job involving a degree of manual labour will be excluded. Waitressing, for examples, will be beyond her. On the other hand, if she is able to attain a management position her disabilities should not be an obstacle save if such a position demands long, active hours.

32. On the basis that I think she will not be affected academically in the long term it would be wrong to approach any loss on the basis of a hard and fast salary.

33. In think that she will have the capacity of earning more than the $5,000 per month. The figures advanced on her behalf are more likely to be reversed. I doubt her loss would be more than $5,000 monthly.

34. The first exercise is to calculate what a lost year means in financial terms i.e. the one-year delay in her entering the market place. If she was of tertiary level material educationally, I do not think the accident has altered that.

35. I think it is reasonable to take $12,000 monthly as her lost income for that first year. This means a loss of about $144,000 for the first year.

36. Thereafter there must be an element of conjecture. Although I have referred to a figure of $5,000 as a partial monthly loss to represent the reduced job opportunities, I think that may be a high figure and it may be lower. Annually I should proceed on the basis of a likely loss of $50,000. Bearing in mind that she will not reach the earning stage for about eight years, the multiplier must reflect an acceleration of receipt and should be no more than 16. This would produce a figure of $800,000. To that must be added the first year's loss (by reason of the year's delay) which, discounted to some extent for acceleration of receipt, will realise about $135,000. The total under this head will be $935,000.

Future Medical Expenses

Orthopaedic

37. I accept that public hospital treatment is appropriate but that I should allow, on a contingency basis, something for future surgery either in relation to the foot drop or the hip. The likelihood of arthritic change with the disruption of the pelvis is strong. I will allow $50,000.

Physiotherapy

38. I see no reason for her to move to the private sector for physiotherapy. I anticipate that the timing of the appointments can be adjusted to fit in with her school curriculum.

Occupational Therapy

39. I do not see any need for this. She has none at present. Her circumstances, as we know them to be from the records indicate that the input (from the hospital's various services) is meeting her needs.

Urological Treatment

40. The basic cost of annual treatment is agreed at $18,000. Thereafter a reduced cost applies, as the frequency lessens. The overall multiplier of 20 is not in dispute. Allowing for some future increase in the cost of services and that a life-time's treatment is essential with some risk attached I round the figure up to $250,000.

Cosmetic Surgery

41. The sum of $114,000 is agreed for these items dealt with in Dr. Gordon Ma's report and referred to by me earlier.

Psychiatric/Psychological

42. Whilst she is eligible for treatment at the Yan Chai Hospital she should continue to receive it there. It has clearly been successful and I doubt that resort to private services would provide the same degree of success.

43. In the future though, there is likely to be some need as she passes through certain phases. This should be on a private basis although it is difficult to predict the frequency or number of sessions of psychological counselling. I propose to allow a lump sum of $50,000 to cover all future treatment.

Future Cost of Medical Aids & Equipment

44. The orthotic support will be required for life although there remains a possibility with medical advance, of some ameliorative surgery. The cost is put in the range $200―$1,000 for a foot-drop splint. In the absence of more detailed information it would be reasonable to take the mid figure of $600 per item, or $1,800 per annum. Over 20 years this will cost $36,000.

Future Cost of Medical & Non-medical Consumables

45. It is not appropriate for the cost of tonic food to continue to form a head of damage. There is otherwise substantial agreement and I will adopt the Defendant's figure rounded down to $275,000.

Future Travelling Expenses

46. Two elements are agreed in relation to the Plaintiff herself. The Defendant suggests that the Plaintiff will need to be accompanied by the mother only for another two years. I think that this is a fair contention. The total figure allowed is therefore $74,400.

Future Cost of Domestic Services

47. I accept the Defendant's contention in respect of the mother's services and the sum of $46,800 is allowed.

48. As far as the replacement of domestic services is concerned the monthly sum of $780 is agreed but the Defendant suggests a multiplier of only 12. I think that this is too low. Many women perhaps most, are able to deal with heavy household work well beyond the age of 65. I think a multiplier of 18 (from the age of 15) discounted to 16 is more realistic. This realises $149,760.

Future Cost of Extra Tuition

49. As indicated earlier, this is essential although I do not think it will make up for the lost year. A further four years is reasonable. I think one hour per day is not enough but will approach it on the basis of 30 hours per month for ten months of the year. I agree that a multiplier of 3 is reasonable. The sum allowed will therefore be $3,600 x 10 x 3 = $108,000.

Case Management

50. I think that the Plaintiff's fund requires strict control through the court with reliance upon the services of the Official Solicitor. Therefore I do not make any provision for a case management.

Loss of Society/Services

51. I have deliberately left this head of damages claimed to the last because it calls for special consideration in the circumstances of this girl. This is essentially a claim by her parents for a sum of money to compensate them for being deprived of her normal personality and her existence as a normal family member. Put in another way it is claimed as compensation for the extra burden which has devolved upon them by reason of her condition. Section 20C of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) is applicable. The parents quality under subsection (1)(e), although for some reason the term 'deceased' is used whereas it should say 'injured person'. (If the injured person in fact dies the claim should be made for a bereavement award under the Fatal Accidents Ordinance.)

52. Where a child is injured in such circumstances as these, and those injuries do not fall within a category which makes the child wholly dependent upon the parents, great care in my judgment should be exercised so as not to diminish the meaning and force of this particular provision. In my view the intention was to provide essentially, though perhaps not exclusively, for situations in which there was a permanent deprivation of the society of the injured person, as opposed to a transient loss. It should be borne in mind that the maximum award under this section is the same as the maximum bereavement award. In my view therefore the award should essentially be for those tragic situations whereby the injured person has suffered injuries of maximum severity, a more felicitous term used in Kemp & Kemp or the term 'Injuries involving Paralysis' which features in the "Guidelines for the assessment of General Damages on Personal Injury Cases" of the English Judicial Studies Board. To extend this head of claim to every situation in which extra demands are put upon parents by reason of a child's injury which falls short of the extreme, and which demands are essentially during a period of infancy, is to risk creating a disproportionate view of such a claim. In the case of this Plaintiff I have to bear in mind the arguments which Miss Pinto validly advances on the strength of the perceptive and factual comments in the medical records. Having said that, I do not consider that I should dismiss the head of claim altogether but make only a modest award so that a sense of proportion is maintained. In the initial stages this very severely injured girl of 7 years, hospitalised for about 7 months, needed an extra-ordinary amount of parental concern, love and care and her parents were deprived of the company and pleasure of a normal, healthy, active young daughter. Miss Pinto concedes that if there is to be such an award it should be $25,000. I think that is the absolute maximum in this case and I allow that sum.

Summary

53. There will therefore be judgment for the Plaintiff for $3,489,062.60 damages with costs to be taxed, if not agreed, on a Common Fund basis. Since such costs are to be on that basis, no sum should be deducted from the Plaintiff's damages for any other costs. On this basis I make no order for a Legal Aid taxation there is no need or justification for such. As I have indicated on other occasions the Common Fund basis covers all reasonable and necessary costs. If any costs have been incurred which fall outside this criterion, then they cannot, sensibly, be charged against the Plaintiff's damages. For the avoidance of doubt the provision of costs includes one hearing for the purposes of any payment out of sums of money. So that this is not dealt with on a piecemeal basis, thereby wasting effort and cost, a carefully prepared schedule should be submitted to the Court.

54. The Plaintiff is also entitled to interest on the usual heads of damages which rank for interest, at the prevailing rates. These calculations will be prepared by the Solicitors for lodging with the Court in due course.

55. Finally I should say how much I appreciated the sensitivity and realistic arguments of Miss Corinne Remedios for the Plaintiff and Miss Josephine Pinto for the Defendant in a case which had some problematic aspects. They both made my function easier to discharge.

Representation:

Miss Corinne Remedios, instructed by the Director of Legal Aid, for the Plaintiff.

Miss Josephine Pinto, instructed by Messrs Tang & So, Solicitors for the Defendant.

HCPI 1458/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1458 OF 2000

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J U D G M E N T

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1. On 9 December 1997 shortly after 2 o'clock in the afternoon, the Plaintiff in this action, a 7-year-old school girl, was attempting to cross the eastbound carriageway of the Sha Tsui Road, at or near its junction with Chung On Street, when she was struck by the Defendant's Nissan Diesel heavy goods lorry and sustained serious injuries.

2. She was using a pedestrian crossing which is clearly marked by yellow stripes and the junction itself is controlled by traffic lights for all approaches. The eastbound carriageway is divided into two lanes, as is the opposite carriageway. This is a heavily built-up area with substantial pedestrian and motor traffic. There are pedestrian crossings on all four sides of the junction. The more minor of the two roads, Chung On Street, carries one way traffic towards Yeung Uk Road, and is divided into two lanes.

3. For eastbound traffic in the direction of Texaco Road there is a white stop line some 2.1 metres short of the commencement of the pedestrian crossing area. The crossing area itself is some 5.2 metres wide. Beyond the crossing area is a distance of some 8 metres before the large yellow hatched area in the middle of the junction, which is meant to inhibit traffic from entering unless the exit either on the other side of the junction or into Chung On Street is clear. The purpose of the inhibition as all motorists ought to know, though very many in fact do not appear to know, is to prevent the centre of the junction being blocked by stationary traffic when the traffic lights and the flow of traffic change.

4. This was a bright, dry afternoon as can be seen from the photographs taken soon after the event. Some shadows are cast by the high buildings. For traffic proceeding along Sha Tsui Road in the outer lane towards Texaco Road there is the benefit of a filter light which allows it to proceed to turn right into Chung On Street whilst the traffic coming from the opposite direction, on the westbound carriageway, is subject to a red light. However it is entitled to proceed and turn right only if it is safe to do so. Of particular relevance is the existence of the pedestrian crossing to which such traffic must have regard. There are no obstructions to a clear view of pedestrian traffic using the crossing from both sides of the road.

5. The Plaintiff was crossing the road from the north side of the Sha Tsui Road on the bottom of the plan as one views it i.e. from the Emperor Plaza side or corner, as can also clearly be seen in photographs 3 and 5. She was going towards Yat Hing Supermarket which is also marked on the plan. She made a written statement to a Police Officer on 25 January 1998, some three months after the event. She was still in hospital at that time having undergone a number of operations for her extensive injuries.

6. In that statement she described waiting on the pavement outside Emperor Plaza with other pedestrians. When the pedestrian light changed from red to green all the pedestrians moved off to cross and she was the last. She had crossed the first lane, on which she recalled traffic on her right had stopped. The pedestrian light was still green. The other pedestrians had reached the opposite carriageway when she was knocked down by what she described as a dumper truck.

7. Before turning to any other evidence it is important to see the situation as viewed by the Police Officer who made a sketch plan at the scene and later prepared a scale plan. He found the Defendant's lorry positioned in the hatched box area in the middle of the junction, diagonally, as if in due course to enter Chung On Street which was in fact its destination. The lorry is 7.2 metres long and 2.5 metres wide.

8. Another marking on the road of relevance is the box in which a vehicle waiting to make the right turn is to wait. Its outer limits are delineated by a white painted line on the road surface. The front of the box is marked by two parallel broken white lines. Within the box is an arrow sharply angled to indicate that it is designated for right-turning traffic. The officer found on the road surface within that box a blood stain. Its extent can clearly be seen in the photograph on page 102. Its position is towards the rear of the box and slightly to the left of a notional centre line. The juxtaposition of the lorry's stationary position and of the box in which it had been at some stage and the blood stain, shows clearly in my view, as a matter of irresistible inference, that the lorry had passed over the Plaintiff's prone body at some stage. It must have been prone then, otherwise she would have suffered severe, and probably fatal head injuries. For the moment I will leave the post-accident picture and return to the Plaintiff's evidence.

9. The Defendant was prosecuted for an offence of careless driving. The summons was dismissed. For reasons which will become apparent later he was extremely fortunate to escape conviction. The Plaintiff, then aged nearly eight years, gave evidence. Those proceedings took place almost one year after the accident. It is important to bear in mind that virtually throughout the proceedings, the Magistrate, an extremely experienced one, was at pains to persuade the Court Prosecutor to ask simple and intelligible questions so that the witnesses could give evidence satisfactorily. The exchanges between the Bench and the Prosecutor indicated the difficulties of the task and at times the witnesses must have been left wondering what was going on. For a barely eight-year-old girl who had suffered a traumatic and painful experience it must have been extremely difficult and, perhaps for all witnesses, somewhat confusing.

10. The Plaintiff recalled that when she was waiting at the crossing outside Emperor Plaza there were other pedestrians on her left hand side but could not recall if there were pedestrians in front of her. When the pedestrian light changed to green the pedestrians on her left walked first and she was the last in the group. They were all bigger than her. Vehicles on her right were stationary. There were two of them, one was red and the other was yellow. It became clear that the red vehicle was in the nearside lane and that the yellow vehicle was that of the Defendant and therefore on the outside lane. She was concentrating on the red vehicle as she crossed. When she was knocked down by the yellow vehicle the pedestrians ahead of her were already crossing the other carriageway. She illustrated their position by reference to a diagram prepared by the Magistrate. She recalled the lights still being green in her favour whilst she was crossing. She was unable to recall the pace at which she was crossing.

11. When she gave evidence at this hearing she gave me the impression of being more inhibited than she had been three and a half years ago, although we all tried to make the environment less formal. There may well be a number of reasons for this not the least being a certain nervousness at having to recall events which I am sure she would rather forget. Nonetheless, although she was barely audible and for the most part relied on movements of her head to indicate "yes" or "no", there was consistency in her evidence for the most part, and in essentials.

12. Aided by the use of some models helpfully provided by her counsel, she demonstrated a number of stages in her attempted crossing of the carriageway, and the positions of the two leading vehicles in the lanes of that carriageway. She reiterated that initially the signal for pedestrians was red against her and that there were a number of adult pedestrians ahead of her whom she followed when the light changed to green in their favour. She was not, understandably, able to estimate their number. She was the last to cross the road.

13. She was struck by the yellow lorry when she was over half way across the carriageway. Prior to crossing she was standing well back from the pavement edge or kerb, being closer to the Emperor Plaza building. This I can well understand. A child of that age, on her own, and perhaps somewhat overawed by the height and mass of adult pedestrians may well have felt more comfortable in a position separated from it and to its rear. Although it is difficult to decide how much reliance can be placed on it, her estimate of the gap between her and the rear of the group was approximately 5 to 6 feet, by reference to a fixed point in the courtroom. At the time that she was struck by the truck in the outside lane, the preceding group of pedestrians had reached a position covering the central area between the two carriageways and the early part of the pedestrian crossing on the opposite carriageway. At no stage during her journey did she accept that the pedestrian light had changed to red. It is of course not reasonable to expect that she would have her vision fixed upon the pedestrian light throughout her journey. As she indicated she paid attention to the two vehicles on her right, stationary, before the crossing. A young child is more likely than not to be preoccupied with the presence of large vehicles or even ones of regular size, to ensure that they are not going to move whilst she (or he) is crossing. One can easily recall or imagine the firmer grip of a young child on a parental hand indicating a degree of apprehension lest a vehicle move. Sometimes young children of this Plaintiff's then age, need to be encouraged to cross even when the pedestrian light is clearly in its favour.

14. There was an independent witness of a significant part of what occurred that afternoon. He made a statement to the Police on either the 21 or 31 December 1997, i.e. approximately two or three weeks later. He is Mr Cheung Kin-cheung.

15. He was driving a light goods van along the Sha Tsui Road in the direction of Texaco Road, that is, on the eastbound carriageway travelling in the same direction as the Defendant. He was in the outer lane and intended to turn right into Chung On Street, at the junction. As he approached the junction the traffic lights controlling it for his traffic were showing red. Ahead of him, also in the outer lane, was the Defendant's dumper truck or lorry. On the inner lane were vehicles stopping. He described seeing the traffic lights change from red to red and amber, and then green. The vehicle ahead of him, the Defendant's dumper truck, started "quite promptly", and went past the pedestrian crossing into the arrowed (box) section. He then saw a person lying behind the dumper truck near the end of the right turn arrow. It was clear to him that the driver (the Defendant) was unaware of what had happened because Mr Cheung sounded his horn and shouted to three Police Officers in uniform to get them to stop the truck. They must have acted quickly because the Defendant's vehicle came to a halt inside the yellow hatched box area.

16. Because the range of his view was blocked by the size of the dumper truck he was unable to see if anyone was on the crossing or if there were any pedestrians on his left at the crossing or on his right on the central reservation. He described the dumper truck as moving forwards quite fast. It had already reached the right turn arrow on the road surface by the time his own vehicle had just started to move forward.

17. He also gave evidence at the Magistrates Court proceedings. This was consistent with the contents of his Police Statement although inevitably with circuitous and imprecise examination and cross-examination, it became more extensive. Some of the questions, with the necessary interruptions and corrections from the Magistrate, were nonetheless, confusing. It is also apparent that the Magistrate was himself somewhat confused. Both lanes on the Sha Tsui Road eastbound were for traffic intending to continue but the traffic intending to turn right should be in the outside lane and awaiting a filter light. The Magistrate mistakenly thought that only the inner lane was for traffic continuing ahead towards Texaco Road.

18. Mr Cheung appeared to be saying that whilst he was stationary in the outer lane behind the truck, traffic was moving in the inside lane and then at a later stage following a further series of exchanges between the Magistrate and the prosecutor he said that there were no vehicles stopped on the inner lane at the moment he stopped. That may not be an inconsistency because at the time he stopped or was in the act of stopping there may have been, as his first answer indicated, traffic on his nearside moving up to the stop line on the inner lane. Given the nature of this junction in a very busy area, it would indeed be surprising if there had been no traffic moving in the inner lane up to the stop line, intending, at the appropriate time, to continue ahead. The sentence in his Police Statement makes far more sense and is more reliable than a few slightly confusing or confused answers in the context of a tripartite exchange of questions, clarifications, modified questions and answers. At a later stage he was asked to draw on a plan the position of the Plaintiff, when he first saw her. He put her on the crossing. I suspect the surprise and shock of seeing her after the dumper truck moved into the yellow central block has foreshortened his view of the scene at that stage. It is common ground that she was found in the position close to where the blood mark is shown. He did not give evidence at this trial, both parties relying on his Police Statement and evidence in the Magistrate's Court.

19. The Defendant made a written statement to the Police on the day of the accident. Much of it is consistent with that of the independent witness, Mr Cheung. He states that he reached the junction and the lights were then showing red against him. There was a light goods vehicle stopped in front of him. It was his intention to turn right into Chung On Street. When the traffic signal changed to green, permitting vehicles intending to continue directly ahead, both the preceding light goods vehicle and he moved off. He did not say whether the light goods vehicle ahead of him continued straight on towards Texaco Road or turned into Chung On Street. He described his own speed when he moved forwards as about 5 to 10 k.p.h.

20. The next part of his statement is of significance and I quote it directly from the certified translation:

"I heard a loud noise (a loud snap) [from the] nearside front when the light goods vehicle in front had driven past the pedestrian crossing. ... At that time my vehicle was still moving forward."

This possibly means that his vehicle was on the crossing when he heard the noise. He confirmed later to the questioning Police Officer that he did not stop immediately because he thought that the noise was similar to that produced by his wheel running over cartons. Instead he continued turning to his right and on looking through his rear view mirror saw a child lying in the outer lane to the rear of his vehicle. In fact he would not have been able to see the Plaintiff until he had reached the hatched box in the centre of the junction because he would have had to clear substantially the length of his vehicle in order for his mirror to provide him with that view. Even then it would most probably have been his offside mirror that provided such a view - if he in fact saw anything to the rear before he was stopped by a Police Officer. Of some surprise is his answer to the question:

"Do you know which part of your vehicle struck that girl?"

He replied:

"The nearside front of my vehicle struck that girl."

Since he thought that his wheels had merely run over cartons, and he says that he had not seen the Plaintiff until he looked through his rear view mirror and saw her lying in the road to the rear of his lorry, it is difficult to understand how he can assert that the nearside front of his vehicle struck the girl.

21. The Defendant was called to give evidence in the Magistrates Court. His version of events was similar to that given in his Police Statement save that he stated that the preceding light goods van turned right into Chung On Street. At this stage of his evidence there was some confusion as to whether only the light ahead was showing green or whether the right-turning filter light was also green. He went forward to follow the van after it had moved about two metres ahead. At that stage it appeared that he was saying that the filter light came on and the van continued with his lorry following. About that time he heard a "break" sound, described as "pak". He also referred to feeling a vague bump. He described it as coming from the nearside front bumper of his lorry. He then said that he applied the brake slowly. He looked in his side mirror and saw the girl lying on the ground to the left of his vehicle at the rear. It is quite clear that, having felt or heard a bump in the position described, he did not brake immediately, a strange lack of reaction in the light of what he said he heard or felt. He stopped at once only on seeing the prone figure of the young girl.

22. He was questioned on a highly material point only at the end of his cross-examination, and that related to pedestrian traffic. Whilst he was stationary at the red light pedestrians were crossing the road. When he started off there were no pedestrians actually crossing but there were some on the nearside pavement.

23. I now come to his evidence in this trial. Firstly I must make due allowance for the fact that almost 4 1/2 years have elapsed since the event and that undoubtedly he must feel a sense of responsibility by reason of the mere fact of the nature of the injuries to a young girl who had been knocked down by his lorry.

24. This showed a significant variation from what he had said earlier. He now said that the preceding van moved off when the light changed from red to green and he followed. It then stopped in the right turn box waiting for the filter light to show green, and he stopped three feet behind it. All the inside lane traffic had moved forward and on.

25. When the filter light came on the light goods van moved off out of the box. He then checked his mirrors and moved forward too. As he did so he heard a "pak" sound. He checked his mirror again and saw a small girl lying on the ground. He then braked and got out of his cab. If one looks at the scale plan and relevant measurements one can see the effect of what he is now saying. The length of his lorry is 7.2 metres. The distance from the white stop line to the eastbound edge of the pedestrian crossing is about 7.3 metres. The distance between that eastbound edge of the crossing and the blood stain positioned to the rear of the right turning box is approximately 2.6 metres.

26. Applying those measurements to his evidence means that at the time that he was caused to stop about 3 metres behind the light goods van his lorry was blocking the whole of the pedestrian crossing. The other inference to be drawn from what he was saying is that his lorry came into contact with the Plaintiff when she was about one metre or so off the crossing on the eastbound side of it.

27. I do not believe his evidence. This is a belated contrived story to suggest that the Plaintiff was not using the crossing but was trying to pass in front of him in that area to the east of the crossing and the west of the hatched junction box. The implication of this is that he would probably not have been aware of her presence.

28. The sequence and timing of the phases of the traffic lights are obviously of consequence in the case particularly in view of the Plaintiff's evidence. The agreed evidence in relation to this is at page 158 of the trial bundle. Regrettably it is far from clear in its content and the phasing is better explained in the transcript of evidence (PP. 72 - 73). For the eastbound traffic on the Sha Tsui Road there is a red phase lasting 47 seconds followed by red and amber for 2 seconds. There is then a green phase for 28 seconds with the filter green light showing after 19 seconds and lasting for 9 seconds. For pedestrians crossing from the Emperor Plaza side to the Yat Hing Supermarket side there is a 37 seconds green phase followed by a 6 seconds phase of the flashing green man.

29. The final area of evidence of relevance is what may loosely be described at the forensic evidence relating to contact by the Plaintiff with the Defendant's lorry. Black paint found on the Plaintiff's overcoat matches the black paint on the lorry's front bumper. Plastic pink fibres recovered from the lorry's nearside second axle brake drum casing matched the material of which the Plaintiff's school bag was composed. I regard this as overwhelming evidence that the front bumper of the Defendant's lorry struck the Plaintiff and that her school bag which was on her shoulders came into contact with the nearside wheels on the inner side as the lorry passed over her. The position in which she was found and the site of the blood stain, towards the rear of the arrowed right turn box, clearly support this.

Conclusion

30. I am satisfied that the Plaintiff was actually on the pedestrian crossing when she was struck by the Defendant's lorry. She was knocked over by the front bumper and dragged forward as the lorry proceeded into the right turn box.

31. When she started to cross the road the pedestrian light was green in her favour. She was a little way behind the bulk of pedestrians which had crossed first and reached the safety of the central area between the two carriageways. I accept her evidence that as she started to cross there was a red vehicle in the nearside lane stationary in compliance with a red light which was showing for eastbound traffic in Sha Tsui Road. This is consistent with the evidence of Mr Cheung who was aware of traffic moving in the nearside lane as he approached the junction in the outside lane behind the Defendant's lorry. The fact that a red light controlled him and other traffic in that road meant that a green pedestrian light permitted pedestrians to use the crossing.

32. I am equally satisfied, and accept her evidence, that the yellow lorry headed any traffic in the outer lane and I reject the Defendant's story of a light goods van being in the outer lane ahead of him at the traffic lights.

33. Mr Cheung's evidence that the Defendant's lorry started quickly and fast is consistent with the Defendant moving off sharply from the stop line. Although Mr Cheung would have been prevented from having a clear view of the situation immediately in front of the Defendant's lorry, he would have a clear idea of the position of traffic in relation to the stop line, and as he approached the junction. Had there been a van stopped ahead of the Defendant he would have been aware of that.

34. Since the Plaintiff moved across the pavement at some distance behind the preceding bulk of pedestrians, it is likely that the green pedestrian light would have been showing for some seconds by the time she crossed the pavement from outside the Emperor Plaza and stepped onto the crossing. I think it highly likely that the "green man" pedestrian light started to blink on and off as she started to cross. The crossing is about 8 metres long and she was about 2 metres or so to the rear of the other pedestrians. Sad it is that no adult had the good sense or reasonable concern to take a 7-year-old child by the hand to protect her crossing.

35. I am equally satisfied that such was the eagerness of the Defendant to get as many loads as he could that afternoon that he almost jumped the lights. I have concluded that he started quickly as red and amber came on - it has only a 2 seconds phase - and Mr Cheung became aware of the lights when the green phase had started. At that stage the Plaintiff was on the crossing. The Defendant did not see her. He ought to have done so. There was nothing to impede his vision. He could move his upper body forwards and sideways in his cab to extend his range of view. If there were severe limitations on his range of vision by reason of the height of the cab and his position he must have been aware of them and checked accordingly. The number and angle of the external mirrors cannot be expected to compensate for all areas of limited vision or visibility. The photographs taken from inside his cab are valueless.

36. His eagerness to proceed and get into a position to cross in to Chung On Street was his overriding preoccupation, and on this occasion, he paid no regard to anyone else who might legitimately be on the pedestrian crossing, a failure all too often exemplified by motorists in the streets of Hong Kong. It cannot be said too often that motorists must accord precedence to pedestrians who are using a crossing. Some pedestrians are slower than others, some stop or hesitate, some drop things as they cross or get stuck if they are pushing a pram. Other are understandably nervous. The mere fact that lights change when they are in the process of crossing does not entitle traffic, in whose favour the lights have changed, to carry on regardless. They can do so only if they have properly checked to ensure that by so doing they are not impeding or endangering such pedestrians.

37. Is there any contributory negligence? This Plaintiff was 7 years of age. I have already pointed out that it is a sad commentary on the sense of responsibility of a number of pedestrians that she was left to her own judgment and company in crossing. I am far from saying that contributory negligence cannot be proved against a child of such tender years but the circumstances to support it would need to be clear-cut and powerfully convincing. Such circumstances or evidence are totally lacking in this case. She was entitled to cross. Other traffic was stationary. The Defendant was patently negligent. He ought to have seen her. She had the right of way when she was on the crossing albeit with the lights changing at some stage of her journey. The Defendant was wholly responsible for the accident.

38. There will be judgment for the Plaintiff with costs, for damages to be assessed.

Representation:

Miss Corinne Remedios, instructed by the Director of Legal Aid, for the Plaintiff.

Miss Josephine Pinto, instructed by Messrs Tang & So, for the Defendant.