CHAU KA HUNG v. CHUNG CHUN HON

DCPI 949/2021

[2023] HKDC 1259

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 949 OF 2021

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BETWEEN

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JUDGMENT

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1.  This is a personal injury claim arising out of a road traffic accident between the plaintiff’s and the defendant’s motor vehicles on 2 January 2019.

2.  The defendant was convicted of careless driving as a result of the road traffic accident. He does not dispute liability on his part but alleges contributory negligence which is disputed by the plaintiff. As for damages, the parties have agreed on certain items (pre-trial earnings, medical expenses and the cost of the Motor Survey Report) but there are disputes on the seriousness of the plaintiff’s alleged injuries and cost of repair etc.

Contributory Negligence

3.  It is not in dispute that the accident happened at the junction of Fung Nin Road and Fung Lok Lane (“the Junction”) at around 19:13 hours on 2^nd January 2019. The Junction is a junction with yellow box marking.

4.  The defendant, driver of a private car bearing registration number CY8900, has entered Fung Lok Lane but upon seeing that there was oncoming traffic and that there might not be enough room to pass, he reversed his car back to the Junction.

5.  The plaintiff, driver of a private car bearing registration number UD1337, has entered the Junction and has stopped because the exit of the Junction was blocked by another vehicle. As such, the plaintiff’s car was stationary on the yellow box marking in the Junction.

6.  The defendant’s car kept reversing into the Junction and the rear collided with the left front side of the plaintiff’s vehicle. The plaintiff alleged that this collision had caused various personal injuries, loss and damages.

7.  An ambulance was called and the plaintiff was taken to the Accident & Emergency Department of Pok Oi Hospital. He was treated and discharged with 3 days’ of sick leave.

8.  The plaintiff later attended Dr. Lam Yan Kit, a private practitioner, for a period of 3 months during which he received physiotherapy. After this, the plaintiff resumed his pre-accident work as a self-employed technician.

9.  The defendant was convicted of an offence of careless driving contrary to section 38 of the Road Traffic Ordinance, Cap. 347 under TMS 4999/2019 at Tuen Mun Magistrates’ Court on 19 September 2019. The plaintiff was not charged of any road traffic offence.

10.  As stated above, the defendant does not distribute liability, but he pleaded contributory negligence on part of the plaintiff in that:

a. the plaintiff had breached the Road User’s Code issued by the Transport Department and Regulation 10(1) of the Road Traffic (Traffic Control) Regulations (Cap. 374G) by driving into a box junction without being immediately able to drive the vehicle wholly out of the box junction (i.e. that he entered a box junction when the exit was not clear and so has to stop on the box junction); and

b. that the plaintiff has failed to give any or any proper warning horn to the defendant before the accident etc. (Trial Bundle page 13, paragraphs 6 and 7 of the Defence and paragraph 5 of the Defendant’s Opening Submission).

11.  Ms. Hannah Tang, counsel for the defendant (“Ms. Tang”), in her Opening Submission, argued that there should be at least 50% contributory negligence on part of the plaintiff.

Factual disputes

12.  There can be no dispute that the plaintiff entered the yellow box of the Junction when the exit was blocked by a vehicle ahead. The defendant admitted that he ought not enter into the yellow box of the Junction unless he could immediately drive his vehicle out of the yellow box, but he explained that he thought that the cars ahead were about to move.

13.  In fact, the car ahead of the plaintiff did not move for some 45 seconds (there was a queue of traffic as the traffic light ahead was red). As such, the plaintiff’s vehicle was stationary in the yellow box section. All these cannot be disputed as the situation was recorded in a car camera footage (recording from a vehicle registration FU862 which was disclosed as evidence in the trial).

14.  The only dispute was whether the plaintiff has sounded his horn as warning when he saw the defendant reversing into the Junction towards him.

15.  In his witness statement (Trial Bundle A page 96, paragraph 8), the plaintiff claimed (as I translate):

“After I stopped the car for about 2 seconds, I saw a vehicle on my left front (which I know later to be vehicle with registration CY8900)

…starting to reverse from Fung Lok Lane. About 7 seconds after I stopped my car, the right rear of CY8900 collided with the left front of my car…When I saw CY8900 reversing, I have immediately sounded my horn to alert the defendant, but the defendant did not respond and continued to reverse.”

16.  This is denied by the defendant: in the defendant’s witness statement (Trial Bundle A page109, paragraph 7), the defendant claimed (as I translate):

“…Before the collision, I did not hear any honking sound.”

17.  The problem with the plaintiff’s claim is that it plainly contradicts his own police statement (Trial Bundle A page 152) which was given on 8 January 2019, just 6 days after the accident. The interviewing police officer asked a direct question (as I translate):

“During the accident, did you sound the horn?”

18.  And the plaintiff answered (as I translate):

“No, at the time, I did not think that he would continue to reverse to collide with me.”

19.  Interestingly, in his own witness statement, the plaintiff has affirmed the accuracy of the police statement and his reliance upon it (Trial Bundle A page 96 paragraph 10).

20.  When this obvious inconsistency was put to the plaintiff under cross-examination, he insisted that he have sounded the horn, but he only made a short “bum” sound to warn him (“泵一聲警告佢”). And when asked why he did not sound the horn longer instead of just a short honk, he said he never thought that the other driver would collide with him.

21.  This does not make sense: if the plaintiff really never thought that the other driver would collide with him, there was no need to sound the horn in the first place. The only reason why one would sound the horn in this situation was to warn the other driver of the presence of one’s presence and warn the driver of impending danger.

22.  Indeed, if one could foresee this danger, he would reasonably be expected to give a big long honk and then pay particular attention to whether the reversing driver was responding, and to give further honks if needed.

23.  On further questioning, the plaintiff tried to explain that he only managed to make a short honk because the other car was reversing too fast and the distance between the cars were too short.

24.  This is clearly contradictory to the car camera footage (as mentioned above) which showed a time gap of some 5 seconds between the defendant reversing and the collision. (Incidentally, the plaintiff also affirmed of the accuracy of this footage and his reliance on it in his witness statement (Trial Bundle A page 96, paragraph 11).) There was therefore ample time for the plaintiff to sound a long honk or repeat his honking during all this time.

25.  Although this car camera footage does not record any sound, the defendant has provided his own in-car camera footage which has sound recording (and in fact recorded the repeatedly verbal warnings given by the passenger in the defendant’s car: “the white car, the white car…”). There was no honking sound recorded.

26.  After considering the above, I would question the credibility of the plaintiff and, on balance, I find that the plaintiff did not sound his horn at all during the time of the accident.

Legal Principles

27.  Jones v Livox Quarries Limited [1952] 2 QB 608 at p.615-616 remains a leading authority:

“Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.

Once negligence is proved, then no matter whether it is actionable negligence or contributory negligence, the person who is guilty of it must bear his proper share of responsibility for the consequences. The consequences do not depend on foreseeability, but on causation. The question in every case is: What faults are there which caused the damages? Was his fault one of them?...

There is no clear guidance to be found in the books about causation. All that can be said is that causes are different from the circumstances in which, or on which, they operate. The line between the two depends on the facts of each case…

In my opinion, however, foreseeability is not the decisive test of causation., It is often a relevant factor, but it is not decisive…”

28.  What is clear from the authority is that the establishment of contributory negligence is a two-stage test.

29.  The first stage is on liability. Liability in contributory negligence does not require establishment of a duty of care, but on foreseeability. The question to be answered by the court is: ought the defendant reasonably to have foreseen that, if he did not act as a reasonable, prudent man he might be hurt himself; and he must take into account the possibility of others being careless?

30.  If the answer is “yes”, then the court should determine the the apportionment of share of responsibility by looking at the issue of causation (what are the faults that cause the damages). This would depend on facts of the circumstances of the individual case, of which foreseeability may not be a decisive test but may be a relevant consideration.

31.  As such, the argument raised by the plaintiff, i.e. that a breach of traffic regulation (i.e. improper entry into a yellow box) does not itself give rise to a duty of care thus actionable right under common law (Phillips v Britannia Hygienic Laundry Co. [1923] 1 KB 539, Lai Por v Tsang Chiu Hon and Another. unreported, HCA 7265/1981) is not relevant to the issue of contributory negligence. As stated above, there is no need to find a duty of care to establish liability in contributory negligence.

32.  In applying the first stage test to the circumstances of this case, the question to be asked is: ought the defendant reasonably foresee that, having himself entered and remained stationary on a yellow box and having seen another vehicle reversing into the Junction towards his own vehicle, if he did not act as a reasonable, prudent man he might be hurt himself; and he must take into account the possibility of the other driver being careless?

33.  The answer to that question must be “yes”.

34.  The defendant was aware that he has entered and remained stationary in a yellow box. He ought to foresee that his vehicle might not be a position where other drivers expected a car to be normally stationary in. He should therefore act like a reasonable prudent person to keep a look-out for any careless driver who might assume that the yellow box did not have any stationary vehicle. Further, and even more importantly, when he saw a car reversing towards him, any reasonable prudent man would have foreseen danger and would have sounded his horn long and loud to warn the other driver. The defendant had around 5 seconds to do so but still failed.

35.  Having found liability in contributory negligence, the court must look at the issue of causation in determining the share of responsibility.

36.  Looking at the circumstances of the case and identifying the “faults that caused the damages”: it is clear that the defendant must bear the majority of the faults since he was reversing into the Junction without due care and collided with a stationary car. And the fact the passenger in the car was aware of the plaintiff’s car and has given repeated oral warnings was clear proof that the defendant was not paying proper attention. His improper reversing and failure to take proper attention of the traffic around him has caused the damages. On the other hand, the plaintiff was also at fault: he was aware that his vehicle was stationary in an improper (and therefore unexpected) location at the Junction, and when he saw the defendant reversing towards his own car (which the evidence showed was over a period of some 5 seconds), he failed to act like a reasonable and prudent person to honk to warn the defendant in any way. His failure would also contribute to the causation of the damages.

37.  Having considered the above, I am of the view that the contributory negligence on part of the plaintiff should be 20%.

Damages

Right Leg / knee injury

38.  Regarding the plaintiff’s alleged right leg or knee injury, he was very inconsistent and evasive during cross-examination.

39.   In his witness statement (Trial Bundle A page 96, paragraph 9), the plaintiff claimed (as I translate):

“After the impact, I immediately felt pain in my neck, left shoulder and right leg, and pain when I turn my neck…”

40.  During cross-examination, the plaintiff firstly claimed that he had knee pain after the accident and had told the ambulance crew and the doctor all his complaints truthfully.

41.  When asked why the Accident & Emergency medical records (“A&E Records”, Trial Bundle page 520) only stated the complaints of moderate neck pain and moderate shoulder pain with no reference to knee or leg pain, the plaintiff then claimed that his leg had pain after he left hospital and reached home, so he consulted Dr. Lam Yan Kit.

42.  However, when asked to clarify whether he now claimed that he only started to have leg (or knee) pain after he left hospital and went home (which would explain why this complaint was not recorded in the Ambulance Records (Trial Bundle page 165) and the A&E Records), the plaintiff gave a third version of events, that he had leg pain (from the time of the accident) but it had “increased” after leaving hospital.

43.  So when the court sought a further clarification as to when exactly the leg pain started, the plaintiff gave a fourth version of events, that after accident, he told the doctor of shoulder pain, and the doctor arranged for a scan of his shoulder, then he told the doctor of the leg pain, but despite this, the doctor only did a scan to his shoulder, he then went home, and the leg pain persisted.

44.  Now the plaintiff appeared to allege that, for some reason, he had two consultations with the A&E doctor, and that he only told the doctor of his leg pain at the second consultation, but the doctor failed to do any further investigation nor, as it must seem, record this “new” complaint. And of course, the plaintiff did not explain why there were two consultations nor why he failed to tell the A&E doctor all his symptoms during the first consultation. This clearly did not make sense, not to mention that it was new evidence not stated in his own witness statement. Indeed, all these later versions of events were inconsistent with the plaintiff’s own witness statement.

45.  When the court sought another clarification, the plaintiff then reverted to the second version of event and confirmed to the court that only after he left hospital and reached home that his right leg / knee started to have pain.

46.  However, when the plaintiff was later cross-examined on the Ambulance Records, the plaintiff reverted to claim that there was pain in his right knee right after the accident.

47.  At this juncture, the court had explained to the plaintiff that if he really could not remember such an event (which occurred some 4 years ago), he should tell the court truthfully that he could not remember.

48.  Nevertheless, the plaintiff confirmed that he could remember that he already had right knee pain when going into the ambulance. He also confirmed that he told the ambulance crew of this pain but did not know why this was not recorded.

49.  And then, after taking the court through various iterations of an answer to a very simple question (i.e. when did the pain in the right leg / knee start?) and after flickering between several versions at various times in court, the plaintiff finally confirmed to the court that his leg pain only started after he left the hospital, and so he took the pain killers prescribed but it did not help.

50.  This is clearly not consistent with the plaintiff’s own evidence in his witness statement and his repeated insistence in court that he had told the ambulance crew and the A&E doctor of his leg pain. In fact, the complaint of right knee pain was only first mentioned in Dr. Lam Yan Kit’s referral letter dated 5 January 2019, some 3 days after the accident.

51.  Clearly, there is a huge question on the credibility of the plaintiff as far as this alleged injury to the right leg (or knee) is concerned.

52.  When one considers the Single Joint Expert Medical Report of Dr. James Kong (“the JMR”), regarding the right knee, (Trial Bundle A, page 136 -138), Dr. Kong recorded the plaintiff’s subjective complaints (e.g. right knee soreness for 2.5 years etc.). Physical examination revealed no objective signs: there were no “obvious deformities”, “swellings”, “restricted range of motion”, “ligamentous laxity”, “meniscal signs” or “muscle wasting”. The only positive finding was subjective in nature: localized tenderness (i.e. the patient complaining of pain when an area was palpated) over medial patella facet. A review of the MRI scan showed “mild degree of per-existing degenerative patellofemoral joint”.

53.  Further, despite the complaint of “right knee weakness” (Trial Bundle page 131, paragraph 41 of the JMR), Dr. James Kong observed that: “He could walk on tiptoes and on his heels with good stability…Single leg standing was normal…He squatted fully…” (Trial Bundle page 132, paragraphs 47-49 of the JMR) and “Motor power of…lower limbs was normal” (Trial Bundle page 133, paragraph 62 of the JMR).

54.  Dr. Kong did not report any muscle wasting of the lower limbs and indeed, the circumference of the right thigh was 0.5cm larger than the left (Trial Bundle page 133, paragraph 61 of the JMR).

55.  Nevertheless, the plaintiff has pleaded in the Amended Revised Statement of Damages that he still suffered from “symptoms or inconvenience” of “…right knee weakness…hard to squat, for example, have difficulties in tying show laces” (Trial Bundle page 80-81) and even confirmed during trial that he was currently still suffering from such symptoms. These were, of course, inconsistent with the findings of Dr. James Kong during the examination.

56.  Although Dr. James Kong made a diagnosis of “right knee sprain” (Trial Bundle page 135, Paragraph 67 of the JMR), he was careful to qualify this by stating “If the alleged accident occurred in the way Mr. Chau described…the diagnosis stated above are consistent with the mechanism of the injury on 2^nd January 2019” (Trial Bundle page 136, paragraph 70 of the JMR).

57.  As stated above, the court is not convinced by the plaintiff’s evidence regarding the alleged injury to his right leg (or knee) during the accident.

58.  In any case, Dr. James Kong concluded that the plaintiff had stained “a satisfactory degree of recovery” and that “the medical evidence is consistent with mild soft tissue residue of right knee pain from the subject accident”.

59.  Since the expert opinion of “right knee residue pain” is also based entirely on the subjective complaint provided by the plaintiff of the pain (and tenderness) from the time of the accident, and since the court questions the credibility of the plaintiff regarding the time when this alleged leg pain started, I find that the plaintiff has failed to prove on balance of probability that this alleged right leg (or knee) pain, even if true, was caused by the accident.

Neck injury

60.  With regard to the plaintiff’s alleged neck injury, Dr. James Kong concluded that he had “attained a relatively satisfactory degree of recovery. The medical evidence is consistent with mild soft tissue residue neck pain and stiffness” and “Mr. Chau had mild neck…sprain injuries” (Trial Bundle page 137).

61.  Further, from the x-rays, Dr. James Kong observed “mild to moderate degree of pre-existing cervical cervical spondylosis…” and opined “50% apportionment for his pre-existing cervical spondylosis” as natural progression of this pre-existing condition. He suggested whole person impairment at 0.5%. (Trial Bundle page 137 and 139)

PSLA

62.  The plaintiff was 50 years old at the time of accident and 53 years old at the time of trial. He claimed for HK$350,000 in the Revised Statement of Damages under this head.

63.  The opinion of Dr. James Kong clearly suggested that, despite the neck complaints subjectively raised by the plaintiff all along, his injury only concerned soft tissue, was mild and with relatively satisfactory recovery.

64.  Of course, the court is aware that there were no hard and fast guidelines of directly translating the suggested person impairment percentage and apportionment for pre-existing condition of an expert in the assessment of damages, and that in any case the court is not bound by such figures. Nevertheless, these are factors which should be taken into consideration in assessing PSLA.

65.  Various authorities have been provided by both counsels to assist the court which I am grateful. Given my considerations regarding the extent of the alleged injuries as stated above, I agree with Mr. Pak that authorities like Tong Siu Wai v Poon Wing Fu [2012] 5 HKLRD 407, Cheung Mun Yi v Tam Siu Wing & Another [2008] 4 HKLRD 604, Tang Chi Keung v Mung Ka Wai [2018] HKCFI 1685 etc. concerned with more serious injuries than the current case (e.g. head injuries, post-concussion syndrome, psychiatric conditions, neurological deficits etc.).

66.  This is a case of uncomplicated soft tissue neck sprain which is more akin to (if not even milder than) the injuries in the cases of Ip Siu Fung v Hung Wai Sum [2021] HKDC 534, Chan Lung Hing v Ng Kam Man (unreported, HCPI 405 of 2012).

67.  Having considered the relevant authorities and other matters including the opinion of Dr. James Kong, I am of the view that the PSLA should be HK$50,000.

Pre-trial loss of earnings

68.  As stated above, the parties have agreed that the compensation should not be more than HK$45,000 under this head. I would award HK$45,000.

Loss of earning capacity

69.  As stated above, this was a mild soft tissue injury to the neck with “relatively satisfactory degree of recovery”. Further, Dr. James Kong was of the view that the plaintiff should be able to resume his pre-accident job (Trial Bundle page 137).

70.  As such, I am not convinced that the plaintiff has any real risk of losing his current job or that he suffers from any disadvantages in the labour market. There should be no award under this head of claim.

Medical expenses

71.  The parties have agreed with the claim of HK$10,000 under this head so the court will award this sum.

Vehicle repair costs

72.  There is dispute between the parties.

73.  The plaintiff has produced a quotation for the repair job from Tak Yew Motor Company (“Tak Yew”) amounting to HK$20,010 (Trial Bundle page 167) but the Motor Survey Report prepared by Toplis and Harding (Hong Kong) Ltd., an adjuster and surveyor firm, (“Toplis”) (Trial Bundle page 168-175) assessed the repair costs at HK$9,935.

74.  Further, Toplis also assessed the value of the plaintiff’s vehicle at only HK$15,000 to 20,000 which meant that the quoted repair costs was above the value of the vehicle.

75.  The plaintiff claimed that he has paid HK$20,010 for the repair (Trial Bundle page104, paragraph 37 of the plaintiff’s witness statement) but no receipt or evidence of payment was produced. The only evidence produced, as stated above, was merely a quotation for the repair costs from Tak Yew.

76.  There is no need to spend too much time on this. I would simply take a broad-stroke approach and award the mid-point figure i.e. HK$(20,010+9,935) / 2 = HK$14,972.50

Miscellaneous expenses

77.  Costs of the Motor Survey Report is agreed at HK$1,000 between the parties so the court will award this sum.

78.  The plaintiff also claims HK$5,000 as travelling expenses, tonic food and other health products or medicine costs. I will allow this sum.

Summary

79.  The quantum is as follows:

	Heads of claim	HK$
(1)	PSLA	50,000
(2)	Pre-trial loss of earnings	45,000
(3)	Medical expenses	10,000
(4)	Vehicle repair costs	14,972.50
(5)	Miscellaneous expenses	6,000
	Sub-total:	125,972.50
	Less: 20% Contributory Negligence
	Total:	100,778

80.  The court therefore assessed quantum at HK$100,778, with interest on general damages be awarded at 2% per annum from the date of the Writ to the date of the Judgment, and special damages be awarded at half judgment rate from the date of the accident to the date of the Judgment.

81.  There be an order nisi that the costs of the action be to the plaintiff to be taxed if not agreed.