TSANG HIN CHEUNG v. NG KIT YEUNG AND ANOTHER

HCPI 956/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 956 OF 2003

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J U D G M E N T

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1.  In this action, the Plaintiff (P) claims damages and interest against the 1^st and 2^nd Defendants (D1, D2), for injuries and loss sustained in a traffic accident in which he was involved with the D2.

Facts

2.  The accident occurred at Kam Sheung Road, which is a dual carriageway with single lane traffic in either direction between Yuen Long and Kam Sheung Village.

3.  On 12 February 2002, at about 2030 hours, the P driving a van, RN GS 9281, executed a 3-point turn of his vehicle from the Yuen Long direction to the Kam Sheung Village direction.  To execute the U-turn, he had to reverse the vehicle.  As he reversed to the left to complete the turn, his vehicle was hit by a private car, RN FK 7217, owned by D1 and driven by D2, causing damage to both vehicles and injury to P.  D2 was driving from Sheung Village towards Yuen Long.

4.  At the time of the collision, the road was adequately lit; the road surface was dry; traffic was light and the speed limit was 50 km/h.  A report was made to the police, who attended the accident.  As a result, P was charged with “Careless Driving”, and tried in the Magistracy.  The Magistrate found he had no case to answer and he was acquitted.

Particulars of negligence of the 2^nd Defendant

5.  The P claimed that the accident was due to the negligence of the D2, who was:

a.    driving too fast in the circumstances;

b.    driving without paying due attention to the traffic conditions ahead;

c.    driving without heeding in time the presence of the P’s vehicle,

d.    failing to control his car to avoid hitting P’s vehicle.

6.  The P’s right arm was fractured and he was admitted to hospital shortly after the accident.  He remained there until 18 February 2002.  The brief facts (BD 73-74), compiled for the Careless Driving case, stated that both vehicles sustained minor damage in the collision.

The Plaintiff’s Claim for damages

7.  The P claims damages for pain suffering and loss of amenities; past loss of earnings and provident fund; miscellaneous expenses; interest on damages; future loss of earnings and provident fund and future loss of earning capacity.

8.  D1 and D2 dispute liability, claiming that the accident was caused by P’s negligence.  Particulars of negligence alleged are;

a)    failing to heed the existence and movement of D2’s car in sufficient time and to wait until the car had passed, or to manage or control the van so as to avoid the accident,

b)    failing to give adequate warning or sound his horn or turn on signalling lights before moving onto the road from the pedestrian pathway.

c)    failing to maintain a proper lookout for traffic conditions when driving the van.

9.  The D1 and D2 denied that the P was entitled to damages.

Assessment of liability

Plaintiff’s Evidence

10.  The P’s evidence was that he parked his van in Kam Sheung Road on the left side of the pavement, facing Yuen Long direction and went home for his meal.  He was living upstairs from a restaurant; his vehicle was just outside it.  At around 8.25 pm, he boarded the van, checked the van and turned on the headlights.  He had no passenger.  He intended to make a U-turn so as to drive in the direction of Sheung Tsuen.

11.  He knew that the speed limit was 50 km/h; the road conditions were good.  He first turned on his right indicator, and looked at the rear-view mirror to see if any vehicle was approaching.  He saw a private car, later known as that driven by D2, travelling along Kam Sheung Road towards Yuen Long at what he believed was a distance of 100 metres.  He did not know the speed of the car because of the long distance between the two vehicles, but believed he had sufficient time to turn his van around.

12.  Kam Sheung Road was not broad enough for him to execute a U-turn in a single manoeuvre.  He turned first towards Sheung Tsuen.  At that time, his vehicle and the road direction formed a T-shape; the rear of his vehicle still rested on the Yuen Long-bound lane.  He reversed and had almost completed the reversal when he heard a very loud braking noise.  He looked to his right and saw D2’s car travelling at high speed from Sheung Village.  The distance between his vehicle and D2’s vehicle then was about 15 metres.  He claimed that because of its high speed, D2’s car could not brake in time and collided with the right front of his van, near the driver’s seat.  The collision force was very great, and his vehicle was pushed forward to the left before it stopped.

13.  He claimed that D2’s vehicle failed to slow down and that the driver wrongly estimated the amount of space needed for the car to pass in front of his van.  At that point D2 braked, skidded and the car collided with his van.

14.  The P had suffered fractures to his right radius and ulna and he was sent to the North District Hospital for treatment.  He required an operation which was performed on 15 February 2002, and was discharged from hospital on 18 February 2002.  He received physiotherapy for 6 months thereafter, as well as occupational therapy.  He was on sick leave for 7 months.  He claimed lasting ill-effects from the fracture.

15.  At the time of the accident, P was 36 years old, single and employed as a delivery driver.  He had been driving for about 20 years, but had worked as a driver only for the 2 years before the accident.

2^ndDefendant’s evidence

16.  D2 was aged 19 and had one to two years’ driving experience at the time of the accident.  He was employed as a construction-site worker.

17.  D2 said that he was driving a private car from Pak Heung towards Yuen Long.  The car was functioning normally at the time; he had no passenger in the car.  He agreed that the road conditions were good.  He knew that the speed limit of that section of the road was 50 km/h, and said that at the time he was driving at 50 km/h.  There was no vehicle travelling in front of, or behind, him.

18.  When he was approaching the Route No.3 Restaurant, the scene of the accident, at a point when he was 40 metres away, he saw P’s van parked on the pavement facing the direction of Kam Sheung Road.  The van did not have any lights on and he thought it was empty.  He did not brake and his car continued to move forward.

19.  When he was about 15 metres from the restaurant, the van suddenly started to move to the right, intending to cross the road in front of his car to enter the lane going in the opposite direction, toward Sheung Tsuen.  D2 claimed that the van driver did not turn on any lights, or use the horn.  The van was so close that instinctively he braked and swerved his car to the right to try to avoid a collision.  The van did not stop or decelerate but continued to drive across the road.  The whole body of the van was blocking both lanes and blocked his car.  His car was unable to avoid the collision.

20.  The left front of D2’s car was damaged, as was the right body of the van.  He called the police, who attended the scene.  He considered that if the van driver had turned on his lights before leaving the pavement, and had used the right indicator, the accident could have been avoided.

21.  In cross-examination, P said that he had used the indicator light, but he had not been able to judge the speed of D2’s car.  He claimed that D2’s car was too far away for him to estimate the speed of its approach, but said he would have made the turn only in safe circumstances.  He had relied on the speed limit being 50 km/h.  He agreed that he had had insufficient time to complete his manoeuvre and that he had assessed D2’s speed wrongly.

22.  When it was put to him that it was his duty to ascertain the speed of the other vehicle before completing his manoeuvre, he said he had assumed that the vehicle was approaching him at 50 kph; only at the second stage did he realise that it was going faster than that.  Had he known D2’s speed was so fast he would have given his vehicle right of way.  He denied taking a chance to complete his manoeuvre, or failing to turn on the right indicator.

23.  D2 was questioned about his driving speed.  In his witness statement, prepared for P’s trial, he said it was 50 km/h and he maintained that position at this trial.  However, he admitted that on the day of the accident, he had told two police officers that he had been driving at about 80 km/h and when he appeared as a witness at P’s trial, his evidence was that that was his speed.  He had first seen P’s vehicle only when he pulled out, when it was 15 metres away from him.  He said P had not used any indicator, nor signalled his manoeuvre in any way.  Initially he thought the van was unoccupied so he continued his journey.  When he saw the van pull out he accelerated and swerved to the right, but was unable to avoid the collision.

24.  D2 was “80% sure” his own speed was 50 km/h and said that one would not normally stare at the speedometer when driving.  It was his “feeling” that he was doing 80 kph.  He attributed the discrepancy between the two speeds to his being very confused after the accident, as it was the first accident in which he had been involved.

25.  Having heard D2’s evidence and his explanation, I am satisfied that he was travelling at no less than 80 km/h and probably more, at the time of the accident.  In all likelihood he was travelling at too high a speed to be able to stop.  It is most unlikely that he would have told the police, at the time, that his speed was 80 km/h if it had been 50 km/h, particularly as he was aware of the speed limit.  D2 first noted P’s van on the pavement when he was 40 m away and given that he was driving at 80 kph, an approximate speed, would not have been able to brake in time to avoid a collision.  D2 claimed, when giving evidence, that he first swerved, then braked and then collided with P’s van.  However, he told the police that he braked first, then swerved, causing the skid mark shown on the plan.  (Exh BD3)

26.  Despite D2 driving at a speed higher than the legal limit, I am of the view, having considered all the circumstances, that the Plaintiff bears the greater responsibility for this accident.  He attempted an inherently dangerous manoeuvre without sufficiently checking the road conditions, or the speed of the approaching vehicle.  Although he gave evidence consistent with his post-accident statement and claimed he was an experienced driver, he did not consider that other vehicles had, or should have had, precedence.  He was in an area familiar to him and had performed this manoeuvre before.  The prudent course, given the approach of D2’s car towards Yuen Long, would have been to wait until it passed before performing the manoeuvre.  He chose not to do so and then made a u-turn, at too slow a speed to enable him to complete it, before colliding with D2’s vehicle.

27.  As an experienced driver, P must have been aware that he could not rely on an approaching vehicle to be travelling at a speed in conformity with the 50 km/h restriction.  The approaching vehicle had the right of way; although P claimed the right of way was his, because D2 was so far distant.  The P said he had turned his head to check the oncoming traffic as well as using the rear-view mirror, but I find that is unlikely given his ignorance of the speed at which D2 was approaching.  It is more likely than not, that he took a casual glance at the traffic and immediately pulled out to make the U-turn, without ascertaining the speed of the D2’s car.

28.  The burden is on P to establish D’s negligence and I am satisfied that on the balance of probability he has failed to do so fully.  The P chose to carry out a risky manoeuvre in circumstances where he did not have right of way; without assessing the position of D2’s car or its speed and where, because he was joining traffic and changing direction against the traffic flow, he was obliged to exercise great caution.

29.  I find that D2 was travelling at a speed higher than the limit, and not less than 80 km/h, but, as the post-accident photographs (BD3-11) showed comparatively minor damage to the two vehicles, it appears this was not a high-speed collision; D2 was able to take some evasive action and had not lost control of his vehicle.

30.  I find that the liability for this accident should be apportioned in the ratio of two-thirds to P and one-third to the D1 and D2.

MEDICAL Evidence

31.  The Plaintiff suffered a comminuted fracture of the right distal radius and ulna.  An open reduction and internal fixation was performed.  He was put on a long arm hinged brace afterwards and discharged on 18 February 2002.

32.  A medical report by Dr. Chan Kow Tak, dated 11 August 2003, confirmed that an x-ray of P’s right forearm showed a healed fracture and the right wrist showed a well-aligned distal radio ulnar joint.  The impaired range of motion at the time of the examination was 5%.  In the doctor’s opinion the P would have difficulty in returning to his pre-accident duty as a lorry driver-cum-manual worker.

33.  The residual problems reported by P, were that he cannot carry objects exceeding 15 kg in weight for more than 15 minutes, after which his forearm and hand felt weak and tired.  There was residual pain of the right forearm and wrist especially on supination.  His weak right hand grip meant that he couldn’t carry out his former job.  P is right hand dominant.

34.  After the operation, the Plaintiff was given 6 months physiotherapy.  Dr Chan considered that a reasonable period of sick leave for this kind of fracture with an operation done, would be 12 months.  The P had been on sick leave for 7 months. (12.2.02 – 15.9.02)

35.  The orthopaedic expert for D1 and D2, Dr. Tsoi Chi Wai, Danny, noted that there was an absence of wasting of arm and forearm muscles and that P had a range of motion for the right shoulder and elbow with his strength preserved.  The fracture of the distal radius, and distal end of the ulna had healed with good alignment.  He assessed the impaired range of motion at 3%.  In his view the P was fit to resume work as a driver and should have no difficulty in delivering objects up to 25 kg in weight.  His future employment prospects would be slightly affected, because he was less fit to perform jobs involving frequent extreme heavy weight lifting.  He considered that 6 months’ sick leave would have been reasonable, for this type of fracture with operation.

36.  Dr Tsoi recommended the removal of the implant that had been put in the arm.  The overall cost would be about $15,000.00 in a private hospital, and allowed for sick leave of 6 weeks.  P’s right forearm injury had achieved maximal medical improvement, but would probably improve slightly once the wire was removed, as the implant would impinge against the adjacent soft tissue and possibly cause pain.

37.  By the accident date, the P had worked for 2 years as a driver-cum-messenger.  Prior to that he had worked for 11 years as a hair-stylist.  His pre-accident earnings were agreed at $9,000.00 p.m.  Currently, he was working in a car sales yard, for the Chun Lee Motor Company, earning $4,000.00 p.m.  His duties were parking and cleaning vehicles.  He was not required to drive for long distances.  He was unable to drive for too long because of pain and tiredness in his arm.  He claimed he could no longer work as a hair-stylist as his hand was too weak to use scissors smoothly, but he agreed he had never tried to work as a hair-stylist post-accident.

38.  No documents substantiated the current earnings alleged.  His salary was not fixed; he was paid according to the number of cars cleaned and the size of the car.  Before the accident, he played badminton and squash but was unable to play any more.  After the accident, the van was unusable.  Its value was about $20,000.00.  The vehicle did not belong to him, but to his friend.  No receipts, or valuation, were produced to prove the van was a write-off, or to establish its value at the time of the accident.

39.  The P was prepared to have the operation to remove the implant but did no know whether it would improve his hand.  Although the initial operation had been done in a government hospital, nobody there had told him he could return to have the implant removed and he was unaware that the removal operation could be done at a government hospital.

PSLA

40.  The Plaintiff claims $250,000.00 for PSLA.  His injury falls below the “serious” category.  The degree of permanent impairment is comparatively slight.  It appears that the Plaintiff could work as a driver if he so chose, although he may not be able to deliver loads heavier than 25 kgs.

41.  Of 3 comparable cases cited by the Plaintiff, the closest on its facts, is Chung Hok Sung v. Li Kam Ming, HCPI 393/1995.  That plaintiff suffered a fracture resulting from a fall.  An open reduction and internal fixations were performed.  He was given 4½ months sick leave.  For a year after the accident, he could not hold or carry any objects, but later he should have been able to return to his former work as a labour worker.  He was awarded $200,000.00 PSLA.

42.  The defence contends that $175,000.00 would be the proper award under this head.  However, I consider that $200,000.00 would be an appropriate amount, given the nature of the accident and its results.

Past Loss of earnings and Provident Fund

43.  This is assessed for the period from February 2002 to June 2003 at HK$9,000.00 x 1.05 x 16 = $151,200.00.

44.  For the period from July 2003 to May 2004, the loss claimed was HK5000.00 x 1.05 x 11 = $57,750.00, on the basis of P’s claimed current earnings being $4,000.00 per month.

45.  There is no verification of the monthly earnings, nor any evidence, other than P’s assertion, that he ever attempted to find better-paid work.  Given his skill level and the fairly minor residual disability revealed in the medical reports, it appears he is capable of a more demanding job and that he could have found better-paid employment than that he is in at present.

The Quarterly Report of Wage and Payroll Statistics for March 2003, relied on by the D1 and D2 indicate that the wages for a caretaker were around HK$6,000.00 per month.  Wages for a driver were in the range of HK$10,075.00 to HK$12,073.00.

In the absence of any support for the P’s claimed earnings I take the loss as HK$2,000.00 (HK$9,000.00 – HK$7,000.00).

Accordingly I assess this item, for the period claimed, at HK$2,000.00 x 1.05 x 11 = $23,100.00

Pecuniary expenses

46.  A claim of $20,000.00 for the full loss of P’s vehicle was made.  No documents confirmed the pre-accident value of the vehicle, or established the extent of the post-accident damage.  The damage was reported by the police as ‘minor’, which is borne out by the photograph [BD – Photo 3].

In the absence of supporting evidence about this item of claim, I allow only a nominal sum of $5,000.00 against repair costs.

Tonic food HK$3,000.00, medical expenses HK$15,000.00 and travelling expenses HK$1,000.00 are agreed and allowed.

Future loss of earnings and provident fund

47.  The P is 38 and otherwise fit and I find it is likely he will continue to work past the age of 60.  Having considered the comparable cases referred to by both counsel I adopt a multiplier of 13.  The multiplicand claimed is HK$5,000 x 12 x 1.05 = HK$63,000.00.

The adjusted multiplicand is HK$2,000.00.  Using a multiplier of 13, loss under this item is assessed at HK$27,300.00 (HK$2,000 x 13 x 1.05).

Loss of Earning Capacity

48.  The Plaintiff also claimed 18 months earnings for loss of earning capacity being HK$4,000.00 x 18 = HK$72,000.00.  I allow for the loss of earning capacity the nominal sum of $20,000.00, bearing in mind the allowance made for future loss of earnings.

Future Medical

49.  The P claims HK$15,000.00 for the removal of the implant.  I note that the original operation was carried out in a government hospital and that the removal operation could be carried out there.  However it is in the P’s interests to have the removal done as soon as possible, without having to go on a waiting list.  Accordingly I allow this item as claimed at the rate for a private hospital.

Summary of Quantum
PSLA		$200,000.00
Past Loss of earnings and Provident Fund	(i)	$151,200.00 Feb 02 to June 03
	(ii)	$23,100.00 July 03 to May 04
Pecuniary expenses		$5,000.00
Tonic Food		$3,000.00
Medical expenses		$15,000.00
Travelling expenses		$1,000.00
Future loss of earnings and Provident Fund		$27,300.00
Loss of Earning Capacity		$20,000.00
Future Medical Expense		$15,000.00

Interest on general damages is awarded at 2% p.a. from the date of the writ to the date of judgment

Interest on special damages is awarded at half the judgment rate from the date of the accident to the date of judgment and thereafter at judgment rate until payment in full

There will be an order nisi for costs in favour of the Plaintiff, such costs to be taxed if not agreed

Liberty to apply