CHOW WAI MING v. CHAN YUK CHARM

HCPI 1111/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1111 OF 1996

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J U D G M E N T

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1. The Plaintiff in this action claims damages for personal injuries suffered by him as a result of a road traffic accident on 17th February 1993 in Argyle Street, Kowloon, when his motorcycle came into collision with a car driven by the Defendant. The Plaintiff was then 36 years old.

Liability

2. The Plaintiff's account of the accident is that he was in the course of his duties as an employee of the Transport Department, and was riding the motorcycle provided by his employers along Argyle Street intending to go to Hat Po Street in Mong Kok to repair a parking meter. He said that he was driving with his lights on in the middle of the left hand lane of the four lane road when, at its junction with Victory Avenue, the front wheel of his motorcycle was struck by the left front of the Defendant's car which was cutting into his lane from that on the right. The impact caused him to fall from the motorcycle which skidded across the road, coming to rest on the opposite corner of the junction. He had not seen the car until just before the collision as he had been concentrating on the road to his front

3. The Defendant's version of the incident is rather different. He says that he was driving quite slowly along the left lane of the road, and about to turn into Victory Avenue, when the Plaintiff's motorcycle came up the inside and collided with his car. He said that although he had indicated left and checked his rear view mirrors, he did not see the Plaintiff until the impact.

4. The Defendant had approached this point on Argyle Street by way of a flyover whose two carriageways became the third and fourth lanes of Argyle Street at a point he estimated as at least 80 to 100 metres before Victory Avenue. As he was in the left hand lane of the flyover, he would have joined Argyle Street in the third lane. He said he then had to pass the junction with Soares Avenue on his left, at a distance he gave as a "few tens of metres" before the scene of the collision, where there were traffic lights controlling that junction showing green in his favour. By that time, he said, he had crossed over to the first lane of Argyle Street. He said that he checked his mirrors, saw no traffic at all behind him, and started turning left. At that moment the Plaintiff's motorcycle hit his car.

5. There are a number of reasons why I find this account unconvincing. The first, and most obvious, is, if he is right, where was the Plaintiff before the collision? On his own evidence he saw no vehicles behind him shortly before he started to turn. Yet for the accident to have happened at all, the Plaintiff must have been there. The Defendant, when asked if he had an explanation for this, said he thought he must have come out of Soares Avenue. However, as he had passed that junction a few seconds before when the lights were green in his favour, they must have been showing red against the traffic in Soares Avenue, and it defies belief that the lights changed, the Plaintiff set off, and covered the distance between the two junctions at such a speed as to arrive at the front of the Defendant's car by the time the latter reached Victory Avenue, and before he had seen him. Equally, if the Plaintiff had been approaching along Argyle Street from the same direction as the Defendant, it does not explain why he did not see him in his mirrors.

6. Another problem with the Defendant's account is that it seems unlikely that there was room for a motorcycle on his inside. His car was a Mercedes 230E. which he admitted was rather wide, and which he said was two to three feet from the kerb. While one can imagine a motorcyclist, however unwisely, passing a slower moving vehicle on the inside where it is in the second lane, or well over to the right of the same lane, it would require a degree of foolhardiness difficult to imagine to do so where the space available is hardly wide enough for the motorcycle to fit at all.

7. The Plaintiff did not seem to me to be a person capable of such a degree of stupidity. He is clearly not an irresponsible young man on a fast motorcycle, but a middle aged civil servant on a government 200cc machine going about his daily business. His account of these events not only has the ring of truth, but also are more logical and likely.

8. I am satisfied that the Defendant, who had been in the third lane of the road and wished to turn left into Victory Avenue not far ahead, moved into the second and then the first lanes and failed to see the Plaintiff on his left, possibly because he was in his blind spot which he did not check by turning his head, and started his turn left without satisfying himself that it was safe to do so. I do not accept his evidence as to his speed, and consider it more likely that he slowed rapidly to make his turn only at the last minute.

9. It follows that I accept what the Plaintiff says, that he was driving at about 30 to 35 kph in the left hand lane, when the Defendant suddenly appeared from his right and turned his car into his path, thereby causing the collision. The Plaintiff says that he had not looked into his mirror immediately prior to the accident, and did not therefore see the Defendant approaching. I do not place any blame for the accident on the Plaintiff because of this. Clearly the whole incident took place very quickly, and no motorist is expected to look constantly into his mirror at the expense of concentrating on the road ahead, and he could not have expected a vehicle to change lanes ignoring his presence.

10. I accordingly find that the Defendant was the sole cause of this accident, and find no contributory negligence on the part of the Plaintiff.

Quantum

11. The Plaintiff suffered a comminuted fracture of the proximal humerus of the right shoulder. The fracture was immobilized by a collar and cuff sling, and was reported by Dr. Lung of Queen Elizabeth Hospital to have united in about three months, with a full range of movement, albeit with pain, in six months. The Plaintiff was left with a deformity of the humeral head causing bony impingement on a tendon in the shoulder. He received a prolonged course of physiotherapy with limited improvement.

12. He was at this time offered the option of surgical intervention in the form of shoulder arthroscopy, which he declined. Neither of the medical experts called was prepared to say that the refusal of surgery was unreasonable, given the less than certain outcome, and the fact that the injury and its lasting effects were not so serious as to make such an operation necessary for the Plaintiff's enjoyment of life and ability to manage his daily life and work.

13. He has been left with a disability to his right shoulder which is evidenced mainly by pain on abduction, that is lifting the arm away from the body sideways, and some loss of strength in that arm, which both doctors assess to be an 8% impairment of the whole person. They were also both satisfied that the Plaintiff's complaints were genuine and explained by what was revealed by x-ray examination. Their estimate of his loss of earning capacity ranged from 9% to 12%.

Pain suffering and loss of amenities

14. It is apparent that the Plaintiff's disability is not of the most serious. His daily life is largely unaffected, and his recreational activities slightly limited. He does however have a disability the condition of which will remain static and of which he will always be conscious when he has to make a movement of his arm which causes pain.

15. The lower end of the serious injury category I now take to be in the region of $500000. The Plaintiff's injury here is well below that level. In my view a proper award is a sum of $300000.00.

Loss of earnings

16. The picture of the Plaintiff's injuries and his ability to work was altered somewhat by the occupational therapy evaluation report, and evidence, of Madam Alice Tsang. In a very thorough report following some 11 hours of exhaustive tests, she concluded that there was little limitation on his future work provided that this did not include any heavy manual labour. She said that his work history did not indicate that he was likely to seek such work and that the pain he reported on some of the tests would not affect the sort of work he did prior to the accident, and did not affect the work he was doing now.

17. Although Madam Tsang reported some inconsistencies in the test results, which suggested that the Plaintiff may not have been using his best efforts, neither she nor the doctors believed that the Plaintiff was malingering or seriously exaggerating his symptoms.

18. I am satisfied that the Plaintiff does suffer from a permanent disability, but this is not so serious as to affect his daily life, and, were his pre-accident employment still available, he would have been able to continue with it until his normal age of retirement.

19. At the time of the accident the Plaintiff was, as has been noted above, an employee of the Transport Department. He was on sick leave for a period of slightly less than one year, and then returned to the same department on 21st February 1994. He had two further short periods of sick leave that year, and was meanwhile transferred to the driving test section of the department to do clerical duties in September 1994. He remained there until January 1997 when, as a result I am told of privatization, he was required to take early retirement, and his pre-retirement leave ended in March 1997. After that he applied for a number of jobs advertised in the newspapers, particularly those in the clerical or light delivery line, as he felt he could not do heavy work which required a lot of use of his right arm, a view shared by the doctors and the occupational therapist. He had a number of interviews but failed to secure any employment until July 1998, when he commenced work as a driver of an ice cream van.

20. To some extent the Plaintiff does have a handicap in the labour market. There are clearly some jobs that he would not be able to do, or not for any length of time. But these are not in the field that he was employed before the accident, and not what his education and work experience would lead him to seek now. In the areas in which he is capable of working, including clerical and light to medium heavy work, he has no limitation in what he can do, although I accept that some areas will always be closed to him, even if some are as a result of his own conception of what he can do.

21. The loss of his employment with the Transport Department has no relationship to the accident and his injuries, and it would be wrong therefore to lay the blame for any loss of income thereby at the door of the Defendant. Neither am I disposed to blame his inability to secure suitable alternative employment on his injuries. I am satisfied that he was capable of doing the sort of work he as used to and his position following his forced retirement was no different from that of anyone else in that position who had no disability.

22. It follows that, apart from his period of sick leave, which in my view he was entitled to, no loss of earnings, either pre- or post-trial can be attributed to this accident, and I accordingly make no award under this head save for the sum claimed for total loss during his sick leave of $163744.96. The award under this head is largely academic, as he received the same sum under the provisions of the Employees Compensation Ordinance for which credit must be given.

Loss of earning capacity

23. A I have already noted, the Plaintiff's disability, however slight, does limit him to some extent in the range of employment open to him, and his history of such an injury may well make prospective employers cautious about taking him on as against a similar applicant with no history of injury or disability. As a result he suffers some handicap in the labour market which must be reflected by an award for loss of earning capacity. In consider a proper award under this head to be a sum of $75000.00.

Special damages

24. The Plaintiff claims the sum of $582.40 for travelling expenses to hospital for follow up treatment and physiotherapy and this was not challenged by the Defendant. This sum is accordingly also awarded.

Summary

Pain suffering and loss of amenities	$300000.00
Loss of earnings during sick leave	$163744.96
Loss of earning capacity	$ 75000.00
Special damages	$ 582.40
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	$539327.36

25. The Plaintiff will give credit for the sum of $224328.00 received by him under the provisions of the Employees Compensation Ordinance, leaving a total award of $314999.36.

26. There will be interest on the sum of $300000.00 by way of general damages from the date of issue of the writ to the date hereof at 2%, and on special damages at 5.75% from the date of accident also to the date hereof.

27. There will also be an order nisi that the Defendant pay the Plaintiff's costs of these proceedings to be taxed, and that the Plaintiff's own costs be taxed in accordance with Legal Aid Regulations.