CHEUNG MAN FAI v. TO YU BUN AND ANOTHER

HCPI 886/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.886 OF 2003

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JUDGMENT

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1. The plaintiff brings this claim against both defendants arising out of a traffic collision between the plaintiff’s private car and a taxi driven by the 1^st defendant and owned by the 2^nd defendant.

2. The claim against the 2^nd defendant, however, has already been discontinued by the plaintiff. 

3. This judgment therefore, only deals with the claim by the plaintiff against the 1^st defendant as the driver of the taxi.

4. The accident happened on 23 September 2000 at just after midnight, when the plaintiff, an off-duty police constable, was driving home after work.  He was driving a private car (Registration mark HE 5840) in a southbound direction along Pak Tin Street.  At the same time, a taxi (Registration mark GL 2188) driven by the 1^st defendant was travelling in a westerly direction along Woo Chai Street.  Pak Tin Street on which the plaintiff’s car was travelling is a main road.  At the junction where Woo Chai Street enters into Pak Tin Street, there is a “Give Way” sign governing traffic on Woo Chai Street where the 1^st defendant’s taxi was travelling.

5. The collision between the plaintiff’s car and the 1^st defendant’s taxi took place when the plaintiff’s car was driving through that junction when, at the same time, the 1^st defendant’s taxi was making a right turn into Pak Tin Street from Woo Chai Street

6. As a result of that collision, the 1^st defendant was convicted of careless driving at the Magistrates Court.  The basis of that conviction was that he had failed to give way to the plaintiff’s car despite the fact that there was a “Give Way” sign along Woo Chai Street on which he was travelling before turning into Pak Tin Street.  The brief facts of the case was admitted by the defendant when he pleaded guilty to the charge of careless driving.

7. The factual dispute between the plaintiff and the 1^st defendant in this case in so far as the happening of the accident is concerned is that it is the plaintiff’s evidence that the 1^st defendant did not stop at the “Give Way” sign and did not give way to the plaintiff’s car, but made the right turn into Pak Tin Street without stopping which led to the collision.

8. The evidence from the plaintiff was that he was travelling along Pak Tin Street at about 30 to 35 kph.  When he was about four cars’ length from the junction with Woo Chai Street he saw the defendant’s taxi travelling along Woo Chai Street heading for Pak Tin Street.  As the taxi reached the junction it seemed to slow down.  The plaintiff then reduced his speed to about 30 kph.  When the plaintiff’s car was about one car’s length from the junction the taxi suddenly dashed out into the plaintiff’s path.  The plaintiff applied emergency braking but could not avoid hitting the taxi.  Under cross-examination, the plaintiff maintained that he had his headlights on before the accident occurred.

9. On the other hand, it is the 1^st defendant’s evidence that he was travelling at about 30 kph along Woo Chai Street.  As the taxi reached the junction of Woo Chai Street and Pak Tin Street, he had stopped at the “Give Way” sign, checked the traffic to his right on Pak Tin Street and seeing no vehicles coming, made the right turn.  It is also the 1^st defendant’s evidence that when he was making the right turn the plaintiff’s car somehow hit the right side of his taxi.  The 1^st defendant believes that the plaintiff was travelling at an excessive speed and without his headlights on thereby causing the collision.  The 1^st defendant did not see the plaintiff’s car before the collision.

LIABILITY

Negligence

10. In final submission, it was conceded by counsel for the 1^st defendant that even if the headlights of the plaintiff’s car was not on, the street lighting on the road would still have allowed the 1^st defendant to have seen the plaintiff’s car in view of the 1^st defendant’s evidence that at the junction of Woo Chai Street and Pak Tin Street he was able to see some 200 metres to his right side along Pak Tin Street.

11. In the light of that concession and the fact that no satisfactory explanation has ever been given as to why the 1^st defendant did not see the plaintiff’s car if, as he said, he had stopped at the “Give Way” sign and checked for traffic along Pak Tin Street to his right side before making the right turn into Pak Tin Street, I am not disposed to accept the evidence of the 1^st defendant that he had stopped at the “Give Way” sign and had checked for traffic along Pak Tin Street before making the right turn.

12. Instead I accept the evidence of the plaintiff in its entirety and find that the 1^st defendant had failed to stop at the junction of Woo Chai Street and Pak Tin Street, had failed to properly check the traffic condition along Pak Tin Street and had failed to give way to the plaintiff’s car travelling along Pak Tin Street when the 1^st defendant made the right turn into Pak Tin Street from Woo Chai Street.

13. I also accept the evidence of the plaintiff that he had at all times before the accident had his headlights on.

14. Upon the findings as I have made above, the 1^st defendant has failed to negative negligence as was incumbent upon him to do so in the light of his conviction for careless driving.  (Stupple v. Royal Insurance Co. Ltd [1971] 1 QB 50)

15. I have no hesitation coming to the conclusion that the 1^st defendant was negligent in causing this accident in that he had failed to keep a proper lookout and had failed to give way to the plaintiff’s car as he was bound to do so when making the right turn from Woo Chai Street into Pak Tin Street.

Contributory negligence

16. The 1^st defendant relies on contributory negligence of the plaintiff on the basis that the plaintiff had failed to have his headlights on before the collision occurred.

17. In view of my finding in accepting the plaintiff’s evidence that the plaintiff did have his headlights on before the collision, I can see no merit in the plea of contributory negligence.

18. Accordingly, I do not find any contributory negligence on the part of the plaintiff.

QUANTUM

19. The plaintiff was born on 31 July 1969, was 31 years old at the time of the accident and 35 years old at trial.

Injuries and treatment

20. Immediately after the accident, the plaintiff, not feeling that he had suffered any serious injury, declined to go to hospital.  However, later in the morning of the same day, (i.e. 23 September 2000) he experienced pain over the right side of his forehead and paralysis over the left side of his neck.  He went to the Accident and Emergency Department of Caritas Medical Centre for treatment.  He was treated and discharged home the same day.

21. On the following day, namely 24 September 2000, the plaintiff felt stiffness in his neck and left upper limb numbness and weakness.

22. On 9 October 2000, the plaintiff was referred to the Orthopaedic Clinic of Caritas Medical Centre complaining of neck pain and left upper limb paresis.  He was found to have limitation in lateral rotation of his neck.

23. A CT Scan taken on 11 October 2000 of his cervical spine showed no cervical fracture but slight bulging of the intervertebral disc at C4/5 and C5/6 without significant narrowing of the spinal canal.  He had suffered what is commonly called a whiplash injury to the neck.

24. Thereafter the plaintiff was put on orthopaedic follow-up.

Psychiatric/psychological condition

25. In about October 2000 the plaintiff began to experience low mood and anxiety symptoms.

26. The plaintiff complained of persistent neck pain and left-sided upper limb numbness.  Due to the pain and numbness, the plaintiff was unable to carry out his duties as a police constable and has been on sick leave.

27. On 12 March 2001, upon referral of clinical psychologist of the Police Force, the plaintiff started to receive treatment at the Department of Psychiatry of Prince of Wales Hospital.  He was diagnosed as having Adjustment Disorder with depressed mood.  He had also expressed suicidal ideas.

28. On 12 July 2001 the Medical Board on Civil Servant recommended the plaintiff for early retirement on medical grounds for his mental health and the plaintiff’s employment with the Police Force was terminated on 6 November 2001 accordingly.

29. Thereafter the plaintiff has been on regular psychiatric follow-up.

30. The plaintiff was granted sick leave totally for 284 days for 23 and 24 September 2000 (i.e. the day of the accident and the following day) and also from 19 January 2001 to 19 December 2001.

Present complaint and residual disabilities

31. At the time of the trial, the plaintiff still experiences limitation of the neck movement as well as numbness of the left hand.  The plaintiff is left-handed.

32. As for his psychological condition, he still has headaches, irritability and depressed mood all of which affects his concentration.  He has insomnia as well as nightmares of the collision with the taxi.  These nightmares usually end up with the plaintiff waking up in cold sweat.  This has given rise to a fear of red-coloured taxis.

33. These present complaints of the plaintiff will have to be gauged against the fact that after his termination of employment from the Police Force, the plaintiff has since October 2004 found employment with Synergis as a building supervisor earning $9,000 per month.  In this new job of his, the plaintiff has to work 12 hours a day for six days a week.  His work is no different from that of a security guard but which is performed in relation to a building.

Pain, suffering and loss of amenities

34. There is no dispute that the plaintiff suffered from a whiplash injury as a direct result of the collision.

35. The main dispute between the parties relate to the psychiatric/psychological condition of the plaintiff which was the cause of his early termination.

36. It is the plaintiff’s case that his psychiatric/psychological condition was also a result of the accident.

37. On the other hand, the defendant submits that the plaintiff’s psychiatric/psychological illness stems mainly from other stressors.  Those other stressors were suggested to the plaintiff in cross-examination as being his failed first marriage and the fact that the plaintiff is himself in financial difficulties, all of which had a part to play in his psychiatric/psychological condition.

38. When cross-examined on this aspect, the plaintiff’s evidence was that he had married his first wife (the plaintiff is now remarried after divorcing his first wife), a policewoman, in January 1999 because she got pregnant.  She was a lavish spender and when she found that the plaintiff had no other income apart from his salary as a police constable, she petitioned for divorce in April 2000.  It took the plaintiff a week to get over the fact that his wife petitioned for divorce from him.

39. The plaintiff also agreed that when he married his first wife he had borrowed some $500,000 from a finance company for the wedding but that his mother had helped him to pay off this debt to the finance company.

40. It is also the plaintiff’s evidence that when he retired from the Police Force, he was paid a lump sum of $764,000 and with that money he had paid off all his debts and was thereafter no longer in debt.

41. The basis for the defence making these suggestions to the plaintiff comes from the expert medical report of Dr Chung See Yuen (being the psychiatrist instructed by the defendant) in which Dr Chung questions the plaintiff’s claim that he was not affected by the divorce of his first wife and his financial problems prior to the accident.

42. On the other hand, Dr Singer (the psychiatrist instructed by the plaintiff), accepting what the plaintiff said at face value, came to the opinion that the plaintiff’s psychiatric condition was a direct result of the accident.

43. On my part, having heard all the evidence in this case, I have no difficulty accepting the evidence of the plaintiff that his divorce from his first wife and his financial problems were not stresses which weighed heavily with him.

44. Moreover, I find that what did concern the plaintiff and which likely brought about his psychiatric/psychological condition was the fact that the plaintiff, from the time he was a boy, had always dreamt to be a police officer one day and to make his career in the police force.  In fact the plaintiff comes from a family of policemen.  His father, mother, uncle and aunt were all police officers.  Apart from his mother, who was a woman police constable, all the other three police members of his family were police sergeants.

45. It was therefore a great blow to the plaintiff when he discovered that his injuries from the accident interfered with his carrying out his duties as a police constable and later that he could no longer further his career as a policeman.

46. I find that to be the more likely cause of the plaintiff’s psychiatric/psychological condition.

47. Moreover, in accepting the plaintiff’s evidence, it goes without saying that the nightmares which the plaintiff has of the collision with the taxi plainly point also in the direction that his psychiatric/psychological condition was a direct result of the accident.

48. This is further supported by the fact that the plaintiff started to feel anxiety and depressed soon after the accident, some time in October 2000 although it was not until March 2001 that he was referred to the Prince of Wales Hospital for psychiatric treatment by the clinical psychologist of the Police Force.

49. From all this I make the finding that his Adjustment Disorder with depressed mood did come about mainly as a result of the collision with the 1^st defendant’s taxi.

50. In so finding, I reject the suggestion by the defendant that I should give weight to the police reports relating to the plaintiff for the years 1999/2000 and 2000/2001 and to draw the inference from such reports that the plaintiff’s psychiatric/psychological condition came about from other stresses unrelated to the accident in question.

51. On the basis of the finding above, a reasonable award for pain suffering and loss of amenities would be $550,000.

52. In coming to this figure, I had taken into account the fact that the plaintiff was still a young man when the accident took place and that he had been an enthusiast in various kinds of sporting activities, not the least of which was ten-pin bowling and for which he had excelled by being good enough to represent the Hong Kong Police Force at an international tournament.

53. The accident had caused him to give up this and other sporting activities because the plaintiff is basically left handed and the numbness suffered by him in his left hand had effectively taken away this as well as other sporting activities from his enjoyment.

Loss of earnings (pre-trial)

54. At the time of the accident, the plaintiff was a police constable with a monthly salary of $22,210.

55. He was granted sick leave of 284 days from 23to 24 September 2000 and from 19 January to 19 December 2001.

56. On 12 July 2001 the Medical Board on Civil Servant recommended the plaintiff for early retirement on medical grounds.  Accordingly, the plaintiff’s employment as a police officer was terminated on 6 November 2001.

57. During the sick leave period, the plaintiff received full pay until 17 April 2001.  Between 18 April and 6 November (when plaintiff’s employment was terminated) he received half salary.

58. When the plaintiff retired from the Police Force, he received by way of pension a lump sum payment of $764,064 and monthly pension of $4,548.

59. Because of his disabilities from the injuries suffered by him, the plaintiff also received a disabled allowance of $1,260 a month.  That disabled allowance was reduced to $1,130 from 1 July 2003.

60. The loss of earnings for the period 18 April to 6 November 2001 is $22,210 x (5 +19/30 months x ½ = $62,558).

61. For the period 7 November to 19 December 2001 (the end of the sick leave period), his loss of earnings is [$22,210 - $4,584 (retirement pension) - $1,260 (disabled allowance)] x (1 + 13/31) months = $23,280.

62. For the period from 20 December 2001 to 30 June the loss of earnings works out as [$22,210 - $4,584 - $1,260] x (18 + 10/30) months which comes to $300,038.

63. Thus for the period from 1 July 2003 to 24 October the loss of earnings is [$22,210 - $4,548 - $1,130] x (15 + 24/31) months which gives $261,206.

64. The plaintiff obtained employment from Synergis as a building supervisor from 25 October 2004 onwards at a monthly salary of $9,000.  When the plaintiff obtained this employment, he was no longer entitled to the disabled allowance since he has been gainfully employed.

65. For the period from 25 October 2004 to the date of judgment, the plaintiff loss of earnings comes to ($22,210 - $4,584 - $9,000) x 6 months which gives $51,756.

66. Accordingly, the total pre-trial loss of earnings works out to be $62,558 + $23,280 + $300,038 + $261,206 + $51,756 = $698,838.

Future loss of earnings

67. But for the accident, the plaintiff would in all probabilities have retired at age 55 as any other police officer in the normal course of things.

68. The plaintiff was 35 years old at the time of trial.

69. In all the circumstances of this case, I would adopt a multiplier of 10 as being appropriate for the calculation of future loss of earnings.

70. Since the plaintiff is now in employment and earning $9,000 per month as well as receiving a monthly pension of $4,548, the loss of future earnings is calculated as follows :

($22,210 - $9,000 - $4,548) x 10 x 12 = $1,039,440.

Loss of retirement benefits

71. The plaintiff joined the police force on 10 August 1987.

72. Had it not been for the accident, and assuming for present purposes under this head, the plaintiff had continued as a constable at a salary of $22,210 until his retirement at age 55, the plaintiff would have been entitled to a lump sum pension upon retirement at age 55 which lump sum would be calculated as follows :

($22,210 x 12) being the last annual salary x 444 months (being plaintiff’s length of service until retirement at age 55) / 675 (being the pension factor) x 50% (reduced pension %) x 14 (commuted lump sum pension gratuity) = $1,227,176.53.

73. From this will be deducted the lump sum of $764,064 already received by the plaintiff when he retired from the police force in November 2001 giving a balance of $463,112.53 to give the loss of lump sum pension.

74. As for the monthly pension, had the plaintiff continued in the police force until retirement at age 55, his monthly pension would have been :

($22,210 x12) x 444 months / 675 (pension factor) x 50% / 12 = $7,304.62.

75. However, because of his early retirement, the monthly pension which the plaintiff now receives is only $4,548.

76. Based on the life expectancy of a male in Hong Kong, thus assuming the plaintiff would live up to 73 years, his loss of monthly pension is calculated as ($7,304.62 - $4,548) x (73 – 55) x 12 months = $594,430.

77. Both these figures for loss of lump sum pension ($463,112.53) and loss of monthly pension ($594,430) will need to be further discounted to take into account the accelerated receipt.

78. The figure for loss of lump sum pension will be discounted by 50% to give $231,556.30 and the figure for loss of monthly pension will be discounted by 60% to give $237,772.00.

79. Totally the loss of retirement benefits is assessed at $469,328.30.

Loss of promotion prospects

80. Insofar as his promotion prospects (to Sergeant) are concerned, the plaintiff had taken the examination for promotion five years after he had joined the Police Force in 1987.

81. In fact as early as 1998, the plaintiff had been recommended for promotion to Sergeant.  However, at that time he declined to make the application for promotion because he had wanted to have a better report for the next promotion exercise to give himself a better chance.

82. Indeed, before the accident, the plaintiff had always been given favourable comments on his working performance as contained in the annual reports relating to the plaintiff by his superiors.  The only adverse comments from his superiors were in the annual report in 2001 which was after the accident.  That report was also after the plaintiff had made complained of his then superior.

83. Considering all the circumstances of this case, it would not be unreasonable to conclude that the plaintiff, who had always aimed to be promoted to Sergeant within the Police Force, would likely have achieved that goal at some time before his normal retirement age of55 even though he had been with the force for some 13 years when the accident happened.  At the time of the accident, the plaintiff still had another 24 years of normal service before reaching the retirement age of 55.

84. What is not entirely certain here is the precise time when the plaintiff would have achieved that promotion.

85. What I have to assess under this head therefore is the loss of the chance for promotion to Sergeant.

86. The plaintiff claims $248,160 under this head of damage on the basis that he would have achieved promotion to Sergeant by 2004, i.e. 17 years after joining the Police Force in 1987.

87. That figure claimed is worked out by the plaintiff using the difference between a Sergeant’s salary (at point 18) as in 2004 and the plaintiff’s salary as a constable at the time of the accident and applying a multiplier of 10.

88. In the case of A.G. v. Chun Yat Nam [1995] 1 HKC 218, the Court of Appeal saw fit to discount such a calculation by 80%.  In that case, the court was dealing with the prospects of a police constable loss of chance for promotion to Station Sergeant.

89. Given that in the present case, I am not dealing with the plaintiff’s promotion to Station Sergeant but only to the rank of Sergeant, it would be appropriate for me to discount that figure worked out by the plaintiff by 60% to reflect the loss of that chance.

90. Accordingly, I would assess the damages under this head to be $99,264 which would be rounded up to $100,000

Loss of earnings capacity

91. This has been agreed by the parties to be $60,000 and the same is assessed under this head.

Special damages

92. This head of damage has also been agreed by the parties at $5,640.

Future medical expenses

93. The plaintiff claims $111,400 on the basis of Dr Singer’s recommendation for future treatment.  The recommended amount includes psychotherapy for 26 sessions (at two-week intervals at $2,500 per session) for one year, medication (at $200 per week) and maintenance treatment for one year thereafter at $36,000

94. Dr Chung’s assessment of the costs of future treatment is $32,000.  This is based on further treatment for two at a frequency of between one to two months in between sessions.  Dr Chung also states that psychiatric medication is required.

95. The plaintiff’s psychiatric condition is but a mild one by any standard.  Moreover, the plaintiff is well on his way to recovery having now secured a permanent job with Synergis.

96. There is also evidence from the plaintiff that he has been following the advice given to him by his treating psychiatrist and following that advice, he tries to drive to work whenever possible so as to alleviate his fear of cars and of driving.

97. In all the circumstances of this case, I am of the view that the recommendation by Dr Singer for future treatment far exceed what is necessary or reasonable for this plaintiff in his present condition.

98. The future treatment suggested by Dr Chung seems to me to be much more reasonable.  The only reservation I have of the cost suggested by Dr Chung is that it may not have included the cost of medication.

99. Accordingly, I would assess the cost of future treatment for this plaintiff at $40,000 which also takes account of one year’s cost of medication.

Interests

100. Interests will be awarded at 2% per annum for general damages for pain suffering and loss of amenities from the date of the Writ until judgment.

101. Interests will also be awarded for pre-trial loss of earnings and for special damages at 4% per annum (being half judgment rate) from the date of the accident until judgment.

102. The calculation of interest can be left to the solicitors for the parties to work out.

Conclusion

103. Accordingly, there will be judgment for the plaintiff for $2,963,246.30 with interests (to be worked out by the parties solicitors).

Costs

104. There will be a costs order nisi that the plaintiff has the costs of this action to be taxed if not agreed.