LEE SZE WAI v. LAW CHI KIN

DCPI44/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES NO. 44 OF 2001

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Judgment

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1. The Plaintiff claims against the Defendant for loss and damage arising from injuries he sustained in a traffic accident on 19th December 1999 at Prat Avenue, Kowloon, Hong Kong. He claims that the Defendant negligently drove his vehicle FE 9864 to collide with the Plaintiff. The Defendant disputed liability and quantum.

The Plaintiff's case on Liability

2. The Plaintiff gave evidence and said that on 18th December 1999, he joined a group of friends in a karaoke in Tsim Sa Tsui. They stayed there until about 5:00 a.m. on 19th December 1999. The Plaintiff left with his girl friend, PW3, to find something to eat. They came to Prat Avenue near the juncture where Prat Avenue met Hart Avenue. They crossed Prat Avenue in a southerly direction. The route of his crossing appears on a sketch at D-20, provided by him to the Police after the accident.

3. Before he crossed, the Plaintiff said he had checked the traffic and found that there was no vehicle at Prat Avenue, and no vehicle at Hart Avenue was turning into Prat Avenue. He then began to cross, with PW3 walking side by side with him. As he crossed the road, he kept an eye on any traffic coming from his right hand side.

4. When he was close to the curb of the opposite pavement, suddenly a private vehicle FE9864 came from Hart Avenue and turned right into Prat Avenue, moving towards the Plaintiff and PW3 directly. Plaintiff pushed PW3 away and he turned to his right hand side hoping to avoid the car. He was hit by FE9864 at his left knee and then he failed down. The wheel of the car straddled onto his left foot, and he suffered severe pain. After the accident, he was sent to hospital and I shall deal with his injury in greater details hereinafter.

5. The Plaintiff called his girl friend Chan Tai Lei ("PW3"). She confirmed that she was crossing the road with the Plaintiff at the said time and place. When they were about to land on the pavement on the opposite side, she suddenly saw FE9864 at Hart Avenue turning right moving into Prat Avenue, moving towards them directly. The Plaintiff pushed her away and she saw the Plaintiff turned to his right trying to avoid FE9864. She saw the Plaintiff got hit and fell. She also saw the wheel of FE9864 straddled on the Plaintiff's left foot.

The Defendant's case on Liability

6. The Defendant gave evidence. At about 5:20 a.m. on 19th December 1999, he drove FE9864 along Hart Avenue. When he came to the juncture with Prat Avenue, he intended to turn left. But he found that it was not permitted and all traffic from Hart Avenue had to turn right. The traffic was congested and he waited in front of the double white lines for the traffic to pass. He was then looking to his left. He waited for 20 seconds and he turned to the right. When he started to turn to the right, he then looked to his right and noticed the Plaintiff and PW3. He tried to brake but could not avoid hitting the Plaintiff.

7. During cross examination, he admitted that he did not check the traffic on his right before he turned the car.

8. The Defendant was later charged for careless driving in relation to this accident and he admitted that he pleaded guilty to the charge. The admitted fact appears at D-49. He admitted the brief fact at the hearing for the charge of careless driving. He explained that he pleaded guilty because he could not listen very clearly to what was said by the interpreter. It was about how the accident happened and he pleaded guilty to the charge.

My Finding on Liability

9. It is the evidence of the Defendant that before he turned the car into Prat Avenue, he did not check the traffic on his right. As a careful driver, he owes a duty to check if there is any pedestrian on the road before he drove the car in that direction.

10. Further and in the alternative, he had pleaded guilty to the charge of careless driving. By section 62 of the Evidence Ordinance, the burden is on him to prove that the accident did not occur by his negligence (Stupple v. Royal Insurance Co. Ltd. [1971] 1 QB 50).

11. He only explains that he could not listen clearly to the translation of the brief fact. But he did not explain why he still pleaded guilty. He is not suggesting that the plea is not correct or for convenience. There being no other evidence in front of me, the Defendant has not satisfy me that the accident was not caused by his negligence.

12. In conclusion, I found that the accident and injury to the Plaintiff is caused by the negligence of the Defendant.

Contributory Negligence

13. It is not disputed that the burden of proving contributory negligence rests on the Defendant.

The Defendant's case on Contributory Negligence

14. It is alleged in paragraph 6 of the Defence that the Plaintiff had, inter alia, failed to keep any or any proper lookout or to have any sufficient regard for his own safety when crossing the road and failed to pay any or any sufficient heed to the presence of the Defendant's car. I do not intend to repeat all the particulars.

15. The Defendant said after he turned the car and move 3 to 4 feet, he noticed the Plaintiff and PW3 holding each other were stepping off the curb and hurrying across the Prat Avenue in a northerly direction. But he agrees in cross examination that he noticed the Plaintiff the moment the car hit him.

16. The Defendant also said in his evidence in chief that he did not see the Plaintiff crossing the road in front of him. But in his statement to the Police, he said he did not know if anyone was crossing the road in front of him as he was looking to his left.

17. At re-examination, his Counsel tried very hard to examine him on whether he saw the Plaintiff before the accident. I found that he could only repeat himself that he only noticed the Plaintiff after he turned. It is a short period of time. He is not at all clear as to where the Plaintiff came out and I am not convince at all that he observed the manner of crossing or walking of the Plaintiff and PW3 before hitting the Plaintiff.

The Plaintiff's case on Contributory Negligence

18. The Plaintiff denies that he was embracing or holding PW3 when he crossed the road. He said while crossing the road, he kept proper lookout and observation at Prat Avenue and Hart Avenue, and regarding the situation at his right, there is no oncoming vehicle. There is no mention of any oncoming vehicle from Hart Avenue and he said when he almost finished crossing the road, suddenly FE9864 at Hart Avenue turned right towards him and PW3 directly. In examination by his counsel, he said the first time he saw FE9864 is when he almost finish crossing. He did not know the speed of the vehicle.

19. PW3 also denies that the Plaintiff was embracing her when they crossed Prat Avenue.

My Finding on Contributory Negligence

20. The first question to be determined is whether there is want of care from the Plaintiff for his own safety in the circumstances of the case. As stated by Denning L.J. in Davies v. Swan Motor Co. (Swansea) Ltd [1949]2 KB 291, 324, "when a man steps into the road he owes a duty to himself to take care for his own safety, but he does not owe any duty to a motorist who is going at an excessive speed to avoid being run down." The dictum was confirmed in Nance v. British Columbia Electric Railway Company Ltd. [1951] AC 601. The Plaintiff had a duty to be careful.

21. I am not convinced that the Plaintiff crossed the road in the direction and manner as alleged by the Defendant. But I must still consider the manner of crossing the road as stated by the Plaintiff to determine if he had taken the necessary care.

22. Reading the sketch D-20 again, one would see that the Plaintiff chose a path of crossing when he could be affected by the oncoming vehicles from both Hart Avenue and Prat Avenue. He would be obliged to pay attention to the oncoming vehicles from both Hart Avenue and Prat Avenue for his own safety.

23. And from the path of crossing stated by the Plaintiff, he should be about to see FE9864 much earlier than moment before collision. But the Plaintiff said he saw FE9864 coming moment before collision. The only inference I could draw is that he had not paid attention to the oncoming traffic of Hart Avenue, while concentrating himself with the traffic from Prat Avenue, coming from his right.

24. In conclusion, I found that the Plaintiff is partially responsible for the injury. If he had observed FE9864 earlier, he would be in a position to at least reduce the injury to him. I assess his contributory negligence at 10%.

Agreed Damages

25. The following damages have been agreed :-

- Part of the pre-trial loss of earning which represent the sick leave of the Plaintiff - $24,800.73

- Medical expenses - $4,440.00

- Transportation - $2,000.00

- Loss of mobile phone, sport shoes, jean trousers, jacket - $4,800.00

26. The Plaintiff claims $10,000.00 for tonic food. There is no evidence that the tonic food is advisable. The law is clear that I should only award a nominal sum. The Defendant concedes $4,000.00 and I award accordingly.

The Injuries

27. The most controversial issue is the cause of the injury to the left ankle. It is not disputed that the Plaintiff suffered a fractured second metatarsal on left foot. The agreed medical report by Queen Elizabeth Hospital at C-2 states :

- General condition was good

- There was no external wound

- There is some tenderness over dorsum of foot

- X-ray of left foot showed oblique fracture of second metatarsal.

- The clinical diagnosis was fracture left second metatarsal.

28. The Plaintiff was treated and discharged. He attended the follow-up treatment at Queen Elizabeth Hospital on 23rd December 1999 for persistent pain. A short leg plaster was applied. Noting difficulty in walking, the Plaintiff took off the plaster cast himself and on 24th December 1999, he visited Dr. Lau Hoi Kuen for treatment. He did not return to Queen Elizabeth Hospital again.

28. The agreed report of Dr. Lau appears at C-1. It reads

- Physical examination on 24th December 1999 revealed tenderness and swelling over the dorsum of his left foot as well as bruising over the 2nd and 3rd toes. The range of movement of the 2nd and 3rd toes was markedly reduced. X-ray of his left foot revealed spiral fracture of the second metatarsal. ...

- The condition of his left foot gradually improved. There was mild residual stiffness of his left ankle observed at the follow up on 13th January 2000.

29. Dr. Lau certified sick leave for the Plaintiff until 31st January 2000. The Plaintiff returned to work by February. He recovered gradually. But in early May, when he was walking to visit his client, he felt very painful with his left foot. He consulted the Kwun Tong Clinic. And in end of June, 2000, the Plaintiff felt that he was very fine, and could walk and run. He decided to play a game of football. The Plaintiff said he used to play football once every week, sometimes twice before the accident.

30. After playing for 10 minutes, he felt that his left sole and toes hurt him severely. He stopped and consulted Dr. Lau again. In his report, Dr. Lau said

- He returned to my clinic on 27th June 2000 because of left ankle pain associated with playing soccer. Examination revealed tenderness over the tibialis posterior tendon and residual stiffness of the MTP joint of the left second toe. ....

31. The Defendant submitted that the Plaintiff's left ankle pain/injury has nothing to do with the accident. They called Dr. Wong Kwok Shing, Patrick ("DW1") who had examined the Plaintiff. In his report, he said that there is no documented injury to the left ankle either in the medical report from Queen Elizabeth Hospital and Dr. Lau's report during the first month of treatment. The left ankle pain only developed after the soccer game in June 2000. He concluded that the injury is more likely due to many years of soccer play. But in cross examination, he agreed that he could not exclude the possibility that the ankle was injured in the accident.

32. The Plaintiff called another medical expert, Dr. Lam Kwong Chin, ("PW2"). He said that during the injury of the foot in the accident, it would be quite probable that the ankle was twisted as well, causing soft tissue injury not detected on x-ray examination. He said in the report of Dr. Lau, it mentioned about ankle stiffness, which shows that the injury was there by then.

33. Having carefully considered all the medical evidence, I accept the opinion of PW2 and found that the injury of the ankle is a result of the traffic accident.

Pain Suffering and Loss of Amenity

34. I would consider this head of damages in light of my finding of the injury as aforesaid. It is not disputed that the injury suffered far short of any serious injury. The Plaintiff is now 30. After the accident, he was not required to be hospitalized. He had sick leave for 5 weeks before he returned to work. There is no operation required, except a short plaster, which he took off after one day. I take into account the finding by PW2 that the Plaintiff cannot engage in prolonged walking. And the Plaintiff has to give up playing football, one of his hobbies.

35. Counsel for the Plaintiff submitted that $200,000.00 should be awarded. In view of the very satisfactory healing of the metatarsal, I assess his damage at $150,000.00 under this head.

Future Loss of Earnings

36. Counsel for the Plaintiff claims $200,000 under this head and used the formula of $2000 x 12 months x 9 years. It is clear that she is claiming the loss of promotion.

37. The Plaintiff returned to work after the accident and he received a similar pay. There is no loss of earning as such. The Plaintiff claims that he was expecting to be promoted to be a deputy manager with a salary increase of $2,000 to $3,000 a month. In cross examination, he agreed that this is an expectation only.

38. The Plaintiff based his claim on the fact that there was such a vacancy in his department by end of 1999. He had been told, informally by his senior that he was likely to be promoted. After the accident, his company promoted another staff from a different department to be the deputy manager and he was instructed to assist him.

39. It is trite law that the damage suffered must be caused by the injury. Assuming that the Plaintiff was one of the candidates to be promoted, there is no evidence in front of me that his employer did not promoted him because he was injured. Though the Plaintiff said after the incidence, his senior told him again that the company did not promote him because they did not know how long it took him to recover. Still that is hearsay. I attach no weight.

40. The Plaintiff failed to prove he had a promotion. Beside this claim, the Plaintiff suffered no loss of earning. He had changed jobs in 2000 twice and got increase in salary. The Plaintiff said he cannot engage in prolonged walking after the accident and therefore came to work for Seatop Shipping Limited. In this employment, he was mainly dealing with daily adminstration work and contact clients by telephone. He was not required to go out to meet client. He was paid $22,000 with a traveling allowance of $3,000 a month, a pay higher then his pay before the accident.

41. He was dismissed from work by Seatop Shipping Limited in September 2001, over 20 months from the accident. It clearly show that he managed to make an earning about the same or more than he earn before the accident. This is a clear case that he has not loss of future earning. I accept that he has some disadvantage in the job market because of his injury. But the damage in this aspect is covered by the claim for loss of earning capacity which I am coming to.

Loss of Earning Capacity

42. It is claimed that the Plaintiff is less competitive in the job market. The Plaintiff submits that the loss should be for $150,000 that represents the salary of 6 months.

43. There is no challenge to the fact that the Plaintiff is working in shipping industry, which is a small circle of business. But the Plaintiff is recovering. His main handicap is that he could not walk for a long time. According to PW2, prolonged walking would mean walking for 30 minutes to 1 hour. The Plaintiff also said he had difficulty to climb 2 floors of stair. And after prolonged walking he had to rest, before he continue. While he has some "handicap", I do not find that it would affect him significantly.

44. There is suggestion that he could not go out drinking and so to entertain his client. I have no evidence why this is related to his injury. I pay no attention to this.

45. In the circumstance, I found that a compensation of $100,000, which represents roughly 4 months' salary, is sufficient to compensation his loss.

Final Assessment and Award

46. I award in favour of the Plaintiff the following damages after accounting for contributory negligence

* Medical expenses	$4,440 x 90% =	3,996
* Travelling expenses	$2,000 x 90% =	1,800
* Tonic food	$4,000 x 90%=	3,600
* Damaged mobile phone	$2,500 x 90%=	2,250
* Damaged sport shoes	$1,000 x 90%=	900
* Damaged jean trousers	$800 x 90%=	720
* Damaged jacket	$500 x 90%=	450
* PSLA	$150,000 x 90%=	135,000
* Pre-trial loss of earnings	$24,800.73 x 90%=	22,320.66
* Loss of Earning Capacity	$100,000 x 90%=	90,000
	Total:	$261,036.66

All special damages shall carry interest at 2% p.a. from date of Writ until judgment and thereafter at judgment rate until payment. All general damages shall carry interest at 4.07% p.a. from date of accident until judgment and thereafter at judgment rate until payment. I shall hear the parties on costs now.