HAU KWOK FONG v. THE KOWLOON MOTOR BUS CO. (1933) LTD. AND OTHERS

HCPI 101/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATION REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 101 OF 1997

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J U D G M E N T

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1. The accident giving rise to this claim occurred on 28 May 1994 at about 11:25 p.m. The Plaintiff, Mr Hau Kwok Fong, was a passenger travelling on the upper deck of KMB Bus Registration No. 9392 ("the Bus"). He was accompanied by his then girlfriend, one Miss Hui. The 1st Defendant is the owner and operator of the Bus. The 2nd Defendant, Chan Ka Cheung, was employed by the 1st Defendant as driver of the Bus. The claim against the 3rd Defendant was discontinued. The 4th Defendant, Hung Wah Hay, was the driver of lorry Registration No. 6084 ("the Lorry"), at the time of the accident, he was transporting a Komatsu made bulldozer from the Kwai Chung goods terminal to a godown in Lam Tei in Tuen Mun. When the Lorry reached Nai Wai, the 4th Defendant noticed from his rearview mirror that the arm and the bucket of the bulldozer was not aligned properly. He pulled over to the road shoulder with a view to adjusting the arm and the bucket which were protruding into the carriageway. It was at this time when the Bus driven by the 2nd Defendant collided into the bucket of the bulldozer causing extensive damages to the upper deck.

2. The Plaintiff, as a result of the accident, suffered injuries resulting in compound fracture of his right mandibula ramus. He was treated in the Tuen Mun Hospital where he received surgical reduction of his bone fracture.

3. This is his claim against the 1st, 2nd and 4th Defendants for damages. A Notice of Contribution dated 8 May 1998 was served by the 1st and 2nd Defendants on the 4th Defendant.

4. It is not in dispute that the accident was caused by a collision between the Bus and the bucket of the bulldozer, as a result of which the roof of the Bus was ripped open. The Plaintiff's evidence did not throw much light on what caused the accident. He said he lost conscious when he felt a sharp impact. When he regained consciousness, he was already in the Tuen Mun Hospital. The wife of the Plaintiff told the Court that she and the Plaintiff were seated next to each other on a row of seats on the left side of the upper deck of the Bus. The Bus was travelling very fast. When the Bus was nearing Nai Wai, she suddenly felt the Bus braking abruptly and she noticed the crane of a bulldozer ramming into the Bus from the front. Although she felt the Bus driver had applied his brakes, the Bus nevertheless continued to move forward and the object hit the Plaintiff. She also received minor injuries on one of her finger tips.

5. I think it is appropriate to deal with the evidence of the 4th Defendant first. Mr Hung, the driver of the Lorry, said in his evidence that during the journey from the container terminal to Lam Tei, he noticed that the arm of the bulldozer was out of alignment and the bucket was protruding from the side of the trailer. He pulled over to the road shoulder, which is a bicycle lane, with a view to adjust the arm and the bucket. He operated the control knobs but they did not seem to function. It was then when he noticed the 2nd Defendant's Bus driving pass at a high speed and rammed into the bucket despite his efforts to try to give warning to the Bus driver.

6. Regardless of the explanations offered by the 4th Defendant to this Court as to how he was trying to put right the alignment of the arm and the bucket, one thing emerges clearly : it was the 4th Defendant who had caused the arm and the bucket to protrude into the carriageway. Having caused that, he failed to warn the oncoming traffic of the potential dangerous state of affairs. I find that the 4th Defendant, in the way in which he parked his lorry and operated the arm and the bucket, had caused the accident and that he was negligent. Had the 4th Defendant taken reasonable care, the bucket and the arm of the bulldozer would not have protruded into the road and caused the accident which had resulted in the Plaintiff's injuries.

7. What remains to be decided is the liability of the 2nd Defendant. If I find the 2nd Defendant to be liable, then the 1st Defendant, being the employer of the 2nd Defendant, would be vicariously liable.

8. In a witness statement given to the police on 29 May 1994, the 2nd Defendant told the police that at the time of the accident, he was travelling at about 45 kilometres per hour. There was no vehicle in front of the Bus. When he arrived at the scene of the accident, he saw a bulldozer at a distance of about 10 metres in front of the Bus. The bulldozer was parked on a pavement on the left of the road. When he drove abreast with the bulldozer, he heard a collision sound at the upper deck and he then applied his brakes. It was not mentioned in his police statement that he noticed the bulldozer bucket protruding into his carriageway. This was confirmed in his witness statement which was adopted as his evidence at this trial.

9. If Mr Chan's evidence is correct, it must have been the case that the arm and the bucket of the bulldozer had swung out onto the road only a split second before the Bus collided into it. This, I find to be inherently improbable. I accept the evidence of Mr Hung when he said he saw the boom and the bucket protruding into the carriageway and he had tried to warn the oncoming traffic. That being the case, had the 2nd Defendant paid attention to the road condition properly, he must have noticed the bucket of the bulldozer obstructing his way.

10. The evidence of the Plaintiff's wife was clear. She stated that immediately before the collision she did not feel the Bus braking nor decelerating. It only braked abruptly when she heard the crash. There is also reference by her that the Bus was travelling very fast. Madam Hui's evidence about the application of brakes and the speed of the Bus was not challenged. I find that the Bus had collided into a stationary object, that is, the bucket of the bulldozer. Had the Bus driver kept a proper lookout on the road condition, he could not have failed to notice the object in front of him. He had failed to apply his brakes in time or take evasive action to avoid colliding with the bucket. I find him to be negligent in causing the collision which was responsible for the injuries of the Plaintiff. The 1st Defendant, being his employer at the time of the accident, was also liable vicariously.

11. On the issue of apportionment of liability, I find the 2nd and 4th Defendants are equally to blame for causing the accident and they are both equally liable for it.

Damages

12. At the time of the accident, the Plaintiff was aged 23 and he was employed as a project officer with the South East Asia Property and Financial Limited receiving a monthly salary of $13,000.00. He is the holder of the Higher Certificate in Civil Engineering from the Hong Kong Polytechnic. He is now employed by the Sino Group of Companies as an owner's site representative and his duties involve supervising contractors and the progress and work quality on the sites. He receives a monthly salary of $23,000.00.

13. The Plaintiff claims that despite the treatment and surgical operation he received at the Tuen Mun Hospital after the accident, he continued to suffer from pain in his right jaw and feels numbness extending from the top of his head to the whole of his left arm. Taking analgesics did not seem to alleviate the pain. He was diagnosed as suffering from left greater occipital neuralgia and that various treatments have been recommended by medical practitioners. The treatment includes injection of local anaesthetic and a steroid preparation to alleviate his medical condition and the removal of the plates and screws fixed in his jaw.

A) Special Damages

1) The following items of special damages are not contested :

Hospital expenses	$260.00
Medical expenses	$284.00
Plaintiff's travelling expenses	$360.00
Travelling expenses of Plaintiff's relatives	$640.00
Nourishing food	$500.00
Total :	$2,044.00

2) Loss of earnings

14. The claim was for two-thirds loss of earnings during 13 days' sick leave amounting to $3,755.55. There is no dispute on this amount and he has already received it. The loss should therefore be equivalent to one-third of his pay during the sick leave period, which is $1,878.00.

B) General Damages

Damages for pain and suffering and loss of amenities

15. The amount claimed under this head is $300,000.00. The matters to be taken into account in assessing the appropriate award under this head included one operation for fixation of fracture of the right lower jaw bone, four days' hospitalization, 13 days' sick leave and residual discomfort and another operation to have the implants removed. The Plaintiff has confirmed in his evidence in Court that such symptoms no longer exist save and except certain degree of numbness in the chin and on the left side of his body.

16. The Plaintiff's condition is consistent with Dr K L Yip's opinion that there is no observable and detectable residual defect as far as he could assess. The fractured jaw has now healed. The current complaints of the Plaintiff are subjective and it is not supported by clinical and radiographic evidence. The likelihood of the Plaintiff's lower front teeth needing root canal treatment would diminish as time progresses and it is not likely to have regular re-assessment other than as part of the routine check-up of his oral condition.

17. The Plaintiff told the Court that the symptoms caused minor discomforts but it did not affect either his lifestyle or his work. I am of the view that the claim for $300,000.00 are very much on a high side, and under this head I am prepared to award a sum of $180,000.00.

C) Damages for loss of future earning capacity

18. It is pleaded in paragraph 17 of the Revised Statement of Damages that the Plaintiff suffered disadvantage at the open labour market because of injuries. The amount claimed was $100,000.00. The principles for awarding damages under this head are set out in the decision of Chan Wai Tong and Anr. v. Li Ping Sum [1985] HKLR 176. This type of award is to cover the situation where there is a risk that at some future date, as a result of the plaintiff's injuries, he will lose his employment and will then suffer financial loss. There is, however, no evidence before this Court to suggest that the Plaintiff will lose his employment at some future date during his working life. There is also no evidence to support his contention that his earning capacity had been adversely affected by his injuries. In fact, the Plaintiff told the Court that his symptoms did not affect either his work or his work performance. He is now performing the same type of work as before and earning more than he did at the time of the accident. I would therefore decline to award any damages under this head.

D) Future medical expenses

19. There are four claims under this head :

1) Anaesthetic and steroid injections	$4,200.00
2) Regular assessment of six lower front teeth	$2,000.00
3) Root canal treatment	$18,000.00
4) Operation to remove metal implants	$30,000.00

20. The principles for an award for future medical expenses are set out in the case of Lam Kwong Ting v. Ho Yau Yuen [1990] 2 HKC 381. In order to succeed, it must first be shown that the treatments are on medical advice and, secondly, it is necessary or reasonably required for the purpose of recovery or improvement of the injuries sustained. The expenses incurred must also be reasonable under the circumstances.

21. The treatments under the first two heads were recommended by Dr Brian Choa as early as in November 1995 and by Dr T.W. Chow in January 1996. Despite the Plaintiff's insistence of discomfort, no such treatment had been undertaken.

22. According to the evidence of Dr K.L. Yip who examined the Plaintiff in September 1998, he was of the opinion that the likelihood of the Plaintiff's front teeth requiring root canal treatment would diminish with time, and it is no longer necessary to carry out regular re-assessment especially for such teeth. The Plaintiff did not advance any reason for failure to accede to the doctor's recommendation for treatment. That being the case, I can only assume that the Plaintiff is of the view that he no longer requires such recommended treatment.

23. Under the fourth item of surgical operation to remove the metal implants, I think this is necessary. In view of the Plaintiff's reservation about going to a government hospital, treatment in a private hospital under general anesthesia is necessary. I would award a sum of $30,000.00 for this item.

24. There is no suggestion that the Plaintiff had suffered any future loss of earnings, therefore, I would not award any amount under this head.

Summary of Damages

25. Interest on special damages $2,044 at 2% per annum from date of the writ. Interest on general damages $180,000 at 5% from date of accident until date of judgment.

26. I would award cost in favour of the Plaintiff against the 1st, 2nd and 4th Defendants. The 4th Defendant is to be responsible for 50% of the cost and the 1st and 2nd Defendant are to be responsible for the balance of 50%.