CHAN SIU YOUN v. NG KAM MAN AND OTHERS

HCPI 533/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 533 OF 1999

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J U D G M E N T

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The accident

1. The plaintiff was the owner of a SAAB private motor car bearing registration no.EJ7603 ("EJ7603"). EJ7603 was manufactured in 1988. It broke down whilst the plaintiff was driving it in a south easterly direction over the Gascoigne Road Flyover ("the Flyover") at about 7:30 pm on 25 May 1996. The plaintiff brought it to a halt near lamp post no.AA8335-5. The weather at that juncture was rainy and the road surface was wet and slippery.

2. The plaintiff summoned for help. A tow truck bearing registration no.CZ8313 ("the tow truck") was sent from Happy Valley to the Flyover to render assistance. The tow truck was owned by the 4th defendant and driven by the 3rd defendant. It was approaching EJ7603 on the north bound carriageway of the Flyover.

3. The 1st defendant was the driver of a public bus bearing registration no. BZ8414 ("the bus") owned by the 2nd defendant. The bus was travelling on the south bound carriageway of the Flyover. It collided with EJ7603 whilst trying to pass it. The 1st & 2nd defendants maintain that the accident arose as a result of evasive action taken by the 1st defendant to avoid colliding with the tow truck which made a sudden U turn in an attempt to get onto the south bound carriageway.

Liability

4. According to the plaintiff, he had been waiting for 10 to 20 minutes before the arrival of the tow truck. Whilst he was waiting a number of vehicles including public transport pulled to his offside and passed EJ7603. In so doing, the overtaking vehicles had to cross "a little bit" over the white line dividing the two opposing lanes of traffic. The tow truck was lit up with lights flashing prior to the arrival of the bus. The tow truck driver waited until there was no traffic before making a three points turn. The accident occurred almost at the end of the manoeuvre by the tow truck driver. Given the positions of the two vehicles, he thought the bus would come to a halt. He agreed however that he could not give a correct view of the speed of the bus because of the rainfall and the affected visibility.

5. According to the 1st defendant, he had been a professional driver for seven years prior to May 1996. He was driving along the Flyover at about 40 kph. He first sighted EJ7603 when he came out of the Yau Ma Tei carpark and EJ7603 was about a car length from him. He knew EJ7603 had broken down as its hazard lights were on. He pulled his bus out in order to avoid EJ7603. He also saw the tow truck with all lights illuminated. The tow truck was stationery when he first saw it. He did not brake on sight of the two vehicles as he reckoned he had the right of way and the flashing lights from the tow truck were mere warnings to drivers behind that truck. He did not anticipate that the tow truck would make a manoeuvre to get to EJ7603. When he pulled out in order to overtake EJ7603, his bus was straddling on the dotted white line. Whilst he was proceeding along the tow truck started to make an unexpected U turn. He applied his brake. The bus skidded. He released his brake and then applied it again. It was at that point that the bus came into contact with EJ7603. He produced a bundle of photographs which he took on 23 February 1997. Those photographs show a continuous white line abutting the north whilst a dotted white line abutting the south bound carriageways.

6. According to the 3rd defendant, he did notice vehicles approaching him on the south bound carriageway before he commenced making his U turn. He only commenced making the U turn when the road was clear. He noticed the bus when he started his first steering. It was raining heavily. The bus was about 50 m away. He did not consider the bus posing any danger as he reckoned that the bus would see his revolving lights and the bus had sufficient room to stop. He further thought that the bus would come to a halt. He agreed that on coming traffic from the southern lane would not expect a road user from his lane making such a manoeuvre. He conceded that he was taking a risk in relation to both lanes of traffic and the risk was heightened by the rainy conditions. Before commencing his manoeuvre his tow truck was stationery on the north bound carriageway for about two minutes. Motorists behind him were getting impatient. Whilst there are references in his written statement to the indicators of the tow truck being turned on, his evidence before me does not refer to any signal of his intention to encroach onto the south bound carriageway prior to his manoeuvre.

7. I am of the view that the 1st and 3rd defendants both contributed to the occurrence of the accident. The 1st defendant noticed the hazard lights of both EJ7603 and the tow truck. Those were warnings to him that the road conditions were unusual and he should take added precautions. It was negligent on his part not to reduce speed but simply proceeded on the faith of his right of way. Had he reduced speed, he would have been in a position to take more effective evasive action. The 3rd defendant acknowledged that it was risky to make the U turn on the Flyover. He did not give any signal of his proposed right turn. He noticed the oncoming bus but simply assumed that the bus would come to a halt. He had been waiting for about two minutes when other vehicles on the south bound carriageway refused to yield. He was pressurised by the motorists behind him to embark upon his hazardous turn.

8. I am of the view that the 1st and 3rd defendants are equally liable for the accident. Both were charging ahead without due care. The 1st defendant believed he had the right of way and the 3rd defendant assumed that the bus would give way. I can see no basis for distinguishing their culpability.

Did the accident cause any injury to the plaintiff's neck?

9. Dr Tsoi, medical expert called on behalf of the plaintiff, first examined the plaintiff on 6 August 1999. In his first report dated 9 August 1999, Dr Tsoi pointed out that :

"At this examination, X-ray revealed degenerative changes at C5-6 level of the cervical spine, which was very likely to be the cause of the persistent neck pain. Degenerative cervical spine at single level can occur as a result of natural degeneration. However it can also be due to a severe sprain injury of the neck that triggered off the degeneration of the intervertebral disc. An interval of three years has passed and it would be difficult to determine the cause of the degeneration. Comparing the X-ray taken on the day of accident can provide additional information about the etiology."

10. The Defence tendered a report of Dr Chang dated 20 January 2000. Dr Chang concluded that :

"Mr Chan's history, physical findings and X-ray findings suggest a cervical acceleration-deceleration injury or commonly known as cervical whiplash. The finding of a narrowed disc especially at C5/6 in person suffering from a cervical whiplash injury is not uncommon. However, there has never been any data to suggest that the disc can degenerate quickly after such a whiplash injury. Usually, the narrowing of the C5/6 disc is pre-existing prior to the accident itself. It is natural for degenerative changes to appear early in the lower segment of the cervical spine due to comparative higher loading per cross-sectional area by the head on the cervical disc. The available evidence indicates that the expected incidence of degenerative changes in the cervical spine in a general population after the age of 30 there is at least 6% and to increase as he advances in age. It is also influenced by the way that the person carried out his or her activities of everyday living, creation, and work."

11. According to the report of Dr Wong of the Queen Elizabeth Hospital dated 5 March 1998, the plaintiff was admitted into that hospital on 25 May 1996 for his sprain neck injury sustained in the traffic accident. The plaintiff was treated with physiotherapy, neck collar and analgesic. He was discharged on 27 May 1996.

12. Dr Tsoi gave evidence before me. In the absence of the X-rays taken immediately after the accident, he cannot be definite as to the cause of the degeneration. Whilst he agrees with the report of Dr Chang, he pointed out that an accident might hasten the process of pre-existing degeneration and make the symptoms worse. Given the fact that the plaintiff was working normally prior to the accident, Dr Tsoi is of the view that the degeneration is consistent with the accident.

13. I deplore the failure on the part of the plaintiff to supply the relevant X-rays for Dr Tsoi's consideration. There is however no evidence of any discomfort suffered by the plaintiff prior to the accident. Given the oral testimony of Dr Tsoi and the report of Dr Wong, I am satisfied on a balance of probabilities that the plaintiff's injuries were not pre-existing but were the direct results of the accident. Alternatively, I am satisfied on a balance of probabilities that the plaintiff's pre-existing hypersensitivity, if any, was triggered by the defendants' acts into inflicting the injury complained of.

PSLA

14. The plaintiff claims a sum of $250,000 in respect of PSLA whilst the defendants contend that the award under this head should be no more than $90,000.

15. According to the 1st report of Dr Tsoi, the plaintiff's neck pain was unrelieved and he had physiotherapy for three months. Some but incomplete recovery was achieved. The plaintiff attended the Orthopaedic Department for follow-up treatment for more than a year but his neck pain could not be totally alleviated. He ceased attending his follow-up treatment since April 1997 as he was told that no further treatment could be offered. He is still suffering from on and off residual neck pain and he finds it difficult to perform long hours of overhead ceiling work due to neck pain on prolonged neck extension.

16. Mr Kerr drew my attention to the range of award for neck injuries summarised in Butterworths' Hong Kong Personal Injury Service. I agree with Mr Kerr that the injuries sustained by the plaintiff in this case are not as serious as those in Li Yee Yuen v. Tam Wing Keung. I am of the view that an award of $100,000 is reasonable in the circumstances of this case.

Loss of profit

17. The plaintiff says he worked as an interior decorator since 1980. Prior to the accident, he carried on an internal decoration business. He did not register his business nor did he file any tax return. He says his business was making profit of $300,000 per year after deducting $18,200 per month as his own salary. For most of the time, his business was conducted on cash basis and he would on occasions deposit his earnings into his bank accounts. At the date of the accident, he had three accounts with the Nanyang Commercial Bank Ltd. He did not keep any record in respect of remuneration that he paid to his workers. He did not keep any diary in respect of his assignments. He did however issue receipts for cash deposits from his customers. He hired workers for his assignments and the average rate for his workers in 1995/1996 was $700 per day. Apart from designing the decorations, he participated in executing the works involved. He took on a delivery job after the accident as that was a comparatively light job. He resumed carrying on his decoration business in about September 1997. In the absence of any complaint from his clients, he would only keep records of his transactions for a short period of time.

18. The plaintiff produced two classes of documents in support of his claim for loss of profit. The first class of documents consists of a provisional agreement dated 18 December 1996 for the purchase by the plaintiff of a flat from the Hong Kong Housing Society at $2,672,000 together with a bill from his solicitors for $58,785. The second class of document consists of a one page statement from DMT Finance Ltd ("DMT") in relation to his share portfolio with that company. According to that statement, the then value of the plaintiff's portfolio was $1,158,600.

19. During the luncheon adjournment on the first day of hearing, the plaintiff was asked to retrieve from his residence all available bank records. He managed to locate statements in respect of his current account with the Nanyang Commercial Bank, Ltd for the period between 20 February 1989 to 18 January 1991 and a bank book in respect of his multi-currency account with the National Commercial Bank which contains only two entries.

20. According to the second report of Dr Tsoi dated 5 June 2000, the plaintiff was medically advised to perform lighter duty work after the expiration of his 104 days of sick leave. He took on the job of a delivery worker as that would require less head and neck movement. I am of the view that given his residual neck pain and the medical advice that he received, the plaintiff cannot be criticised for not resuming his decoration business immediately after expiration of his sick leave.

21. Counsel for the defendants strongly criticised the evidence adduced in support of the plaintiff's claim for loss of profit. Mr Kerr, counsel for the 3rd and 4th defendants, drew my attention to Bonham-Carter v. Hyde Park Hotel Ltd (1948) 64 TLR 177 where Lord Goddard CJ, at p.178 said this :

"Plaintiffs must understand that, if they bring actions for damages it is for them to prove their damages; it is not enough to write down particulars, and, so to speak, throw them at the head of the court, saying : 'This is what I have lost; I ask you to give me these damages.'. They have to prove it."

22. Whilst I am prepared to accept the plaintiff's assertion that he did carry on an internal decoration business, I am of the view that the defendants have rightly criticised the plaintiff's case on loss of profit. The plaintiff made no attempt whatsoever to obtain from his bank statements for the relevant periods. There is no evidence as to how he financed the purchase of the flat from the Hong Kong Housing Society. There is also no evidence as to when and how he purchased the shares that made up the portfolio that he lodged with DMT. I do not know whether he was a cash or a margin client of DMT. If he did fund the share and the flat purchases, his funding might be attributable to savings over a long period of time. The two classes of documents that he produced do not support his contention that he made a profit of $300,000 per year from his business.

23. In relation to the plaintiff's loss of earnings, I would adopt $700 as his earning per day producing a figure of $18,200 on an average 26 working days per month. He was on sick leave for 3.3 months. His loss during the sick leave period was $60,060 ($18,200 x 3.3 = $60,060). He was on reduced earnings at $6,000 per month for 11 months. His loss for those 11 months amounted to $134,200 [($18,200 - $6,000) x 11 = $134,200]. I therefore award in favour of the plaintiff a total of $194,260 ($134,200 + $60,060) in respect of his loss of earnings.

Storage of EJ7603

24. The plaintiff claims a sum of $50,600 said to have been incurred as "Parking Fees" for EJ7603 for the period between 1 June 1996 to 30 April 1998 at the rate of $2,200 per month. The plaintiff maintains that he had to rent a parking space in Yuet Ming House for EJ7603 because all along he was not advised by the 2nd defendant as to what he had to do. He admitted in cross-examination that he first raised the issue of car parking fees with the 2nd defendant in his letter to that company dated 8 May 1997. He claimed in that letter parking fees from June 1996 to the completion of repairs for EJ7603. By letter dated 20 August 1998, Messrs Munro Claypole & Reeves, solicitors for the 2nd defendant, laid all the blame on the tow truck driver and rejected the plaintiff's claim.

25. The plaintiff was granted sick leave from the date of the accident to 5 September 1996. He started working as a delivery assistant on 1 September 1996. He ceased attending follow up treatment since April 1997. He obtained a quotation dated 22 April 1997 which should have indicated to him that EJ7603 was a total write off. There can be no doubt that as from 22 April 1997, there is no justification in incurring parking fee at the rate of $2,200 per month for a complete wreck. Bearing in mind his progress of recovery, I am of the further view that he should have taken advice as to the state of EJ7603 by December 1996. I would therefore allow car park rental for the period between 1 June 1996 to 31 December 1996 at the rate of $2,200 per month totalling $15,400.

The value of EJ7603

26. By a written document dated 25 May 2000, Mr Tang Chi Shing ("Mr Tang") of Chi Shing Co. sought to certify the value of EJ7603 in 1996 at $30,000 to $35,000. Mr Tang operates a garage business. He also buys and sells cars. He informed this court that he saw EJ7603 in about April 1996 when the plaintiff showed him the vehicle for a quote in the event of a sale. He quoted $30,000 to $35,000. I accept his evidence and I find that the value of EJ7603 at the date of the accident was $30,000 to $35,000.

27. I am of the view that the accident did bring about a total loss of EJ7603. According to a quotation dated 22 April 1997, it would require $69,933 to remedy the damage. In the light of these figures, I do not think the plaintiff can be criticised for not undertaking the repairs. Mr Cheung and Mr Kerr argued that the loss was caused by vandalism and disuse. I reject that argument. EJ7603 was a complete write off immediately after the accident. The defendants caused that loss. I assess the same at $32,500.

Medical and travelling expenses

28. I accept the plaintiff's claims of $1,730 and $1,390 in respect of medical and travelling expenses and $425 in respect of towing fee. I agree with Mr Kerr's submission that the sum of $555 incurred for medical report should form part of the costs of this action.

Conclusion

29. I order that judgment be entered by the plaintiff against all four defendants for the sums which I assessed in this judgment. I also make an order nisi for costs of the action in favour of the plaintiff against all four defendants. I give all parties liberty to apply for any ancillary order arising from this judgment.