AMJAD v. WONG YUI CHEONG t/a CHEONG KEE TRANSPORTATION CO

HCPI 943/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 943 OF 2007

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JUDGMENT

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1.  The plaintiff claims against the defendant for damages for personal injuries caused to him in an accident on 4 May 2005 when he was employed by the defendant. This is the trial on liability and quantum. The plaintiff was represented by Mr John Wright. The defendant was unrepresented. He was adjudged bankrupt in December 2008. The plaintiff has obtained leave from Master Hui in February 2009 to proceed with this action against the defendant notwithstanding his bankruptcy.

The Facts

2.  The plaintiff was born in 1985 in Pakistan. He came to Hong Kong at the age of 8. He received education only up to primary 3. He speaks very little English and some colloquial Chinese. He began work at the age of 16. Since about 2003, he was employed as a delivery worker by the defendant. After working for about a year, he was tasked to drive a light goods vehicle, but he also continued to assist with loading and unloading. His job was to collect goods from one place and deliver them to another location within Hong Kong. The light goods vehicle (“LGV”) he drove on the day of the accident had an enclosed cargo bay and a permitted maximum laden weight of 5.5 tonnes.

3.  On 4 May 2005, he was assigned to pick up a cargo in Tsuen Wan and to deliver the same to a destination in Kwai Chung. He was assisted by a transport labourer called Mohammad Sagheer (“Sagheer”). The above background facts are not in dispute and I find them proved.

4.  There is no dispute that an accident happened on that day and that the plaintiff was injured as a result of that accident. How and why the accident happened are matters in dispute.

5.  There is also no dispute that the LGV was overloaded at the time of the accident. The gross vehicle weight of the LGV was 7,020 kg, which was 1,520 kg (27.4%) in excess of the permitted gross weight of 5,500 kg indicated on the vehicle licence. The plaintiff was later convicted on his own plea of overloading and was fined $2,200. According to the Motor Vehicle Examination Accident Report, the braking efficient at 30/50 kmh was 77%. Both the steering and service brake were found to be operative.

Issue Estoppel

6.  The plaintiff instituted proceedings against the defendant under the Employees’ Compensation Ordinance in DCEC 1345 of 2005. Judgment was given by HH Judge Mimmie Chan on 14 May 2008. The learned judge had the advantage of hearing the evidence of  Professor Kumta called by the plaintiff. She found that the plaintiff sustained injury to his left shoulder and lower back as a result of the accident. She found on the balance of probabilities that the plaintiff would not be able to return to his pre-accident work, which involved heavy and/or constant lifting. Mr Wright submitted that this judgment constituted res judicata against the defendant that the accident happened as described and that the plaintiff was not capable of returning to his pre-accident occupation.

7.  Cause of action estoppel should be confined to cases where the cause of action and the parties are the same in the second suit as they are in the first: Halsbury’s Laws of England, 5^th ed., vol 12 paragraph 1154 fn 4, North West Water Ltd v Binnie & Partners (a firm) [1990] 3 All ER 547, 551 per Drake J and Specialist Group International Ltd v Deakin [2001] EWCA Civ 777 at [10]. This is not the case here. The position here, it seems to me, is that the judgment of HH Judge Cha can be relied on by way of “issue estoppel” to preclude the defendant from seeking to raise any issue which has either been explicitly determined in that judgment or is an implicitly necessary element of that judgment where if it would be an abuse of process for the defendant to do so. 

8.  In determining liability under the Employees’ Compensation claim, the Court had to be satisfied that personal injury by accident arising out of and in the course of the employment was caused to the plaintiff: see s. 5 of the Employees’ Compensation Ordinance Cap 282. The Court would not be concerned with how the accident actually happened, and in particular, whether the accident was caused by the alleged negligence on the part of the defendant. The judgment of HH Judge Chan only recited the non-controversial background that the accident happened when the plaintiff was in the course of transporting the cartons of goods on the truck to a customer, and that the plaintiff was unable to stop the truck which collided into the concrete barrier. I am unable to accept Mr Wright’s submission that the judgment of HH Judge Chan gives rise to an estoppel against the defendant that the accident happened as described by the plaintiff, at least to the extent that any part of the plaintiff’s case on liability was controversial.

9.  Mr Wright is on stronger grounds when he sought to rely on the judgment of HH Judge Chan as constituting an estoppel against the defendant in respect of her finding as to the injuries which the plaintiff sustained as a result of the accident, and her finding that the plaintiff would not be able, by virtue of the injuries he sustained as a result of the accident, to return to his job before the accident. As noted above, the learned Judge had the benefit of medical evidence before her. It is also apparent from the judgment that the learned  Judge had fully considered the evidence before her in coming to her conclusions. It would plainly be an abuse of process if the defendant were to be allowed to re-litigate the issues which have been fully canvassed at the Employees’ Compensation claim. I accept that the defendant should be precluded by issue estoppel from raising any such challenge. Having said that, I should note that, in fact, the defendant has not, in these proceedings, sought either to adduce evidence or present arguments to contest these findings. These are however matters which go to quantum. I shall first turn to the question of liability.

Liability

10.  The plaintiff gave evidence that on the day of the accident, he was instructed to collect a cargo from a factory in Tsuen Wan for a regular customer in Kwai Chung. The weather was fine. He and Sagheer loaded onto the LGV some 70 to 80 carton boxes of rolls of thread, each weighing 40-50 kg, some weighing up to 80 kg. He said that he was not told what was going to be the weight of the cargo. Nor did he obtain that information from the document which accompanied the goods.

11.  In his evidence, the plaintiff said that after loading was completed and he drove out of the factory, as he turned left, he felt the vehicle swayed. He then stopped the LGV. When he started moving again and turned left, he felt the backside of the LGV swaying to the right. He said that he felt the goods were very heavy and made a call to the defendant using his mobile telephone. According to the plaintiff, he told the defendant that the LGV was overloaded, and he asked the defendant to send another vehicle; but the defendant replied that the other vehicle was not available, and that if there was going to be a fine, he would pay. He added that the company which was going to receive the goods would close at 6 pm, and since he had already loaded the goods, he must go.

12.  He said he continued with the journey and whilst on Ching Cheung Road, he had the accident. Ching Cheung Road is a dual carriageway, but at the time, the inner lane was closed to traffic. The plaintiff said he was driving along the outer lane when a taxi in front of his LGV braked abruptly. He said he tried his best to brake his vehicle but when he applied his brakes, the vehicle swerved to the right side and went up the concrete barrier.

13.  In his witness statement, he said the accident happened because (1) he was driving at 40-50 Kph, (2) there were vehicles slowing in front, (3) he braked to stop, (4) he could not stop and (5) he steered into the concrete barrier. He said he could not stop in time because “the brake did not work properly”.

14.  In his evidence in chief, the plaintiff was specifically asked whether he turned the steering wheel at all when he braked. He answered in the negative, and said he was holding still with his both hands. He said he did not turn the steering wheel either to the left or right. He said he felt as if something was pushing the LGV from behind and the LGV went to the right.

15.  He said the taxi was about 2 vehicle lengths in front of him when it suddenly braked. He said that his LGV did not collide with the taxi, but stopped after colliding with the concrete barrier at a distance of about 1 truck’s length from the taxi. He said he could not see any reason why the taxi braked.  No vehicles braked in front of the taxi.

16.  Sagheer was called to give evidence. His job was to assist in the loading and unloading of the cargo on the LGV. He testified that the LGV swayed from one side to another as it was being driven away from the factory. He was present when the plaintiff made his call to the defendant telling him that the LGV was overloaded. His evidence as to how the accident happened was that when the plaintiff applied his brake the LGV went to the right. He did not know why it did so, and the LGV then hit the concrete barrier. In his witness statement, Sagheer said the accident happened when the plaintiff could not stop in time, and “swerved to the right into the area of the road cordoned off”.  Sagheer’s evidence was inconsistent in material respects, and I derived no assistance from his evidence.

17.  The defendant denied that the plaintiff had called him on that day to inform him that the LGV was overloaded. He said he only came to know of the accident when he received a call from the police.

18.  According to a statement by SPC 21209 who attended at the scene at about 1800 hours on that day, the plaintiff stated at the time that he knew the LGV was overloaded, but he said the boss told him to drive. PC53160 said in his statement that he arrived at the scene at 17:50 hours and also noted that the plaintiff said the LGV was overloaded and his boss told him to transport the goods to Kwun Tong. According to this statement, the plaintiff had also stated that the LGV bumped into the concrete barrier because the vehicle in front stopped and because the LGV was overloaded and lost control.

19.  The plaintiff’s case is that the accident was caused by the overloading of the LGV, and that the defendant was negligent, inter alia, in permitting or causing the plaintiff to drive the LGV when it was overloaded.

20.  The first question I have to resolve is whether the overloading of the LGV was a cause of the accident. The second question is whether the defendant was in any way negligent in causing or permitting the plaintiff to drive an LGV and whether he knew or ought to have known that the LGV was overloaded.

21.  I shall deal with the second question first. There is a direct conflict of evidence between the plaintiff and Sagheer on the one hand and the defendant on the other. There is some support for the plaintiff’s version in the statements by the police. Although what was recorded to have been said by the plaintiff at the scene to the police was not wholly unequivocal, the fact that he mentioned about the boss telling him to drive does tend to support the plaintiff’s version. I also find the plaintiff to be a straightforward witness and would accept his evidence that he did call the defendant when he found the LGV to be overloaded, and that the defendant instructed him to proceed nevertheless. The defendant owed a duty to the plaintiff to take reasonable care for the safety of the plaintiff when performing his duties. By instructing the plaintiff to continue to drive an overloaded LGV, the defendant was, in my judgment, in breach of his duty of care to the plaintiff. Indeed, as an employer, the defendant ought to have provided the plaintiff with a safe system of work, and should have taken reasonable steps to find out what was the weight of the cargo that he was instructing the plaintiff to carry on the LGV, and to ensure that the lorry he was dispatching could properly carry the cargo. In my judgment, the defendant was in breach of his duty also in failing to provide a safe system of work.

22.  The finding that the defendant was in breach of his duty of care does not, however, avail the plaintiff unless he can show on the balance of probability that the overloading was a cause of the accident.

23.  On the first question, I have regrettably not been assisted by any expert evidence on how the overloading would have affected the braking and steering of the LGV in the conditions and circumstances which the plaintiff found himself in at the time. In July 2009, the plaintiff applied for leave to adduce expert evidence on the effect of overloading. The Master refused that application as no report was produced at that stage. In December 2009, the plaintiff obtained a report by Professor Joseph Lai on the effect of overloading. He then applied for extension of time to appeal against the Master’s refusal to adduce expert evidence. That application was dismissed by Fung J on 11 June 2010. Mr Wright renewed the application before me on the second day of the trial. For the reasons I gave in an oral ruling delivered on 30 December 2010, I refused to grant leave to the plaintiff to adduce that report into evidence.

24.  I indicated at the time that even assuming I had a discretion to grant leave to adduce such evidence, I would exercise my discretion against the plaintiff for 2 reasons. The first was that granting leave at such a late stage would prejudice not only the defendant, but also the conduct of the trial. The second was that I did not consider the report to assist the plaintiff on the case as pleaded by the plaintiff, and upon the version of events as deposed to by the plaintiff in his witness statement.

25.  Mr Wright put his case for the plaintiff on causation as follows: He said that one can infer from the plaintiff’s evidence as to how the LGV swayed as he was driving away from the factory that the overloading caused a problem with the steering of the vehicle when it was on a bend. He submitted that as the LGV negotiated a bend, the weight of the vehicle would tend to go to the outside of the curve, and the overloading caused the outward force to be much greater. He prayed in aid the police sketch and the photographs taken at the scene to demonstrate that the LGV was on a moderate left bend shortly before the point of collision with the concrete barrier.

26.  He recognized that his difficulty in this submission was that the plaintiff did not indicate in his evidence that he was turning a bend; but he submitted that a person may not always remember what happened during an emergency.

Discussion

27.  On the basis of the evidence of the police sketch and photographs of the scene, I am satisfied that the plaintiff was indeed negotiating a left bend. From the police sketch, that bend was a natural and mild curve, and I accept that the plaintiff might not have been conscious that he was turning the steering wheel in negotiating the bend.

28.  I also accept the plaintiff’s evidence that when he negotiated a left hand turn as he left the factory, he felt the backside of the vehicle to be swaying. This can only be the result of overloading, and in turn shows that the overloading of the LGV did have an effect on the stability of the vehicle as it was making a turn.

29.  The plaintiff’s witness statement did not suggest that he was encountering a problem over the steering control. What he said was that he was braking to stop, and because he was unable to stop, he “steered” into the concrete barrier. His version changed when he gave his evidence in Court. He said when he applied the brake, the vehicle turned to the right side and went up to the concrete barrier. On this account, if he was in fact negotiating a left bend, as the objective evidence indicates he was, it is quite possible that what he was experiencing was a loss of steering control. This is supported by the following evidence:

Q. What caused the vehicle to the right to strike the central barrier?

A. I felt like some one is pushing the vehicle from behind and the vehicle went to the right side.

30.  Given the inconsistency in the plaintiff’s versions and the lack of expert evidence, I do not find the issue of causation an easy one to resolve. However, after much reflection, I have reached the conclusion that the overloading did cause the accident.

31.  As between the two versions of his case, one in the witness statement, and the other in the witness box, I find the latter to be more reliable and accept that evidence. I do so not only because I have been able to observe the manner in which the plaintiff gave his evidence in Court, but also because I find that version to be more consistent with the objective evidence and with inherent probabilities.

32.  As regards the lack of expert evidence, I consider that I can rely on the plaintiff’s evidence as to hand the LGV swayed when the plaintiff left the factory as the basis for inferring that the overloading of the vehicle did have an effect on the stability and control of the vehicle when it was on a bend.

33.  I also remind myself that in law, causation is to be determined by a judge using a common sense approach, and applying the standard of the balance probabilities: see Lee Kin-kai, a patient by his father and next friend Li Wah v Ocean Tramping Co Ltd [1991] 2 HKLR 232. Applying a common sense approach, and on the evidence that I accept, I am satisfied on the balance of probabilities that the overloading did cause the accident.

Quantum

34.  The plaintiff was admitted to the Caritas Medical Center after the accident. He complained of sternal pain and was found to have tenderness over the lower abdomen and bruising and tenderness over the lower lumbar spine. He was unable to walk and had decreased lower limb movements because of pain. He also had left shoulder and upper limb pain. He was discharged on 9 May 2005. He was treated with analgesic and physiotherapy. According to the MRI of the lumbar spine taken on 15 July 2006, there was sacralization at L5 level, with disc bulging from L2 to L5 levels.

35.  He accepted in his statement that his conditions had improved a lot since the accident. The defendant has produced surveillance recording showing the plaintiff going about normal daily activities (walking on the street or buying groceries) on divers days in April 2007. In September 2007, when he made his statement, he still complained of occasional pain at the base of the spine, lasting several hours. He had to take pills or lie down if possible, and the pain would go down to his right thigh. He said the pain was caused by long walking or sitting, or if he tried to carry something heavy, or when the weather was cold, or if he changed position in his sleep. He also complained of occasional pain in his left shoulder joint.

36.  In his evidence, he said he no longer received medical treatment. The last time he sought medical attention for his injuries was some 4 to 5 months ago when he had severe pain in his lower back.

37.  HH Judge Chan accepted that the plaintiff also sustained injury to his left shoulder as a result of the accident, but did not consider that that was very serious.

38.  In paragraph 20 of her judgment, HH Judge Chan stated:

“Having considered the medical evidence including the reports of Dr Wong and Professor Kumta, the evidence of Mr Amjad and Professor Kumta, and observing Mr Amjad in court and as recorded on the surveillance video tape, I am satisfied that Mr Amjad sustained injury to his left shoulder and lower back as a result of the accident. I recognize that injuries to the spine and lower back are difficult to be fully healed. As apparent from the surveillance, although Mr Amjad could generally go about most of his daily activities in 2007, he was observed to be walking on 13 April 2007 with slight emphasis on his right foot, and on 23 April 2007 after a night shift at work, this listing to the right was more obvious in his walk. It can be envisaged that there might be times and days when he may experience greater pain than others, particularly, on his evidence, after walking fast or walking over 20 minutes, and after heavy lifting. Having heard Professor Kumta’s evidence in court, and in the absence of Dr Wong, I consider that it would be unsafe in the light of all the evidence to accept Dr Wong’s opinion that Mr Amjad had magnified his symptoms, and that the pain in his back is the result of natural wear and tear and unrelated to the accident.”

39.  In paragraph 22, HH Judge Chan concluded that it was more likely than not that the plaintiff would not be able to resume the pre-accident work which involved heavy and/or constant lifting in the course of loading and unloading in the transportation business.

40.  As noted above, there has been no challenge by the defendant on these matters, and I would in any event hold that the defendant is estopped from challenging that the plaintiff’s injuries were caused by the accident. I would also accept that the plaintiff was, at least by May 2008 (when HH Judge Chan delivered her judgment), unable to resume his pre-accident work. On the basis of the plaintiff’s evidence (which I accept), there is no reason to doubt that this continued to be the position at the time of the trial.

Pain and suffering and loss of amenities (“PSLA”)

41.  Prior to the accident, the plaintiff was in good health. He was 20 at the time of the accident, and is now 26. He used to play cricket but could not enjoy this sport now. He cannot lift heavy objects. He is still troubled by occasional pain. Mr Wright accepts that the injuries are below the serious injury category. He suggested a figure of HK$300,000 for PSLA, relying on Shah Nisar v Wai Kit Engineering Co Ltd and others, HCPI 1092/2003. I consider this reasonable and would award this amount for PSLA.

Pre-trial loss of earning

42.  The plaintiff earned HK$10,000 at the time of the accident for driving the lorry and doing loading and unloading. He also got a Chinese New Year bonus. He said that MPF was taken care of by the employer, as no deduction was made from his salary. This would mean that he should get on an annual basis HK$10,000 x 13 x 110%, which averages out to be $11,917 per month. Mr. Wright submitted that it would be reasonable to infer that his salary would have been increased by about 10% by the time of the trial. There has, however, been no evidence adduced by the plaintiff, either as to the actual wages paid to transportation workers in similar jobs, or any statistics from the Census and Statistics Department that would permit me to gauge what would be the level of earnings the plaintiff would have made had he not had the accident.

43.  The pre-trial period is 68 months (taking it up to January 2011). But for the accident, the plaintiff would have made 68 x $11,917 = $810,356.

44.  After the accident, the plaintiff had not been able to return to the same job. He was granted sick leave for a total of 12.36 months. When he could work, he worked as a security guard from time to time under different employers. He was able to earn something to the order of $5,500 to $7,000 per month. In the revised schedule of damages, the plaintiff indicated that he would have earned $228,850 by the date of the trial. Mr Wright informed me that the total that the plaintiff earned from the date of the accident to January 2011 was $302,050.

45.  I assess pre-trial loss of earning to be $810,356 - $302,050 = $508,306.

Future loss of earning

46.  As indicated above, the plaintiff was able to earn between $5,500 to $7,000 per month as a security guard after the accident. I would take $6,250 as his notional earning; and his post-trial loss to be $5,667 per month. I would adopt a multiplier of 18 and assess his future loss of earnings to be $5,667 x 12 x 18 = $1,224,072.

Loss of earning capacity

47.  I accept that the plaintiff would, by reason of his disability, be likely to be placed at a disadvantage in the labour market and that an award for loss of earning capacity along the principle enunciated by Lord Fraser of Tullybelton in Chan Wai Tong v Li Ping Sum [1985] HKLR 176 at 183B-D will be appropriate. Browne LJ in Moeliker v Reyrolle [1977] 1 WLR 132 at 141 explained that the first question on this head is: what is the risk that the plaintiff will at some time before the end of his working life lose that job and be thrown on the labour market? In deciding that question all sorts of factors will have to be taken into account, varying almost infinitely with the facts of each case. If the court assesses there is a risk which is substantial or real, the court must assess this risk and quantify it in damages. I have no doubt that in the circumstances of this case there is more than a real risk that the plaintiff would be at a disadvantage at the labour market. Doing the best I can, I would assess this loss at $6,000 x 18 = $108,000.

Special damages

48.  There is only a minor sum claimed under this head comprising mainly medical expenses and transportation expenses, totalling $6,952. I would award this sum under this head.

Future expenses

49.  The plaintiff has also claimed expenses for treatment in the future. Having regard to the plaintiff’s evidence that he was no longer receiving medical treatment for his injuries, this head of claim is, in my view, rather speculative. I do not propose to make any award under this head.

Order

50.  For the reasons I have endeavoured to give, I would make an order that judgment be granted to the plaintiff for damages assessed as follows:

PSLA	$ 300,000
Loss of pre-trial earnings	$ 508,306
Future loss of earnings	$ 1,224,072
Loss of earning capacity	$ 108,000
Expenses	$ 6,952
Total	$ 2,147,330

51.  This is, however, subject to the deduction of the sum awarded under the Employees’ Compensation Ordinance of $412,342 (plus interest on $347,372) as per the judgment of HHJ Chan dated 14 May 2008, giving a net total of $1,734,988. There be interest at 2% on general damages from the date of the writ to judgment; and interest at half the judgment rate on pre-trial pecuniary loss (loss of pre-trial earnings and expenses) from the date of the accident to the date of judgment.

52.  There will be an order nisi that the plaintiff shall have the costs of the action to be taxed if not agreed. The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.