FUNG BO HA v. TANG TIK CHUNG AND ANOTHER

CACV 2038/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 2038 OF 2001

(ON APPEAL FROM HCPI NO. 1368 OF 1999)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from a judgment of Seagroatt J given on 29 June 2001. The action was brought by the plaintiff in respect of personal injuries suffered by her as a result of a traffic accident. The judge awarded the plaintiff the sum of $1,906,548.00 with interest on the pain, suffering and loss of amenities at 2 per cent per annum from the date of writ and interest on the pre-trial loss of earnings and miscellaneous expenses at half the judgment rate from the date of accident to the date of judgment and thereafter at judgment rate from the date of judgment until payment and costs. The third party, who was the plaintiff's husband, was ordered to indemnify the 1st defendant in respect of one third of the plaintiff's damages and costs.

2. On this appeal both the 1st defendant and the third party appealed against the finding that they were negligent. In addition, the 1st defendant appeals against the finding of the judge that the plaintiff was entitled to an award in respect of total loss of future earnings. It is said that the plaintiff was capable of some work and that damages should have been adjusted accordingly.

3. At the conclusion of the hearing, this court indicated that it would give its decision in writing which we now do.

Background

4. At the outset, it has to be noted that the 1st defendant's appeal on liability is an appeal as to a finding of fact by the judge. The third party's appeal is twofold. In the first place, the third party also appeals on a question of fact. In addition, however, an argument is raised that even on the judge's finding of facts, the third party should not have been held liable for the accident.

5. Some of the facts are beyond any dispute. The plaintiff was engaged in estate agent work. On 14 November 1998, shortly after midnight, she travelled on a bus going towards Yuen Long. She alighted from the bus in Kam Sheung Road. The bus had evidently not stopped exactly at the relevant bus stop. Whilst on the pavement, she was struck by a van driven by the 1st defendant. The van was also proceeding in the direction of Yuen Long. It had braked. Skid marks were left on the road. The van hit the rear of a taxi driven by the third party; it then hit the plaintiff, throwing her into the ditch. The van ended upside down on top of the plaintiff facing the opposite direction to that from which it had come. The third party taxi had been driven along the road in the opposite direction to the bus and the van. Before it was hit, it had made a right turn across the road into a side turning. The third party had been prosecuted for careless driving and had been acquitted.

6. The judge heard evidence from the plaintiff and the two drivers. He did not accept the evidence of any of the witnesses in its entirety. Furthermore, the evidence of the investigating police officer was of little assistance. The judge said:

"The Officer's error lay in his lack of judgment, impartiality and thoroughness in reaching a decision precipitately. This, however, distorted the true picture of this accident."

7. The judge was assisted by photographs which had been taken by the third party in daylight on the morning of the accident. The judge did not accept a great deal of the 1st defendant's evidence. He found him an unsatisfactory witness even making allowance for his only being 19 years old. The judge remarked that at various stages in the evidence the 1st defendant had appeared bored, impatient, inattentive and amused.

8. The plaintiff's evidence had the difficulty of the fact that she had only been a pedestrian and her recollection was no doubt in part affected by the accident.

9. The third party's evidence was also not accepted in its entirety by the judge. In particular the time at which the third party said he had crossed the Yuen Long bound lane had been different on the different occasions when the third party had made statements. Moreover, the first statement made to the police in the early hours of the morning of the accident had been made at a time when the third party did not know whether his wife was still alive. The judge remarked that the third party must have been shocked by the accident and its aftermath and he accepted that the third party may well have been confused at the time. Indeed, it cannot go without remark that it was surprising, to say the least, that the police detained the third party to make a statement in the early hours of the morning when his wife had been taken to hospital in such a serious condition.

10. Having considered the evidence the judge made the following findings of fact:

"28. The first Defendant, an inexperienced motorist, was driving the 2.2 litre engined van at excessive speed along this road towards Yuen Long. It was probably in excess of 70 k.p.h. He was over the centre of the road to an extent which cannot clearly be estimated. I consider he saw the bus ahead probably slowing down and was preparing to overtake it. Hence his position on the road. He was not sensibly able to overtake it because he became aware of the taxi coming in the opposite direction. I think this awareness was belated. The taxi turned into the driveway and was wholly in the driveway before any collision took place. The first Defendant braked late in the course of coming back to his nearside and lost control of his vehicle. That vehicle turned before, or at the moment its nearside struck the kerb, and it turned through 180 degrees. The force of its impact and momentum was so great that although it collided with only the taxi's nearside, it turned that vehicle through a 90 degrees arc. In its manoeuvres it left the tyre mark shown on the photograph F which the Police Officer wrongly or incompletely recorded.

29. If the taxi had been the only vehicle on the road ahead of the first Defendant his manoeuvre and course would have been, as he thought and described, an evasive action to the offside."

11. The judge rejected much of the third party's evidence, in particular, his suggestion that the taxi had been stationary. He came to the conclusion in respect of the third party that when he turned he ought to have seen the approach of the 1st defendant, even though the 1st defendant might have been far enough away at that stage to allow the third party to turn normally without putting the 1st defendant in difficulty.

12. After finding the facts in relation to how the accident happened the judge said:

"In normal circumstances, whatever they may be, the turning vehicle would have to bear at least the major responsibility for a collision between it and the vehicle continuing along the major road. There are, however, particular features in this case, implicit in my finding as to how the accident occurred, which have caused me to find the first Defendant the major tortfeasor. His excessive, even reckless speed; his misjudgment in relation to the taxi which caused him initially to think he could overtake the bus without any risk to or from other traffic on the road, and his loss of control of his vehicle, arising essentially from his speed and poor judgment which led him to career to the nearside with the consequences which we know followed."

13. The main criticism by Mr Wright, on behalf of the 1st defendant, was that the judge was wrong to have held that the defendant saw the bus and was preparing to overtake it. It was also said that the judge should have held that the taxi protruded into the Yuen Long bound lane from the turning into which it had turned.

14. In my view, both these criticisms have no substance. In view of the state of the evidence, the judge had to piece together how the accident happened. The presence of the bus was by no means a figment of anybody's imagination. The plaintiff had clearly alighted from the bus. Indeed, it might be said that if the judge had ignored the existence of the bus it would have been rather surprising. In relation to the position of the taxi, it had been turned 90 degrees by the impact and was 4.4 metres from the road. Again, I can see no reason to fault the conclusion to which the judge came. Likewise, any criticism by the third party as to the conclusions of fact to which the judge came must fail.

15. The other point taken by Mr Chiu, on behalf of the third party, was that if the third party had, instead of turning right across the Yuen Long bound side of the road, waited, the accident would still have happened. In those circumstances it was said that the third party had not been any part of the cause of the accident.

16. In my view, that argument, too, is wrong. The judge put it in this way:

"But this was night-time, he had not seen the van approaching and had he done so he would have waited to let the van pass before turning. It is notoriously difficult to judge the speed of oncoming vehicles at night-time. He probably thought he had the cover of the bus, which had just pulled away, to enable him to turn safely."

17. As the judge went on to say in the passage which I have quoted previously, in normal circumstances the third party would have expected to have borne a larger share of the blame than the judge held. I do not consider that, on the facts as found by the judge, any other conclusion could have been arrived at other than that the turn across the Yuen Long bound lane by the third party was one of the causes of the accident.

Damages

18. Mr Wright, on behalf of the 1st defendant, argued that the judge should not have calculated the future loss of earnings on the basis that the plaintiff could not work at all. Mr Wright based his argument primarily on the report of Dr Chan of 8 November 1999, where it is said that the plaintiff "... cannot return to her pre-accident job as an estate agent. She can take up light duties, which do not require much walking such as telephone operator, ticketing officer or front desk inquiry." It was said that even if the plaintiff had had to go by taxi she should be held to be capable of doing some work which should, in counsel's estimation, be taken as being able to provide an income of about $4,000 to $5,000.

19. This submission ignores the reality of the situation. As the judge recorded at paragraph 39 of his judgment, the plaintiff has pain on standing up and numbness on sitting for any period. She relies on a walking stick. She needs physiotherapy three or four times a week and needs foot massage about twice a week. The judge had the benefit of seeing the plaintiff sitting and walking and he was satisfied that her complaints were genuine.

20. It was in the light of this that the judge came to the conclusion that there was no reasonable prospect of the plaintiff obtaining any employment in the future unless she was able to set up some business of her own. Quite understandably, the judge discounted that possibility as being no more than speculative. In this respect it can also be observed that it was the plaintiff's evidence that she had not even been able to do housework. As Mr Wong, on behalf of the plaintiff, submitted it would be surprising to expect a person to work when she cannot do her own simple housework. In the course of the trial, the judge made the observation that with a person with an injury like the plaintiff's, for whom sitting down was itself a discomfort, it was a matter for consideration as to how realistic it was to expect her to find alternative employment.

21. Again, I do not consider it is open to this court to alter the judge's assessment of damages on the basis that the plaintiff was unable to work.

22. I would, therefore, dismiss this appeal with an order that the plaintiff's costs should be borne equally by the 1st defendant and third party.

Hon Le Pichon JA:

23. I agree.

Hon Suffiad J:

24. I agree.

Hon Rogers VP:

25. The appeal will be dismissed accordingly with an order nisi the plaintiff's costs be borne equally by the 1st defendant and third party.