WONG SUN CHEONG, suing by his next friend LEE YIN SHEUNG v. CHOI CHI KONG AND ANOTHER

HCPI 1129/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1129 OF 2014

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J U D G M E N T

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1.  The plaintiff Wong Sun Cheong (“P”) sues by his next friend Lee Yin Sheung (“Madam Lee”) in this action.

2.  On 3 November 2011 at about 1.08 pm P was crossing the road at Sung On Street in Kowloon City near lamp post BF1132 when he was struck by a lights goods vehicle registration number MN 6198 (“the vehicle”) driven by the 1^st defendant (“D1”).  The vehicle was owned by the 2^nd defendant(“ D2”).

3.  It is not disputed that D1 was driving the vehicle in the course of his employment with D2 at the material time.

4.  As a result of the collision, P sustained severe head injuries as is borne out by the agreed medical evidence.

5.  Both liability and quantum are in issue, although certain heads of damages were agreed in the course of the closing submissions of counsel.

6.  I heard evidence from Madam Lee and D1.  It was agreed at trial that P’s witness statement as amended do stand as his evidence in chief without cross‑examination by counsel for the defendants.

Liability

7.  The undisputed facts are that at the material time on 3 November 2011 P was working as a delivery man at Kai Ming Food Shop (“Kai Ming”) situated at Shop B, Ground Floor, 4 Kai Ming Street, To Kwa Wan in Kowloon.  P was carrying about 10 lunch boxes in plastic bags from Kai Ming intending to deliver them to Hong Kong Po Leung Kuk Ngan Po Ling College.  He had to cross Sung On Street to deliver the lunch boxes there. There were northbound and southbound lanes for vehicles travelling on Sung On Street.

8.  There is also no dispute that P had already crossed the northbound lane of Sung On Street and was on the southbound lane of Sung On Street when he was struck by the vehicle driven by D1 which was travelling in the southerly direction of Sung On Street at the time.  This was at about 1.08 pm.

9.  Before the collision, D1 had driven the vehicle from Yuk Yat Street and turned into Sung On Street travelling in the southerly direction.  He had driven past the CCC Kei To Secondary School and a pedestrian crossing with a safety island (“the pedestrian crossing”) before he reached the road outside the Hong Kong Po Leung Kuk Ngan Po Ling College where the vehicle struck P.  P was crossing the southbound lane of Sung On Street at the time after he had crossed the northbound lane.  The pedestrian crossing is the pedestrian crossing shown in the sketch plan in exhibit D1 and also in the photographs in evidence.

10.  The above facts are undisputed and I find them proved.

11.  D1 gave evidence that at the material time the northbound lane of Sung On Street was obstructed by tourist coaches which were parked on the side of the road.  As D1 said, and as I accept and find, there were coaches double parked by the side of the road in the northbound lane of Sung On Street at the place where P crossed Sung On Street.

12.  The police sketch made after the collision shows that there were three coaches parked on the side of the road.  In evidence, D1 marked in exhibit D1 the place where coaches were parked in the northbound lane of Sung On Street.  On his evidence and as marked by him on exhibit D1, it is clear that there were two rows of coaches parked there: the first row in the lay by, and the second row where the coaches were double parked alongside the coaches in the first row.

13.  D1 has always maintained that the coaches were double parked on the northbound lane and I accept his evidence on this. Although the sketch (at page 235 of the trial bundle) only shows one row of parked vehicles in the northbound lane, I am satisfied and find that there were two rows of coaches parked on the northbound lane of Sung On Street at the time when P crossed Sung On Street before the collision.

14.  D1 said that he was familiar with the condition of Sung On Street at the place where the collision took place.  He knew that there were always rows of large tourist coaches parked on the northbound lane as there were shops there selling goods which were popular with Mainland tourists.

15.  There is no dispute that at the material time the road condition was dry.

16.  In his witness statement D1 said that he was driving at about 20 to 30 km/h entering into Sung On Street and that he had been maintaining his awareness and alertness on the road conditions at the time.  He said that P hurriedly dashed across the southbound lane of Sung On Street and that when he first him, P was only one meter from the right front of the vehicle.  D1 said that he immediately braked and swerved to the left to try and avoid P but could not avoid hitting P.  P was struck by the right front of the vehicle by the right side rear view mirror.  The photograph Photo 6 shows D1 pointing to the part of the vehicle which struck P.

17.  As regards the speed at which he was driving at the time of the collision, D1 said in cross‑examination that before turning into Sung On Street he was driving at about 30 km/h and that as soon as he turned into Sung On Street he started to slow down as he was aware that there were stationary coaches parked on Sung On Street.  He further said that before passing the pedestrian crossing he had reduced his speed to about 15 km/h. He also said that after passing the pedestrian crossing he was still driving at 15 km/h.

18.  I would observe that, as D1 accepted in cross‑examination, D1 did not mention in his witness statement that he had slowed down his speed along Sung On Street to about 15 km/h.

19.  In his statement to the police made on 18 November 2011, D1 said that he was driving at about 15 to 20 km/h along Sung On Street at the time.  However, in his witness statement he said that he had been driving at about 20 to 30 km/h entering into Sung On Street.  He never mentioned in his witness statement that he had slowed his speed down to about 15 km/h and that he was driving at 15 km/h at the time of the collision.  I do not believe him.  I do not believe that he was driving at about 15 km/h along Sung On Street when he struck P. I would observe that 15 km/h is indeed a very slow speed and if he had in fact been driving so slow (which evidence I reject) it would have been easy for him to avoid colliding with P.  I find that on a balance of probabilities he was driving at about 20 to 30 km/h at the time of the collision along Sung On Street as he said in his witness statement.

20.  I am satisfied and find that, on his evidence, D1 was well aware of the presence of two schools in the area.

21.  There was also a pedestrian crossing on Sung On Street just before that part of the road where P crossed.  D1 was familiar with that section of Sung On Street and the road conditions at that time with parked coaches on the northbound lane as it was a popular shopping area for tourists arriving in coaches. 

22.  I am also satisfied and find that, as he accepted in cross‑examination, D1 was also aware that pedestrians could cross Sung On Street from between the coaches parked on the northbound lane. 

23.  Mr Szeto, for the defendants, submitted that at the material time P ran across Sung On Street.  There is no evidential basis for this and I reject the submission that P ran across Sung On Street when he was knocked down.  D1’s evidence was that P walked hurriedly across and not that he ran across.  I accept D1’s evidence on this and find that P walked hurriedly across Sung On Street when he was knocked down by the vehicle.

24.  It seems to me that with his familiarity of the road conditions at the time, that he was driving in an area with two schools and a pedestrian crossing there and with the knowledge that pedestrians could emerge from between the parked coaches, D1 had to be vigilant and be alert for pedestrians crossing Sung On Street at the time.  He had to maintain a proper lookout for pedestrians crossing the road albeit from between the parked coaches.  He also had to drive the vehicle at a safe speed in all the circumstances.

25.  In my judgment D1 failed to keep a proper lookout and failed to drive the vehicle at a safe speed in all the circumstances thereby causing the accident.  He said that he only saw P when P was one meter from the front of the vehicle.  If he had maintained a proper lookout and was driving at a speed slower than 20 to 30 km/h in my judgment he would have seen P when P was further away from his vehicle and he would have been able to avoid the collision.  He had a clear view of the southbound lane after passing the pedestrian crossing.  He said that he was driving in the middle of the lane.  There was no evidence that his view was obstructed by vehicles travelling in front of him on the southbound lane.

26.  I am satisfied and find that the accident was caused by D1’s negligence in failing to keep a proper lookout and failing to drive the vehicle at a safe speed in all the circumstances.  Liability is established against D1 and D2 is vicariously liable.

Contributory negligence

27.  Although liability has been established, it seems to me that P was guilty of contributory negligence. 

28.  There was the pedestrian crossing along Sung On Street yet P chose not to cross there.  Mr Cheung, for the plaintiff, submitted that P had no choice but to cross the road between the parked coaches as the pedestrian crossing was blocked by a parked coach at the time.  He relied on the police sketch at page 235 of the trial bundle.

29.  I reject the submission that P had no choice but to cross the southbound lane at the place where P crossed.  In my view, P should have crossed Sung On Street at the pedestrian crossing.  Although the sketch relied on by Mr Cheung shows a parked coach in front of the pedestrian crossing, it seems to me that P should have used the pedestrian crossing to cross the road over to the southbound lane after having crossed the northbound lane of Sung On Street.  I so find.

30.  It also seems to me, and I so find, that P failed to observe the vehicle driven by D1 in the southbound lane as he was in a hurry to cross Sung On Street and failed to pay attention to the oncoming traffic.  In my judgment he failed to take care of his own safety in all the circumstances.  I find that a high degree of contributory negligence to the extent of 50% falls on the part of P.  In my judgment liability is apportioned as to 50% on the part of D1 and 50% on the part of P.

31.  Both Mr Cheung and Mr Szeto referred to a number of authorities in their written submissions on the question of liability.  I have considered these but do not think that it is necessary to set these out here.  Each case clearly depends on its own facts and the authorities relied on were fact sensitive.

Quantum

32.  P was born on 7 June 1947 and was 64 years old at the time of the accident.  He is now 69 years old.

33.  P has been living with Madam Lee who is his common law wife.

34.  There is no doubt that P suffered serious head injuries as a result of collision.

35.  As has been set out in the joint medical report dated 29 June 2015 (“the Joint Report”) by the neurological experts Dr Brian Choa (“Dr Choa”) for P and Dr Yu Yuk Ling (“Dr Yu”) for D1 and D2, P was knocked unconscious as a result of the collision.  He was taken to Queen Elizabeth Hospital (“QEH”) by ambulance.

36.  As stated in the Joint Report (at pages 215 to 217 of the trial bundle):

“On arrival his Glasgow Coma Scale (GCS) score was 10/15. Radiological investigations showed fractures on the left side of his skull, subarachnoid bleeding, subdural bleeding as well as contusion of the brain substance.

Emergency operation was done that day to evacuate blood clots and to insert a ventricular drain. He deteriorated overnight and a further emergency operation was done the following day to evacuate more blood clots. Thereafter his recovery from surgery was uneventful, but he has no recall at all of this period. Indeed [P’s] next memory after the accident was of the later part of his stay at Kowloon Hospital, so his post‑traumatic amnesia is estimated as over one month.

He was sent from QEH to Kowloon Hospital for rehabilitation on 21^st November and stayed there until early January 2012, when he was transferred to an old people’s home. At that time he was, according to the report from KH, able to walk unaided but with some supervision.

While at this and another old people’s home, [P] often absconded and tried to get back to the home he shared with Madam Lee. On one such occasion in January 2012, he fell in the street and lacerated his forehead. He was taken by police to the Caritas Medical Centre (CMC) when his wound was sutured. X‑rays and CT head scanning excluded further brain injuries. He was discharged the same day back to the old people’s home.

In May 2012, he was re‑admitted to QEH for his third operation, a cranioplasty to repair the skull defect with a metallic prosthesis.

In August 2012, while having lunch at home, he developed status epilepticus with refractory generalized epileptic seizures. He was admitted to Kwong Wah Hospital where the seizures were controlled with some difficulty. He needed to spend time in the intensive care unit where he was intubated. He was then started on the antiepileptic drug phenytoin which he continues to take. He has been seizure‑free since that one occasion.

Some time in 2014, he was diagnosed with high blood pressure, high blood sugar (diabetes) and high cholesterol. He is now on treatment for these conditions at the Yaumati Out‑patient Clinic.

The neurosurgeons at QEH continue to follow him up every 3 months.”

37.  P was examined by Dr Choa and Dr Yu on 26 June 2015.  According to the Joint Report, P was found by them to be a placid, well‑looking man who looked young for his age.

38.  On physical examination of his head and neck and nervous system, their findings were as follows:

(1)  Head and neck: The neck movements were found to be full and pain free.  The craniectomy scar on the left side of his skull was noted.  There was no tenderness in the area;

(2)  Cranial nerves: The hoarseness and slurring of speech mentioned in the hospital reports were no longer present.  Eye movements were normal and there was no facial or tongue weakness.

(3)  Limbs: The upper limbs were normal.  The right leg showed mild spasticity with heightened reflexes.

(4)  Station and gait: He walked stably but could not walk heel to toe, showing truncal ataxia.  He was able to stand with feet together and eyes closed.

(5)  Higher mental functions: He scored 18 points out of a possible 30 on the mini mental state examination.  This put him into the category of mild to moderate dementia.  Dr Choa and Dr Yu considered this to be a great improvement on his scores in hospital which did not exceed 5/30.  P had naming difficulty, showed slowed comprehension of terms and instructions, often showed dysphasic slips when speaking but his speech was fluent with normal prosody and he showed no apraxia.

39.  Dr Choa and Dr Yu agreed that P had sustained a severe head injury as a result of the collision.  There was loss of consciousness, prolonged post‑traumatic amnesia, skull fractures and multiple sites of intracranial bleeding requiring two emergency operations in the first two days to control.  P’s brain injury was complicated by epileptic seizures in August 2012 but these had not recurred.

40.  It was also agreed that as a result of the severe head injury P had dysphasia (problem with language) and cognitive dysfunction and epilepsy.  He had naming difficulty and also an impaired ability to express himself (often using the wrong words) as well as understanding of verbal communications.  They considered that P’s neurological deficits were permanent.

41.  It was also agreed that with P’s cognitive dysfunction, dysphasia, incontinence and impaired balance, P was not employable in any capacity.  His permanent loss of earning capacity was 100%.

42.  They were of the view that P is not capable of managing his own legal and financial affairs and is not fully independent even inside the home.

43.  Dr Choa and Dr Yu considered it unlikely that there would be any material reduction of P’s life expectancy as a result of the severe head injury.

Pain and suffering and loss of amenities (PSLA)

44.  It was accepted by counsel that P fell into the gross disability category.

45.  Mr Cheung, for P, submitted that a reasonable sum for PSLA was $1,000,000.  Mr Szeto, for the defendants, submitted that a reasonable sum for PSLA would be in the range of $750,000 to $800,000 bearing in mind the age of P.

46.  Mr Cheung relied on:

(1)  Cheung Wai Ping v Chan Yuen Yee (HCPI 668/2005, 8 February 2007, DHCJ Muttrie) where $1,000,000 was awarded for PSLA;

(2)  Lam Mo Bun v Hong Kong Aerosol Co. Ltd & others [2001] 1 HKLRD 540 where DHCJ Muttrie awarded $800,000 for PSLA;

(3)  Siu Leung Sing v Wong Fook Wing & another (HCPI 1096/1999, 8 November 2002, Seagroatt J) where $900,000 was awarded;

(4)  Law Ping Leung v Ng Sze Pong [2009] 5 HKLRD 426, where Recorder Benjamin Yu SC awarded $1,100,000 for PSLA;

(5)  Chan Yuk v Dragages et Travaux Publics (HK) Ltd & others [2000] 2 HKLRD 795, where Seagroatt J awarded $1,250,000 for PSLA.

47.  Apart from the above authorities, Mr Szeto also relied on:

(1)  Chan Sze Ki v Department of Justice & another [2005] 3 HKLRD 520, where Suffiad J awarded $800,000 for PSLA;

(2)  Leung Kwok Keung v Leung Iu Wa [2004] 3 HKLRD 421 , where DHCJ Wright awarded $800,000 for PSLA;

(3)  Wong Hin Pui v Mok Ying Kit & another (No.2 )[2000] 1 HKLRD 856, where Seagroatt J awarded $1,000,000 for PSLA;

(4)  Wong Sin Lam suing through his next friend and wife Bong Siat Fa v Kuen Fung Construction Ltd & others (HCPI 1286/1999, 20 December 2002, Stone J) where $1,000,000 was awarded for PSLA;

48.  I would observe that in all of the above authorities the plaintiff was much younger than P in this action.  P was 64 years old at the time of the accident and he is now 69 years old.  Having considered the authorities and the situation of P as a result of the collision, it seems to me that an appropriate award to P for PSLA is $900,000 and I award this sum for PSLA.

Pre‑trial loss of earnings

49.  Mr Szeto was prepared to accept P’s earnings from Kai Ming as set out in P’s application for employee’s compensation in Employees’ Compensation Case No 1666 of 2013 (“the ECC claim”).  The amount of monthly earnings of P from Kai Ming was $3,490 before the accident.

50.  Mr Szeto, however, was not prepared to accept that P was entitled to any more than the said monthly sum for pre‑trial loss of earnings.

51.  Madam Lee gave evidence that before the accident P received monthly CSSA payments in the amount of about $2,000 from the Government.  He also had a few part‑time jobs concurrently apart from his job as a delivery man with Kai Ming.

52.  It was Madam Lee’s unchallenged evidence that before the accident P went to work at about 6.30 am and returned home at about 6 pm.  He gave her $200 a day before the accident if he went to work that day and that he went to work almost every day.  According to her, he worked for 27 to 28 days monthly on average.

53.  Madam Lee also gave evidence that in 2015 she went with P to make enquiries as to P’s earnings before the accident.  On 26 February 2015 she asked a Mr Lee of Wing Hing Restaurant about P’s employment status and was told that apart from his job at Kai Ming, P also worked as a delivery man delivering soya milk.

54.  Madam Lee also went to Kai Ming’s new address on 10 March 2015 and from her enquiries she learnt that P had also worked at Kwai Kee soya milk shop (“Kwai Kee”) before the accident.  According to Madam Lee, a Mr Ho of Kwai Kee told her that P had worked for one hour a day before the accident earning $35.  Mr Ho also told her that P had also delivered noodles for Ting Ho Noodles Shop (“Ting Ho”).

55.  Madam Lee also said that she went to Ting Ho on 10 March 2015 and made enquiries from “Ah Fung” there who told her that P had worked there from about 10 am to 11 am for delivery of noodles and received a daily wage of $100 per day.

56.  Madam Lee was unable to give the full names and contact information for Mr Lee of Wing Hing, Mr Ho of Kwai Kee and Ah Fung of Ting Ho.  Apart from saying that Mr Ho was the owner of Kwai Kee, she was unable to give any further information about Mr Lee or Ah Fung.

57.  What Madam Lee was told by the various persons about the earnings of P in his part time jobs was clearly hearsay and it may well be multiple hearsay.  As Madam Lee said in evidence, she had been asked by her solicitors to make those enquiries.  That being so, it is indeed surprising that P’s solicitors did not follow up the matter with them with a view to obtaining proper and reliable evidence of P’s earnings from his part time jobs as a delivery man.  No explanation has been provided as to why the solicitors did not follow up the matter.  It seems to me that Mr Szeto’s criticism of this hearsay evidence of the P’s earnings from his part time jobs as being unreliable is well founded.

58.  Be that as it may, the unchallenged evidence of P is that he did have several part time jobs concurrently with his job at Kai Ming before the accident.  The unchallenged evidence was that before the accident he delivered noodles, soya milk and food everyday.

59.  I accept and find that he earned $3,490 on a monthly basis from Kai Ming.  This was based on him working for five hours a day.  In my view, it was reasonable for him to have worked on average for 26 days a month and on that basis he earned about $135 a day.  For a five hours’ day it comes to $27 per hour.

60.  On the evidence it seems to me that a reasonable sum for P to have earned from the part time jobs with Kwai Kee (delivering soya milk) and with Ting Ho (delivering noodles) would also be $27 per hour for each of those part time jobs per day.  He only worked an hour a day for each of those part time jobs.  That being so, it seems to me that a reasonable sum that he would have earned from his part time jobs with Kwai Kee and Ting Ho would have been $54 ($27x2) per day or $1,404 per month on the basis that he worked on average for 26 days a month.

61.  I assess P’s total monthly pre-trial loss of earnings at $4,894 ($3,490 from Kai Ming + $1,404 from Kwai Kee and Ting Ho).  It is agreed that the pre‑trial period is 55 months.  I, therefore, award $269,170 for pre‑trial loss of earnings.

Future loss of earnings

62.  I bear in mind that P who was 64 years old at the time of the accident was in good general health at that time.  It seems to me that for the type of jobs that he was doing, he could have gone on working past the normal retiring age of 65 years for most jobs.

63.  In his closing submissions, Mr Cheung submitted that P would have been able to continue his employment until age 75 years and submitted that the court should adopt a multiplier of 3 for future loss of earnings.

64.  Mr Szeto, in his closing submissions, submitted that a multiplier of 1 should be adopted on the basis that P is now 69 years old and that it would be reasonable to adopt a multiplier of 1.

65.  It seems to me that a reasonable multiplier to adopt for loss of future earnings is 2.  I award $117,456 ($4,894 x 12 x 2) for loss of future earnings.

Loss of earning capacity

66.  This was no longer pursued by Mr Cheung and no award is made for loss of earning capacity.

Future care and attention

67.  It was accepted that P needs care and attention for the rest of his life with his life expectancy at 80 years.  P claimed the cost of hiring a domestic helper to look after P.

68.  In the course of counsel’s closing submissions, P’s future care and attention was agreed in the sum of $474,951.60 ($4,110 x 12x 9.63) applying the Chan’s Tables 2016 , Table 28.

Special Damages

69.  In the course of counsel’s closing submissions, special damages were also agreed in the sum of $94,000.  This included travelling expenses, tonic food and expenses for diapers for P.

Future expenses for diapers

70.  In the course of counsel’s closing submissions, this item was also agreed in the sum of $173,340 ($1,500 x 12x 9.63) applying the Chan’s Tables 2016, Table 28.

Summary

71.  The award of damages is as follows:

(1)	PSLA	$900,000
(2)	Pre-trial loss of earnings	$269,170
(3)	Future loss of earnings	$117,456
(4)	Future care and attention	$474,951.60
(5)	Special damages	$94,000
(6)	Future expense for diapers	$173,340
	Total	$2,028,917.60

72.  From the total award of $2,028,917.60 must be deducted the 50% contributory negligence of P as I have found thereby reducing the award to $1,014,458.80.

73.  In the ECC claim P was awarded the sum of $968,408 by the order dated 22 December 2015.

74.  Deducting the award of $968,408 made in the ECC claim, the plaintiff is entitled to judgment in the sum of $46,050.80.

75.  I give judgment to the plaintiff against D1 and D2 in the said sum of $46,050.80.

76.  I also award the plaintiff interest at 2% pa on general damages for PSLA from the date of writ to the date of judgment and interest at half judgment rate on the special damages from the date of the accident to the date of judgment.

77.  I also make an order nisi that D1 and D2 do pay the plaintiff his costs of the action.  The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.