KWOK SUI SHUM DOROTHY v. HUI LAM HO AND ANOTHER

HCPI 375/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.375 OF 2001

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REASONS FOR RULING

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1. This is an application for interim payment under O.29, r.11 by the plaintiff. After hearing arguments on both sides, I ordered interim payment of $300,000 and indicated that I would give my reasons in writing. I do so now.

2. The plaintiff's claim is for personal injuries which she suffered as a result of a traffic accident which occurred on 18 May 1998, in which the plaintiff was a passenger in a car driven by her husband ("the plaintiff's car"). The plaintiff's car was stopped at a give way sign at the junction of Cleverly Street and Wing Lok Street. It was then hit from behind by a taxi driven by the 1st defendant and owned by the 2nd defendant.

3. As a result of that accident, the 1st defendant was convicted of careless driving at the magistrates court on 23 July 1998. He was also convicted of driving a motor vehicle when his alcohol concentration was above the prescribed limit.

4. The defendants dispute liability for the accident on the basis that the plaintiff's car had crossed the dotted white line marking the give way sign at the road junction and then suddenly stopped giving the defendants' taxi no time to pull up thereby hitting the plaintiff's car from behind. The defendants also dispute a number of facts such as the duration of time which the plaintiff's car was stopped before being hit by the defendant's taxi, the position where the plaintiff's car was stopped and the speed of the plaintiff's car immediately before the collision and whether the plaintiff's car was pushed forward by the impact of the collision.

5. I have been referred to the police sketch plan of the accident site which shows that the final resting place of the two vehicles involved. On that plan it can be seen that the final position of the plaintiff's car shows that a portion of the front of the plaintiff's car to be straddling the dotted white lines marking the give way sign.

6. The defendant relies on the decision of the Court of Appeal in England in the case of Parnell v. Metropolitan Police Receiver (1975) 1 Lloyds Rep.492 where it was held that the defendant was not negligent when his car had hit the plaintiff's car from behind while travelling on a road because the plaintiff's car travelling in front had suddenly stopped for no apparent reason.

7. That decision is readily distinguishable from the present case where the accident took place at a give way sign and where it is not unreasonable to anticipate that a motorist will possibly have to stop to give way, even if the stopping by the car in front was sudden.

8. The defendants had issued Third Party proceedings against the plaintiff's husband on the basis that he was negligent in pulling up suddenly. That however cannot affect the plaintiff's claim against the defendants. In the light of his conviction for careless driving, it is only if the 1st defendant can show that he was not negligent at all towards the plaintiff that he will be able to escape liability. Anything short of that the defendants will be liable in full to the plaintiff.

9. The defendants have not pleaded, quite rightly, any contributory negligence on the part of the plaintiff.

10. On the facts of the case as has been indicated to me, I am quite satisfied that if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages, at least against the 1st defendant if not both of them.

11. There is also evidence that the defendants' taxi was at the material time insured for third party risks by the Anglo-Starlite Insurance Co. Ltd, and notice of the proceedings has been given to the insurers concerned when the Writ was issued.

12. As for the amount of the interim payment ordered, the plaintiff claims to have suffered a whiplash injury and also Post Traumatic Stress Disorder. Her claim for general damages is put at $450,000.

13. The plaintiff also claims that resulting from her injury sustained in this accident, she had to give up her job as an Acting Financial Controller and Accounting Analyst for Premier Products Inc. in July 1999. The claim for pre-trial loss of earnings including loss of MPF is over $900,000.

14. There is also a claim for medical and travelling expenses of over $40,000

15. Her claim for future loss of earnings is put at over $7 million.

16. Quite obviously these claims will have to be substantiated and proved at the trial. For present purposes, all I need to do is to decide on an amount which in my opinion is just and not exceeding a reasonable proportion of the damages which the plaintiff is likely to recover. In all the circumstances of this case, I am of the opinion that $300,000 is a reasonable amount to order.