TANG YUK HING v. CHAN CHEUK YAN

HCPI 1138/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1138 OF 1998

____________

______________

J U D G M E N T

______________

1. On 31 March 1990, now almost 10 years ago, the Plaintiff, then a 39 years old lady, was driving a van along the Castle Peak Road, in the direction of Yuen Long. It was about 2.30 in the afternoon, the weather was fine with good visibility and traffic was light. She was an experienced driver. At some stage she was aware of oncoming traffic, in particular the Defendant's car. Suddenly it swerved across her path for no apparent reason and there was a head-on collision. The Plaintiff suffered serious injuries to her right leg. Looking at the nature of the damage from the police photographs, she was fortunate to escape without serious injuries to her upper body at least. Her sister who was in the front passenger seat suffered relatively minor injuries. There was nothing the Plaintiff could have done to avoid the collision. There was nothing in the manner of her driving which could in any way be criticised. Fortunately the Defence in this case, in contrast with so many other cases of road traffic accidents which are litigated in these courts, does not contain any unrealistic, spurious allegations of contributory negligence.

2. What then caused this accident? In an interview with a police officer on the day of the accident when in hospital for his minor injuries the Defendant, who had been licensed to drive a vehicle for only 9 months prior to the collision, said that he saw a shadow in his nearside and then blacked out. He had been travelling at 60 k.p.h. Two days later to the same police officer he gave a story which was clothed around an unknown white-haired elderly lady pedestrian. She had walked quickly across his path from his nearside. She was then about 2-3 feet away from him - i.e. from his vehicle. She was already 1 1/2 feet into the roadway when he first saw her. He could not sound the horn in time but swerved and braked. He went onto the opposite carriageway and hit the Plaintiff's vehicle head-on.

3. In some questioning he added that the woman was carrying a black handbag. He was asked about his explanation on the day of the accident about a "dark shadow" and his "blackout". He said he felt dizzy after treatment and could not give a clear account at the time.

4. When he gave evidence he repeated this later explanation and it appears that he has some difficulty with estimating distances although he was able to indicate with his two hands the position of this pedestrian in relation to the kerb viz. 11/2 feet into the roadway, when he first saw her. He now said she was dark-haired and not carrying anything.

5. Allowance should be made for the fact that the Defendant was probably upset when seen by the police at hospital. However the elaboration of the dark shadow followed by his blacking out into a detailed description of the pedestrian including an estimate of her age, is rather surprising. Given his story that he did not see her until a fraction of a second before he swerved, the detail is unconvincing. On his version it is difficult to see how he avoid knocking her down - if indeed she did exist.

6. Neither the Plaintiff nor her sister saw any such pedestrian. I am satisfied that they would have done if she in fact existed. I do not believe him. His story is fraught with embellishment. There was in my view no such pedestrian. He left no brake marks. No one else saw a pedestrian in the road. His evidence was quite unconvincing.

7. He had little experience of driving. Although it is not necessary to find a positive explanation for his action, I consider he either fell asleep or he was distracted by some other factor. The former is more likely but in any event he was clearly negligent. Even if he had been confronted by a pedestrian he ought to have seen her earlier. It was clear, daylight visibility. There was no braking. Whatever his speed - 50 k.p.h. in his evidence in court, 60 k.p.h. to the police officer in initial interview, amended to 50 k.p.h. in the statement two days later - on his own version of events, which I reject, he was negligent to some degree. That is enough for the Plaintiff to succeed wholly against him in effect. In the event I find that he was wholly liable for this collision.

DAMAGES

A. Pain and suffering : loss of amenity

8. This lady is now 49 years of age. She suffered fractures of the shaft of the right femur, tibia and calcaneum. There was avulsion of the right Achilles tendon, a degloving injury of the right foot (this was about 15 centimetres in length) and a deep laceration over the anterior right knee joint.

9. Surgery was carried out to fix the calcaneum and re-attach the Achilles tendon as a matter of emergency. Three weeks later, when her condition had been stabilised, surgery reduced and fixed by plates and pins the fractures of the femur and tibia.

10. She was discharged from Pok Oi Hospital, to which she had been transferred from the Princess Margaret Hospital for convalescence, at the end of June 1990, three months after the accident. She then attended physiotherapy and follow-up regularly.

11. In June 1992 she went into hospital to have the intra-medullary nail removed from the right femur, and further physiotherapy and follow-up ensued.

12. She managed to return to some form of work in June 1991 for about six months as a child minder but found this very tiring as it involved a lot of walking and pain and discomfort in the knee and ankle increased. She was unable to obtain further work until she became a receptionist with a wedding services company from June 1996 until February 1998. The company was laying off employees and although it is not entirely clear why she became unemployed, it sounded as if they were looking for some excuse to reduce their workforce and she had to leave. Somewhere in this time-scale she worked for a few days as a waitress in a teahouse but found that impossible to sustain, not surprisingly in view of the strain on her right knee and ankle.

13. Finally from August 1998 to date she has been working as a baby-sister earning a modest wage. It is quite clear that, her phobia apart, she is not and never will be fit again to drive a commercial vehicle involving carrying loads to and from it of any size or weight.

14. She bears a significant number of sizeable discoloured scars on her right thigh, knee and ankle. There is some external rotation of her right leg. Her right knee sustained damage to the articular surface. Her right foot is misshapen.

15. She experiences pain in her right knee on climbing stairs especially when descending, in the scarring area in her right ankle. There is also loss of sensation at the back of the right ankle with the irritating consequence of bleeding of the skin when she wears new shoes.

16. Both Dr Daniel Wu and Dr Jowher Au indicate the development of osteoarthritis which will be worsen resulting in increased pain in the right knee with consequent limited range of movement. There is also a degree of osteoporosis in the right knee.

17. She gave me the impression of being an eminently reasonable lady, in no way exaggerating her condition. In fact she appeared somewhat philosophical though obviously frustrated at the limitations imposed upon her.

18. Her understandable phobia has been treated by government psychiatrists to some extent although it is clear from the length of the sessions that she does not rank high on the list of their priorities because she is not a breadwinner, as she has been informed.

19. This may improve with the more intensive psychological intervention in the private sector because she is obviously motivated to improve if only to feel more relaxed and confident when being driven in a car as a passenger, although she would like to be able to drive again.

20. The cosmetic disability is of some importance to a woman. I note she wears trousers. Skirts of normal length would reveal some of the scarring. The restrictions upon her activities are substantial and the pain and discomfort which are bound to get worse according to the doctors, are very important aspects of this lady's permanent disability. On any view she suffered serious injuries.

21. Damages under this head will be $500,000.

B. Pre-trial loss of earnings

22. Her pre-accident salary is agreed at $7,080 per month. It is also agreed that had she been able to continue that employment, she would now be earning $13,000 monthly. The median figure, to reflect the progressive increase is $10,040. The total is therefore to date 10,040 x 119 = $1,194,760. From this must be deducted the earnings for the various intervening short terms jobs. They total $232,039. The net loss of wages to date is $962,721.

23. On behalf of the Defendant Miss To contends that the Plaintiff has failed to mitigate her loss in that she did not make sufficient effort to obtain work earlier. I regard the Plaintiff as a genuine person. She had suffered severe injuries. Her self-confidence had undoubtedly been affected. She would have liked to have returned to her pre-accident job but this hope became increasingly unreal not only because of her phobia but also by reason of her physical problems. Her intermittent work pattern after June 1996 demonstrated she wanted to work. From mid 1991 she had worked doing a relatively straightforward job as a childminder but after six months this proved to be too much of a strain for her. I do not consider she had failed to make proper efforts to obtain employment.

C. Post-trial loss of earnings

24. She is currently earning $3,000 monthly net. The continuing partial loss is therefore $10,000 monthly. She will be 50 years old this year. She may have worked beyond 60. The proper multiplier is in my judgment 8. The loss under this head is therefore $10,000 x 12 x 8 = $960,000. I do not think that she is capable of a more remunerative job. If she were, and if it were available, she would have obtained it.

D. Loss of earning capacity

25. It is agreed between the parties that there is such an element - the nature of her current work and the difficult she has had in obtaining manageable employment is evident - and they have also agreed the figure at $100,000. I therefore award this.

E. Future psychological counselling

26. Dr Barry Connell deals with this aspect fully in his report. Dr Peter Ho on behalf of the Defendant does not appear to dispute the need for such treatment in principle. Furthermore Dr Chung (p.37 - report dated 27 May 1999) had in mind some intensive therapy to deal with the phobia, he having seen her three times since September 1997. Dr Connell had seen this report and it supports his approach. I think it is a case for psychotherapy for a period of 12 months as set out by Dr Connell. She is sensible enough to be prepared to undergo this to improve her state of mind. I therefore allow $22,500. In my judgment there is no need for subsequent psychiatric intervention. The overall evidence is against it. On this aspect if psychotherapy does not achieve its object - and I think there is a good chance that it will - psychiatry will be a waste of effort and cost.

Special damages

a) Medical expenses

Although not all substantiated by receipts I have heard her evidence and it is a reasonable figure. I was also satisfied that she was not given to exaggeration or embellishment of her claims. I allow $3,500.

b) Tonic food

This is always a controversial item and tends to be excessive in the sense that it usually over and above what is directly attributable to an accident and what a Defendant can reasonably be expected to pay for. It is also difficult to quantify and prove. Counsel have in effect agreed my suggestion that in this case $10,000 would be reasonable rather than the $27,520 claimed. Accordingly I allow $10,000.

c) Travelling expenses

These are claimed at $400. It is unarguably a reasonable figure and Miss To does not seek seriously dispute it. It is therefore allowed at $400.

SUMMARY

Pain and suffering and loss of amenity	500,000
Pre-trial loss of earnings	962,721
Post-trial loss of earnings	960,000
Loss of earning capacity	100,000
Future psychotherapy	22,500
Special damages	13,900
Total	$2,559,121
	========

27. There will be judgment for the Plaintiff for $2,559,121 with costs to be taxed if not agreed. She is also entitled to interest on those heads of damage which carry interest at the appropriate rates for the proper periods. This is to be calculated and agreed by the parties and notified to the court in the usual form. As a matter of law the Defendant is entitled to set off the payment made by her former employer under the Employees Compensation Ordinance. It is unfortunate that her employer did not seek to recover this.

DELAY AND COSTS

28. This action was not commenced until almost three years after the accident. It was late then. It virtually went to sleep for the following three years. Two notices of intention to proceed were given - one in September 1996, another in October 1997. Nothing seems to have happened between those dates. The action was not even transferred to the Personal Injury List until October 1998, two and a half years after the Practice Direction requiring this. Fortunately for the Plaintiff no steps were taken by the Defendant to strike the action out.

29. Mr Chan, on instructions, has valiantly sought to soften the obvious inferences to be drawn from this neglect. But this was a simple case on liability. The evidence lasted a little over half-a-day. It ought to have been tried long ago in 1995 or 1996 at the latest. Liability could have been tried earlier. Although the Plaintiff's condition was perhaps not clear until 1996 it was never going to get better, only worse and predictably so.

30. I have, despite the inexcusable delay, decided that the Plaintiff should not bear the burden of forgoing some of her interest. I also bear in mind that the Defendant had been content to let matters drift on, and they took a wholly unrealistic view on liability and some of the aspects of damages. Instead I have taken the view that her solicitors should not be entitled to charge any costs against her.

31. In any event at one stage they took a wholly unjustified procedural step in amending the Statement of Claim and taking out a summons which was heard by the Registrar in the presence of representatives of both parties in 1994. In fact the only amendment was to correct one figure, to represent loss of earnings, which had been arrived at by faulty multiplication. It was a complete waste of paper, judicial resources and practitioners' time. The Plaintiff's solicitors could have notified the Defendant's solicitors by letter, almost in passing, of the nature of their error. The Defendant's solicitors could simply have acknowledged the correction and taken no point. In any case the figure was going to be altered as time passed. Although an order for the Defendant's costs was made on the summons, in the exercise of my discretion and as part of my review of the position of the delay and the costs in this case, I am varying that order to one of no order for costs. The Plaintiff's solicitors will not be entitled to charge those costs either against the Plaintiff by way of deduction from her damages, or against the Legal Aid fund. Such was the straightforward nature of this action, and the delay, that I have decided that the Plaintiff's solicitors should not have any costs beyond the party and party costs which they recover from the Defendant. I am satisfied that these will be more than adequate.

32. I therefore will not make an order for Legal Aid taxation but this part of the order will be an order nisi in the event of the Legal Aid Department wishing to make representations.

33. The sum of $800,000 was paid into Court on the 4 November 1999 by the Defendant. This sum will be paid out to the Director of Legal Aid for onward transmission to the Plaintiff, in part satisfaction of the judgment, once it has become clear that the nisi order in relation to costs has become absolute.