FOK POR v. SUM SHUK CHING

1992, No. A2555

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is a tragic case caused by a road accident that took place in the Tolo Highway on 12th May 1989 at about 5 p.m. involving 2 vehicles, a bus of the KMB bearing registration number CV 6317 and a light goods vehicle bearing registration number DU 4423.

2. The plaintiff was seriously injured as a result of the accident while he was an employee of Mr Li Sing-keung, the owner and driver of the goods vehicle, in which he was a passenger. Mr Li's fate was even worse: he was killed. The plaintiff claims damages against the estate of Mr Li represented by the defendant, Mr Li's mother and administratrix of his estate. The estate is very small, with a net value of under $31,700.

3. At the outset, Mr Law on behalf of the plaintiff, informed me that although he made no undertaking to the court, his instructions were to obtain a judgment and seek payment of the judgment sum pursuant to the Employees' Compensation Assistance Ordinance, No.54 of 1991. Without considering that Ordinance for it being irrelevant to these proceedings, I sincerely hope that those instructions will be carried into effect so that the defendant will not be troubled and distressed further with this aftermath of her son's unfortunate death.

4. I will deal with the questions of liability and quantum of damages.

Liability

5. The plaintiff's evidence is unchallenged, and in fact the defendant is not in a position to challenge the evidence because nobody gave evidence for her. Mr Li was killed in the accident and how the accident occurred was related in the evidence of the bus-driver, Mr Kwok Hung-sum and the statements of Mrs Diane Taylor and Mr Gurung, respectively a passenger and driver of a car belonging to the army. The defendant has no personal knowledge of how the accident happened.

6. I find the following facts concerning the occurrence of the accident.

7. At the time of the accident, the road surface was dry and in good condition, the visibility good, and the stretch of road consisting of 3 lanes in the direction of Sheung Shui where the accident occurred straight. The speed limit was 100 km per hour for private cars and light goods vehicles but 70 km per hour for buses.

8. While Mr Kwok was driving the bus at about 50 km per hour in the slow lane, he noticed from his off-side or right real-view mirror that there was a goods vehicle travelling at about 100 km per hour in the middle lane, about 40 metres behind. When Mr Kwok next looked at the right rear-view mirror, he saw the goods vehicle cutting into the slow lane at a high speed just about 10 metres away from the rear of his bus. Mr Kwok was alarmed and in an attempt to avoid a collision, he accelerated the bus to about 60 km per hour. Despite his effort, however, a collision occurred and as shown in photograph 27 at page 52 of the Bundle of Documents, the goods vehicle rammed squarely into the rear of the bus which was pushed forward. Mr Kwok started to apply the brakes upon the bus becoming steady and pulled it to a halt about 50 metres from the spot of the collision. The goods vehicle then proceeded to hit the division barrier in the centre of the dual carriageway and overturned.

9. Before the accident, all the 3 lanes in front of the bus were clear of traffic and when Mr Kwok saw the goods vehicle from his rear-view mirror on both occasions, he did not see any other vehicle in either of the slow or middle lanes behind the bus. While the goods vehicle was cutting into the slow lane, Mr Kwok did not see any indicator light on nor did he hear any horn.

10. The plaintiff started the day's work as a delivery worker employed by Mr Li at 8 a.m. When he was travelling in the front passenger seat of the goods vehicle at the time of the accident, he, being tired, was sleeping. He did not know how the accident happened which rendered him unconscious. He "woke up" in the Prince of Wales Hospital.

11. The army car in which Mrs Diane Taylor was travelling in the front near-side passenger seat was just at the time reaching the fast lane of the location of the accident for her to witness the collision. According to her statements which have been admitted under the Hearsay Rules, the collision occurred for no apparent reason. Considering the circumstances surrounding the accident, I have no hesitation to agree with Mrs Taylor. Before the arrival of the army car which followed the bus and the goods vehicle, there was no other traffic on any of the 3 lanes on the relevant stretch of the roadway. The bus was travelling relatively slowly in the slow lane. The goods vehicle was travelling in the middle lane, doing about 100 km per hour, which did not exceed the speed limit. However, unless Mr Li intended to decelerate, there was no reason why he should have cut into the slow lane following the bus. If he had intended to overtake the bus, he could simply have continued proceeding in the middle lane. On the other hand, if he wished to travel in the slow lane following the bus, then he should have slowed down. He did not engage in any of the above proper manoeuvres. Instead, without tooting the horn or using the indicator, he steered into the slow lane, following the bus but at a speed higher than that of the bus. The inevitable consequence would be a collision which in fact happened. Mr Kwok appreciated the danger but unfortunately, his effort to avoid a collision failed. On the spur of the moment, he felt he had insufficient time to swerve the bus to the middle lane. He was in my view operating reasonably in the circumstances, and he is not to blame at all for the collision.

12. As far as the plaintiff is concerned, he was travelling as a passenger in the goods vehicle and was asleep at the time. He could not possibly be blamed for the accident. There is an allegation in the letter containing the defendant's defence that the plaintiff should not have fallen asleep in the goods vehicle, and he should have been then in a position to warn Mr Li of the possible danger. I do not think this allegation is sustainable at all. There is no evidence that the plaintiff, as a delivery worker, should be obliged not to fall asleep while travelling in the goods vehicle, nor is there any evidence that Mr Li tried to wake him up for any particular reason. With hindsight, of course, if the plaintiff had not fallen asleep, he might have warned Mr Li of the danger, but using that as a basis for attaching any blame to the plaintiff would be confusing hope or even imagination with blameworthiness. I am of the view that the plaintiff cannot be blamed in this regard.

13. I also accept that the goods vehicle did not have any seat belt either for driver or for passenger at the material time, and the fact that the plaintiff did not wear any seat belt cannot cast any blame on him.

14. In the circumstances, I find that Mr Li is totally to blame for the accident as he caused the collision through his own negligent acts. Res ipsa loquitur also applies. The plaintiff is not guilty of any contributory negligence as alleged in the defence or at all.

Quantum

15. The plaintiff was thrown out of the goods vehicle, becoming unconscious. He stayed in the Prince of Wales Hospital for about 2 months, and in the first 5 weeks of that period, he was struggling for his life. He suffered a lacerated liver, fractured right tibia and fibula and a fractured left tibia plateau, a right hemothorax, i.e., a collection of blood in the right chest probably due to the liver bleeding through the ruptured diaphragm and multiple facial lacerations with loss of teeth. An emergency operation was carried out when the liver lacerations were repaired and at the same time a drain was put into the right chest. For the time being a plaster of Paris cast was put on to the right leg and he was in the Intensive Care Unit. Five days later when his condition was stable, he was operated on again when the right tibia and fibula were treated by the insertion of a GK nail which immobilised the fractured right tibia properly and the plaster of Paris cast was removed. Because his breathing was difficult with infection, a tracheostomy had to be done on 24th May 1989. On 6th June 1989, he started to bleed from the stomach and duodenum because of ulcers which required emergency operation on 9th June 1989 when part of the stomach had to be removed and the bowel connected to it. At the same time, the gall bladder was found to be gangrenous and this also was removed and he was therefore kept in the Intensive Care Unit until 6th June 1989. He was then under treatment by the Orthopedic unit when further rehabilitation had to be carried out and he was discharged in November 1989. Afterwards he attended hospital for follow-ups until May 1991. In the meantime, he had physiotherapy at home given to him by visiting staff until November 1990. When examined by Dr Philip Mao in August 1991, the plaintiff was able to walk for about 10 minutes when he had to rest because there was no strength in both legs. He was able to take buses and he could climb at the most about 10 steps only. Apart from various scars caused by the accident and his operations, the plaintiff's right leg has become half an inch shorter than his left one. Dr Mao opined that for the plaintiff's handicapped right leg and lack of flexion in the left knee, he had a total of 17% impairment of the lower extremity which equalled 7% impairment of the whole person. For the stomach operation, the plaintiff had a 30% impairment of the whole person and for his lung impairment, the assessment was at least 25% impairment of the whole person, giving rise to a combined figure of 52% impairment of the whole person. His loss of earning capacity was put at 75%.

16. Dr Mao also gave evidence before me, and he said that having considered the report of Dr Sam Nariman on the respiratory deficiency of the plaintiff, he opined that for all practical purposes, the plaintiff would be unable to do any remunerative work and as such he would be regarded as having a 100% loss of earning capacity.

17. The plaintiff's disability in respect of his respiratory system resulted in shortness of breath on exertion and hoarseness of voice. Dr Sam Nariman's opinion was that both of these disabilities were permanent and his assessment of the respiratory disability was at 65%. He also opined that the plaintiff's loss of earning capacity was 100%. Dr Mao has explained to me that the plaintiff has only one-third efficiency in breathing as compared with that of a normal person which, inter alia, adversely affects the strength of the plaintiff's muscles.

18. Mr Law for the plaintiff has submitted a very helpful written breakdown of the plaintiff's quantum. I am of the view that the pain and suffering and loss of amenities of the plaintiff should be slightly over the lower end of the category of "substantial injury" as classified by the Court of Appeal in Lee Ting-lam v. Leung Kam-ming & Others [1980] HKLR 657. In Wong See-mo v. Lam Nam-fui & Others [1991] 1 HKLR 361 (decided on 20/11/90), the Court of Appeal revised upwards the award for "serious injury". Following these 2 authorities, I am of the view that an award for the lower end of "substantial injury" should now be in the region of $250,000. This figure takes into account the inflation rate of about 25% obtained by reference to the Consumer Price Index Reports for 1990 and 1993, very helpfully produced by Mr Law, from the date of the judgment in Wong See-mo to date. For pain and suffering and loss of amenities, I would award the plaintiff a sum of $260,000.

19. Regarding his capability to work, the plaintiff's statement which he confirmed in in-chief is that:

"I now still suffer from shortness of breath and hoarseness of voice. I cannot stand for any length of time. I feel weak in my limbs and have to sit down after standing for 25 minutes. I can only walk very slowly for not more than 15 minutes although with the aid of a walking stick, I can walk for about half an hour."

20. When questioned by me, the plaintiff clarified to say that he could only walk when aided either with a walking stick or with a hand on the wall or on something else to support him.

21. He has also told me that before the accident, he could carry 60 to 70 catties (about 36 to 42 kilogrammes) with both hands without any difficulty. Now he has difficulty in carrying a bag of rice weighing only 5 kilogrammes. He can, however, hold something weighing 2 or 3 kilogrammes continuously for half an hour. His daily life appears to be in slow motion. He has since the accident never tried to get any job and his main reasons for this seem to be his feeling that nobody would employ him, and that because his movements are slow, if he worked for 4 hours in a day, he would have insufficient time to manage his own daily living.

22. Dr Mao has also told me that the plaintiff could work in a sedentary manner for about an hour a day because of the weakness of his limbs and shortness of breath, but it would be difficult for him to go to work unless he travels by taxi. Dr Mao therefore thinks that it is difficult for the plaintiff to obtain any remunerative job. Further, the plaintiff has to take small and frequent meals because of the polya gastrectomy removing part of his stomach and bowel, and the choice of food must be careful. It would therefore be difficult for the plaintiff to leave his home for any considerable length of time.

23. I accept the evidence of the plaintiff and the doctors that he has lost 100% of his earning capacity despite the fact that he has not attempted to find any kind of remunerative work after his discharge from hospital. Anyhow, his follow-up treatments and sick leaves continued after his discharge up till 16th May 1991. I feel that his behaviour was reasonable for all the 4 years after the accident. Although he could possibly obtain a job for an hour or two a day at a very low wage if he could find an ideal employer, I am satisfied that realistically he is unable to find any remunerative job as from now.

24. At the time of the accident, the plaintiff was 59 years of age. To-day, exactly 47 months and 10 days after the accident on 12th May 1989, he is 63 years old. I accept that his wages as a delivery worker at the time of the accident totalled $5,300 a month including the food allowance paid him by Mr Li. The figure of $5,300 a month is not only borne out by the plaintiff's own evidence but is also supported by the Notice by Employer of an Accident to an Employee filed on 16th August 1990 by the defendant on behalf of Mr Li pursuant to the Employees' Compensation Ordinance.

25. I also accept that it is fair and reasonable to take into account an inflation rate of 10% on the average for each year since the accident till to-day in working out the basic figure for earning as the multiplicand. Such an average inflation rate in fact tallies fairly with the figures shown in the Consumer Price Index Reports for 1990 and 1993. The sum works out to be about $7,700 per month for the present, rising from $5,300 a month in May 1989. Using the median of $6,500 as the loss of his earnings for the almost 4 years since the accident as his pre-trial loss, a sum of $307,667 is reached, being $6,500 x 47 and 10/30 months.

26. The plaintiff has told me that but for the accident and his disabilities resulting therefrom, he intended to work till he was 65 years of age. For a man like the plaintiff aged 59 years doing heavy manual work, I am of the view that a multiplier of 5 would be fair and reasonable. As almost 4 years have been attributed to his pre-trial loss, I would only adopt 1 year as the multiplier for assessing his post-trial loss. The figure arrived at on this account is $92,400, being $7,700 x 12 months.

27. I accept all the items of special damages, being $44 for hospital expenses, $510 for loss of shoes, $387 for travelling expenses, $310 for cost of walking aid, and $3,000 for nourishing food. I think the sum of $3,000 for nourishing food while the plaintiff was in hospital and during his follow-up treatments and sick leaves is reasonable in the circumstances. These special damages amount to $4,251.

Conclusion

28. There will be judgment for the plaintiff in the following sums:

(a) for pain and suffering and loss of amenities, $260,000;

(b) for pre-trial loss of earnings, $307,667;

(c) for post-trial loss of earnings, $92,400; and

(d) for special damages, $4,251.

29. For working out the appropriate interest rate on items (b) and (d), Mr Law referred me to the said Consumer Price Indices and also the interest rates for judgment debts from time to time ordered by the Chief Justice during the relevant period. Mr Law has also very helpfully prepared a list of such judgment interest rates to assist me. Based on such figures, I think 5.5% each year is reasonable and appropriate. On items (b) and (d) therefore, interest at the rate of 5.5% per annum will have to be added from the date of the accident (12th May 1989) to the date of this judgment (22nd April 1993). Interest at the rate of 2% per annum will have to be added on item (a) from the date of the writ (9th April 1992) to the date of this judgment.

30. As employees' compensation in the sum of $339,232 had been awarded to the plaintiff by His Honour District Judge Pang on 29th May 1992 with interest at 5.75% from the date of the accident (12th May 1989) to the date of that award (29th May 1992), these sums together with any interest on them as a judgment debt when received must be deducted from the damages awarded by me in this judgment.

31. I also order that the plaintiff do have costs of this action against the defendant, and that his costs be taxed under the Legal Aid Regulations.