LEUNG CHUN TUNG v. SIU WAI CHEONG

1995, No. PI 883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

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J U D G M E N T

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Facts

1. The Plaintiff was injured in a traffic accident on 10^th March 1990. He brings this claim for damages against the Defendant.

2. The Plaintiff was the driver of a motorcycle ("the motorcycle"), the Defendant was the owner and driver of a light goods vehicle ("the goods vehicle"). On 10th March 1990, the Plaintiff was travelling along Hoi Bun Road from west to east. He saw a motorcycle came out from the junction between Hoi Bun Road and How Ming Street. This alerted him of the junction ahead of him. A few seconds after the motorcycle came out from the junction, the Defendant's goods vehicle suddenly emerged from the junction. The distance between the Plaintiff's motorcycle and the goods vehicle was about the length of one to two private cars. The Plaintiff intended to use his hand brake to stop the motorcycle but could not do so in time. Fearing that his hand might come into contact with the goods vehicle, he released his left hand from the handle bar. In a very short moment, the collision occurred. The motorcycle hit the front left hand side of the goods vehicle. The Plaintiff fell from the motorcycle and landed on the ground.

Defendant's evidence

3. It is common ground that there was a large goods vehicle parked on Hoi Bun Road near the junction with How Ming Street. The Defendant said that when he reached the giveway line at the junction, this vehicle blocked his view, so he drove slowly to observe the surrounding situation. After he had driven past the front of this vehicle he could see the traffic condition clearly. There was no vehicle coming from his right hand side. He then looked to the left. He said that there was a bend on the left hand side and vehicles came out from that bend very quickly. He looked to his right again and saw no vehicle. He then looked to the left and saw no vehicle. He then turned his head to the right and intended to drive on. At that moment, he saw the motorcycle which was at a distance of three to four goods vehicle's space coming straight towards him and collided with his goods vehicle. The Defendant said that at the time of the collision, the speed of his car was zero.

Defendant liable

4. The Defendant was convicted of the offence of careless driving. As a result of the conviction, the burden of proof shifted to the Defendant to show that he was not negligent in the accident. I find that the Defendant had not discharged the burden. I accept the evidence of the Plaintiff. I accept his evidence that when he was approaching the Defendant's goods vehicle, he saw that the Defendant was looking to his left. The likely cause of the accident was that the Defendant was concentrating his attention on vehicles that might come from his left hand side and he moved out into the Hoi Bun Road without keeping a proper lookout of the vehicles coming from his right hand side. He admitted that Hoi Bun Road was a straight road and had he repeatedly turned his attention to the right hand side, there was no reason why he could not have observed the motorcycle coming from his right. He suggested that the reason why he could not see the motorcycle earlier was because the motorcycle was driving too close to the parked vehicles on the side of the road. This is not a matter put to the Plaintiff in the cross-examination. I do not accept the Defendant's contention.

5. I find that the Defendant was liable for the accident. The liability of the Defendant was not seriously challenged by Mr M.C. Chiu, Counsel for the Defendant.

Contributory negligence

6. Mr Chiu submitted that the Plaintiff was contributory negligent because he was driving at too fast a speed in the circumstances of the case. Mr Chiu referred to the Plaintiff's witness statement, where he said that when he first saw the motorcycle the distance between them was 65 metres. Then when he saw the Defendant's goods vehicle, the distance was five metres. The Plaintiff further stated in his statement to the police dated 10th March 1990 that he saw the Defendant's goods vehicle about three seconds after the motorcycle had come out from the junction. Mr Chiu submitted that in three seconds the Plaintiff had travelled a distance of 60 metres. This would be 72 kilometres per hour. Even if it took four seconds for the Plaintiff to travel that distance, his speed at that time would still be 54 kilometres per hour, which was higher than the speed limit in that area of 50 kilometres per hour.

7. The Defendant's submission proceeds on the basis that the distance given by the Plaintiff and the time that had elapsed between the sighting of the motorcycle and the Defendant's goods vehicle are accurate. I think for a lay person, his indication as to the distance and time could at best be estimates only. The Plaintiff's witness statement did not stand as his evidence-in-chief. I directed the parties to give oral evidence on how the accident occurred. In his testimony, the Plaintiff stated that the distance between him and the motorcycle was about six to seven goods vehicle's space. He did not give an estimate of the distance between them. In his statement to the police, apart from referring to the speed, he also mentioned that the distance was about 60 to 70 metres. His statement was given on the same day of the accident, he was about to undergo an operation and was in pain. He agreed with what the police put to him. Although the Plaintiff agreed with counsel's suggestion that the three seconds estimate was the correct one, he also indicated that the time taken might be six seconds. In my view, it would be unsafe to rely on such estimates to determine the exact speed he was travelling at that time.

8. Mr Chiu also submitted that the scratch mark on the road is consistent with the Plaintiff driving at a high speed. There really is no evidence correlating the length of the scratch mark with the speed of the vehicle. I accept the Plaintiff's evidence that he was driving below 50 kilometres at the time of the accident, I do not find him to be contributory negligent in the accident.

Damages

Pain, suffering and loss of amenities

Injury

9. When he was admitted to hospital, X-ray photographs showed fractured left ilium and acetabulum with dislocation of left hip. He underwent a number of operations. On 16^th March 1990, open reduction of the fractured areas was performed. On 23^rd October 1990, arthroscopy of the left hip was performed. On 29^th April 1991, the left ilicar crest plate was removed.

10. The medical evidence was unchallenged and it is clear from Dr Lau Hoi Kuen's report of 8^th March 1997, the Plaintiff suffered severe injury to his pelvis. I could do no more than to repeat the observation of Dr Lau when he said :

"Mr Leung suffered severe injury to the left side of his pelvis in the motorcycle accident. The iliac wing was fractured. What was even worse was the fracture dislocation of the left hip joint. Judging from the X-rays taken now, the region around the acetabulum must have suffered comminuted fracture at that time. In spite of being treated aggressively with open reduction and internal fixation, the hip joint has been permanently damaged.

There is incongruity and instability of the joint resulting in gross subluxation of the demoral head. There is also avascular necrosis of the femoral head resulting in collapse and flattening. Advanced degenerative changes have already occurred (only 7 years from the accident). Therefore we can expect the condition of his left hip to deteriorate progressively and rapidly in the next few years.

To improve the pain and stiffness of his left hip, he will need total joint replacement within the next few years' time. The problems he will need to face in future, besides the risks associated with the joint replacement operation, will be the loosening of the prosthetic system. Since he is so young, even if he can avoid excessive stress on the hip, it is highly unlikely that the artificial joint can last for the rest of his life. Unfortunately there is always increasing risk and technical difficulty associated with a revision procedure (e.g. blood loss, wound infection, fracture of the femur and sciatic nerve injury etc.)."

11. Dr Lau assessed the Plaintiff to have 50% permanent disability and 40% loss of earning capacity. These figures are expected to increase in the next five years. For patients with good to fair result after total hip replacement, they will have 15-20% permanent disability. Patients with poor result after surgery will have 30% permanent disability. The Plaintiff would have to undergo at least one primary and one revisional operation. The maximum operations would be four.

Substantial injury

12. Mr Chiu submitted that the injury falls within the serious injury category and he referred to a number of cases. In Wong Shui Ming v. Yeung Chun Fai High Court Action No.3619 of 1982, the Plaintiff sustained two fractures of the right femur, a sub-trochanteric fracture near the upper end of the bone and a second fracture of the lower end of the femur involving the knee joint. In Ng Kam Chiu v. Lai Yat Hung High Court Action No.A7735 of 1985, the Plaintiff suffered a severe comminuted fracture of the head of the left femur. In Lee Ching Por v. Ban Bu High Court Action No.1524 of 1990, the injury was a fractured femur which was fixed with plates and screws. In Tsang Yuk Ming v. Choi Wing Hing trading as Wing Hing Electrical Co. High Court Action No. A852 of 1989, the injury was the fractured neck of the left femur together with the head of the femur.

13. It is clear from the medical evidence that the Plaintiff sustained far more serious injuries. In my view, the injuries fall within the bottom and middle range of the substantial injury category. This category extends to injuries which require treatment in hospital for many months and leave the victim with a much reduced degree of mobility, or injuries which leave a condition requiring regular treatment for the rest of the victim's life. This case is more in line with Yip Pui Kwan v. Tsui Kwok Hung High Court Action No. A6169 of 1983 in which the Plaintiff sustained fracture of the left hip joint socket in pelvis, compound fracture of left femur, fracture of left tibia and fibia and of pelvis. Macdougall, J. held that the injury was in the middle of the substantial injury category.

14. The Plaintiff was an extremely active person. He was a kung fu instructor and a scout master before the accident. He was actively engaged in canoeing and wind-surfing activities and served as a instructor in the canoe club. I have no doubt that these activities were curtailed by his injuries.

15. The range of damage for substantial injury as approved by the Court of Appeal in Chan Pui Kei v. Leung On & KMB was between $540,000 to $660,000. In my view, the appropriate award in this case is $600,000.

Loss of earnings

Job history

16. At the time of the accident, the Plaintiff was employed by the South African Airways ("SAA") as an office assistant and driver. He earned $5,065 per month. After the accident, he received reduced sick leave pay for a number of months. The parties agreed the loss he sustained for this period was $4,135.40.

17. When the Plaintiff worked in SAA, 10% of his time was spent as a driver and the rest as an office assistant delivering documents and letters and filing documents. The delivery was outside the office. He found it difficult because of his injuries to continue with the delivery work. The Plaintiff resigned from SAA on 16^th February 1994.

18. After leaving SAA, the Plaintiff was employed by Evernal Electric Manufacturing Company ("Evernal") as a warehouse supervisor and later as a sales representative. He suffered no loss of earnings with Evernal. When he started work for Evernal as a sales representative, he sold electrical appliances to customers in the New Territories. He travelled to the customers on his motorcycle. As he built up the customers' relationship, he did not have to travel that frequently to meet his customers. Then, because of the downturn in the business, he was asked by the company to sell Chinese wine as well. This required him to travel to meet customers in the New Territories. They were provisional stores and wine companies. Because these customers would not accept a sales representative who travelled on motorcycle, the Plaintiff did not use the motorcycle to meet the customers and he found the job to be difficult and he resigned from the job and left on 1^st March 1997.

19. Between March and end of June 1997, he worked as a distributing officer for another electrical appliances business. He worked as an odd job worker. Initially he was told to look after the warehouse but in fact he was required to transport goods and carry the goods from place to place. He was unable to carry the goods while he was walking. He suffered from pain when he was walking which he could not endure and he resigned. He earned $9,000 per month.

20. From June 1997 onwards, he was looking for jobs as a warehouse keeper and sales representative. He attended a few interviews but with no result. Most of the jobs would require him to carry goods as well. About a month ago, he worked as a casual driver of public light bus ("PLB") for his brother, he worked six days a week at $240 per day. He had no difficulty in driving but he was unable to sit for a long time, he worked for six hours a day.

Loss of earnings as a part-time driver

21. Prior to the accident, the Plaintiff also worked as a casual worker and driver on weekends and public holidays earning about $1,650 per month. Because of the injuries he was unable to resume such work. Miss Pinto submitted that taking inflation into account, he would have been earning $3,215 per month and that the median earning would be $2,433. Without going into the exact calculation, I think a sum of $2,000 per month should be awarded to the Plaintiff on the basis that he could make use of his spare time to work as a driver. Between 10th March 1990 to date, the amount recoverable would be -

$2,000 x 93 months = $186,000.

Partial loss of earnings between 1^st March 1997 to 30^th June 1997

22. During the period from 1^st March to 30^th June 1997, he was earning $9,000 per month. Miss Pinto has chosen the wage of the Plaintiff in SAA as the basis for the calculation of the loss of income. I would likewise adopt such a calculation. Although his earning in Evernal was higher than when he worked in SAA, the higher earning included commissions he earned as a salesman. With the uncertainty in the earning of commissions, the fixed wages would be a better indicator of his earning ability. When he left SAA in February 1994, his earning was $8,000. He would now be earning $10,648 after adjustment for inflation. Between 1st March and 30th June 1997, he earned $9,000 per month, the loss of earnings during this period would be -

($10,648 - $9000) x 4 months = $6,592

Loss of earnings between 1^st July to 31st December 1997

23. For ease of calculation, I would calculate this loss up to 31^st December 1997. Miss Pinto accepted that the Plaintiff is currently earning $6,500 per month as a PLB driver. The loss of earnings for this period would be -

($10,648 - $6,500) x 6 months = $24,888

Loss of future earnings

24. Mr Chiu challenged that the Plaintiff had suffered any loss of future earnings. He said that the Plaintiff resigned from SAA and Evernal on his own accord and when he joined Evernal firstly as a warehouse supervisor and then later on as a sales representative, he received an increase in salary.

25. Although the Plaintiff was not dismissed by the employers, I find that he left the job because he was unable to cope with the job because of his physical disabilities. While the overall income when he joined Evernal had increased, in fact a large part was based on commissions he received. When he joined the warehouse section, the basic salary was $7,600 per month as compared to the $8,000 he was earning in SAA. When he joined the sales department, the basic salary was only $6,500. A salesman would require a lot of travelling which he would not be able to perform because of the hip injuries. I find that he would suffer loss of future earnings.

26. Mr Chiu further submitted that if damages are to be awarded, then one should calculate the loss by reference to the earning of a watchman stated in the Half-yearly Report of Wage Statistics ended March 1997. Watchman is a job recommended by Dr Lau. Mr Chiu submitted that the notional income should be $7,902 per month. The statistics referred to by Mr Chiu included the earnings of watchman, guard or godown supervisor of certain industries such as printing, electronics and retail. Their earnings were between $9,900 to $15,592. Whereas watchmen in other industries had their earnings of between $6,115 and $6,989. The higher earnings may well be the exception rather than the rule. I think it is more realistic to use his current earning of $6,500 as the basis for calculation. The Plaintiff received formal education up to primary four. He then attended evening school and completed form one of secondary school. With his academic background it is unlikely that he would advance further in his career than what he had been doing in the past few years.

27. As for the multiplier, the Plaintiff was born on 22nd January 1966 and is now 31 years of age. The appropriate multiplier is 15. The award under this head would be -

($10,648 - $6,500) x 12 x 15 = $746,640

Future loss of earnings as a part-time driver

28. Being such an active person, I have no doubt that the Plaintiff would continue with his part time driving job if he had not been injured.

$2,000 per month x 12 x 15 = $360,000

Loss of earnings during the nine months convalescence period after the

operations

29. I find that the hip replacement operations are reasonable and necessary for the Plaintiff. He would need a total period of nine months convalescence after the two operations. The loss of income during this period would be -

$10,648 x 9 months = $95,832

Loss of earning capacity

30. It is clear that with his physical disabilities, the Plaintiff would suffer a real risk of being unemployed and would suffer a handicap in the labour market. I will award a sum of $100,000 for his loss of earning capacity. It is clear from Lau Che-ping v. Hoi Kong Ironwares Godown Co. Ltd. [1988] 2 HKLR 650 that it is not wrong in principle to make this award even if an award for loss of future earnings has been made. See also Chan Kwok-ping v. Hop Yick Engineering Co., PI 1230 of 1995 and Robson v. Liverpool City Council [1993] PIQRQ 78 and Frost v. Palmer [1993] PIQRQ 14.

Other Damages

31. The parties agreed on the following items of damages -

(1) costs of the operation	$250,000
(2) medical fees	$8,152
(3) medical utilities	$2,322
(4) bone setter's fees and tonic food	$10,000
(5) Chinese medicine	$10,000
(6) medical report	$335
(7) fee to Government	$80
(8) travelling expenses	$15,000
(9) SAA prize	$15,000
	$310,889

Summary

(1) PSLA	$600,000.00
(2) loss of partial wage	$4,135.40
(3) loss of earnings as a part-time driver	$186,000.00
(4) loss of earnings from 1-3-97 to 30-6-97	$6,592.00
(5) loss of earnings from 1-7-97 to 31-12-97	$24,888.00
(6) loss of future earnings	$746,648.00
(7) loss of future earnings as a part-time driver	$360,000.00
(8) loss of earnings during period of convalescence	$95,832.00
(9) loss of earning capacity	$100,000.00
(10) damages that had been agreed between the parties	$310,889.00
	$2,434,984.40

Judgment

32. There shall be judgment to the Plaintiff for $2,434,984.40 together with costs nisi of the action. Interest will be at 2% per annum for pain, suffering and loss of amenities from the date of the service of the writ to the date of judgment. Interest at 6% per annum from the date of the accident to date of judgment in respect of past loss of earnings and special damages (excluding the costs of the operations).