KOT YIK KAM v. KWOK KAM HUNG AND ANOTHER

HCPI 292/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 292 OF 2004

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J U D G M E N T

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The Plaintiff’s case and evidence

1.  In this running down case, the Plaintiff was hit by a lorry driven by the 2^nd Defendant whilst she was crossing Castle Peak Road near the junction with Fat Tseung Street using a “green man” pedestrian crossing.  The accident happened shortly after 1:00 pm on 28 February 2003.  The section of the road comprises three lanes, all in one direction.  The 2^nd Defendant was driving in the course of his employment as driver/delivery worker in the employ of the 1^st Defendant.

2.  Essentially, the Plaintiff’s case (and evidence) was that it was lunchtime and she was crossing the road to a shop to make some photocopies, before returning to her mother’s home for lunch.  She was not in a particular hurry.  When she approached the pedestrian crossing, she saw that the pedestrian green man light was flashing.  There were vehicles that had stopped before the traffic lights in the 1^st and 2^nd lanes.  She thus ran across the road to take advantage of the flashing green man light.  When she reached the front of a public light bus (the “PLB”) that had stopped in the 2^nd lane before the traffic lights, she saw that a lorry (i.e. the 2^nd Defendant’s lorry) was approaching the pedestrian crossing at a speed in the 3^rd lane, which she was about to cross to reach the other side of Castle Peak Road.  She saw that the green man light was still flashing.  She thought there should be sufficient time for her to cross the 3^rd lane in front of the lorry, even if it were not to stop before the lights, so she continued to dash forward.  Unfortunately she was wrong and was hit by the lorry.  She said in evidence that she distinctly remembered that even at the moment of impact, the green man light was still flashing.  But she could not remember whether there were other pedestrians crossing the road at the same time as she did.

Pastor Chiu’s evidence

3.  The Plaintiff called Pastor Chiu who pastored a local church in the vicinity where the accident happened, to give evidence on what he saw that day.  In essence, Pastor Chiu said that he was at the material time intending to cross the same section of Castle Peak Road using the same pedestrian crossing from the opposite side of the road.  He was standing on the pedestrian pavement near the kerb at the time and saw that the Plaintiff was crossing the road using the pedestrian crossing from the opposite direction.  She walked at a hurried pace, looking slightly nervous.  When she reached the 2^nd lane of the road in front of the PLB which had stopped in front of the lights, she suddenly stopped at the middle of the road, took a 180 degrees turn as if she were to return to the other side of the road, before she turned again towards the 3^rd lane and continued her attempt to cross the road at the same hurried pace.  At the same time, Pastor Chiu noticed that a lorry (i.e. the 2^nd Defendant’s lorry) was approaching the traffic lights in the 3^rd lane at a great speed (Pastor Chiu estimated it to be just below 30 miles per hour) and the Plaintiff was hit by the off-side front of the lorry whilst she was trying to cross the 3^rd lane. 

4.  Pastor Chiu said that when he was standing on the pedestrian pavement near the kerb, his attention was caught by the facial expression and movement of the Plaintiff and therefore he did not pay specific attention to what light was on at the time.  In cross-examination, Pastor Chiu clarified that even though he had reached the pedestrian crossing, he did not start crossing it immediately, because he was always careful in crossing roads and he was taking his time to ascertain whether it was safe to cross the road before he did so.  He said that before he was able to do so, his attention was caught by the Plaintiff. 

The 2nd Defendant’s evidence

5.  The 2^nd Defendant gave evidence.  His version of accident given at trial was basically the same as the one that he had given throughout, initially to the police and subsequently before the Magistrate’s court where he was prosecuted for dangerous driving.  He pleaded guilty to the charge and was given a sentence of disqualification from driving for 8 months.  The prosecution was not based on any allegation that he had jumped a red light.  Rather it is quite clear from the transcript of the criminal prosecution that the magistrate was prepared to base the conviction and sentencing on the assumption that the light was in the 2^nd Defendant’s favour. 

6.  The 2^nd Defendant said in evidence at trial that the light was indeed green in his favour throughout.  Originally, he was travelling in the 2^nd lane at a speed of about 30 kilometres per hour.  When he approached the junction in question, he noticed that the PLB in front of him had stopped before the traffic lights.  That was when he was about 6 minibus spaces behind the PLB.  He then saw that passengers inside the PLB were standing up; no sooner than that the doors of the PLB were opened and passengers started alighting the PLB.  When he was about 4 minibus spaces behind the stationary PLB, and after ascertaining that the 3^rd lane was clear of traffic, he slowed down his lorry a bit, cut into the 3^rd lane and proceeded towards the junction with the intention of crossing it, as the light was still in his favour.  His speed was then about 27 to 28 kilometres per hour.  He said in evidence that while he was doing so, he noticed that amongst those who had just alighted from the PLB, some walked towards the front of the PLB and some towards the rear.  He also said that he noticed that there were pedestrians walking on the pavement next to the 3^rd lane, and one or more of them were waiting at the pavement to cross the road.  He also said that while he was approaching the PLB from behind, he noticed that several vehicles had stopped in the 1^st lane and apparently no one was inside those vehicles.

7.  The 2^nd Defendant further said in evidence that after he had cut into the 3^rd lane and as he was overtaking the stationary PLB, he noticed that the PLB started to move forward and then it stopped again in front of the traffic lights.  He then suddenly noticed that a pedestrian (the Plaintiff) was dashing across the road from his left.  He immediately applied his brakes but that was too late.  The offside front of his lorry hit the pedestrian and he only managed to stop his lorry in the middle of the junction.

8.  The 2^nd Defendant said in evidence that he had pleaded guilty to the charge of dangerous driving because he was not aware of the distinction between careless driving and dangerous driving, nor did he realize the seriousness of the charge that he was actually facing.  He pleaded guilty because the magistrate had said to him that it was in any event wrong for a driver to hit a pedestrian on the road.  He also said that he did not listen carefully to the brief facts based on which he was convicted on his own plea of guilty and he did not notice that the brief facts said that he was driving “in high speed” at the time of the accident.  He said that throughout in the criminal proceedings, he had maintained that the light was green in his favour.

Findings of fact on liability

9.  Having heard the evidence of the witnesses (in conjunction with a consideration of their witness statements) and having considered the documentary evidence (including the police statements, the police sketch plan and the photographs taken immediately after the accident by the police), I prefer the evidence of the Plaintiff that at the time when she was crossing the road and hit by the lorry, the green man light was flashing in her favour. 

10.  As far as demeanour is concerned, I prefer the Plaintiff’s demeanour to that of the 2^nd Defendant’s at trial.  As regards Pastor Chiu, I am wholly satisfied that he was an independent witness, honest and credible in the box.  He gave a reliable account of what had happened without any exaggeration.  I do not accept counsel’s suggestion that he had been evasive as regards the lights or the reason why he did not immediately cross the road when he had reached the pedestrian crossing but instead chose to stay on the pavement before the accident. 

11.  I accept the evidence of Pastor Chiu that at the time there were other pedestrians crossing the road behind the Plaintiff.  That fact is consistent with the Plaintiff’s story. 

12.  If the flashing green man light had already changed to a “red man” light before the Plaintiff was hit, it would be unlikely for there to be pedestrians crossing the road behind the Plaintiff.  By the same token, if the Plaintiff was running across the road against a red man light, it would be unlikely that there would have been other pedestrians also crossing the road at a walking pace behind her.  The fact that the Plaintiff could not tell whether there were others crossing the road at the time of accident could be easily explained by the fact that she was in front of the other pedestrians crossing the road from her direction and that there was nobody crossing the road from the opposite direction at the time (as per Pastor Chiu).

13.  The fact that vehicles had stopped in front of the lights in the 1^st and 2^nd lanes is also consistent with the Plaintiff’s story.

14.  Here I am not particularly impressed by the 2^nd Defendant’s evidence that the several vehicles that had stopped in the 1^st lane before the lights had no drivers inside or that the PLB in the 2^nd lane was stopping before the lights for the purpose of alighting passengers.  In my view, on a balance of probabilities, these vehicles were stopping before the lights because it was a red light for the traffic.  There was some dispute at trial as to whether parking was permitted in the 1^st lane in that stretch of Castle Peak Road at the time of accident (in 2003).  There is not much reliable and objective evidence here.  As I said, on balance, I am not attracted by the 2^nd Defendant’s evidence and suggestion.

15.  The fact that the Plaintiff was actually running (as per her own evidence) or walking at a hurried pace (as per Pastor Chiu’s evidence) across the road is also consistent with the fact that she was trying to bid a flashing green man light.  If the traffic light was green (and the pedestrian light was red) at the time, and there were vehicles stopping before the lights for whatever reasons, it would have been extremely dangerous and reckless on the part of the Plaintiff to try to cross the road in the way she did.  The rather strange turnings that the Plaintiff was observed to have made in the middle of the road by Pastor Chiu are, in my judgment, in all probabilities, explained by her slight hesitation (as per her own evidence) as to whether to continue crossing the road after she had noticed the approach of the lorry in the 3^rd lane.  The Plaintiff said in evidence that she could not remember whether she had made the turnings as described by Pastor Chiu.  But she did say that when she had reached the front of the PLB in the 2^nd lane, she noticed the approach of the lorry in the 3^rd lane from her right.  She made a quick decision to continue crossing the road as she felt there would be sufficient time for her to do so and in any event the green man light was still flashing.  I do not attach much if any significant weight to the evidence of Pastor Chiu that the Plaintiff was looking rather nervous while she was crossing the road.  Different people may have different facial expressions while they are running or walking at a quick pace.  During cross-examination of the Plaintiff, nothing concrete was put to the Plaintiff to the effect that she was really in a hurry, apart from the fact that it was lunchtime and after making the photocopies, she still had to return to her mother’s home for lunch.  In this regard, it must be remembered that the Plaintiff was then working for a company in which she was the only employee in Hong Kong and her boss was in Shenzhen and out of Hong Kong most of the time.  There is simply no or insufficient evidence to suggest or conclude that the Plaintiff was in a particular hurry that afternoon to cross the road, save that, as per her own evidence, she was trying to bid a flashing green man light.

16.  As was accepted by Ms Tsang, appearing for the Defendants, during final submission, there is no way to reconcile the two versions of accident given by the Plaintiff and the 2^nd Defendant respectively regarding the lights.  Given the 2^nd Defendant’s insistence that throughout the traffic light was green in his favour, there can be no possibility of both versions being correct (whether wholly or partially) at all.  As I said, on the whole, I prefer the Plaintiff’s version.

17.  I have not overlooked the fact that there is a minor discrepancy between the evidence of Pastor Chiu given orally at trial and what he had said to the police as recorded in his police statement and as repeated in his witness statement, regarding whether he had actually witnessed the slowing down and stopping of the PLB before the traffic lights.  I have considered Pastor Chiu’s explanation in the box.  Judging from his evidence as a whole, I believe that the discrepancy was due to a lapse of memory and in any event innocent.  It did not affect his credibility or the reliability of his evidence in general at all.

18.  I am not impressed by the 2^nd Defendant’s story.  In my judgment, given the speed that he was driving at the time even according to his own evidence, it would be quite unlikely that he could have observed so many things going on before him and around him – that there was a line of several vehicles that had stopped in the 1^st lane with no drivers inside, that passengers were standing up inside the PLB awaiting to alight the same, the opening of the PLB doors, the alighting of passengers from the PLB, that some passengers were moving toward the front and some toward the rear after alighting the PLB, that there were pedestrians walking on the pavement to his right and one or two pedestrians waiting near the kerbside to cross the road, that the PLB which had stopped moved forward slowly for a second or two and then stopped again before the lights, and that the traffic light was green in his favour throughout.  He said that he noticed all this whilst driving on the road at the speed that he claimed he was driving, during the course of his cutting from the 2^nd lane to the 3^rd lane and whilst he was approaching the 3^rd lane at a speed from the nearside of the PLB (whilst the doors of the PLB opened at the offside).  Yet he failed to notice that a pedestrian (the Plaintiff) was dashing across the road from his left in front of his path. 

19.  I do not find the 2^nd Defendant’s story convincing. 

20.  Having borne everything in mind, in particular those specifically mentioned above, as well as the other points raised by counsel during submission, I have come to the conclusion, on a balance of probabilities, that at all times the light was in favour of the Plaintiff.

Liability and contributory negligence

21.  Liability of the 2^nd Defendant (and thus vicarious liability of the 1^st Defendant) is not in serious dispute, whether under the Plaintiff’s version or the 2^nd Defendant’s.  What is in dispute is the degree of contributory negligence, if any, on the part of the Plaintiff.  Given my above finding of fact in relation to the traffic lights, I reject Ms Tsang’s primary case that the Plaintiff was 50% contributorily negligent in the accident, which submission was based on the assumption that the light was in favour of the 2^nd Defendant. 

22.  As regards Ms Tsang’s alternative submission that even if the light was in favour of the Plaintiff (which was indeed the case as per my finding), contributory negligence should still be 25%, counsel basically relied on 2 matters, namely that the Plaintiff dashed across the road and that she did so without paying due attention to the traffic in the 3^rd lane.

23.  In this regard, Ms Christina Lee, counsel for the Plaintiff, relied on a judgment by Chung J in Li Chu Ying v. Ho Cheung Shing [2000] 4 HKC 250 to the effect that for a pedestrian lawfully crossing a road when the light was in his favour, he was entitled to assume that users of vehicles on the road would drive lawfully, observe road signs and signals, and thus he was not obliged to keep a lookout for on-coming traffic in the absence of special circumstances (such as when there were signs apparent to any reasonable person that a vehicle was clearly out of control and was already quite close to the pedestrian crossing where the pedestrian was crossing the road): see pp. 254 E to 256 C.  His Lordship refused to follow two earlier first instance decisions, namely Liu Siu-ping v. Yip Ping-chun [1980] HKLR 565 (Mr Commissioner Wei QC) and Chun Sung Yong v. Au Sze Hung Christopher [1991] 1 HKC 556 (Liu J).

24.  In my view, every case turns on its own facts.  In the present case, I do not agree that the Plaintiff was contributorily negligent (in the sense that she was careless) in crossing the road.  At the time the green man light was flashing in her favour.  On the evidence, there was, but for the collision, plainly sufficient time for her to finish crossing the road, at any rate, before the traffic lights for the traffic should turn green, given the inevitable time lapse between the pedestrian lights changing from flashing green to red and the traffic lights for vehicles turning green. 

25.  I have not forgotten that a flashing green man light means that a pedestrian “must not start to cross the road” (Road Users Code pp. 16 & 17), and the Plaintiff contravened the rule.  However, that is quite beside the point.  The point here is that on the evidence, but for the 2^nd Defendant’s jumping the red light, there would have been sufficient time for the Plaintiff to finish crossing the road.  In that sense, the Plaintiff was in no different position from a pedestrian who had already started crossing the road before the green man light started flashing.  Any carelessness on the part of the Plaintiff must have a causal connection to the collision before it may be counted as evidence of contributory negligence against her.

26.  As for the Plaintiff’s noticing of the approach of the lorry in the 3^rd lane at a speed, according to her evidence that I accept, she had noticed the lorry’s approach and made a quick decision that it was nonetheless safe to cross the remaining part of the road because the light was still in her favour and that there was still sufficient time to cross the road in any event.  Moreover, it must not be forgotten that she was then already in the middle of the road, having crossed two-thirds of the same.  For her not to continue crossing the road and turn back would equally involve some danger to her safety.

27.  Bearing everything in mind, put at the highest, I think the Plaintiff can only be said to have made an error of judgement.  She was not careless, nor did she fail to maintain a proper lookout (assuming that that was required of her whilst crossing a pedestrian crossing with the light in her favour).

28.  In this regard, I do not think the evidence of Pastor Chiu that he had not noticed the Plaintiff looking toward the direction of the lorry before she attempted to cross the 3^rd lane affects the Plaintiff’s evidence.  The Plaintiff said in the box that she did notice the approach of the lorry from her right.  I believe her evidence.  The fact that Pastor Chiu did not notice her turning her head toward her right is quite insufficient to cast any doubt (in the civil sense) on the Plaintiff’s own evidence in this regard.

29.  In conclusion, I reject Ms Tsang’s contention on contributory negligence.  I find the Defendants wholly liable for the accident.

Quantum – background, injuries, treatment and prognosis

30.  Turning to quantum, the Plaintiff was born in the Mainland on 30 October 1973.  She emigrated to Hong Kong in 1995.  She had received post-secondary school education in the Mainland, which was equivalent to form 7 education in Hong Kong.  She had studied shipping and had worked as a shipping clerk in Hong Kong for almost 6 years, before she switched to her pre-accident job of a clerk with miscellaneous duties.  As mentioned above, she was the only employee in the company in Hong Kong, and apart from office duty, she was also responsible for carrying heavy samples to and from customers’ offices, and she spent a substantial amount of her working hours outdoor.

31.  According to the medical report of a government doctor (Dr Wong Kwok Ho) dated 16 September 2003,

“The [Plaintiff] was admitted to our department on 28/2/03 after a road traffic accident.  At that time, she sustained the following injuries:
	1)	closed fracture shaft of right ulna bone
	2)	closed fracture left distal radius
	3)	open fracture at the shaft of right tibia and fibula
	4)	closed fracture right medial malleolus
	5)	skull fracture at the right temporal region with haematoma in the right temporal lobe and right subarachnoid haemorrhage
		The following operations were done:
	1)	open reduction and internal fixation for her right ulna bone fracture on 3/3/03
	2)	open reduction and internal fixation for her right malleolus fracture on 3/3/03
	3)	closed reduction and POP paster for her left distal radius fracture on 3/3/03
	4)	closed reduction and intramedullary nailing for her right tibial fracture on 3/3/03
		She was regularly follow-up in our out patient clinic and given physiotherapy for her rehabilitation.  She was found to have delay union of the right tibial fracture six months later.  Therefore she was arranged to have exploration and bone grafting for her right tibial fracture on 19/8/03.  Post-operatively it was uneventful and she was last [seen] by us on 17/10/03.  On last consultation she was able to walk unaided and there was evidence of new bone formation at the tibia fracture site.  She will be reassessed on 28/11/03 and sick leave was given until follow-up date.”

32.  Also in evidence was a government physiotherapy report dated 22 September 2003, which said:

“The [Plaintiff] was referred for out-patient physiotherapy from 29/4/2003 to 6/8/2003.  The diagnosis of Ms Kot was left distal radius fracture, right ulnar fracture, right tibia and fibula fracture and right medial malleolus fracture.  The treatment she received were ice therapy, mobilizing and strengthening exercise to bilateral wrist and right lower limbs.  Out-patient physiotherapy was discontinued after 19 sessions of treatment because of admission to hospital for further operation.

For upper limbs fracture, the overall subjective improvement of Ms Kot was 70% for the bilateral wrists.  Objectively, range of motions of both wrists were satisfactory.  However, there was decreased left wrist strength.  Power grip of Ms Kot was 20 kg over left hand and 26 kg over right side respectively.

For the right lower limb fracture, the range of motion of right ankle was decreased.  She could not fully weight bearing over right lower limbs because of pain.”

33.  In evidence, the Plaintiff complained that she now feels pain in her knee and leg, cannot run or jump, nor can she stand for a prolonged period of time.  She said that she cannot carry heavy objects (or her own daughter who is 4 years old).  Her memory is not as good as before and she has suffered a loss of self-confidence.

34.  Dr Lee Po Chin was the Plaintiff’s orthopaedic expert.  Neither he nor his counterpart, Dr Chun Siu Yeung retained by the Defendants, gave oral evidence at trial (as per an earlier direction by a master).  According to Dr Lee’s written expert report dated 9 March 2004 (based on an examination on 10 February 2004),

“… The treatment Miss Kot received was appropriate in view of her injuries.
4.	At this examination, Miss Kot complained of pain in the right knee when going up and down stairs and had difficulty lifting heavy weights.  Examination revealed tenderness at the right infrapatellar tendon and the fracture site.  There was slight limitation in ankle dorsiflexion.  There was unilateral muscular atrophy of the right thigh and calf, consistent with disuse of the right lower limb.  Radiologically, there was no post-traumatic arthritis affecting the right ankle.  The right forearm fracture healed with good alignment; there was only mild residual tenderness at the distal end of the plate.  Miss Kot did not complained of pain in the left wrist but there was slight limitation in radial deviation and radiological evidence of slight deformity of the distal radius.
5.	Miss Kot will benefit from a course of physiotherapy treatment aiming at strengthening of the muscles of the right thigh and right calf.  A further course of treatment for two months is indicated.  The cost of treatment will be about HK$8,000.  Removal of the intramedullary nail in right tibia and plates in the right forearm is indicated.  The costs of removal of the implants is HK$50,000 at the right tibia and right forearm.  The recovery will take four weeks.  The timing should be about six months from this examination.
6.	Applying the 5th edition of the ‘Guides to the Evaluation of Permanent Impairment’ published by the American Medical Association, Miss Kot’s impairment is:-
	Impairment due to residual pain at right knee, scarring and stiffness of the ankle due to fracture shaft of right tibia and medial malleolus = 6% impairment of the whole person; Impairment due to slight impairment movement of left wrist = 1%
	Impairment due to residual discomfort of the right forearm = 1%
	The total impairment is 8% of the whole person.
7.	The physical impairment should not prevent Miss Kot from returning to work as a clerk.  She will be independent in activities of daily living.  However, she will not be able to walk long distance especially when carrying heavy weight due to residual pain and stiffness of the right leg.  She may also encounter pain during strenuous physical work and this limits her ability to work as a manual worker.  Miss Kot may not be able to perform certain strenuous sports such as hiking or basketball.
8.	In view of the development of non-union and the bone graft operation on 19 August 2003, the sick leave given has been reasonable.  A further two months of sick leave is warranted to allow for rehabilitation in improving her muscle strength of her right leg.  When Miss Kot has the implant removed, a further six weeks of sick leave is required.”

35.  On the other hand, Dr Chun wrote in his report dated 19 February 2004 (based on an examination held on 16 February 2004) thus:

“	26.	She sustained closed fracture left distal radius.  It was treated conservatively with short arm paster immobilization followed by rehabilitation.  At present examination she had no symptoms referring to left wrist.  Examination showed full range of wrist and forearm motions.  X-ray showed fracture healed in anatomic position without joint changes.  This condition has reached maximal medical improvement.  The prognosis is good.  No further treatment is required.  No permanent impairment results.
	27.	She sustained closed fracture right ulnar bone.  This fracture was treated by open reduction and internal fixation.  She had no symptoms on the right forearm at present examination.  Physical examination showed good functional range of movements of the forearm and wrist.  X-ray showed fracture well united in anatomic position.  The adjacent joints are normal.  The prognosis is good.  No permanent impairment results.  The condition has reached maximal medical improvement.  The ulnar plate is causing no symptoms therefore can be left alone if she prefers.  However, in view of her age, she can choose to have it removed.  If that is the wish, the removal should be done in one setting with removal of implants in other parts of the body.
	28.	She sustained fracture tibia and fibula and medial malleolus of the right side.  These fractures were treated by reduction and internal fixation.  There was delay union of the fracture tibia requiring bone grafting operation in August 2003 to enhance bone union.  At this examination she complained of right knee pain and right leg pain.  The right knee pain was probably related to the surgical scar over the infra-patella tendon.  The right leg pain is related to the healing fracture, which is expected to reduce with solid bone union.  At this examination there was no gross deformity of the leg.  There was mild residual stiffness at the ankle, mild muscle wasting of the right thigh and leg.  X-ray showed an insignificant 7-degrees lateral angular deformity of the tibia.  Another 1-2 months of rehabilitation is required for full rehabilitation.  As the bone showed good healing there is no need for another bone grafting procedure.  With further exercise and limb strengthening I expect that the muscle wasting of the right thigh and leg will improve.  The mild residual ankle stiffness will also improve.  If she wishes after solid union of the fracture tibia, removal of the IMN can be done together with removal of the right forearm plate and screws.  The cost if done in private general ward setting, will cost about HK$50,000.00.  The convalescence for the surgery is 4 weeks.
	29.	Considering the overall clinical features, the prognosis is good.
	30.	After full rehabilitation and convalescence she should be able to return to work as account clerk.  There should be no significant restriction on her employability.
	31.	With present data, with regard to the right lower limb condition, as improvement can be expected, assessment of permanent impairment should be deferred.  However, if you consider that her condition would be unchanged in the future, then there is 7% impairment of the lower extremity, or equivalent to 3% impairment of the whole person for orthopaedic conditions.”

36.  There is not any real disagreement between the experts.  Counsel have not suggested otherwise at trial.  From the various reports, coupled with the Plaintiff’s appearance and evidence at trial, one gets a fairly accurate picture of her condition and residual disability.  I will now deal with the various items of claim in turn. 

Medical expenses

37.  They are agreed in the sum of $9,348.

38.  The only item in dispute is the cost of treatment from the Zhejiang Province Hospital in the Mainland.  The Plaintiff’s evidence was that her X-rays were sent to her classmate who brought them to the hospital and the doctors then prescribed her with some Chinese medicine.  She said that the medicine helped.  The amount in question was only $2,148.11.  I am prepared to allow the claim on the simple basis of a claim for traditional Chinese medicine of a humble amount (see below).

39.  Thus total medical expenses are $11,496.11. 

Travelling expenses

40.  They are agreed in the total sum of $2,197.40. 

Tonic food

41.  They are agreed in the total sum of $6,612.50.  I should add that in allowing the Chinese medicine claim under medical expenses above, I have already borne in mind the amount claimed in relation to tonic food.

Damaged glasses

42.  They are agreed in the sum of $228.

Expenses of employing a replacement worker for the father

43.  The Plaintiff’s father gave evidence to the effect that during the one month period of hospitalization of his daughter, he took time off from his work as boss of a small construction business to take care of his daughter in hospital, including taking meals to hospital and staying there to accompany the Plaintiff who was in a very low mood after the accident.  There was a minor dispute as to whether he used to go two times or three times a day to hospital.  But I do not think anything substantial turns on this.  He said that he had to hire a replacement worker of equivalent or similar experience to him to carry on with his construction company work, which included a certain amount of supervisory responsibilities.  He said the daily wage of the replacement worker was $900. 

44.  After the Plaintiff’s discharge from hospital, the father continued to hire the replacement worker for another half a month so as to enable him to look after her at home.  This was because after her discharge, the Plaintiff’s right upper limb was still in a paster, her left upper limb was bandaged and she was not able to bear weight on her right elbow limb.  She needed to be assisted.

45.  As for the Plaintiff’s mother, according to the evidence (both parents having given evidence at trial), she spent her time at home doing the cooking whilst the Plaintiff was in hospital.  After her discharge, the Plaintiff (and her daughter) moved to stay with her parents, and her mother had to continue with the preparation of meals and take care of the young daughter.  Her hands were full.  When the Plaintiff was in hospital, the daughter was to a Madam Lau for baby-sitting and in fact the daughter stayed with Madam Lau for a month.  The reason given was that the Plaintiff was in hospital, the father had to go to the hospital all the time whereas the mother had to take care of the cooking – moreover, she was throughout suffering from high blood pressure and was not in particularly good health.  Another factor to bear in mind is that the Plaintiff’s period of hospitalization coincided with the outbreak of SARS in Hong Kong and understandably it was felt that going to visit the Plaintiff in hospital and staying there to take care of her would risk exposing oneself to the deadly disease.  The Plaintiff’s husband worked in the Mainland most of the time and could only manage to return to Hong Kong occasionally to spend time with his wife in hospital.

46.  On the above basis, the Plaintiff claims a total of $34,200 for the father’s replacement worker. 

47.  I find the claim reasonable.  I accept the parents’ evidence.  In particular, I accept the father’s evidence regarding the need to employ the replacement worker in question.  In any event, the test here is not whether it was necessary to hire the replacement worker; rather it was whether it was reasonable (or unreasonable) to incur the amount in question.  I find that it was reasonable to do so and the amount incurred was reasonable, in the circumstances of the case.

Expenses of employing Madam Lau to take care of the daughter

48.  For the reasons explained above, Madam Lau was given $4,000 to take care of the daughter for one month who stayed with her during that period of time. 

49.  I do not accept Ms Tsang’s criticism that the mother of the Plaintiff could have taken care of the daughter herself.  Based on the circumstances as described in the evidence, I do not find the arrangement unreasonable.  In any event, even if the daughter were to stay with her grandmother, the (gratuitous) services of the grandmother would still attract compensation, just like the (paid) services of Madam Lau: Kemp & Kemp, The Quantum of Damages (loose-leaf ed.), vol. 1, para. 5-022 et seq.)  I reject counsel’s argument.

50.  I find the sum of $4,000 reasonable and I allow it.

Expenses paid to the mother to take care of the daughter

51.  After the initial one month, the daughter returned to stay with the Plaintiff and the Plaintiff’s parents.  Because of the condition of the Plaintiff, she was taken care of by the Plaintiff’s mother.  According to the evidence, the mother required a sum of $2,500 per month to be paid by the Plaintiff in respect of her taking care of the little daughter as well as the Plaintiff, who were both staying with the Plaintiff’s parents, unlike before when the granddaughter would only stay in her grandparents’ place during day-time on weekdays. 

52.  I find the arrangement and the payment reasonable.  Even if the mother had been prepared to render her services voluntarily, as a matter of law, the Plaintiff could still claim compensation in respect of the gratuitous services that had been so rendered: Kemp & Kemp, supra.  Again I reject counsel’s argument to the contrary.

53.  Counsel also argued that a significant portion of the sum of $2,500 per month was attributable to the provision of food to the Plaintiff herself who stayed with her parents after discharge from hospital.  She said that there should be a discount.  That submission was premised on the assumption that the sum of $2,500 was an accurate reflection of the market value of the services (and food) that had been provided by the parents to the Plaintiff and her young daughter.  I accept Ms Lee’s argument that that was not the case.  In my judgment, the commercial or market value of the board and lodging that had been provided by the parents to the Plaintiff and her young daughter, not to mention the extra care and attention that the parents were providing to the Plaintiff during her recovery at home, far exceeded the sum of $2,500 per month.  In those circumstances, I see no justification whatsoever to apply any discount on the amount claimed.

54.  As for the period of claim, however, I am minded to limit it up to the time when the Plaintiff resumed working after the accident, i.e. a post-accident period of 13 months.

55.  In those circumstances, the amount of award here is $32,500 in total. 

Actual loss of earnings and MPF

56.  Total loss of earnings for a post-accident period of 13 months in the total sum of $130,000 (13 months at $10,000 per month based on the Plaintiff’s pre-accident income as a miscellaneous clerk) has been agreed, together with an agreed sum of $6,500 ($10,000 per month x 13 months x 5%) being loss of mandatory provident fund (MPF) for the same period of time. 

57.  The dispute between the parties centres on the Plaintiff’s post-accident income.  According to the evidence, the Plaintiff spent one and a half months time to look for a job after she was fit to return to work, her pervious company having re-located to Shenzhen in late 2003.  She found a job as a clerk in the New Territories, earning $6,000 per month.  She said that she could no longer work as a miscellaneous clerk with heavy outdoor duties as before, and she said that she had lost some self-confidence in finding or keeping jobs.  She also said that she can no longer carry heavy objects.  She is still in that job that she has found.

58.  The Defendants through counsel argued that the Plaintiff is capable of returning to her pervious occupation of a shipping clerk, in which job she has got quite substantial experience and training.  Her last job as a shipping clerk carried an income of $10,000 per month in 2002.  Ms Tsang therefore argued that there was no loss of earnings or MPF at all after the lapse of the initial period of 13 months after the accident (and there is no loss of future earnings or MPF either).

59.  The Defendants’ argument is essentially an argument on mitigation.  At the very least, the Defendants bear the burden of laying an evidential foundation for their argument.  However, there was no evidence placed before the Court regarding the availability of the job of a shipping clerk or the average earnings from the job (if available).  Moreover, the Defendants’ argument ignored the Plaintiff’s evidence (which I accept) that the job of a shipping clerk would involve a lot of outdoor activities in visiting shipping companies for documents.  Given the nature of the Plaintiff’s injury and residual disability, there is likely to be some limitations on her taking up such a job again.  Moreover, according to the Plaintiff’s evidence, she has suffered a loss of self-confidence and her memory is not as good as before.  The evidence was not really challenged in cross-examination.  In any event, I accept her evidence.  All this would have an effect on her finding and keeping a job as a shipping clerk.

60.  In all the circumstances, I reject Ms Tsang’s argument.  In other words, partial loss of earnings after resumption of work should be calculated at the rate of $4,000 ($10,000 – $6,000) per month, i.e. as from 1 April 2004 when the Plaintiff resumed working as a clerk.  On top, there has been a partial loss of MPF at $200 per month ($4,000 x 5%).  In other words, the total has been $4,200 per month as from 1 April 2004.  The partial pre-trial loss is therefore quantified at: $4,200 x 10 months = $42,000. 

61.  In other words, total pre-trial loss of earnings and loss of MPF are $178,500. 

Loss of future earnings and MPF

62.  The Plaintiff is now 31 years old.  I would adopt a multiplier of 15.

63.  The future loss of income (and MPF) is:

$4,200 x 12 x 15 = $756,000.

Future medical expenses

64.  The only disputed matter relates to whether the implant removal operation should be done in a private or public hospital, the estimated cost of operation if done in the former having been agreed in the sum of $50,000.

65.  The Plaintiff said in evidence that she prefers the operation to be done in a private hospital as opposed to a government hospital because she would not need to wait so long and she can have the doctor of her own choice to carry out the operation.

66.  I find the consideration of the Plaintiff reasonable.  I would allow the claim in the sum of $50,000. 

67.  There would be ancillary loss of income for 4 weeks (as agreed) which I would quantify in the sum $6,000.  On top, there would be miscellaneous expenditure like the cost of follow-up, travelling and related expenses.  I would award a global sum of $8,000 (inclusive of the 4 weeks’ loss of income). 

68.  In other words, the total amount in relation to the removal of implants is $58,000.

Loss of earning capacity

69.  Here I am with Ms Tsang.  On the basis that the Plaintiff will work as a clerk for the rest of her working life, there is quite insufficient basis to found an award for loss of earning capacity, on top of the award for loss of future earnings.  The job as a clerk has already taken into account, almost by definition, the residual disability of the Plaintiff.  On the facts, having borne in mind the well known general legal principles on this head of damages (see for instance, Chan Wai-tong v. Li Ping-sum [1985] HKLR 176, 182F – 183H; Moeliker v. A. Reyrolle & Co. Ltd [1977] 1 WLR 132, 140), I see no warrant for making an award for loss of earning capacity in addition to the award for loss of future earnings.  After all, the Plaintiff only took one and a half months’ time to find her present job in early 2004.  I am not satisfied on the evidence that the Plaintiff would be substantially and unduly disadvantaged in the labour market in finding and keeping jobs (as a clerk) by reason of her residual disability. 

Pain, suffering and loss of amenities

70.  Based on the medical evidence and the evidence of the Plaintiff in the box, I am of the view that an award in the sum of $400,000 is reasonable and fair.  In this regard, I have borne in mind the cases cited by Ms Tsang, namely Lee Chun Fat v. Chan Kin Wo HCPI 1306/2000 (29/5/2002); Wong Lai Kai v. Wu Chan Choi HCPI 962/1996 (22/4/1999); Lam Sau Ying v. Shiu Yat Sang HCPI 892/2002 (30/3/2004); Cheng Kwok Sang v. Maxim’s Caters Ltd HCPI 237/2001 (7/2/2003); Cheung Koon Wah v. Leung Ka Hang HCPI 76/2002 (30/11/2002); Chan Chung Lop v. Chan Yun Sun HCPI 1327/1996 (19/3/1999) and Ku Chiu Chung Woody v. Tang Tin Sung HCPI 288/2001 (20/9/2002).  I have also taken into consideration two additional cases that Miss Lee has referred me to, namely The Kang Oh v. Wong Yik Fai [1997] HKLRD L38 (23/10/1997) and Luk Chi Yin v. Wong Fung Shing [1998] HKLRD L24 (6/11/1998).

71.  As I said, I think a sum of $400,000 is reasonable and fair.  In other words, in my judgment, the present case falls short of the serious injury category. 

Summary

72.  My above quantification is summarized as follows:

Medical and travelling expenses,	$     20,534.01
tonic food and damaged glasses
Father’s replacement worker	$     34,200.00
Child minding fee paid to Madam Lau	$       4,000.00
Mother’s services	$     32,500.00
Pre-trial loss of earnings and MPF	$    178,500.00
Future loss of earnings and MPF	$    756,000.00
Future medical & related expenses	$     58,000.00
Loss of earning capacity	Nil
PSLA	$    400,000.00
	$ 1,483,734.01

Judgment

73..  I therefore give judgment to the Plaintiff against both Defendants for damages in the total sum of $1,483,734.01.

Interest

74.  I also award interest on special damages ($269,734.01) at half the judgment rate from the date of accident (28 February 2003) to the date of judgment and thereafter at the judgment rate until full payment, and interest on the award for PSLA ($400,000) at 2% per annum from the date of the writ (30 March 2004) to the date of judgment and thereafter at the judgment rate until full payment. 

Costs

75.  I make a costs order nisi that the costs of the action be paid by the Defendants to the Plaintiff, to be taxed if not agreed.  Unless either party should apply to vary the costs order nisi within 14 days after this judgment is handed down, the same shall become absolute upon the expiry of the 14-day period.

76.  I would like to thank counsel on both sides for their helpful assistance.