SIU WAI YEE v. LAU SIN HANG

HCPI 700/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 700 OF 2004

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J U D G M E N T

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1. This is a claim for damages for personal injuries sustained by the plaintiff as a result of being knocked down by a light goods vehicle (“the vehicle”) driven by the defendant at about 9.30 am on 11 September 2002.  Although in the defence the question of liability was denied, Ms Tsang, for the defendant, at trial accepted that the defendant was negligent and caused the injuries sustained by the plaintiff.  However, she submitted that the plaintiff was guilty of contributory negligence.  The question of damages was also disputed.

Liability

2. The plaintiff at all material times ran market stalls at the market at the Shek Wai Kok Estate in Tsuen Wan (“the Shek Wai Kok market”) where she sold fruits, vegetables and flowers.  She used to purchase fresh fruit in the mornings from the Yau Ma Tei wholesale fresh fruit market, (“the fruit market”).  On the morning of 11 September 2002 she went to the fruit market. She purchased fresh fruit from a wholesaler Fuk Sang Lan in Shek Lung Street.  The wholesaler assigned a worker, Chan Chik Bo (“Bo”), to deliver the fruit to the plaintiff’s car which she had parked some distance away from the fruit market.  She had parked her car in Pitt Street, which is a side street off the north side of Reclamation Street across Waterloo Road as shown in the sketch plan referred to in evidence. 

3. Bo had loaded the fruit purchased by the plaintiff onto a metal handcart of the wholesaler.  The handcart was 2 ft wide and 3 ins long.  He pushed the handcart along Shek Lung Street and turned left into Reclamation Street and continued pushing the handcart on the 1^st lane of the road going north towards the direction of Waterloo Road.  The plaintiff saw Bo pushing the handcart and decided to help him push the same to her car so that the fruit could be loaded onto her car.  They were pushing the handcart slowly along the 1^st lane on Reclamation Street.  There were 3 lanes going one way along Reclamation Street.  Bo was pushing the handcart on the left and the plaintiff was on the right of Bo.  She was behind the handcart.  

4. At all times the plaintiff remained in the 1^st lane and there was a gap of about 18 ins from the side of the handcart to the dividing line between the 1^st and 2^nd lane.  She did not protrude her body to the side of the handcart but remained behind it helping Bo push the same slowly.  After pushing the handcart for about 46 ft the plaintiff was hit from behind by the vehicle on her right side.  She fell and rolled over for 2 to 3 loops onto the 2^nd lane. The vehicle did not stop and its rear wheel ran over her left thigh. After someone had shouted to the defendant saying that he had knocked someone down, the defendant stopped the vehicle.  The plaintiff said that the defendant eventually stopped the vehicle in the 3^rd lane.  The defendant did not give evidence and no evidence was called on behalf of the defendant. 

5. I believe the plaintiff’s evidence on these matters.  I find the above facts proved.  I find that the plaintiff was truthful when she gave evidence of the circumstances of the accident.

6. The defendant was later charged with careless driving and was convicted on his plea of guilty.  He was fined $1,000 and suspended from driving for 1 month.  He admitted the brief facts at his trial.  The brief facts stated, inter alia, that the defendant failed to pay due care and attention to the traffic condition at his nearside.  Also included in the brief facts was the fact that whilst the defendant drovepast the handcart which was being pushed along the 1^st lane, the nearside of the vehicle hit onto the right side of the plaintiff’s body.  The plaintiff lost balance and fell down and her left foot was rolled over by the nearside rear wheel of the vehicle.  In view of the defendant’s conviction for careless driving and the facts admitted by him at his trial it is not surprising that Ms Tsang accepted that the defendant was negligent and caused the plaintiff the injuries she sustained.  

7. I am satisfied that liability has been established against the defendant and I find that the defendant caused the plaintiff the injuries that she sustained.

Was there contributory negligence?

8. The only issue on the question of liability is whether the plaintiff was guilty of contributory negligence.

9. It is, of course, for the defendant to show that there was contributory negligence on the part of the plaintiff which has contributed to the damage caused to the plaintiff.

10. The allegation at para 11 of the defence that the plaintiff was very close to the 2^nd lane and had at times crossed the white line between the 1^st and 2^nd lane is unsustainable as there was no evidence of this.  This was not even suggested to the plaintiff in cross-examination.  I reject this allegation.  The alternative plea made in para 11 of the defence is that the plaintiff had slipped and fell onto the ground.  This is also unsustainable.  There was no evidence of this.  It was also not even suggested to the plaintiff in cross-examination.

11. I find that the plaintiff was pushing the handcart along the 1^st lane and that there was a space of about 18 ins between the side of the handcart and the white line dividing the 1^st and 2^nd lanes. 

12. I was referred to the Road User’s Code.  This provided as follows:

“If you are using a handcart………….you need to take extra care to protect your safety and the safety of others.

……………………………………………………………………….

Use the pavement whenever possible………………………..............

If you are using a large cart or the pavement is crowded or too narrow, then you should use the roadway.

When using the road follow the rules and advice for drivers;…………..Do not push or pull your cart or trolley the wrong way along a one-way road …………………………….Keep looking behind when moving along the road.”

13. The evidence of the plaintiff, which I accept, was that they could not push the handcart on the pavement as there were already a lot of goods on the pavement.  She also said that others were also pushing handcarts on the road rather than on the pavement.  As the police photographs taken shortly after the accident show, the pavement along Reclamation Street near where the accident happened was obstructed with boxes outside the shops of wholesalers along Reclamation Street.  The pavement was, in my view, too crowded and I find that the plaintiff was entitled to use the roadway according to the Road User’s Code. 

14. The particulars of contributory negligence alleged against the plaintiff are pleaded at para 14 of the amended defence.  Para 14 pleads that :

‘Or, in the alternative, the Defendant avers that the Plaintiff had been contributory negligent in causing the accident.

(1)	Wrongfully walked on the left 1st lane of Reclamation Street which was designed for the use of vehicles only;
(2)	Failing to keep a safe distance from the traffic on her right;
(3)	Failing to keep her path on and along the left 1st lane of Reclamation Street to as far-left as possible;
(4)	Failing to control the movement of her body and causing it to be exposed to the traffic on the 2nd lane behind;
(5)	Failing to keep steady pace and/or to pay attention to the road condition and as a result slipped herself to the ground.’

15. Particulars (1) which alleged that the plaintiff wrongfully walked on the left 1^st lane has not been established.  I have found that the plaintiff was entitled to use the roadway as the pavement was too crowded.

16. Particulars(2) which alleged that she failed to keep a safe distance from the traffic on her right has also not been established as there was a gap of about 18 ins from the side of the handcart to the white line dividing the 1^st and 2^nd lanes.  The plaintiff was at all times on the 1^st lane and did not move onto the 2^nd lane.  

17. By particulars (3) it is alleged that she failed to keep her path along the 1^st lane to as far left as possible.  Whilst it can be said that she and Bo did not keep to as far left as possible whilst pushing the handcart along the 1^st lane this did not, in my view, contribute to the damage caused to the plaintiff.  The plaintiff and Bo were in the 1^st lane pushing the handcart.  The plaintiff at all times prior to the accident stayed in the 1^st lane with a gap of 18 ins between the side of the handcart and the white line dividing the 1^st and 2^nd lanes.  She did not move into the 2^nd lane at all.  The collision was caused solely because the defendant did not pay due care and attention whilst driving along Reclamation Street.  He did not sound any horn.  He failed to see the plaintiff and struck her from behind.  As the plaintiff was at all times in the 1^st lane the defendant must have driven into the 1^st lane from the 2^nd lane and struck the plaintiff from behind without seeing her.  In my judgment the accident was caused solely by the defendant’s failure to pay due care and attention whilst driving along the 2^nd lane and going into the 1^st lane.  The vehicle then collided with the plaintiff from behind and then after she had rolled over into the 2^nd lane the defendant drove over the left thigh of the plaintiff.   I am satisfied that the defendant has failed to show that the matters alleged in particulars (3) constituted any contributory negligence on the plaintiff’s part.

18. Particulars (4) and (5) have simply not been established on the evidence.  There was no evidence that the plaintiff moved her body to the 2^nd lane at any time before the accident.  There was also no evidence that she herself slipped onto the ground.  

19. Although Ms Tsang submitted that the plaintiff failed to keep looking behind when pushing the handcart, this was never pleaded in the amended defence under the particulars of contributory negligence and the defendant is not entitled to rely on the same as constituting contributory negligence.

20. In the circumstances the defendant has failed to establish any contributory negligence on the part of the plaintiff. 

21. The defendant is 100% liable for the injuries sustained by the plaintiff and I so find.

Quantum of damages

22. The areas of dispute between the parties is the award for pain suffering and loss of amenities (PSLA), loss of earnings, both for pre-trial and for the future, and loss of earning capacity. 

23. Certain items have been agreed as follows:

PSLA

24. The plaintiff was born on 23 November 1963 and was just under 39 years old at the time of the accident.  She is now just under 42 years old. 

25. The injuries sustained by the plaintiff can be found in the Joint Report of the specialists in orthopaedics namely, Dr Chun Siu Yeung and Dr Danny Tsoi Chi Wah dated 17 December 2004 (“the Joint Report”).  The injuries sustained by the plaintiff as a result of the accident are not disputed.  She had a fracture of the left acetabulum and an extensive wound with severe soft tissue degloving to the left thigh.  She underwent an operation at the Kwong Wah Hospital. She had a pin inserted at upper leg level and she was put on skeletal traction in bed for over 70 days.  During this period she had 8 repeated operations of debridement of thigh wound and finally skin graft of the wound.  She was discharged home a few days after the last operation.  She was hospitalized for over 80 days.  On discharge she was walking with a pair of crutches.

26. After discharge from hospital, the plaintiff had occupational therapy for 3 to 4 months but no physiotheraphy.  She attended regular follow up treatment.  She was given sick leave up to 12 February 2004. 

27. On an examination of her pelvis, left hip and left lower limb,the 2 doctors found at least 3 areas where she had extensive scarring as follows:

(a)	left lower abdominal scar of rectangular shape 17 cm by 11 cm , pigmented and non-hypertrophic;
(b)	anterior, medial and lateral aspects of left thigh upper 2/3 covered by split thickness skin graft, mature of 29 cm by 30 cm, mild to moderately hypertrophic and decreased sensation; and
(c)	on right thigh anterior aspect skin graft donor site of 25 cm by 23 cm non-hypertrophic.

28. Apart from the scarring, the plaintiff also had tenderness at anterior superior iliac spines and left sacro-iliac joint.

29. There was also a loss of proximal quadriceps muscle, scar at this site was tethered down to muscle.  There was also a slight loss of hip flexion and muscle wasting at the left thigh girth.

30. Also in evidence was the report dated 14 October 2004 of Dr Walter King, the Specialist in Plastic and Reconstructive Surgery, who was of the opinion that the scars to the left lower abdomen and contour deformity to the left anterior thigh were permanent.  The photographs attached to his report show how extensive and unsightly the scarring and contoured deformity are.

31. The plaintiff also gave evidence, which I accept, that her marital life gradually deteriorated after the accident.  Recently, for the past few months there has not been any sexual relationship with her husband.

32. At the time of the joint medical examination on 7 December 2004 the plaintiff complained of being unable to carry heavy objects because of her left buttock pain after heavy exertion.  She was unable to squat down.  She also complained of swelling of her left leg and foot after prolonged standing.

33. Para 37 and 38 of the Joint Report stated as follows:

“	37.	On physical examination, we noted that the scars are matured, but the there was tethering of the proximal left thigh skin grafted scar down to muscle.  There was loss of quadriceps muscle probably as a result of multiple debridement.  There was mild decrease of hip flexion and knee extension power, compatible with the muscle loss.  She was over-weight.  Her walking gait was normal.  She was not able to squat down.  There was wasting of the left thigh muscle.  The left hip flexion was reduced.  The right hip motions are in good functional range.
	38.	X-ray examination showed right pubic rami fracture healed with slight mal-alignment.  The left fracture acetabulum healed with mild irregularity on the acetabular side of the joint.  There is no avascular necrosis and the articular interval is maintained.”

34. Both doctors were of the opinion that the chance of her developing post-traumatic osteoarthritis in the hip was under 10% compared to a normal hip of similar age.  They also considered her orthopaedic condition static and no further active treatment was required save for recommending a weight reduction program to bring her weight down to no more than 150 lbs.

35. The doctors were also of the view that she may have difficulty carrying and lifting heavy objects.  Dr Tsoi believed that it was reasonable for her to employ additional worker to help her in delivering heavy items.

36. I was referred to a number of authorities by both Counsel on PSLA awards in other cases.  Each case, of course, depends on its own facts.  I have considered the cases cited to me.  Taking into account the injuries sustained by the plaintiff, the extensive scarring and contour deformity that I have referred to, the deteriorating sexual relationship with her husband, no doubt due to the presence of the unsightly scarring and contoured deformity that I have mentioned, I am of the view that the injuries sustained are close to the upper range of the serious injury category.  In my view, an appropriate award for PSLA is $550,000 and this is what I award under this head.

Pre-trial out of pocket expenses

37. The plaintiff based her claim for loss of earnings in the Revised Statement of Damages on the basis of loss of profit of the business of the plaintiff and alternatively, on the basis of out of pocket expenses in the form of additional labour costs.  At trial, however, Mr. Li, for the plaintiff, did not maintain the claim on the basis of loss of profit of the plaintiff’s business.  He relied solely on the alternative basis namely, the out of pocket expenses in the form of additional labour costs incurred by the plaintiff after the accident.

38. The plaintiff gave evidence that at the time of the accident she ran market stalls at the Shek Wai Kok market under the business name of Ming Kee as sole proprietor.  She kept no records of her sales and purchases.  She said that the profit and loss accounts of her business as disclosed in evidence were prepared by her accountants based on the estimates of sales and purchases that she had provided to them.  She also said that her accountant prepared her tax returns on her behalf based on the same.  

39. The plaintiff was cross-examined on the profit and loss accounts adduced in evidence and the tax returns filed on her behalf.  It is plain from her evidence that the profit and loss accounts did not accurately reflect the expenses of the business as they failed to accurately show the salaries paid by the plaintiff to all her employees.  That being so, it follows that the profit and loss accounts and the tax returns filed on her behalf did not accurately reflect the profit and loss of her business.  I find that the profit and loss accounts referred to in evidence are not reliable accounts of her profit and loss.  Be that as it may, I am satisfied that the plaintiff is a truthful witness and I accept her evidence.  I believe the plaintiff even though it is clear from her evidence that the tax returns filed on her behalf and referred to in evidence were incorrect returns.  As the profit and loss accounts of the plaintiff’s business as disclosed in evidence are unreliable, it is not surprising that at trial Mr Li did not base the claim under this head on the basis of loss of profits of the business but instead relied solely on the alternative claim based on out ofpocket expenses incurred by the plaintiff. 

40. The plaintiff gave evidence that before the accident she operated a flower stall, a fresh fruit stall and a vegetable stall.  She engaged one full time and one part time helper to help her look after the stalls.  In addition she had a contract with a truck driver at $10,000 per month to deliver goods from the wholesalers to the Shek Wai Kok market after her purchases.  She gave evidence that before the accident she went to the flower market at around 6 am to choose and purchase flowers.  Thereafter she would go to the fruit market in Yau Ma Tei.  By 9 am or so she would have finished purchasing fruit at the fruit market.  Sometimes when there was not a lot of fruit to purchase she would drive her car there and collect the fruit in her car.  However, when there was a lot of fruit to purchase the truck driver would transport the fruit back to the Shek Wai Kok market after the purchase of the same. 

41. In addition the plaintiff would also go to the Cheung Sha Wan Vegetable Marketing Organisation (“the vegetable market”) to buy vegetables in the evening at about 5.30 pm to 6 pm.  She would need to lift heavy baskets or cartons of vegetables weighing between 30 to 70 catties in the course of selecting suitable vegetables for purchase and load them onto a trolley whilst making her purchases from different wholesalers at the vegetable market.

42. On the days when she was not required to make purchases at the flower market or fruit market, the plaintiff would assist her workers to open the stalls at the Shek Wai Kok market.  This would involve moving the goods onto display shelves.

43. The type of work involved in the purchase of vegetables at the vegetable market and the moving of the same onto the trolley so that they could be loaded onto the delivery truck is clearly shown in the video tape, exhibit P1.  What was involved in setting up the stalls in the Shek Wai Kok market and the unloading of goods from the lorry onto the trolley and transporting the same to the stalls in the market are clearly shown in the video tape, exhibit P2. 

44. The said exhibits support the plaintiff’s evidence that the work included the lifting of heavy cartons and boxes of goods.  The plaintiff gave evidence that she was able to do this type of work before the accident but that after the accident she was unable to do so.  I believe her. 

45. The out of pocket expenses incurred by the plaintiff after the accident were for employing her sister in law Shum Lai Ying (“Shum”) on a full time basis at $6,000 per month and Chong Hon Shing (“Chong”) as a merchandiser at $3,500 per month making a total of $9,500 as out of pocket expenses incurred by the plaintiff after the accident.  Was it reasonable for the plaintiff to employ both Shum and Chong? 

46. The Joint Report shows that at the examination she complained of inability to carry heavy objects because of left buttock pain after heavy exertion, inability to squat down and swelling of left leg and foot after prolong standing.  The doctors also accepted that she may have difficulty carrying or lifting heavy objects.  

47. The evidence of the plaintiff was that after the accident she employed Shum as the plaintiff was not able to lift heavy objects.  Shum was paid $6,000 per month.  It was never suggested to the plaintiff in cross-examination that she did not employ Shum at $6,000 per month.  Shum also gave evidence which supported the plaintiff’s case.  I have no hesitation in believing the plaintiff and Shum that on or about12 September 2002 the plaintiff employed Shum as a full time market stall assistant at a monthly salary of $6,000.  This was an out of pocket expense which in my judgment was reasonably incurred by the plaintiff after the accident.  But for the accident it would not have been necessary for the plaintiff to employ Shum.

48. I also have no hesitation in accepting the evidence of the plaintiff and Chong that the plaintiff employed Chong at $3,500 per month as her merchandiser of vegetables from different wholesalers at the vegetable market so that he could choose, purchase and bid for vegetables from the wholesalers at the vegetable market on behalf of the plaintiff.  It was also never suggested to the plaintiff that she did not employ Chong after the accident.  I am also satisfied that it was reasonable for the plaintiff to employ Chong after the accident. His work involved not only choosing vegetables but also picking up heavy cartons and boxes in the course of choosing vegetables and loading them onto trolleys in the course of making purchases.  All this the plaintiff could do before the accident but after the accident she could no longer do this.  But for the accident it would not have been necessary for the plaintiff to employ Chong.

49. I am satisfied that the plaintiff is entitled to be compensated for the pre-trial out of pocket expenses.  This was the loss that she suffered as a result of the accident.  The evidence was that Chong is still employed by the plaintiff.  However, Shum was only employed from 12 September 2002 to about 10 August 2005, shortly before trial.  There was no evidence that another worker took her place after 10 August 2005.  The plaintiff has incurred an additional monthly expenditure in the sum of $9,500, being $6,000 paid to Shum and $3,500 paid to Chong.  

50. However, after the accident the plaintiff has had to spend less for transportation of her purchases and this has to be taken into account in the award for pre-trial loss.  She gave evidence that before the accident she had a contract with a truck driver to make deliveries at $10,000 per month.  After the accident she no longer hired him on a monthly basis as the cost was too high.  She hired a private owned lorry to deliver her vegetables at $130 per truckload. There was at least one delivery each day and occasionally, on festivals, there might be more than one delivery in a day.  As regards the transportation of fresh fruit from the fruit market to the Shek Wai Kok market, when she made purchases in bulk and was unable to transport the bulk purchases in her car, she hired a driver of a goods van at $100 per delivery.  There were around 15 such deliveries a month.  That being so, on the plaintiff’s evidence, which I accept, she spent about $3,900 ($130 x 30) on transportation of vegetables and $1,500 ($100 x 15) on transportation of fresh fruit in a month.  This resulted in monthly savings to the plaintiff of $4,600 ($10,000 - $3,900 - $1,500) in transportation costs.  This must be taken into account in the award for pre-trial loss.  The monthly net loss suffered by the plaintiff as a result of the accident is, therefore, $4,900 ($9,500- $4,600).

51. I award pre-trial out of pocket expenses from 12 September 2002 to 10 August 2005 being 35 months, at $4,900 per month.  The award is therefore $171,500.  I do not make any award from 10 August 2005 to 16 September 2005, the date of trial, as there is no evidence that the plaintiff hired someone else to take the place of Shum for that period.  That being so, the monthly savings of $4,600 in transportation costs is sufficient to cover the sum of $3,500 paid to Chong and no further award should be made from 10 August 2005 to trial.

Future out of pocket expenses

52. As for the future loss, the parties have agreed a multiplier of 12 for the plaintiff.  

53. Although there was no evidence that for the period from 10 August 2005 to trial the plaintiff had engaged someone else to replace Shum who left her employment with the plaintiff on 10 August 2005, it is clear on the evidence, which I accept, that the plaintiff intends to continue running her business as sole proprietor. It is also clear on the evidence, which I accept, that without the additional help of a full time worker like Shum, and a merchandiser like Chong, she is unable to continue running her business as before.  Although Shum is no longer working for her, it seems to be that it can reasonably be inferred, and I so infer, that she will have to employ a full time worker soon, if she has not already done so, to replace Shum.  It is also reasonable for the plaintiff to pay her the same wages as Shum namely, $6,000 per month.  That, after all, is the same salary paid to the other full time helper that she already has.  

54. I am also satisfied that the plaintiff is entitled to be compensated for future out of pocket expenses.  It seems to me that it is reasonable to adopt the same multiplicand of $4,900 as that for the pre-trial out of pocket expenses after taking into account the savings made by the plaintiff in transportation costs.  The award for future out of pocket expenses is therefore $705,600 ($4,900 x 12 x 12).

Loss of earning capacity

55. The plaintiff claims the sum of $100,000 for loss of earning capacity.  The reality is that the plaintiff has been a sole proprietor running her own business of market stalls for many years prior to the accident.  She intends to continue to do so in the future.  There is no reason why she cannot continue to run her business as before the accident with the additional help that she has obtained by way of a full time helper at the market stalls and a merchandiser like Chong.  I am not satisfied that on the evidence there is a real risk that the plaintiff would be thrown into the labour market and seek employment elsewhere.  I make no award for loss of earning capacity.

Interest

56. It is agreed that interest at 2% p.a. should be awarded for general damages from date of writ to trial and interest at half judgment rate (i.e. 4.122%) should be awarded for special damages from date of accident to date of trial.  The plaintiff is also entitled to interest on the award of $550,000 for PSLA at 2% p.a. from 30 July 2004, date of writ, to date of trial, 15 September 2005, namely for 13.5 months.  This comes to $12,375  ($550,000 x 2% x 13.5/12).

57. The plaintiff is also entitled to interest on special damages from date of accident on 11 September 2002 to date of trial 15 September 2005 namely, for 36 months.  This comes to $27,390 ($171,500 + $20,000 + $30,000 x 4.122% x 36/12).  The plaintiff is entitled to interest in the total sum of $39,765.

Summary

58. The damages and interest awarded to the plaintiff are as follows:

Conclusion

59. I give judgment to the plaintiff in the sum of $1,666,865.  I also make an order nisi that the defendant do pay the plaintiff her costs of the action.