LAM CHU v. TSE LUM WONG & ANOTHER

HCPI 626/2003

IN THE HIGH COURT OF THE 

HONG KONG SPECIAL ADMINISTRATIVE REGION 

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.626 OF 2003

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Dates of Hearing : 8-10 September 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 on 20 June 2000 when she was knocked to the ground by a coach driven by the 1^st defendant.  At the material time she was employed by the 2^nd defendant and was at her place of work.

2. Having heard evidence from the plaintiff, the 1^st defendant and a representative of the 2^nd defendant and having considered all the admitted documentary evidence such as witness statements, police statements and reports, photographs, plans and so on I am satisfied that the material facts of the incident, upon which I base my judgment, are as follows.  In making the following findings I have not overlooked the fact that after the accident the plaintiff suffered a spell of amnesia.  Days after the accident she told doctors that she could not recall the circumstances of the incident.  However her memory has returned.  She gave evidence to that effect which I accepted.  I am able to rely on her evidence on key issues, however on some matters of small detail I think she has reconstructed the incident in her mind (albeit honestly) so as to fill small gaps in her memory.

Factual findings concerning the accident

3. The plaintiff (Miss Lam) was 37 at the time of the accident.  She was a toll collector at the Shing Mun Tunnel and had been so employed for about three years.  For some time prior to the accident she had worked on the night shift which was from 11:00 p.m. to 7:00 a.m.  The job involved sitting in a toll booth at the tunnel entrance and collecting money from drivers.  The collectors took a rest during the middle of the shift.

4. The Shing Mun Tunnel joins Shatin and Tsuen Wan.  There are 13 toll booths in total.   Each one is constructed on a small island, they are all in a row and about 10 ft apart.  Traffic entering the tunnel is on its way to Shatin, traffic emerging is on its way to Tsuen Wan.  There is an administration building to one side where employees gather and return to at the beginning and the end of each shift.  The administration building was on the side of the toll plaza nearest to traffic going to Shatin.  The plaintiff was also working on that side, at booth No.5, collecting money from traffic going to Shatin.

5. For the plaintiff to walk from booth No.5 back to the administration building she had a choice of routes.  She could either take the most direct route which involved walking with booths Nos.1-5 on her left and therefore placing them between her and the oncoming traffic.  The slightly longer route involved her walking in front of the booths, with the booths on her right, which meant that she would have a clear view of the traffic approaching the toll booths.  I shall refer to the latter as the “front/safer” route and the former as the “rear/less safe” route.

6. At about 7:00 a.m. Miss Lam’s replacement toll collector arrived at booth No.5 (which collected tunnel fares for vehicles in lane No.5).  Miss Lam put all her fares into a bag and was ready to finish her shift and return to the administration building.  It was dawn, neither fully light, nor fully dark.  It was raining very heavily.  The amber rainstorm warning was up.  The very heavy rain had started within the previous hour.  Because of both the rain and the gloomy light vehicles had their lights on.

7. Miss Lam borrowed a company raincoat from her replacement collector.  She put the money bag under her arm and the raincoat (which was orange in colour and of three quarter length) over her shoulders.  She did not button it up but wore it as a cape, holding it together at the front and with the hood over her head.

8. Once outside the booth there was a canopy overhead which went over every toll booth along the entire width of the toll plaza.  This gave limited protection from the heavy rain.

9. However she commenced her return journey by stepping off the small island on which the booth stood and on to the road surface at the rear of the booth.  There was a stainless steel barrier at the rear of each booth built on the small island which barred the way for anyone wanting to go from island to island back to the administration building.  Both the “front/safer route” and the “rear/less safe” route, in reality, involved walking on the road surface.

10. Miss Lam chose the “rear/less safe” route.  It was shorter and was the route she had always used.  (It is worthy of note that when working at the booths collecting fares from traffic coming out of the tunnel, further away from the administrative building, the shorter route becomes the safer route because after a point half way along the traffic is coming from the other direction and therefore in full view and not obstructed by the toll booths.)

11. In order to get back to the administrative building Miss Lam had to cross lanes 5, 4, 3, 2 and 1.  Lanes 4 and 2 were autotoll lanes where the vehicles drive straight through because there is no requirement to stop.

12. Miss Lam crossed lane 5 successfully.  When she got to booth No.4 she stopped at the rear of the traffic island on which booth No.4 stood and looked left.  She had her hood up, it was raining very heavily, it was gloomy light and there were various of artificial lights in the vicinity including vehicles’ lights, lights from the booths, lights from the road signs and distant street lights.

13. I doubt that she stopped very long at the rear of booth No.4.  However I am satisfied that she did stop.  She said she stopped for five minutes.  However when asked, in court, to demonstrate how long she had stopped she demonstrated a period nearer to five seconds, rather than five minutes.  She said she looked left, did not see anything approaching so walked briskly across lane 4.  I accept that she at least glanced, however she did not see the coach approaching which struck her as she crossed.

14. The evidence suggests that she had got over half way across lane 4 at the moment of impact.  The police report shows her, diagrammatically, on the ground near the white lines between lanes 4 and 3 (but still in lane 4).  The front of the coach was slightly dented by the impact at a point slightly nearer to the nearside corner than the offside.  The coach had veered very slightly to its left at or just before the moment of impact.

15. The driver of the coach was Tse Lum Wong.  He had been a coach driver for over 20 years and had regularly used the Shing Mun Tunnel, often at about this early hour, when taking people to work.  His vehicle only had side lights on at the time.  I consider this to be inadequate illumination for the prevailing conditions, namely very heavy rain and gloomy early morning light.  He estimated his speed at 30 kph, slowing to 27 kph when going through the autotoll lane past booth No.4.  He said that when he first saw Miss Lam she was one metre in front of the coach and he was unable to avoid colliding with her.  He braked as soon as he saw her.

16. Assessing the coach’s actual speed is difficult.  A police sketch shows the front of the coach having stopped 16.8 metres (55 ft) from the rear of the island where the booth stood.  The only conclusion one can reach from the limited information is that the driver’s estimate of 27 kph (17 mph) is very likely to be slower than the true speed.  I do not accept that he approached the booths at about 30 kph (19 mph) and slowed down to 27 kph.  He did not change down a gear, he stayed in 4^th gear.

17. I do not conclude that he was driving in excess of the speed limit of 50 kph but I do conclude that he was probably driving at a speed which was excessive in the very difficult conditions at the time.

The driver’s liability

18. I have thus far found that the vehicle’s illumination was inadequate and its speed excessive in the prevailing conditions.

19. I also find that Mr Tse did not slow down sufficiently when driving through the autotoll lane past booth No.4.  Driving through an autotoll lane holds particular dangers, for which a prudent driver would always slow down.  The lane itself is marked with horizontal yellow lines as you approach the toll.  The booths on either side act as blinkers restricting the view of a very large open area beyond the booths, where it would be unusual, but not too remote a possibility, to be confronted by pedestrians; pedestrians such as toll collectors, maintenance staff and police.  Mr Tse said in evidence that he had never seen people walking across this area before.  Thus, I conclude, he drove in the subconscious belief that the road beyond the booths would be a pedestrian-free zone.  This was a negligent state of mind.  This is consistent with a failure to keep a proper look-out.

20. Finally the fact that Miss Lam succeeded in crossing most of lane 4 before being hit suggests that this is not a case where she suddenly stepped out in front of the bus and gave the driver no chance of avoiding a collision.  Had that been the case it is more likely that the damage to the coach would have been nearer the offside corner of its front and Miss Lam would have fallen to the ground nearer lane 5 than lane 3.  Neither was the case.

21. Mr Tse’s negligent driving has been established.  Based on all the above facts, as I have found them to be, and bearing in mind Miss Lam was wearing a bright orange coat, a reasonably prudent driver would have made greater allowances for the road and weather conditions and been able to control his vehicle so as to avoid a collision.

The 2^nd defendant’s liability

22. Put briefly, the plaintiff submits that her place of work was inherently dangerous.  It is contended that her work environment contained foreseeable dangers and that by placing her in that environment, without further safeguards, the 2^nd defendant failed to provide a safe system and place of work and thereby was in breach of its duty of care to the plaintiff. 

23. Many aspects of the workplace and what safe system should have been provided were advanced by Dr D. Jones, counsel for the plaintiff.  Many ignored the reality that toll collectors were adults who were knowingly working in a busy traffic zone.  The toll plaza was so constructed that the staff had no choice but to cross traffic lanes on their route to and from their workplace.  Dr Jones complained about lack of instructions about how this should be done.  There was some merit in this point about which I shall enlarge later.  Much of his complaints however were unrealistic, the low water mark of which was his complaint that the 2^nd defendant failed to instruct the staff how to button up their raincoats in poor weather.  Other suggestions as to how the workplace could have been made safer included closing the tunnel at the end of each shift so that the staff could walk to and fro without the risk of any traffic coming through the booths.  This was unrealistic and impractical.  The change of shifts did not occur at one short moment but it was a gradual process spanning about half an hour.  The various toll collectors emerged at different times within that half hour.

24. In one respect however I do find the 2^nd defendant liable.  Of the two routes from the administration building to any particular booth one was plainly safer than the other.  The 2^nd defendant exercised little or no control over their staff, including the plaintiff, in their choice of routes.  I accept the plaintiff’s evidence that they were not instructed to take the safer route and that it was the plaintiff’s and her colleagues’ practice to use the shorter less safe route.  Mr Lee, of the 2^nd defendant, conceded, very fairly, that if he saw staff using the less safe route he would do nothing about it.  The 2^nd defendant should have insisted and taken steps to ensure that the plaintiff always took the safer route.  It was a longer route but only marginally so.  A simple notice in the booths and in the administration building stating that staff must always walk in front of the toll booth so as to have a clear and unobstructed view of the oncoming traffic would have sufficed.

25. This single failure by the 2^nd defendant renders them partially liable for the accident.

26. The plaintiff has also pleaded a breach of the Occupiers Liability Ordinance.  This adds nothing to the plaintiff’s case and is not an appropriate claim on the facts of this case.

Contributory negligence

27. Miss Lam is not without blame.  Even though the 2^nd defendant should have taken steps to ensure that she took the safer route, her choice, as an adult of ordinary intelligence, to take the less safe route in heavy rain and gloomy light, contributed to the happening of the accident.  Taking the negligence of the two defendants together I consider their joint liability for the accident should be reduced by one quarter because of the plaintiff’s failure to take proper care of herself. The fact that her employer condoned her use of the less safe route does not condone her choice to use it in the conditions that prevailed at the time.

Apportionment

28. As between defendants I hold the 1^st defendant two thirds to blame and the 2^nd defendant one third to blame.

INJURIES

29. The plaintiff’s injuries and post accident physical and mental condition has been the subject of 27 medical reports from numerous doctors from a variety of specialties.  All the reports were admitted into evidence.  There was no oral evidence.  All the reports have been considered.  What follows is a brief summary highlighting the key factors for assessment of quantum of damages.  It is by no means intended to be a comprehensive review of all the many and changing opinions expressed by all the different specialists.  The various categories of complaint are as follows :

(a)     Orthopaedic

30. Her pelvis was fractured by the impact.  She was in hospital for three weeks and in a convalescent home for another three weeks.  Thirty-two sessions of physiotherapy followed.  She still complained of pain two years after the accident and continues to complain now.  She has used a walking stick, a walking frame and a wheelchair to help her get around.  She came to court with her wheelchair but walked in and out of court with a walking stick.

31. Dr Danny Tsoi Chi Wah, engaged by the 2^nd defendant, opined, in September 2002 that there was no need for any further orthopaedic treatment but recognized that there were signs to suggest that her left hip and buttock had not fully recovered possibly because of trauma and scar adhesion of injured muscles tendons and ligaments.

32. In June 2003 the plaintiff was seen by Dr David H.F. Cheng.  She still complained of pelvis pain and said she could not stand or sit for more than 30 minutes without feeling pain.  She used a wheelchair from time to time and never went out unaccompanied.  Dr Cheng reported that the fracture had healed but that residual pain continued.  He accepted she could not do prolonged walking or lifting.  He thought she might be suffering from post-concussional syndrome and should see a neurologist.  He considered three years sick leave to be reasonable.

(b)     Facial injuries

33. She sustained a one-cm cut to her forehead, a four-cm cut to her head and other abrasions to her head, nose, lip and chin.

(c)     Endocrine

34. On 23 July 2000 the plaintiff was diagnosed with hypogonadotropic hypogonadism and put on hormone replacement therapy.  In March 2003 she was seen by Dr Conrad Pei Kee Wai, a specialist physician, who opined that her condition was as a result of the accident.  He said that her pelvic pain and limited mobility were likely to be permanent.  He accepted that she had suffered and was continuing to suffer from depression as a result of the accident.  He regarded her as only capable of sedentary work because the symptoms of pelvic pain, some dizziness and tinnitus coupled with her limited mobility function were persisting to some degree.

35. Having seen the plaintiff and read all the reports I accept the existence of the symptoms described by Dr Pei but I incline to the view that the plaintiff has exaggerated them to a small extent.  Not to the extent, however, that they should be overlooked.  I accept they are real and affect her daily life and ability to work.  It is a matter of degree.

(d)     Urological

36. She suffered a contused bladder as a result of the collision.  Since the accident she has suffered mild incontinence.  Examination in 2003 indicated that this was no longer a problem.  The plaintiff however complained that occasional urinary urgency still occurred.

(e)     Neurological

37. The plaintiff was knocked unconscious and suffered amnesia afterwards.  She was unconscious for two hours.  She was seen by three different experts.  In short she suffered Post Concussional Syndrome as a result of the accident.  The symptoms, which are ongoing, include headaches, impaired concentration, irritability and insomnia.  In December 2003 Dr Edmund Woo described it as a mild head injury which required symptomatic treatment.  He considered that she was capable of resuming work as a toll collector.  I have concluded that this assessment, which I accept, is confined to her ability to collect money whilst sitting in a toll booth.  It does not extend to her ability to cross five lanes of traffic, sometimes briskly, to get to and from her place of work carrying a bag full of coins in all types of weather.

(f)      Psychiatric

38. Whilst her recovery from the accident continued to be slow she developed psychiatric problems.  She worried about being unable to work, suffered from anxiety and insomnia and occasionally considered suicide.  She required counselling and antidepressant medication.

39. Four specialists have considered her psychiatric condition.  There is general agreement that she suffers from depression due to the continuation of her pain, headaches and the cumulation of her other problems alluded to above.

DAMAGES

(1)     Pain, suffering and loss of amenity

40. The plaintiff seeks $600,000 under this heading.  The defence submit that $400,000 would be a reasonable award, on a full liability basis.

41. The court’s task is to take all the various medical reports together and assess the complete story.  Each doctor has reported on those aspects which concern his or her specialty.  Individual reports may be encouraging from, say, a purely orthopaedic point of view, or a purely psychiatric point of view, or a purely neurological point of view.  The whole picture however reveals a lady who has been adversely affected by this accident both physically and mentally.  As already stated, her tendency to exaggerate her complaints is only slight.  Even the orthopaedic injury, the fracture of a pelvis, on its own is a serious and painful injury.  I think her PSLA award should be towards the top end of the serious injury category. 

42. Both counsel have submitted a number of authorities for comparative purposes.  In truth, little can be gleaned from such previous cases.  No two cases are the same, they are often not even similar.  I award $500,000 for PSLA.

(2)     Special Damages

43. Medical expenses, travel expenses, tonic food and other small items have been agreed.  (They total $45,747)  The following heads of special damage are disputed.

         (a)     Loss of plaintiff’s services

44. The plaintiff is claiming $154,000.  The plaintiff’s case is that she worked the night shift so as to help her sister look after their aged and infirm mother.  Since the accident she has been unable to do household duties as part of the support for her mother.  The claim is based on two hours a day at $50 per hour for 1540 days.  The evidence as to what she actually did before the accident is vague.  The main carer of the mother was the plaintiff’s sister who actually gave up her job to be a full-time carer.  The plaintiff’s role was therefore never more than a support role.  I assess, on limited evidence, that the accident prevented her from carrying out that support role for three years.  She has been able to do light housework more recently and her ability to do such work increases as time progresses.  I award $80 a day for 1095 days, a total of $87,600.

         (b)     Care and attention of the plaintiff

45. When she was first discharged from the hospital and convalescent home a heavy onus fell on the other members of the family to look after the plaintiff, in addition to her ailing mother.  It is however difficult to quantify, the evidence being very generalized and rather vague.  The amount of gratuitous care she has received has obviously become less and less as she has improved albeit slowly.  This head of damages, should be capped after a period of time.  It cannot go on indefinitely on a reducing scale.  I think the same rate of $80 per day (which I applied in (a) above) is appropriate but for a shorter period, namely two years.  This results in an award of $58,400.

         (c)      Pre-trial loss of earnings

46. The accident was over four years ago.  The plaintiff has not worked since.  Her recovery has been slow.  The issue is whether or not she has been reasonably out of work since the accident.  It is a difficult question but I have concluded that the more recent medical reports which state that some of her complaints may be permanent should be given due weight.  In addition, I have had the advantage of seeing and hearing the plaintiff in court.  She appears to be a frail, nervous and emotional person lacking in confidence and self-esteem.  I do not think her failure to get work, thus far, is unreasonable.  Her pre-trial loss of earnings are $245,106.

         (d)     Pre-trial loss of MPF

47. This amounts to $10,899.

(3)     General damages (other than PSLA)

         (i)      Future loss of earnings.

48. The combination of her physical and mental difficulties as they now are will prevent her from becoming employed in the near future.  However, my assessment of “the whole picture” (i.e. all the medical reports taken together) plus my assessment of the plaintiff when giving evidence leads me to conclude that the situation will not remain the same indefinitely.  Her claim for loss of congenial employment (dealt with below at (iii)) supports the view that she prefers to be employed rather than unemployed.  This attitude plus her continuing recovery leads me to conclude that she ought to get some employment in the future.  There is inevitably an element of speculation in this exercise.  I think the right balance is that, on the one hand, it would be unjust to make the defendants’ liable for the plaintiff’s salary for the next 10-12 years; but, on the other hand, it would be unjust to expect the plaintiff to get similar employment forthwith.  I assess her future ability to work that she should be capable of earning $3,000 a month starting in 18 months’ time.  She would then be earning $1,844 less than before the accident.  18 x $4,844 is $87,192.  Thereafter I award a further nine years at $1,844 a month which amounts to $199,152.

49. The total for future loss is therefore $286,344.

         (ii)     Future loss of MPF

50. $286,344 x 5% is $14,317.

         (iii)    Loss of congenial employment

51. Based on unhelpful authorities the plaintiff claims $80,000 for loss of job which she particularly enjoyed and which was of particular importance to her.  The job itself is not special.  However, an award under this heading is sustainable if the mere fact of employment gave this particular plaintiff self-esteem and that having regular employment was a matter of some pride to her which contributed to her self-confidence in society.

52. I think this test does apply to this plaintiff.  However, such awards should, in most cases, be modest.  I think a sum of about six months’ wages is appropriate.  In round figures, $30,000.

(4)     Summary of damages

1.	Special Damages
	(a)	Agreed special damages	45,747
	(b)	Loss of plaintiff’s services	87,600
	(c)	Care and attention of plaintiff	58,400
	(d)	Pre-trial loss of earnings	245,106
	(e)	Pre-trial loss of MPF	10,899
	(f)	Interest at 4% from accident to trial after deduction of $296,190 — Employee Compensation	T.B.C.
			447,752

2.	General Damages
	(a)	PSLA		500,000
	(b)	Future loss of earnings		286,344
	(c)	Future loss of MPF		14,317
	(d)	Loss of congenial employment		30,000
	(e)	Interest of PSLA at 2%		12,250
				842,911
3.	Sub-total			1,290,663
	Less	E.C		296,190
	Total	$994,473 plus (f) above		994,473

CONCLUSION

53. There will be judgment for the plaintiff in a sum equivalent to three quarters of $994,473 plus (f).  Two thirds of that judgment sum shall be paid by the 1^st defendant and one third by the 2^nd defendant.

54. There will be an order for costs against the defendants; the plaintiff’s costs to be taxed in accordance with Legal Aid Regulations.