LAM CHIK CHEUNG v. SECRETARY FOR JUSTICE AND ANOTHER

HCPI 1003/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 1003 OF 1998

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J U D G M E N T

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1. This is a claim for damages arising out of injuries suffered by the plaintiff in an accident he claims occurred on 30 September 1995.

Background

2. The plaintiff is called Lam Chik Cheung (Mr Lam). He was born in Hong Kong in December 1953, so that at the time of his accident he was rising 42, and is 46 now. At that time he was married to his second wife with two young children. The marriage has recently ended in divorce.

3. In July 1992 he began working for China Motor Bus Company Limited (CMB) as a bus driver, having been earlier so employed in the 1980's. His employment was continuous up to 30 September 1995, apart from a period when he was on sick leave in circumstances which have nothing to do with these proceedings. What was attractive about working for CMB in those days (and, now that the franchise has changed, for its successor New World First Bus Services Limited (New World) these days) was the amount of money paid to drivers who were prepared to put in extra hours. Mr Lam fell into that category. By way of illustration his basic salary for the 12 months prior to 30 September 1995 was a modest $4,854.00 per month for an eight hours' day. But by working up to fourteen hours per day he was able to earn much more. Over these 12 months Mr Lam averaged $17,758.00 per month.

4. Since some time in 1993 and to 30 September 1995 Mr Lam was assigned to drive double decker buses on route 23A, being a circular route beginning and ending at Lai Tak Tsuen Bus Terminal Tai Hang. It incorporated part of Hennessy Road west bound. On 30 September 1995 he began his day's work by driving his designated bus from CMB's depot at Chai Wan to Lai Tak Tsuen. From there he began what should have been the first of many runs of the day at 6:36 am. The journey was without incident until he got to Hennessy Road. There he claims to have been injured in circumstances that are disputed. His account is that he was proceeding between bus stops at a speed of 30-40 kph when he became aware, too late to take any evasive action, that a large area of the road's surface in his immediate path had been uplifted, leaving a muddy, gravelly, bumpy surface some 4 inches below the road. The front wheels and then rest of the bus ran off the road and into this depression, which he described as a large manmade pothole. The resultant jolt tossed him up off his seat so that his head struck the roof of his cabin and then he landed back in his seat, with a force which jarred his back. He was conscious of some numbness in his lower back and left leg, but the bus was fitted with automatic transmission and he found he was still able to drive safely. After ascertaining that no passengers were hurt he completed his run without further incident. Then as he was climbing out of his seat and down from the bus he could get no movement from his left leg and he had to drag it out by hand. He tripped but did not fall. He reported the incident and his injury and was told to take himself off to Tang Shiu Kin Hospital for examination. There he was treated and discharged but with follow up orthopaedic treatment which was to continue until June 1998. He claims that pains in his lower back and stiffness in his left leg have persisted since the accident and he can no longer sit or stand for long periods without the pain becoming intolerable. In particular he can no longer drive buses or other vehicles for anything like the long periods he could tolerate prior to the accident, and the work he is now capable of is that of a part-time driver and no more. Moreover he has suffered a marked reduction in his sex drive, which was a significant factor in the deteriorating marital relationship which ended in divorce. The nature and extent of his injuries are not significantly disputed but the degree of incapacity and his claim that he is no longer fit to drive buses are.

The claim

5. Mr Lam says he has suffered physically and financially because of injury resulting from the jolt to his body when the bus he was driving entered the pothole. He sues in negligence the first defendant the Secretary of Justice representing the Director of Highways who is the authority responsible for the maintenance of Hennessy Road, and the second defendant Chiu Hing Construction and Transportation Co. Limited (Chiu Hing) the contractor which at the material time was under contract carrying out certain roadworks in Hennessy Road.

The Defence

6. The Director of Highways admits having responsibility for Hennessy Road and Chiu Hing admits that during designated periods it has carried out roadworks on Hennessy Road. But both deny that there was any such activity on the stretch of road where Mr Lam says he was hurt on 30 September 1995 and say in particular that there was no pothole as described by him. Both deny liability in negligence, and further, if Mr Lam was injured in an accident as described (which is denied) that he contributed in whole or in part through his own negligence.

The issues

(a) Was there an unsignposted, unguarded pothole in Hennessy Road into which Mr Lam drove his bus?

(b) If so, were the Director of Highways and/or Chiu Hing responsible for it, and thus now liable in negligence?

(c) If so, to what extent if at all was Mr Lam negligent and contributed to the accident?

(d) If one or other or both of the Director of Highways and Chiu Hing are liable, what is the extent of Mr Lam's loss, and, in particular, to what extent are these affected by pre-existing degenerative changes?

7. The answers come from an evaluation of the evidence pertinent parts of which I shall now recount.

The Plaintiff's case

8. Mr Lam was called first. Describing the lead up to the accident he said he was stationary at a red light at the junction of Heard Street and Hennessy Road with the Johnson Road intersection just ahead of that. He moved off on the green light, remaining in the left lane of the three lanes available, anticipating the bus stop a short distance further down Hennessy Road. There was a PLB stationary a few metres ahead, but as he approached it drove off, in the left lane, so his passage was not interrupted, though his view ahead was. He accelerated to about 30-40 kph. Suddenly the PLB moved to the right into or towards the adjoining lane. Then with a clear view ahead of him Mr Lam saw for the first time the pothole. He was later to depict it as rectangular in shape, its leading edge being at right angles to the pavement and running from the kerb across the first lane and part way into the second lane. It ran parallel to the kerb for about 20 metres, immediately alongside a Caltex Petrol Station, terminating with its trailing edge also square to the pavement. The drop into it of 4 inches was sudden. Within it the surface was uneven and gravelly. It was clearly manmade, not a subsidence. The top surface had been as he described it "peeled off", leaving exposed the sub-surface. There were no visible warning signs, no barriers and, given the suddenness and unexpectedness of its presence, he had no chance to decelerate or avoid it. Some of his passengers cried out in alarm as the whole bus was jolted, but no one reported being hurt.

9. Having completed the run and then discovered his immobility and reported the incident to his station officer at Lai Tak Tsuen he sat and rested for a while instead of going straight to Tang Shiu Kin, in the hope that he would recover of his own accord. While he waited other drivers came up to ask him what had happened and whether he was all right. Two of these were route 23A drivers Wong Lin Hoi (Mr Wong) and Law Wai Keung (Mr Law) who were later to make witness statements and give evidence about the pothole. By 8:00 am he was no better and took a taxi, alone, to Tang Shiu Kin, arriving a few minutes later. The hospital's records reveal he was admitted at 8:10 am. In due course he came to be examined, according to notes from his medical record, by a Dr Kam. He recounted to Dr Kam what had happened as repeated in evidence, so he is unable to explain why Dr Kam wrote: "Driver c/o (complained off) sprained low back yesterday while alighting (two words illegible) ...." with no mention of a pothole or a jolting or that the incident had happened that morning. The records reveal that when he returned for a follow up examination on 8 November 1995 the doctor who this time attended him, a Dr Chu, to whom he gave the same full account, wrote: "Injured back by twisted while getting off bus from driver seat on 30/9/95 ....." That same day he was directed by Dr Chu to the Department of Physiotherapy, where he was attended for the first time on 4 December 1995. The notes of that appointment state: "Got off the bus and slipped and twisted back on 30/9/95." He was unable to explain, having given his assurance in evidence that he gave a full and accurate account of how he came to be injured to Dr Chu and the physiotherapist why in their notes they, like Dr Kam, omitted to record that it was the jolt while he was driving through the pothole that caused the pain.

10. During the course of his treatment he was pronounced unfit to work and given a series of sick leave certificates. This time off necessitated his filling out an accident report with CMB, for the purpose of calculating his sick leave pay. He did so on 23 October 1995. Alongside the sub-heading "course (sic) of accident" he wrote in his own hand: "Sprained his back while getting off the bus at Lai Tak Chuen Bus Terminal". Asked to explain why he had made no reference to the pothole and his having been jolted up from his seat when he drove into it, he said he was advised by one of the office staff members to make no mention of that because that amounted to an accident which he should have reported to the police. As he had not she counselled he write as she directed; and he complied.

11. His first sick leave was until 2 November. He resumed work the next day but after three days the pain was too extreme and he was forced to stop. In the event he was given further certificates through to 30 August 1998, one month short of three years after the accident. During that time he received orthopaedic treatment and physiotherapy, but the pain and stiffness have persisted. He has for periods been employed as a private car chauffeur but has been forced to stop when workload demands required him to drive for periods too long to prevent the onset of the pains. But for the accident and the injuries he would still be driving buses earning up to $22,000.00 per month. Now he is only good for part-time driving which fetches $10,000.00 per month. It is this difference up to trial and beyond he is looking to recover.

12. The second witness called for the plaintiff was Dr Danny Tsoi Chi Wah (Dr Tsoi). He is a specialist in Orthopaedic and Traumatology and was asked to examine Mr Lam in March 1999, peruse his medical records and reports which post-dated 30 September 1995 and then assess his medial condition for the purposes of this litigation.

13. Mr Lam told him he was suffering more or less continuously from back pain ever since he was jolted off his seat and then back whilst driving a bus in September 1995. It became much worse if he had to sit for more than a short period or had to walk any distance, and that, as he told him, stopped him from being able to work full-time as a driver. The examination revealed no scars, no muscle spasms, some tenderness at L5, normal alignment and full flexibility save for a flexion limit which was a bit below average. He read from early reports after 30 September that an examining doctor detected tenderness and paraspinal muscle spasm which with the pain complained of was indicative of recent injury. But he also noted that Xrays taken on 30 September and an MRI scan done the following year together confirmed a pre-existing degenerative disc at L5 - S1 level. There having been no earlier complaint of back pain, he believes Mr Lam's injuries were probably caused by this degenerative condition being triggered by something untoward that occurred on or about 20 September, like the jolt Mr Lam described; but it could also have been because of a twist or sprain suffered when alighting from a bus. Adopting the DRE lumbosacrol scale, which recognizes five different categories of back injury ranging from mild to serous impairment, he puts Mr Lam into category II which is mild impairment, being 5% whole-person impairment, of which 2% he attributes to the accident, the trigger, and 3% to the pre-existing degenerative condition.

14. He considers Mr Lam is fit to resume driving as a bus driver but with reduced hours, and regular rests. He assesses his loss of earning capacity at 10%, of which 4% is attributable to the accident.

15. The remaining two witnesses for the plaintiff called were Messrs Law and Wong. I can deal with their accounts together because they were so similar. As at September 1995 both were colleagues of Mr Lam as bus drivers employed by CMB and both drove the same route, 23A. Both continued to be so employed after the transfer to New World. Both said that in 1995 their incomes matched Mr Lam's, and they were now earning a basic $10,500.00 per month and $21,000.00 to $22,000.00 per month overall.

16. On 30 September both were on duty, as they had been on the previous day. Mr Wong's first run, beginning at 6:24 am, was the first route 23A run of the day. Mr Law's, at 7:00 am, was the fourth. Mr Lam's, at 6:36 am, was the second. Both Messers Law and Wong said that as they drove through the intersection on Hennessy Road immediately preceding the Caltex Petrol Station they saw in their path a manmade pothole, in the position and having the dimensions, including depth, more or less as described by Mr Lam. It was rectangular, with a bumpy sub-surface 4 inches below the level of the road. It was about 20 metres long and spanned the first lane and about half of the second. There were no warning signs; no barriers. Mr Law said there were some cones but these were mounted along the kerb. In each case the driver approached the pothole in the second lane, seeing it in time to slow down though with insufficient time to avoid it at least not without risk of interfering with other traffic. Both proceeded at slow speed with the nearside wheels entering and then leaving the pothole. This caused the buses to lean and they were jolted in their seats. But they escaped without injury.

17. Mr Law said that when he returned to the terminal after his first run, he came across Mr Lam and heard from him that he had been hurt having driven through the selfsame pothole. In evidence he said that was shortly after his arrival which was 7:45 or 7:46 am. This contrasts with the estimated time of arrival he put down in his witness statement, made last year, of 8:05 am. From the witness box he said this time was wrong; he had made a mistake, which he came to realize later on reflection, and which he resolved to clear up when he came to court. Of course the significance is that he could not have met Mr Lam shortly after 8:05 am because by then he, Mr Lam, was on his way to Tang Shiu Kin.

18. Mr Wong said that after his first run, which finished at 7:15 am and before his second run, which began at 8:00 am, he too came across Mr Lam, sitting and apparently in pain. It was at about 7:45 am. Mr Lam told him he had been hurt because of a jolt suffered driving through the newly formed pothole near the Caltex Petrol Station. Like Mr Lam he, too, had given a different account in his witness statement, in which he said he came across Mr Lam after his second run, at 9:00 am, not after his first, at 7:45 am. Asked to explain why this was wrong he said that on proper reflection he realized he had made a mistake because of the lapse of time; the correct timing of events was not, after all, as he had put down in his witness statement. Again, the significance of this is that he could not have seen Mr Lam at all at 9:00 am, for medical records reveal that he, Mr Lam, was undergoing examination at Tang Shiu Kin Hospital at that time.

19. Mr Law after his first run told the station master of the presence of the pothole. Mr Wong said nothing believing that Mr Lam would have reported it and no further action was necessary. Neither spoke to any other colleague or the police or any other authority. Both thought it was a hazard but chose to take no further steps. In any event later that morning there were cones and a warning sign erected, and they themselves, forewarned of its existence, were able to avoid the pothole by driving in the third lane, until several days later when the road surface was restored.

20. That was the case of the plaintiff.

The Defendant's case

21. Though he was called second, I shall deal first with the evidence of Peter Chan Kai Yuen (Mr Chan). He is employed by Chiu Hing as project manager, a position he has held since 1985. His duties include the managing of construction projects undertaken by Chiu Hing.

22. In 1994 the Director of Highways invited tenders for the reconstruction of 1.7 kilometres of Hennessy Road. Chiu Hing tendered and was successful. The work lasted for three years beginning December 1994. Of the various kinds of work done the most extensive was the resurfacing of the carrageways in both directions, the bitumen top layer having become worn, to be replaced by concrete. Ho Tin Declon, Engineers, were employed by the Director of Highways to draw the plans and working drawings and site requirements for use by Chiu Hing, and to monitor and record progress in what was known as the site diary. Mr Chan kept a copy of the site diary for Chiu Hing's records. This was updated daily and signed by representatives of Ho Tin Declon and Chiu Hing to verify its accuracy.

23. Under the contract the work was carried out in stages, one lane at a time for each stage, to keep traffic disruption to a minimum. Before any work was begun the designated area was fenced off with cones and flashing lights and signs, in compliance with plans drawn up by a traffic consultancy group called for short MVA, as approved by Chiu Hing, the Director of Highways, the police and such other parties and authorities as might have a special interest. These plans were called TTM (standing for temporary traffic management) scheme plans; each section required its own TTM scheme plan. No work could be begun on any section until the relevant TTM scheme plan had been approved. Police approval was in the shape of a permit which designated the time within which the work had to be started and finished. This was necessary for the purpose of protecting the public and all other parties particularly affected by the work; for instance those whose access to and from business premises might be restricted, tramcar and bus operators and so on.

24. That section of Hennessy Road westbound adjacent to the Caltex Petrol Station was, on the master plan, designated S4W, and the three lanes from the left respectively S4W1, S4W2 and S4W3. The TTM plans for S4W were drawn in December 1995. But they were the subject of discussion, objection and consequent amendment, and were not finally approved, having been redrawn, until March 1996. Mr Chan said that following the contract and proper procedures no work would have been possible on S4W before that approval date, and to his knowledge none was carried out before that date.

25. Messrs Lam, Law and Wong identified the position of the pothole into which they drove their buses as that part of the first lane and some of the second immediately alongside the Caltex Petrol Station. Those parts of lane 1 in that vicinity were the subject of three TTM scheme plans designated S4W1.2A, S4W1.3A and S4W1.4A. All were dated March 1996. However when work was begun and then carried out to completion the record of progress of that work was in the site diary given the reference S4W1(E). When asked about this Mr Chan said they would have been lumped together because the work would have been carried out in sequence or all at the same time, depending upon the special characteristics and special needs of any party affected. From the site diary he was able to say that all work on S4W1(E) incorporating the TTM scheme plans S4W1.2A, S4W1.3A and S4W1.4A was begun on 2 July 1996 and completed on 31 July 1996.

26. When invited to consider the claim that a pothole appeared overnight on 29 to 30 September 1995 in the area of S4W, spanning lane 1 and part of lane 2 unmarked and to a depth of 4 inches he said:

1. no work was undertaken outside the scheduled programme. In particular, no work was possible before the relevant TTM plans were drawn and approved and barriers and signs were mounted in compliance;

2. no overnight work was possible without a permit to carry on work outside the hours of 7:00 am to 7:00 pm. A record of all applications and permits for after hours work is kept by Chiu Hing. There was no record of any request or permit being granted in September 1995;

3. as a matter of practice, during the course of excavation no sub-surface was left to a depth of only 4 inches. Once the asphalt was broken up that and the subsoil were excavated in one go to the required depth, being 450 mm (about 18 inches);

4. a pothole of the stated dimensions could not have been dug overnight. The task would have taken 3 to 4 days;

5. it would have been in breach of the contract to have spanned more than one lane, at least to the extent claimed; there was no such breach.

27. He said for all these reasons the pothole as described could not have existed at the time in question.

28. The remaining witness for the defence, in fact called first, was Dr Chun Siu Yung (Dr Chun). He is an orthopaedic surgeon to whom Mr Lam was sent for examination on 3 September 1999. He then and subsequently also had access to the medical notes reports and Xrays stemming from Mr Lam's first examination on 30 September 1995 and it was in reliance on his findings that he prepared two reports and gave evidence. He like Dr Tsui was satisfied that Mr Lam had a pre-existing degenerative disc problem which would have been asymptomatic. He also agreed that the type of injury complained of and diagnosed from and after 30 September could have been caused by a trauma triggering off that pre-existing condition. From a purely clinical point of view he could not say whether that was caused by a sudden and severe bump suffered during an unscheduled drive through a pothole as Mr Lam had told him happened, or by a sprain or twist caused by his awkwardly climbing down from his bus, as recorded in the early medical notes, or at all; for sometimes there is no trigger and pain and lack of mobility can arise from a pre-existing condition spontaneously.

29. He said he was skeptical about the genuineness of Mr Lam's injury as he described. First of all he said he suffered the back pain continuously. Dr Chun said that continuous back pain is consistent with a tumour or back infection not an injury. Secondly he noted from the records and his own examination that Mr Lam's lack of mobility and flexibility was variable, and location of the tender areas inappropriate, consistent with his faking or at least exaggerating the symptoms. However he did note that on more than one occasion examining doctors had found muscle guarding or spasms - an involuntary tensing of muscles - which is a symptom of a prolapsed disc. He concluded therefore that Mr Lam did suffer impairment, and did not disagree with Dr Tsoi's assessment that it was in category II and a 5% whole person impairment. Whilst noting that there was a pre-existing condition which had to be allowed for, he was not prepared to assess the extent of that in percentage terms.

30. Notwithstanding this finding of impairment, given the stated number of hours a bus driver is at the wheel, with time off between runs, it was his view that at least by March 1997, 18 months after the alleged accident, Mr Lam could have returned to work, full-time, as a bus driver.

Findings of Fact

31. The material dispute of fact requiring resolution is whether or not there was a pothole unguarded and without warning signs which came into existence overnight preceding first light on 30 September 1995, into which Mr Lam unwittingly drove his bus and thereby suffered injury. It is his case there was and his account is backed up by two other bus drivers. If he and they are to be believed the burden being on him to prove his case then almost certainly liability in negligence would be established, with the issue of whether or not he contributed to that then to be decided.

32. So where does the truth lie?

33. Mr Chan gave a detailed account of the pertinent features of the Hennessy Road reconstruction contract, and in particular that it had to be done in stages, one lane at a time, to minimize traffic disruption, with strict adherence to safety procedures as required by compliance with the TTM scheme plans. As one would expect of a contract of this nature, he said there was constant, comprehensive supervision and progress was monitored, recorded daily and photographed. There is nothing before me to doubt that that was so, for his words were supported by the production of the TTM scheme plans and site diaries. From these records and his account of the checks and balances and monitoring there was nothing to indicate that any unscheduled work in the area designated as S4W1 was carried out before March 1996; in particular that a pothole was dug overnight so that by daylight on 30 September 1995 it appeared as a hazard for motorists to drive into. So what of the accounts of the three bus drivers, who expressly stated, under oath, that that was precisely what happened?

34. Mr Lam's credibility is materially affected by the medical records in that none of the two doctors or physiotherapist who attended him within the two months or so after the event wrote down what he now says was how his back came to be hurt. Though he was at pains to assure me that he had faithfully given a full account of what happened and had no idea why the prime cause was omitted, the clear inference is that there was no mention because he gave them a different account. And he has a further difficulty. His explanation for why it was he chose to write out the CMB accident report wrongly, implausible as it clearly is, is rendered the more so given that it happened to match what the doctors had recorded.

35. Then there are the accounts of Messrs Law and Wong.

36. The problem I have with their versions is the remarkable coincidence that they both happened to make the same mistake when writing out their witness statements as to when they each came upon Mr Lam sitting with a back injury at the depot, and then both chose to correct themselves in the witness box having, as both said independently of the other and without prompting, reflected further on the matter. Coincidence? I believe not. What really happened was their concocted story did not dovetail with Mr Lam's departure for hospital, and had to be hastily and clumsily reviewed.

37. I am satisfied from the wealth of evidence that there was no pothole into which Mr Lam drove his bus and thereby suffered injury. He having failed to prove that, there is no negligence and his claim fails. It follows that I need not have to consider the remaining issues.

38. I am however concerned that on the face of it evidence adduced in the trial indicates Mr Lam and his cronies conspired to fabricate what happened which they then repeated under oath for financial advantage. That their efforts were so patently obvious and doomed to failure does not diminish the seriousness of conduct which has the hallmarks of fraud. As a consequence I direct that this judgment be forwarded to the Director of Public Prosecutions to whom should also be made available such of the file he wants to scrutinize, so that he can properly consider whether any action by him is warranted.

39. There remains the issue of costs; these shall follow the event but there having been no argument will be nisi at first instance.

Orders

40. The plaintiff's claim is dismissed. Costs, nisi at first instances, are to the first and second defendants taxed if not agreed. The plaintiff's own costs are taxed under Legal Aid Regulations.