LIMBU SARAM KUMAR v. CHENG MAN CHUNG

HCPI 382/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 382 OF 2003

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J U D G M E N T

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1.  As at 13 October 2000, a Friday, Limbu Saram Kumar, of Nepalese parentage but born in Hong Kong, was employed on a construction site as a worker.  When work finished for the day he made his way home as usual to his flat in Yuen Long.  He took a bus.  The last part of his journey was by foot via a cul-de-sac called Fung Lok Lane.  At 7:40 p.m. that evening he was crossing or about to cross Fung Lok Lane when he was struck and hurt by a vehicle being driven by Cheng Man Chung, an off-duty police constable.  Claiming to have suffered serious injury and resultant financial loss, this is his claim for damages founded in Mr Cheng’s negligence.

The Location

2.  Fung Lok Lane runs down from its intersection with Fung Nin Road for about 25 metres.  Then it turns at right angles to the left and runs for about the same distance before coming to a dead end.  It has pavements on both sides.  It is two-way.  The carriageway for the first part is 7.6  metres wide.  The lanes are divided by a broken white line but only for the first few metres from the intersection.  With cars parked on either side there is room enough for two lanes of traffic but only just.  The carriageway of the dead end part is somewhat wider.  That has no centre line.

3.  If, as a pedestrian, one enters Fung Lok Lane on the left hand pavement, one has premises of China Light and Power on one’s left.  Those premises bordering the pavement opposite comprise a number of cooked food stalls.  For this reason, the lane is a popular place for the parking of vehicles owned by patrons of these stalls, particularly at dinner time.  Cars park alongside the pavements and, at the dead end, in metred spaces end on to the dead end.

4.  From the evidence it is apparent that at the time of the accident there were parked vehicles on both sides of both parts of Fung Lok Lane.

The Accident

5.  Mr Kumar began his journey on Fung Lok Lane by proceeding along the left hand pavement with China Light and Power on his left.  The building in which he was then living was in view ahead but a bit to the right.  Thus when he got to the corner of Fung Lok Lane as it turned to the left his intention was to cross diagonally across the corner to about the apex of the two arms of Fung Lok Lane.

6.  That evening it was drizzling and the road was wet, but it was not so serious as to warrant wet weather gear or the need for an umbrella.

7.  Meanwhile Mr Cheng left work at about 7:00 p.m. and was heading home by the car he owned, a late model saloon.  He also lived nearby.  He was travelling alone.  It was his intention to bring some cooked food home for his family’s evening meal and to stop off at one of the stalls in Fung Lok Lane for the purpose.  To that end he turned into the lane, and parked in what he said was the only available place; that was at the far end of the road, but not in the end-on metred spaces for they were full.  His space was at right angles to and next to the metred space on the right hand side as he approached the dead end.  So he came to park his car with its back to the right hand pavement, facing China Light and Power across the road.  Mr Cheng purchased his food and returned to his car.  It was still raining or rather drizzling.  Darkness had fallen but the area was lit with streetlights.  He set off, heading for the exit from Fung Lok Lane.  He had his lights on and his windscreen wipers at slow speed. 

8.  Meanwhile Mr Kumar had reached the right angle corner of the pavement adjacent to China Light and Power and was poised to cross the road at this point.  And as he did so the accident happened.

9.  Mr Kumar was struck in the legs by the car’s front offside fender and went up onto the bonnet and into the windscreen with a force that cracked the glass.  He fell back to the road.  Mr Cheng stopped immediately; then he drove a short distance forward and parked by the kerb before coming back to tend to Mr Kumar.  The police and an ambulance were called.

10.  Taken to Tuen Mun Hospital, Mr Kumar was examined within an hour by a Dr Tsang.  He reported what on paper were minor injuries; namely, some local tenderness over his back near the L5/S1 level, and small abrasions of both elbows.  He was treated and discharged.  There was no finding of any head injury or complaint of a head injury.

11.  Both protagonists gave statements to the police; Mr Cheng that same evening and Mr Kumar a few days later.

12.  In due course, Mr Kumar was charged with negligent use of a road as a pedestrian but was acquitted after trial.

13.  He filed this writ in April 2003.

Liability

14.  Messrs Kumar and Cheng were the sole witnesses of fact and I come now to their respective accounts of how the accident happened.

15.  Mr Kumar began his evidence by adopting as truthful and accurate the statement he made to the police and then his subsequent one made in this action.  The statement recorded similar accounts.  He arrived at the corner of the pavement adjacent to China Light and Power and as a preparatory act in crossing the road stepped one pace off the pavement.  He looked left in the direction of the dead end and noticed a car pulling out.  As he watched it reached what he described as medium speed.  Then it was about 15 metres from him.  It was his intention to let it pass before moving out into the road and he shifted his gaze to the cooked food stalls opposite.

16.  Then as he looked again to his left he noticed the car turning right just as it struck him on the knees.  He was lifted on to the bonnet (or hood as he described it) and his elbow smacked the windscreen.  He fell onto the road hurting his back.

17.  So, if this account is true, Mr Cheng significantly cut the corner on his journey back to the entrance to Fung Lok Lane to the extent that he was only about a metre from the kerb on the wrong side of the road.  Furthermore, if Mr Kumar could see him when he was 15 metres away it follows that Mr Kumar would have been in full view as he approached the point of collision.

18.  In cross-examination, Mr Kumar was asked to review how it had all happened.  This time he said that his first impression of the car was when it was stationary.  But its driver was in the vicinity, moving round the car.  He formed the view that he was planning to drive off and he decided not to cross until the car had done so and then driven past him and away.  He did not look back again until just at the time he was struck.

19.  This of course amounts to a materially different account from that of his two statements in that he did not observe the defendant’s car in motion until the point of impact.  Further, he gave up the opportunity to cross ahead of the car; given that scenario he would have had ample time to do so safely.

20.  In addition he gave an altogether more graphic account of what happened to him at the point of collision.  He said the force of the blow lifted him up against the windscreen and then over the roof of the car to the back.

21.  This would suggest a most forceful impact and serious bruising or worse inevitable.  But Dr Tsang’s findings of minor injuries are strong indicators that that could not have been so.

22.  Mr Kumar went on to deny an important ingredient of Mr Cheng’s case; namely, that a van parked against the left hand kerb in a line of parked vehicles up to the corner in the dead end section of Fung Lok Lane would have impeded his vision of the defendant’s car.  In saying there was no such van, he said there were parked vehicles, but none within proximity of the corner, so that his view of Mr Cheng’s car was not impeded, nor was there any obstruction to hide him from Mr Cheng as he stood at or in the vicinity of the pavement at the corner. 

23.  He denied a further feature of Mr Cheng’s case; that he had rushed out into the carriageway and into the path of the car, with such speed that it was his own forward motion that drove him over the bonnet and into the windscreen.  And he denied that at the point of impact the defendant was driving on the correct side of the road.

24.  Mr Cheng for his part also confirmed the contents of his police and witness statements.  He said that having started his car he turned on his lights and windscreen wipers.  As he moved out from his parking spot he turned left and proceeded until the right hand break in the road; there he turned right.  Traffic was parked along the dead end arm of the lane right up to the corner.  The vehicle parked at the corner was a light goods van.  There were lines of parked cars on both sides of the open arm of Fung Lok Lane so that as he turned right to negotiate the corner he lined himself up to be just left of centre of the notional middle of the road. 

25.  He was travelling at 20 kph.  He was paying careful attention, given the proximity of parked cars and the weather.

26.  As he came to the corner adjoining China Light and Power, a man later known to be Mr Kumar came rushing out from in front of the van at the corner.  He had not prior to that point in time been aware of his presence as he would have been hidden by the van.  He swerved left and braked but could not avoid him.  Mr Kumar bumped into the right fender and then against the driver’s side of the windscreen; then slid to the ground.  Mr Cheng immediately stopped his car; then he drove forward a short distance and parked by the kerb.  He did so to avoid exposing himself and others to another accident.  He came back to call the police and an ambulance.  He did not put up an alternative account in cross-examination and denied that Mr Kumar’s version was what really happened.

27.  As at the date of the accident he had held his driver’s licence for five years.  From that time and to date he has had no driving conviction.

28.  There is a feature of Mr Kumar’s evidence that needs to be dealt with. 

29.  Unprompted and without warning he mentioned that he was being victimized at work on the construction site, and that the driver of the car was part of a plot to kill him.  He also said that on the bus home that evening he had been accosted by a Pakistani who forced him to stay on the bus until one stop after his scheduled stop.  He said he was very frightened following that incident.

Analysis

30.  The burden is on Mr Kumar as plaintiff to satisfy me on a balance of probabilities that Mr Cheng was driving in such a manner as amounted to negligence on his part which gave rise to the accident and Mr Kumar’s injuries. 

31.  The difficulty he has about that is that his version of events differed materially from his accounts given in his witness statement and police statement although he affirmed their truth and accuracy at the outset.  Moreover, had either version been correct it was of a motorist who not only cut a corner and thus drove on the wrong side of the road, but who did so with such scant regard for a pedestrian’s safety that he drove straight at him and into him, whilst he stood still a yard off the kerb, in full view.

32.  I am not prepared to accept that that is how Mr Cheng would in the normal course drive or how it is he drove that evening.  Had he done so, with such force as would have thrown the stationary Mr Kumar on to his bonnet and into the windscreen, I am quite certain his victim’s injuries would have been very much more severe.  The much more likely scenario was that it was at least significantly Mr Kumar’s movement forward that propelled him onto the bonnet, consistent with his running at an angle that intersected with the car’s forward passage.  There is the further anomaly about Mr Kumar’s conduct, assuming that his evidence from the witness box was the correct version of events.  He saw the defendant first when he was outside his car, preparatory to getting in, then starting the car, then belting down and moving off.  Were this to have been the case he would have had ample time to cross the carriageway well before Mr Cheng had driven to his position and with no risk of a collision.  Yet he apparently hung around, for a minute or more, in the drizzle.

33.  Mr Cheng came across as a witness whose account was unembellished and not altered when tested in cross-examination.  He gave the impression of being a careful driver, conscious of his responsibility to himself and others.  I accept that he drove as he did so that at all material times he was on the correct side of the road.  I am satisfied that his speed was 20 kph.  That is significantly below the speed limit, and paid proper regard to the comparatively small amount of leeway caused by the cars parked on both sides of the first arm of Fung Lok Lane he was about to enter.  I also find that there was a van parked at the kerb opposite China Light and Power and that hid Mr Kumar from view until a second or so before the collision; that he took evasive action but was unable to avoid the impact.

34.  Should he, notwithstanding the sudden emergence of Mr Kumar, nevertheless have anticipated his presence, and so driven to have been able to stop in time or otherwise have avoided him?

35.  Regrettably, collisions between pedestrians and motor vehicles are all too common, and inevitably the pedestrian comes off second best.  Many are caused by pedestrians emerging into the carriageway from behind a parked vehicle as in this case.  Whether or not the collision is caused by negligence of the driver depends on the circumstances.  One test for this is stated thus :

“If the possibility of the danger emerging is reasonably apparent, then to take no precaution is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.”

per Lord Dunedin in Fardon v Harcourt – Rivington (1932) 146 LT 391, at page 392. 

36.  The case of James v Alger (unreported) is of assistance.  At first instance, a taxi-driver whose taxi struck and killed one of two boys who darted out in front of him was found liable in negligence.  The boys were on a pedestrian crossing controlled by lights; the lights were against the boys and in favour of the driver.  On appeal, the finding was reversed.  Parker L.J. said near the conclusion of his judgment :

         “In my judgment, it is putting a burden which is out of all bounds of reasonableness upon a motorist if it is to be said that, proceeding along this road he must so drive that if there are children on the pavement and they choose to dart out on to the pedestrian crossing, albeit that the lights are against them and in favour of the traffic, he can avoid that accident.  It would involve any driver who saw any children within possible reach of a crossing slowing down to five miles per hour, so that if at the last moment they chose to dart out he would be able to avoid them.  In my judgment the standard of reasonable care does not involve that.

….

         Regrettably, I come to the conclusion that there was simply no evidence upon which the learned judge could properly have held that this defendant was liable, and therefore I would allow this appeal.”

37.  In another unreported case Barlow v Entwistle, before the English Court of Appeal, Roache L.J. said, in allowing the appeal in favour of the driver, that the test was not that the driver should be the absolutely careful driver, but simply a reasonably careful driver.

38.  A Hong Kong case was put before me: Ho Hing Yuen v Lee Wai Kai, unreported, HCPI 58 of 2003.  In that case, the victim pedestrian had emerged into the carriageway from between a bus and a coach into the path of a car driven by the defendant.  The defendant was found to have been driving at below but not much below the legal limit of 50 kph.  There was not much moving vehicular traffic and not many pedestrians either.  The judge at first instance found there was no negligence.

39.  This decision was upheld on appeal albeit by a majority.  The minority view was that the driver was 20% to blame.

40.  But Rogers VP stated :

“In my view, the matter is quite simple.  I entirely agree with the judge below.  I cannot see that, given the road condition and given the time of day and the absence of other road users, the defendant was travelling other than in a careful manner. He was in third gear; he was travelling at a very reasonable speed for that sort of a road, which was a divided dual carriageway road, admittedly with buses there.  But unfortunately, if pedestrians choose to run across the road, they take, literally, their life in their own hands; worse still if they do so without looking.”

My Determination

41.  I have already stated that Mr Cheng gave the impression of being an habitually careful driver; his clear record points to that.  His speed was well within the bounds of a pace that paid regard to the confined part of the lane he was about to enter.  The manner of the accident suggests that it was as much Mr Kumar’s forward momentum that propelled him up and onto the bonnet of the car; thus, that the collision was perhaps caused by his running into the car rather than being hit by it. 

42.  Why he was running I cannot say.  Part of his evidence indicated a delusional personality.  Whether the confrontation in the bus was real or imaginary, it may be that he was in a state of anxiety and wanted to rush to the safety of his home which was close by.

43.  In my view that was nothing within Mr Cheng’s power to alter the turn of events no matter how cautious or how alert he could have been.  The collision was wholly caused by Mr Kumar’s folly.  Mr Cheng was driving as a reasonably careful driver.  The result is that I find it not established that the accident was caused by his negligence, for he was not negligent.  The claim is dismissed.

Quantum

44.  In case it becomes necessary I turn to consider the claim by Mr Kumar under the various heads.

History

45.  Mr Kumar was born in February 1981 and was thus 19 when he suffered the accident.  Having been born in Hong Kong he was taken by his parents back to Nepal as an infant.  He came back to Hong Kong in 1997 and achieved Right of Abode status in 1998.  He has only a limited understanding of Cantonese and English, and cannot read or write in either language.  He worked as a construction site worker, on various sites with various employers.  His most recent job prior to the accident was on a site in Tseung Kwan O which he joined in June 2000.  His income on average was $10,400 per month.

46.  For some years, Mr Kumar suffered from an ear problem; specifically a large central perforation of the tympanic membrane.  This resulted in hearing loss in the left ear.

47.  In 1998 he returned to Nepal and the perforation was repaired under local anaesthesia.  The operation was successful; the hearing returned to normal.

Mr Kumar's Complaints

48.  Since the accident in October 2000 he has, on his account, not been able to hold down a job as a direct result of the accident.  He complains of feeling uncomfortable, of headaches, and dizziness, residual back pain and hearing problems.  He also is depressed, suffers palpitations, breathing difficulties, sweating and weakness, and has been diagnosed as having a post traumatic stress disorder (PTSD).

49.  Without any income, Mr Kumar has survived on Comprehensive Social Security Assistance of $2,000 per month.

Post-Accident History

50.  The first matter I pay heed to is how minor were the injuries Mr Kumar suffered from.  The medical report compiled by Dr Tsang of Tuen Mun Hospital indicates a thorough examination including x-rays.  There was the complaint of tenderness in the back but no attendant bruising or swelling.  The only signs of any injury at all were small abrasions at the elbows but no limitation of movement; it was really no more than a school playground scrape.

51.  But he kept coming back for treatment because of the pain in his back.  Then in June 2001 he complained of left ear pain and reduced hearing.  An examination revealed a rupture of the tympanic membrane, cause unknown, and reduced hearing.  As to whether this was or might have been caused by the accident, it was opined by a Dr Wai of ENT Tuen Mun that because of the lapse of time between the accident and complaint, no causal relationship could be established.

52.  In February 2004, Mr Kumar was referred for examination for mental health issues, because of complaints indicating a psychiatric condition.  A number of examinations were conducted thereafter, but a report from Tuen Mun Mental Health Centre revealed a difficulty in diagnosing the nature of the problem and establishing whether there was a connection with the accident.

The Medical Reports

53.  At a pre-trial checklist hearing it was ordered that in addition to the various medical records recounting Mr Kumar’s history, reports from two psychiatrists, Dr Peter Ho for the plaintiff and Dr S Y Chung for the defendant, would be adduced without oral evidence.

54.  Dr Ho examined Mr Kumar in July 2002.  He said he appeared settled; his speech was coherent and relevant.  However he did appear anxious, once burst into tears, with recurrent images of the accident and fear when crossing the road.  There were other symptoms, and behavioural abnormalities exhibited; overall, he found that Mr Kumar had been suffering from various symptoms of PTSD as a result of the accident.  He did not think the symptoms were feigned.  He put the percentage impairment at 10%.  He reported that he might benefit from psychiatric treatment which should last for a year.  He considered the prognosis to be fair.

55.  Dr Chung saw him in July 2003.  Of the accident, Mr Kumar told him that he had been thrown up with a force that took him up and over the car before he fell at its rear where he lay unconscious, not regaining his senses until he was in hospital; clearly that was an exaggeration.

56.  He too found Mr Kumar complained of many problems, with feelings that he had become mad, that people might want to kill him and other delusional traits.  However he also found him to be co-operative and friendly with good rapport, displaying an appropriate range of emotional responses and not unduly anxious when directed to talk about the accident.  His speech was relevant, coherent and spontaneous.  He was attentive.  He was orientated.

57.  Dr Chung opined that his complaints comprised many unusual and bizarre symptoms not consistent with the minor injury (of course he had received an over-blown account of that from the patient).  He went on to doubt the genuineness of Mr Kumar’s complaints.  He decided he was suffering from the residual symptoms of PTSD, and might benefit from a short course of psychological treatment.  He estimated his impairment at 2%.

58.  There was a follow up session with Dr Ho in September 2005.  In a detailed report, Dr Ho opined his mental state had shown some improvement compared with the first interview.  He found the percentage impairment now to be 7%, with prognosis to be fair.  He maintained the belief that his symptoms are compatible with PTSD.

PSLA

59.  Under this head Mr Kumar complains of headaches, dizziness and residual back pains.  But it is apparent that his most serious problems derive from his psychiatric condition first and foremost, causing depression and anxiety, and his hearing deficiency.

60.  Dealing with this last first; there is the medical evidence of a problem which gave rise to an operation carried out in Nepal some years prior to the accident.  But there is no complaint of re-emergence of it and consequential hearing loss until several months after the accident.  There appears to be no medical finding to support the proposition that the events were related.  As Mr Ramanathan has pointed out, a private specialist whom Mr Kumar visited reported in respect of his hearing problem that there was “no evidence of any external injury”.  In the circumstances I find not established any causal link.

61.  I come now to the psychiatric issues.  Both psychiatrists consider he is the victim of PTSD.  But with the greatest respect, I wonder how this can be so.  As the literature on the disorder states PTSD comes into play when there is “an extreme traumatic stressor that involves actual or threatened death or serious injury, or other threat to one’s physical integrity and the person’s response involves intense fear, helplessness or horror.” — DSM-IV 309-81 Criterion A.

62.  It may well be that Mr Kumar’s exaggerated account of events was taken at face value.  But my findings of fact indicate that he escaped with negligible injuries.

63.  It does seem that he is delusional.  But such mental issues that he has did not emerge until some two years after the accident.  Again there is a causal link problem; I find it not established.

64.  Under this head I would have awarded no more than $50,000.

Pre-trial Loss of Earnings

65.  The defence concedes two months loss of earnings.  I think that is appropriate.  Under this head I would have awarded $20,800.

Future Loss of Earnings

66.  There would have been no award under this head.

Medical, Travel and Tonic Food

67.  These are agreed at $7,200; that would have been the award.

Psychiatric Treatment

68.  For want of a link to the accident, there would have been no award under this head.

Interest

69.  On the award of PSLA this would have amounted to 2% from the date of the writ to judgment, and on the special damages at half the judgment rate from the date of the accident to the date of judgment.

Costs

70.  This order is nisi.  Costs are to the defendant, with the plaintiff’s own costs taxed under Legal Aid Regulations.