CHAN FU MAN v. LAM FOOK LOI AND ANOTHER

HCPI 962/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 962 OF 2004

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JUDGMENT

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1. The plaintiff, now aged 44, seeks damages for personal injuries arising from an accident which occurred almost six years ago sometime after 3 a.m. on 3 November 2001, while he was a front seat passenger in a medium goods vehicle GM8449 driven by the 1^st defendant and owned by the 2^nd defendant, a well-known supermarket company.

2. At the time of the accident, the 1^st defendant was driving the vehicle on his third and last delivery round of the night.  There were two passengers in the front seat of the vehicle, the plaintiff and a Mr Mak Man Fai, both truck attendants / delivery workers who were responsible for loading and unloading the vehicle.  The plaintiff was sitting closest to the front passenger door.  Mr Mak sat in the middle.

3. The vehicle was in the vicinity of Jubilee Garden heading in an east bound direction along the Tai Po Road, Shatin, in the direction of Tai Po.  The road was a dual carriageway.  The vehicle was in the inside lane.

4. Very shortly after passing the entrance to a slip road which by led way of a flyover up over the Tai Po Road to Penfold Park, the vehicle left the carriageway and collided with the offside wall of the flyover to its left causing substantial damage to the left side of the vehicle and personal injury to the plaintiff.  He sustained a fracture to the patella of his left knee and the rupture of two ligaments in the same knee as well as the rupture of a ligament in his right knee.

5. The plaintiff claims that the collision was a result of the negligent driving of the 1^st defendant.

6. The 1^st defendant denies any negligence on his part.  He attributes sole blame for the accident to an untraced dark coloured private car which he alleges had suddenly cut in on him at high speed from his right.

7. The 2^nd defendant accepts that it is vicariously liable for any negligence by the 1^st defendant, which it also denies.

LIABILITY

The plaintiff’s case

8. The plaintiff admits that at the time of the impact, he was half awake / half asleep and therefore cannot give evidence as to what occurred immediately beforehand.

9. His evidence, however, was that he had noticed a slowness or what he described as “laziness” on the part of the 1^st defendant before and at the start of the journey.  He said that when the 1^st defendant had been informed of the destination of the journey, he had not responded and that it was as if “his mind was not with us”.  The 1^st defendant had failed to go to the back of the vehicle to check a code number that appeared there.  During the course of the journey, the 1^st defendant had allowed the engine to stall on one occasion and had needed to restart the vehicle.

10. The plaintiff said that the collision had woken him and as soon as he opened his eyes, before realising that he or Mr Mak had been injured, he saw no sign of any other vehicle on the road ahead.

11. He alleged that the 1^st defendant had not stopped the vehicle immediately after the accident but had made a telephone call to someone reporting the accident and saying that it was due to him falling asleep.  On hearing these words, Mr Mak had become angry and abused him.  The 1^st defendant had then apologised to them saying that he had “dozed off”.

12. The plaintiff had asked the 1^st defendant to stop the vehicle so he could check his injuries but the 1^st defendant had ignored him and continued driving.  It was only after the plaintiff had insisted that he stop the truck and make a report to the police that the 1^st defendant had made a second call, apparently to his superior, and stopped the vehicle.

The defendants’ account

13. The defendant denied that he had stalled the vehicle prior to the accident.

14. His evidence was that just prior to the accident, he was travelling along Tai Po Road on the inside lane at 60 mph.  In his right side mirror, he noticed a dark coloured private car coming up behind him in the second lane at very high speed.  That vehicle had suddenly, without any apparent reason, cut into his lane about half a car’s lane in front of his vehicle.  His reaction was to step on the brake and swerve sharply to the left to avoid the car.  Almost immediately his vehicle had struck the wall of the flyover.  He had then stopped his vehicle.  He had asked both passengers whether they were injured but they had not replied.  He had then restarted the vehicle in order to find a safer location to stop the vehicle.  Although there were other places where he could have stopped the vehicle before the place he actually did so, he maintained that it had not occurred to him to stop there and that he had been engaged in asking his passengers whether they were injured.

15. On reaching the place where he eventually finally stopped, he made a 999 call and reported his location.  He also made a call to his supervisor responsible for planning journeys, Mr Chan Hoi Bun.  That was the only call he had made to his company.  He denied ever saying that the accident had occurred because he had fallen asleep.

16. The defendants called Mr Chan Hoi Bun to give evidence of the call he received from the 1^st defendant.

17. I have no hesitation in preferring the account given by the plaintiff to that of the 1^st defendant.

18. If the defendant had been fabricating an account, I consider it most unlikely that he would have admitted that he was not fully awake at the time of the accident.  His account of what happened after the accident struck me as having the ring of truth.  In particular his account of Mr Mak having become angry upon hearing the 1^st defendant informing someone over the telephone that he had fallen asleep and the defendant then having apologised for having done so as well as his account of his attempts to persuade the 1^st defendant to stop the vehicle.  It was apparent from the video film taken by the defendants’ solicitors that was quite a considerable distance between the scene of the accident and the place that the 1^st defendant ultimately stopped the vehicle.  Mr Bharwaney accepts that there were earlier places that the 1^st defendant could have safely stopped the vehicle.  In my view, if the 1^st defendant was so concerned about injuries to his passengers, he would have stopped the vehicle at the first safe opportunity rather than continuing to drive as he did.

19. There was no apparent reason why the driver of a private car would have wanted to cut in onto the inner lane in front of the 1^st defendant’s vehicle at the point he allegedly did.  There is no suggestion for instance that the second and third lanes were obstructed by other slow moving traffic.  It was the early hours of the morning and the evidence was that the traffic was light.  The next exit from the Tai Po Road which led to the University was half a kilometre ahead allowing time safely to pass the 1^st defendant’s vehicle before changing to the inner lane.  Mr Bharwaney has suggested that the sign visible on the right of photograph exhibit D5(b) at the entrance to the slip road to Penfold Park (which indicates with an arrow that the next exit for the dual carriageway was ½ km ahead) may have led to the vehicle suddenly changing lanes.  It has, however, to be borne in mind that that sign would have made it clear that there was not an immediate need to be in the inside lane as the exit was some distance ahead.

20. Furthermore I am satisfied that the photographs of the damage to the wall and the vehicle taken that night are more consistent with the plaintiff’s version of events than that of the defendant.  If the vehicle had struck the wall as a result of suddenly having swerved to the left, one would expect the wall to show more pronounced damage at the point of first impact.  That does not appear to be the case in the photographs that appear at page 125(b) and (c) of the bundle.  The later marks appear to be more pronounced than the earlier ones which is more consistent with the car drifting off the road.

21. In his police statement, the defendant said when the private car had cut in on his lane, he had immediately “applied the brake” to his vehicle.  His evidence-in-chief was that his reaction was to “step on the brake and swerve to avoid the car”.  Those would be the immediate and natural reactions of someone in that position.  The photographs, however, display no sign of brake marks even though the ground directly beneath the wall along which the vehicle had scraped was grass.

22. The 1^st defendant’s later assertion in cross-examination that he had not braked forcibly gave me the impression of a belated attempt to provide some sort of explanation for the absence of marks of braking.

23. The damage to the vehicle is in my view instructive.  It appears from photograph (c) that appears at page 172 and (a) at page 126 of the bundle that the damage ran along the whole left side of the vehicle.  What appears to be the greater damage occasioned to the front left side of the vehicle can be accounted for by the vehicle ultimately coming in contact with the concrete protrusion that appears in photograph (b) at page 126.

24. This damage appears to be more consistent with the whole vehicle scraping along the wall and then the front coming in contact with the protrusion than with the vehicle suddenly swerving to the left and hitting the wall.

25. I did not find the evidence of Mr Chan Hoi Bun, the journey supervisor at all convincing.  It seems to me highly unlikely that if the 1^st defendant had reported that an accident had occurred and that someone was injured, he would not have inquired how the accident occurred and how serious the injuries were.  If the accident had occurred as a result of someone suddenly cutting in on him, I believe the 1^st defendant would have immediately said so to his supervisor.  According to Mr Chan, the 1^st defendant did not do so.  The evidence of Mr Chan did nothing, in my view, to discredit the plaintiff’s evidence that the 1^st defendant had made two telephone calls.  Whether the first call was made to Mr Chan or to Mr Lo Hing Wah, the “driver supervisor” (which the 1^st defendant denied) or indeed someone else, I am not in a position to decide.

26. It follows from these findings that the 1^st defendant failed to exercise proper control over the vehicle at the material time.  I find that the plaintiff has established liability on the part of the defendants.  There is no allegation of contributory negligence.

QUANTUM

27. A number of heads of damage are agreed, namely :

Damages for pain, suffering and loss of amenity	$525,000
Hospitalisation fees	$816
Medical expenses	$9,216
Plaintiff’s travelling expenses	$9,500
Plaintiff’s family’s travelling expenses	$712
Tonic foods and medical consumables	$18,000
Value of wife’s services	$50,000
Future medical expenses	$5,000
Loss of ability to render services to family	$20,000

28. The plaintiff abandoned his claim for loss as a result of selling back his flat to the Hong Kong Housing Authority under the Tenants Purchase Scheme.

29. It is admitted that the plaintiff received the sum of $359,714.80 as Employee’s compensation for which he will give credit to the defendants.

30. The matters remaining in issue are :

(1)	the plaintiff’s pre- and post-trial loss of earnings;
(2)	the plaintiff’s pre- and post-trial loss of MPF employer’s contributions; and
(3)	the plaintiff’s loss of earning capacity.

Plaintiff’s working capacity

31. There is little dispute as to the plaintiff’s medical condition.  He was the subject of a joint medical report by Dr David Cheng and Dr Arthur Chiang who saw him together on 20 December 2005.

32. The injuries sustained by the plaintiff to his left knee were fracture of the patella, rupture of the posterior cruciate ligament and rupture of the lateral collateral ligament complex.  The posterior cruciate ligament in his right knee was also ruptured.  He has undergone surgery on a number of occasions.

33. The two doctors said this about his condition :

“

The present condition of Chan is that there are pain, instability, weakness and stiffness of both knees, more so on the right.  The result of these symptoms are such that there is difficulty in mobilization (requiring a stick), going up and down stairs, running squatting, lifting heavy objects.  Work and social activities are affected to a certain extent.  In our examination, we find that there are genuine objective signs.  We agree that Chan’s complaints are justified.

The prognosis of Chan is fair to good.  With time, exercise to strengthen the knee musculature, we expect some improvement.  Chan probably would not need the stick in future.  However, a certain degree of physical impairments is likely to remain.”

34. As a result of video film taken of the defendant without his knowledge in December 2005 and on three occasions in the first part of 2006, there was some dispute as to the length of time the plaintiff is able to walk comfortably with and without a stick.

35. The plaintiff now accepts that he is able to walk for 30 to 40 minutes without a stick before he needs to rest by sitting down.  It is apparent from the video film that, except when he is going out for short periods, he carries a stick which he uses from time to time.  He walks with a limp, which can be more or less pronounced.  From time to time he needs to use a handrail when going up and down steps.  He is capable of carrying weights of less than 5 kg.  Regarding his capacity to undertake employment, the two doctors said :

“

We look into the different job description of the occupation Chan previously engaged.  We think that it would be difficult for Chan to resume the job of deliveryman.  If his job as printer does require him to work in a squat position, this would again be difficult.  He probably can operate a forklift, and does inventory work in a warehouse, provided he is not required to actually lift and move the goods manually.  Alternatively jobs are probably an office attendant, a messenger in office etc.”

36. I accept the plaintiff cannot perform the work of a warehouse attendant, delivery worker, forklift truck operator or printing worker, all occupations he has undertaken in the past.  In practice the first three occupations all require someone capable of lifting relatively heavy goods.  For the reasons given by the doctors, he could not work as a printing worker.

37. As well as the jobs suggested by the doctors, I consider he could also perform jobs such as a security guard or carpark attendant.  By reasons of his limp and the need to carry a stick, he is, however, handicapped in competing against other applicants without such disabilities.

Pre-trial loss of earnings

38. Drs Chan and Chiang stated in their reports of 2 February 2006 that they would have recommended sick leave from 3 November 2001 until 24 November 2004 (i.e. 36.83 months).  They did, however, state that the plaintiff’s treating doctors had recommended sick leave up until July 2005.  Bearing in mind that his treating doctors would have been in a better position to assess his condition at the time, I consider a period of 44 months’ sick leave is appropriate.

39. The plaintiff’s evidence was that despite making many job applications, he was not being able to find employment save for a period between about February or March 2006 until September of that year when he worked for Asia Production, a firm belonging to a friend who engaged him to deliver samples to customers at a salary of about $1,200 per month.

40. The fact that he was prepared to accept this job at such a modest salary at this stage and his early attempts after the accident to undergo retraining persuade me that he is someone who has made genuine attempts to find work.

41. It does appear that after his employment with Asia Production, although he had continued to seek work, he did not apply for the full range of jobs available to him.  Although the job of carpark attendant may involve some walking, I believe it was andis work within his capacity.  He has friends in that occupation.  He says that these friends had discouraged him from taking it up because of the low salary and the long hours.

42. I consider that he could reasonably have expected to obtain such a job at a salary of $5,000 per month by the end of 2006.  I have being referred to wage statistics.  I consider that the plaintiff would have been only likely to be able to earn a salary at the bottom of the available range.

43. The plaintiff’s pre-accident earnings of $9,813 per month are agreed.

44. Had he worked at his pre-accident employment from the date of the accident until trial, he would have earned $704,106 ($9,813.33 x 71.75 months).  Deducting his total earnings from Asia Production at $8,400 (i.e. 7 months) and the salary he could have earned as a carpark attendant of $48,750 ($5,000 x 9.75 months) I find his pre-trial loss of earnings as :

$704,106 - $8,400 - $48,750 = $646,956.

His pre-trial loss of MPF is :

$646,956 x 5% = $32,347.

Post-trial loss of earnings

45. I consider a multiplier of 10 is appropriate bearing in mind the nature of the applicant’s previous employment.

His post-trial loss of earnings are accordingly :

($9,813 - $5,000) x 12 x 10 = $577,560.

His post-trial loss of MPF is :

$577,560 x 5% = $28,878.

Loss of earning capacity

46. I consider that there are likely to be periods in the future when the plaintiff finds himself out of employment by reason of his disability.  I consider an award of $60,000 (12 months at $5,000 per month) is appropriate under this head.

CONCLUSION

47. In summary, the damages assessed or agreed are as follows :

PSLA	$525,000
Pre-trial loss of earnings	$646,956
Pre-trial loss of MPF	$32,347
Post-trial loss of earnings	$577,560
Post-trial loss of MPF	$28,878
Loss of earning capacity	$60,000
Hospitalisation fees	$816
Medical expenses	$9,216
Plaintiff’s travelling expenses	$9,500
Family’s travelling expenses	$712
Tonic foods, etc.	$18,000
Wife’s services	$50,000
Future medical expenses	$5,000
Loss of ability to render services to the family	$20,000
Subtotal	$1,983,985
Less Employee’s compensation	$359,714.80
Total	$1,624,270.20

48. There will be judgment for the plaintiff in the sum of $1,624,270.

INTEREST

49. Interest is awarded at 2% per annum on damages for PSLA from the date of service of writ until the date of judgment.  Interest is awarded at half judgment rate (i.e. 5.375%) on damages for pre-trial loss of earnings, special damages and value of wife’s services from the date of the accident until 27 July 2004 (the date of payment of Employee’s compensation).  Interest on the balance outstanding after deduction of the Employee’s Compensation is payable at the same rate until judgment.

COSTS

50. I make the following order nisi as to costs that unless either party applies within 14 days to be heard on the question of costs the plaintiff’s costs be taxed and paid by the defendants.  The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.