CHAN PAK LEUNG v. LEE KIN TAK AND ANOTHER

HCPI 118/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.118 OF 2004

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J U D G M E N T

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1. The plaintiff brings this claim for damages for personal injuries suffered by him in a traffic accident on 22 February 2001 at about 10 a.m. on the Tuen Mun Highway when the heavy goods vehicle driven by the plaintiff bearing registration number JA 3124 (“the HGV”) collided with the container lorry driven by the 1^st defendant and bearing registration number DM 1879 (“the defendant’s container lorry”).

2. At the time of the accident, the defendant’s container lorry was made up of a tractor articulated with a trailer without any container on it.  For clarity’s sake, in this judgment, “the defendant’s container lorry” will mean both the tractor and the trailer together, while reference to only the tractor or the trailer will be by the use of those words respectively.

3. That part of Tuen Mun Highway where this accident occurred consists of three lanes going in the same direction for traffic.  In this judgment reference to the slow lane means the 1^st lane on the left, while the 2^nd lane is also referred to as the middle lane, and the 3^rd lane being the fast lane.

THE ACCIDENT

4. In issue between the parties, and central to the issue of liability, are two very different versions as to how the collision occurred.

5. The plaintiff’s version as to how the collision occurred was that he was all along driving the HGV along the slow lane heading in the direction of Tsuen Wan.  Upon reaching the spot where the collision occurred, the defendant’s container lorry driven by the 1^st defendant along the 2^nd lane overtook the HGV at high speed, then suddenly, and without warning or signal, swerved and cut into the slow lane from the 2^nd lane in front of the HGV.  Immediately after cutting into the slow lane, the defendant’s container lorry braked heavily, causing the plaintiff’s HGV to hit it from behind.

6. When he saw the tractor of the defendant’s container lorry cutting into the slow lane in front of his HGV, the plaintiff slowed down the HGV by lifting his foot from the accelerator but did not brake.  The plaintiff braked when he saw the brake lights of the tractor come on and smoke coming out from the tractor’s wheels due to heavy braking by the 1^st defendant.

7. Because of the short distance between the two vehicles, the plaintiff could not avoid the front of his HGV hitting the rear of the trailer.

8. According to the plaintiff, at the very instant of the collision, the tractor had completely entered the slow lane but the trailer had only partly entered the slow lane from the 2^nd lane and was still at an angle to the slow lane.

9. Because of this, it was the right front of the HGV which collided with the left rear of the trailer.

10. A different version of events was given in evidence by the 1^st defendant.  It was the 1^st defendant’s evidence that he was driving the container lorry along the slow lane of Tuen Mun Road at 50 to 60 kph and that he had not travelled on the 2^nd lane of the road overtaking any vehicle (including the plaintiff’s HGV) that morning.  About 1 km before reaching the spot where the collision took place, the defendant’s container lorry was following another goods vehicle with a gap of about 40 feet between them.  Just before the collision took place, he saw a triangular metallic road sign flying out from under the wheels of this goods vehicle in front of him and flying in the direction of the defendant’s container lorry.  He immediately braked to slow down the defendant’s container lorry but a few seconds later, the trailer was hit from behind by the plaintiff’s HGV.

11. Needless to say, according to the 1^st defendant’s version of how the accident happened, the 1^st defendant denies that he had at any time cut into the slow lane in front of the HGV or at all just before the accident happened as alleged by the plaintiff.

THE OTHER EVIDENCE

12. The other evidence which could throw light upon which of the two versions given by the plaintiff and the 1^st defendant respectively are as follows.

13. Firstly, supporting the plaintiff’s version of what happened, the photographs taken by the police at the scene of the accident show that the point of impact between the HGV and the trailer of the defendant’s container lorry was the right front of the HGV coming into contact with the left rear of the trailer.

14. This would support the plaintiff’s version that at the time of the collision, the trailer had not completely entered into the slow lane on which the HGV was travelling.

15. On the other hand, among the photographs taken by the police was a photograph in particular of the triangular road sign which was the road sign mentioned by the defendant in his evidence as the sign which flew up from under the wheels of the goods vehicle travelling in front of the defendant’s container lorry and which flew towards the defendant’s container lorry thus causing him to decelerate his vehicle.  It was the 1^st defendant’s evidence that that photograph was specifically taken by the police because when the police arrived at the scene to investigate this accident, he had told the police about this road sign which was retrieved by the police on the road and therefore a particular photograph was taken of this sign by the police.

16. However, the most significant piece of evidence came from an independent witness called by the defendant, Chan Wai Pun (“Chan”).  He was a self-employed goods vehicle driver and a stranger to both the plaintiff and the defendant.

17. At the material time, he was driving a 5.5 tonne goods vehicle JE 357 travelling in the 2^nd lane of that part of Tuen Mun Highway where the accident happened.  He travelled in the 2^nd lane all along and witnessed the collision which took place between the HGV and the defendant’s container lorry.

18. His evidence was to the effect that the defendant’s container lorry was travelling at all times in the slow lane in front of the HGV; that the defendant’s container lorry did not overtake any vehicle on the middle lane; nor did it cut into the slow lane at any time before the collision.

19. It was Chan’s evidence that the HGV which was on the slow lane had driven quickly past his (Chan’s) vehicle which was on the 2^nd lane and that the HGV was only about 10 feet behind the defendant’s container lorry just moments before the collision between them took place.

20. When the HGV drove past him along the slow lane, Chan’s vehicle was doing about 60 to 80 kph.

21. According to Chan, the impact of the collision between the HGV and the defendant’s container lorry caused the defendant’s container lorry to enter into the 2^nd lane before it came to a complete stop.  Chan was able to avoid colliding with either of those two vehicles by immediately braking and swerving to the right, thereby entering the fast lane of the highway where he stopped JE 357.

ASSESSMENT OF THE EVIDENCE ON LIABILITY

22. In view of the diametrically different versions of how the accident came about from the plaintiff and the 1^st defendant including the evidence given by the independent witness, it is important to assess the evidence adduced in this case and in particular the credibility and reliability of the witnesses.

23. Firstly, in the case of the plaintiff, I have come to the view that he is not a credible or reliable witness.  There are simply too many areas of his evidence in which it has been shown that he has not been truthful with the court.

24. In his evidence-in-chief, the plaintiff told the court that he had always (since his accident) needed a stick for walking.  This was clearly shown to be completely untrue when the surveillance video of him taken by the defendant’s investigator showed the plaintiff to be able to walk for long distances unaided.

25. In particular, the plaintiff stated in his witness statement dated 28 July 2004 that he required 2 crutches to walk.  The surveillance video taken (between 14 and 27 September 2004) by the investigator instructed by the defendant showed the plaintiff to be walking independently without a walking stick and even without a companion.

26. As to his pre-accident employment, the plaintiff stated in his witness statement that before the accident, he worked for Fu Tai Transportation Engineering Company and earned $1,500 to $1,600 per day, averaging $32,000 per month with no particulars given as to how the $32,000 per month was arrived at.  There was also a claim for loss of MPF.

27. However, only when he was in the witness box that it emerged that the plaintiff was in fact self-employed, owning his own vehicle.  It also became apparent then that to accurately calculate his loss of income, his expenses such as petrol, insurance, maintenance of his vehicle and other expenses will have to be deducted, none of which had been mentioned either in his witness statement or his Statement of Damages.

28. This revelation by the plaintiff in his oral evidence obviously took his legal team by surprise as well, since after that evidence, counsel for the plaintiff conceded that on that evidence of the plaintiff that he was self-employed, the plaintiff would not be entitled to claim for loss of MPF and that claim was abandoned.

29. When asked in cross-examination why no documentary records of his pre-accident earnings or expenses had been disclosed or produced by him, the plaintiff gave the answer that all his records were kept in the HGV and after the accident, those records were all scattered on the road at the scene of the accident and became lost.  I have grave suspicion as to that answer that all his records were kept in the HGV.  In any event, the photographs taken at the scene of the accident do not bear out this evidence of the plaintiff that documentary records from the HGV were scattered all over the road where the accident occurred.

30. The plaintiff also gave evidence that the injuries from this accident led to the breakdown of his marriage and eventual divorce.

31. When cross-examined on this, the plaintiff at first said it was his unreasonable behaviour that led to the breakdown of the marriage.  Later he claimed it was his wife’s unreasonable behaviour.

32. When the divorce documents were eventually disclosed and produced in evidence, as a result of repeated demands by the defendants, those documents showed that the plaintiff was the petitioner for the divorce and the stated ground for the divorce was one years’ separation.

33. Moreover, the surveillance video showed the plaintiff to be strolling along the street with a female (admitted by the plaintiff to be his ex-wife) after their divorce.  The two of them were seen to be laughing, talking, generally relaxed and having a merry time.  No sign of tension or strain could be seen between the two of them in the video.

34. When it was pointed out to the plaintiff in cross-examination that from the video, he had spent the night at the marital home, the plaintiff answered that that was the only night he had spent there.  As to such a coincidence, the plaintiff commended the private investigator to have been lucky enough to have caught him on that particular day.  That sounded to be an answer of a cornered witness showing up his lack of credibility.

35. As for the occurrence of the accident, the plaintiff has wavered considerably when cross-examined as to the distance at which the container lorry cut into his lane from the middle lane.  Different distances were given by him at different points in his evidence.

36. The plaintiff also said in evidence that he saw smoke emitted from the tyres of the tractor when it braked so heavily after cutting into his lane.  The sketch plan prepared by the police of the accident scene does not show any skid marks going in the direction from the middle lane to the slow lane and therefore does not support the plaintiff’s version of what happened.  However, the sketch plan shows skid marks starting from about the middle of the slow lane and ending up in the middle lane where both vehicles came to a stop.  This is consistent with the version given by both the 1^st defendant and Chan.

37. On the other hand, I do not find the same kind of incredulousness in the evidence of the 1^st defendant or Chan.  Whilst it is true that their evidence may not always stand up to a microscopic scrutiny of each and every minor detail, as in distances and timing, that can be put down to the fact that when an accident happens as quickly and suddenly as it normally does, it is never possible for a witness to register and absorb every single minor detail which may be asked of him years later at a trial in a courtroom.  Rather it is the more general and overall picture that I have to consider in determining credibility and reliability.

38. Therefore on the evidence before me I accept the account of how the accident happened as told to me by the 1^st defendant and Chan and I reject the account of the plaintiff.

39. Specifically, I make the following findings of facts in this case :

(1) at all material times the defendant’s container lorry and the HGV were travelling along the slow lane of Tuen Mun Highway;

(2) the HGV travelled at a speed close to if not just in excess of the speed limit of that part of Tuen Mun Highway;

(3) when the HGV came up behind the defendant’s container lorry, it was travelling far too close to the rear of the trailer of the defendant’s container lorry;

(4) at about that time, the 1^st defendant, upon seeing a triangular metal road sign, which had been caused by the vehicle in front of the defendant’s container lorry to, fly up from the road and in the direction of the defendant’s container lorry, braked the defendant’s container lorry in an attempt to avoid or lessen any impact with that road sign;

(5) as a result of the braking by the defendant’s container lorry, the HGV, which was following too closely to the defendant’s container lorry, was unable to avoid colliding with the rear of the trailer of the defendant’s container lorry.

40. I further find that there was no negligence on the part of the 1^st defendant in braking in his attempt to avoid or reduce the impact with the metal triangular road sign which was flying towards the front of the defendant’s container lorry.  That could only have been an instinctive reaction on his part upon seeing the road sign fly up and fly towards the defendant’s container lorry.

41. I should also make it clear that in assessing the credibility of the plaintiff, the 1^st defendant and Chan on the issue of liability, I have not taken into account the evidence given by the plaintiff relating to the issue whether a recovery agent is involved in this matter.  That evidence given by the plaintiff was highly suspicious and would further adversely affect his credibility in this matter.

42. In so far as that application by the defendants for me to stay these proceedings on the grounds that a recovery agent was likely involved in this case, I had ruled against that application.  After hearing evidence on that issue, I had come to the conclusion that although there was much suspicion (from the evidence given by the plaintiff) there was still no evidence before me that a recovery agent was involved and, suspicious that the evidence given by the plaintiff was on that issue, I was not prepared to infer from such suspicion that a recovery agent must necessarily have been involved.

43. Having so ruled on that matter in the course of the trial, I took the view that the evidence given by the plaintiff on the issue of recovery agent, would not otherwise have been relevant and therefore inadmissible (but for that issue of recovery agent being raised) if only the trial on liability and quantum were in dispute between the parties.

44. For this reason, I did not feel it right for me to take into account this evidence of plaintiff relating to the recovery agent issue in assessing his credibility in this matter on the issue of liability.  If that evidence had been taken into account, it would only have made the plaintiff out to be even less credible a witness in this case.  It could not have benefited the plaintiff in the least in so far as his credibility went.

45. Moreover, in coming to the findings of fact as I did above, I have not lost sight of the fact that the photographs taken by the police at the accident scene showing the point of impact between the right front of the HGV and the left rear of the trailer of the defendant’s container lorry can support the plaintiff’s version of how the collision occurred.

46. However, in my view, that evidence on its own is not sufficient to offset the direct evidence given by both the 1^st defendant and the independent witness Chan Wai Pun as to how the collision came about, whose evidence I have accepted.

47. Admittedly neither the 1^st defendant nor Chan was able to give any explanation as to how the point of impact between the HGV and the trailer was as shown in those photographs on the version given by them.  But when one considers that :

(a) the road at that part of the highway where the accident occurred was slightly curving to the right;

(b) the trailer was attached to the tractor of the defendant’s container lorry by one swivel which allows for the trailer to swing to either left or right;

(c) that immediately before the collision, the 1^st defendant had braked the defendant’s container lorry because of the triangular metal road sign flying towards him in front;

then it may yet be possible for the point of impact between those two vehicles to have been as shown in the photographs without the accident happening in the way described by the plaintiff.

48. On the findings of fact made by me above, the plaintiff’s case is accordingly dismissed with costs to the defendants, that costs order being an order nisi.

49. In the event that I should be wrong to have dismissed the plaintiff’s claim, I shall deal with the issue of quantum, having heard all the evidence relating thereto.

QUANTUM

Injuries and Treatment

50. The injuries to the plaintiff’s right leg after the accident necessitated the right leg to be amputated 16 cm below the knee.

51. With a prosthesis fitted to the amputation stump, the plaintiff could walk without crutches but with a limp.

52. There was marked wasting of right thigh muscle.

53. The plaintiff was assessed to have 28% impairment of the whole person.

54. As far as residual disability is concerned, the plaintiff has recurrent pain in the amputated right leg.  He also needs walking aid for prolonged walking.  He is unable to run, jump, climb or squat and cannot carry heavy weight.

Pain suffering and loss of amenities

55. For this head of damage, the plaintiff initially claimed $1,100,000 in the Revised Statement of Damages.  However, this was toned down to $620,000 in final submission of counsel for the plaintiff.

56. The defendants on the other hand submitted that an award of $500,000 would be reasonable in all the circumstances.

57. I was referred to some local awards made for cases of amputation.

58. Wong Man Kit Michael, a minor v. Wong Foon Woon, HCA283/1985 and Bijay Rai v. Pacific Crown Engineering Ltd and anr, HCPI 1045/1998 are both cases of above knee amputation.

59. In the case of Wong Man Kit Michael, an award of $200,000 was made back in 1988.

60. In Bijay Rai’s case the award was $720,000 made in 2002.

61. In Lau Che Ping v. Hoi Kong Ironwares Godown Co. Ltd, HCA1030/1986, a case of below knee amputation, an award for PSLA of $175,000 was made in 1987. 

62. Taking note of the video showing the plaintiff to be able to walk without other assistance apart from a prosthesis, albeit with some limp, and even if he may need other form of walking aid for a prolonged period of walking, I am of the view that an award of $620,000 would be a reasonable sum to compensate the plaintiff for pain suffering and loss of amenities.

Loss of earnings (pre-trial)

63. The major contention between the parties here is as to the amount of pre-accident earnings of the plaintiff as well as the average wages for dumper truck drivers during the pre-trial period.

64. The plaintiff’s case was pleaded on the basis that he earned $1,600 per day working between 20 to 25 days in a month.  It was also pleaded on the basis that he was employed by Fu Tai Transportation Engineering Company.

65. However, no convincing or reliable documentary evidence such as wage receipts, bank statements, tax returns or other statement of accounts have been produced in evidence by the plaintiff to support his claim.  The only document provided in evidence is a letter from Fu Tai Transportation Engineering Company stating that the plaintiff was paid $1,500 to $1,600 per day.

66. In the light of the plaintiff’s admission under cross-examination that he was actually self-employed at the time of the accident, that letter from Fu Tai Transportation Engineering Company can really be no more than self-serving evidence and little weight can be attached to it.

67. Moreover, in view of the fact that expenses which had to be incurred by the plaintiff had not been taken into account in pleading his case on loss of earnings but which was conceded by him in cross-examination, much concession had to be made by counsel for the plaintiff in his final submission in this respect.

68. The upshot of all this simply underlines the fact that the evidence of this plaintiff is quite unreliable taken at face value.

69. The plaintiff further conceded in cross-examination that he was earning between $12,000 to $13,000 as a dump truck driver working for a Mr Wong in the year 2000 before he became self-employed.  He also conceded that that figure is perhaps the most reliable estimate of his pre-accident earnings.

70. Furthermore, the evidence of Mr Ho Hung Fai from the Dumptruck Drivers Association, called by the plaintiff to give evidence as to the earnings of dumper truck driver is neither convincing nor reliable.  That evidence of Mr Ho comes from Mr Ho overhearing the discussions of such drivers as to their earnings and not from first hand knowledge of such facts by Mr Ho.  Secondly, Mr Ho makes no distinction between the earnings of dumper truck drivers who are employed and those who are self-employed.  In that respect, Mr Ho agreed that he had not calculated expenses which may have to be incurred when giving his evidence.

71. Mr Ho’s evidence is far too simplistic to carry much weight.

72. The defendants on the other hand, point to statistics contained in the Government Statistics showing that drivers in the Construction Industry was earning a daily wage of $622 in the year 2001 and that had fallen to $580 today.

73. Based on those statistics, the defendants submit that wages for drivers have clearly gone down since 2001.

74. The defendants suggest that the average monthly wages to be adopted in this case should be $12,528 being the average wage using the government statistics based on a 20 working days month.  This the defendants say would be consistent with the plaintiff’s concession that $12,000 and $13,000 per month when he was working for Mr Wong in the year 2000 would be the best estimate of his pre-accident earnings.

75. Whilst I decline to accept the plaintiff’s evidence that he was earning $1,600 per day before the accident, the suggestion by the defendants as to how the average monthly wages pre-trial should be calculated, does not take into account that the plaintiff did change from being an employed driver working for Mr Wong in the year 2000 to a self-employed driver having his own dumper truck (albeit in his wife’s name) at the time of the accident.

76. I cannot imagine that the plaintiff would have made that change had there not been some greater financial incentive to him in changing over since he would have to meet all the expenses of owning his own truck and being self-employed.

77. In all the circumstances of this case, and giving effect to the wages which the plaintiff was earning when working for Mr Wong in 2000 as well as to the government statistics, I come to the conclusion that I should use $15,000 per month as the average pre-trial earnings of the plaintiff.  If it should be thought by the plaintiff that this figure is on the low side, he has only himself to blame for failing to supply the court with the proper and necessary documentary evidence for the court to come to a proper determination on it.

78. There is no dispute that the plaintiff was given six months’ sick leave between February and August 2001 after the accident.  For those six months full loss of earnings comes to $90,000.

79. As for the following 52 months after the expiry of sick leave until trial and/or judgment, the evidence shows that the plaintiff was fit enough to take on alternative employment of a light or sedentary nature given his disability resulting from his injury. 

80. The plaintiff has not obtained any other form of work as yet probably due to his age being now 54, his low education and lack of experience in any other field apart from truck driving.

81. Given those circumstances, it would be reasonable to allow the plaintiff a further six months to secure some form of alternative employment.

82. Thereafter, given the age, education level and lack of experience in other field of work, I am not optimistic that this plaintiff would be able to command any salary above $5,000 even if he could find work in some other field.

83. Therefore for the remaining 52 months, a further six months full loss of earnings will come to $90,000 and the remaining 46 months at partial loss of earnings of $10,000 comes to $460,000.

84. The total loss of pre-trial earnings comes to $640,000.

Future cost of prostheses

85. The plaintiff claims $804,180 for the future cost of prostheses based on a report by Mr Raymond Ng Kwan Ying prepared on the joint instructions of the parties.

86. In his report, Mr Ng listed out the plaintiff’s present complaint after examining the plaintiff in August 2004.  It was stated that the plaintiff needed a pair of elbow crutches to walk and that he could not walk for more than 10 to 15 minutes because of pain on his stump.

87. This however, has been shown up to be inaccurate by the video surveillance of the defendant taken just six weeks after the examination by Mr Ng.  Likely that the report of Mr Ng was premised upon the plaintiff’s exaggeration of his disabilities.

88. Mr Ng recommended a number of aids and equipment to help the plaintiff in various ways including a polypropylene socket, a gel lining and a high quality prosthetic foot all of which aim for comfortable efficient and natural walking.

89. The estimate cost of all the aids and equipment recommended comes to $134,030 and that equipment would have a life span of three to five years.  In the event the plaintiff says that such equipment will have to be renewed for six times in all, thus the claim for $804,180.

90. On the other hand, there is the joint medical recommendation by both parties expert, Dr Wong and Dr Lam to the effect that the present prosthesis worn by the plaintiff will have to be renewed every two to three years at $18,000 each time.  Indeed Dr Lam has gone as far to say that the recommendation of Mr Ng should not be followed for a number of reasons one of which is that the measured knee joint motion by Mr Ng was much less than what it was in the joint orthopaedic report.

91. It is also a fact that the plaintiff has not tried out any of the prosthesis recommended by Mr Ng but has at all times been advised by and obtained his prosthesis through the HA Prosthetist Service.

92. The defendants are prepared to concede an award of $456,090 under this head which is calculated by taking the median between the costs as recommended by Mr Ng and the costs as recommended by Dr Wong and Dr Lam.

93. The basis upon which the plaintiff submits his entitlement to claim the full amount as recommended by Mr Ng under this head of claim is stated in paragraph 42 of the Closing Submission by plaintiff’s counsel where he says:

“It is submitted that the Plaintiff is entitled to receive the best treatment possible for his disabilities.  While Government hospitals do provide excellent service, they may not be able to provide the latest technology or services which private prosthetic and orthotic companies do.  It is submitted that the Plaintiff should be entitled to the claim of $804,180 under this head.” (emphasis supplied)

94. However, that basis, premised on the best possible treatment is fallacious.  Seagroatt J stated in paragraph 26 of his judgment in the case of Wong Hoi Tang Alexander v. Hospital Authority,HCPI 529/1996 citing the judgment of O’Connor LJ in the case of Rialas v. Mitchell as follows :

“26.  O’Connor LJ accepted two propositions put forward by counsel for Rialas – one was that the Plaintiff was entitled to the cost of what is reasonably necessary to alleviate his injury and diminish his disability; the other was that he was not entitled to the best possible facilities, but only to what is reasonably necessay.  Likewise I accept those two propositions ….”

95. I am in total agreement with Seagroatt J and O’Connor LJ that the plaintiff is not entitled to the best possible treatment in the present case.  It is no part of the plaintiff’s case here that the prosthesis prescribed to him by the HA Prosthetist Service does not match up to reasonable standard.

96. In all the circumstances, the offer by the defendants of $456,090 under this head of claim is more than generous and that is the award that I will make under this head of claim.

AGREED HEADS OF CLAIMS

97. The parties have agreed the following heads of claim :

(a) Loss of Future Earnings	$344,400
(b) Past Medical Expenses	9,286
(c) Past Travelling Expenses	3,300
(d) Future Medical Expenses	36,000

98. The amounts agreed by the parties will be allowed.

INTERESTS

99. Interests for PSLA to be calculated at 2% p.a. from the date of Writ.  Interests for all special damages pre-trial to be calculated at half judgment rate from the date of accident.