DCPI 1572/2021
[2025] HKDC 1770
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
PERSONAL INJURIES ACTION NO.1572 OF 2021
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BETWEEN
SANDHU HARPREET SINGH
Plaintiff
and
CHEUNG CHUN PONG DICK
1st Defendant
THE PRODUCE COMPANY HONG KONG LIMITED
2nd Defendant
________________
Coram:
His Honour Judge Harold Leong in Court
Date of Hearing:
12-13, 15 May 2025
Date of Judgment:
22 October 2025
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JUDGMENT
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1. The plaintiff claims for damages arising out of injuries he sustained in a road traffic accident which occurred on the eastbound lane of Upper Albert Road (“the Road”) on 2 June 2018 (“the Accident”) in which the plaintiff collided with a light goods vehicle (the “LGV”).
2. It is not in dispute that the 1st defendant was driving the LGV at the time and the 2nd defendant was the 1st defendant’s employer at the time. The 2nd defendant was also the registered owner of the LGV (paragraph 5 of the Defence, Trial Bundle p. 20).
3. Both liability and quantum are disputed. It is of note that the plaintiff and the defendants presented a completely different version of events.
Liability
The scene of the Accident
4. It is not in dispute that the Road around the site of the Accident is laid out as such: there are one eastbound lane (the “Eastbound Lane”) and two westbound lanes.
5. The westbound lane closest to the edge of the pavement will be referred to as the “1st Westbound Lane”. This lane will bend to the left and continues to a junction onto Albany Road where cars can turn left up towards the mid-levels, or turn right down towards Glenealy and Lan Kwai Fong.
6. The second Westbound Lane (which geographically forms the middle lane of the Road) will be referred to as the “2nd Westbound Lane”. This continues to a set of traffic lights at a junction where cars can continue straight onto Caine Road, turn right down to Arbuthnot Road, or turn left up towards the Cathedral of the Immaculate Conception.
7. The Eastbound Lane is a single lane and separated from the 2nd Westbound Lane by a continuous double white line. As it approaches the Government House on its left (facing easterly direction), there is a bus stop lay-by on the left, “the Bus Stop”). As such, the width of the Road is wider at this point.
The plaintiff’s case
8. The plaintiff (D.O.B. 3 March 1977) was 41 year old at the time of the accident and was working as a food delivery driver for Black Sheep Restaurants (“Black Sheep”).
9. Around 12:10pm on 2 June 2018, the plaintiff was at work delivering food on his motorbike on the Eastbound Lane. According to the Statement of Claim (paragraph 3, Trial Bundle 12-13), he claimed that:
a. The LGV was on the 2nd Westbound Lane (near the Lamppost 40527) when it suddenly slowed down and carried out a U-turn, thus crossing the double white lines between the Eastbound Lane and 2nd Westbound Lane directly in front of the plaintiff.
b. He immediately applied the brakes but lost control of the motorbike; and
c. The motorbike skidded sideways and the plaintiff impacted with the left side of the LGV before falling onto the Road along with the motorbike.
10. The plaintiff claimed that the 1st defendant has fallen below the duty of care of a reasonable driver because, contrary to the Road User Code (May 2000 Edition) (“the Code’), he crossed a double white line (p. 115 of the Code) as well as carrying out a U-turn whilst endangering and obstructing other road users (p.44 of the Code) and was driving carelessly within the meaning of section 38(2) of the Road Traffic Ordinance:
“A person drives carelessly within the meaning of this section if on a road he drives a vehicle without due care and attention or without reasonable consideration for other persons using the road.”
The defendants’ case
11. According to paragraph 8 and 9 of the Defence (Trial Bundle p. 20), the 1st defendant claimed that:
a. He was actually driving on the Eastbound Lane at the time of the accident, i.e. the LGV was driving on the same lane in front of the plaintiff and not in the opposing direction;
b. He suddenly saw a white 7 seater (“the 7 Seater”) travelling on the 2nd Westbound Lane “sought to overtake a car in front of it by crossing the double white line” with “a substantial part” of the 7 Seater encroaching into the Eastbound Lane ahead of the LGV;
c. In order to avoid a head-on collision, the 1st defendant claimed that he managed to turn the LGV left and got into the Bus Stop and braked; and
d. He then heard a loud sound at the back of the LGV and from his rear mirror, he discovered that a motorcycle has fallen down and a person was on the Road.
12. As such, the defendants claim that even if the plaintiff has suffered any injuries (of which no admission was made), it was solely caused or contributed to by the negligence of the plaintiff failing to, inter alia, pay attention, keep a safe distance, or to comply with the Code in wearing a helmet.
Legal Principles
13. The issue of liability in this case requires the court to assess the parties’ completely conflicting version of events. The relevant approach is trite: the plaintiff bears the legal and evidential burden of proof that, on a balance of probabilities, the accident did occur in the way he describes (per DHCJ Carlson in Lee Kit Ha v. The Kowloon Motor Bus Company (1993) Limited [HCPI 539/2000].
14. However, in the event that the court finds both version of events improbable, the elimination of one does not automatically lead to the acceptance of the other equally improbable version:
“The judge…has open to him a third alternative i.e. the party on whom the burden of proof lies in relation to any fact has failed to discharge that burden. The judge mist be satisfied on the evidence that a particular fact or state of affairs is more likely to have occurred than not.” (per DHCJ Marlene Ng (as Her Ladyship then was) in Chan Chi Ling Elwyn v. Richfield Realty Limited [HCLA 9/2013])
Consideration
15. In my view, when considering the inherent plausibility and probability of the parties’ versions of events, the most problematic piece of evidence from the 1st defendant (as I translated from paragraphs 5-7 of his witness statement, Trial Bundle p. 285) was as follows:
a. He was travelling at 30-40 km per hour on the Eastbound Lane;
b. When he was nearing the Bus Stop, the 7 Seater traveling on the 2nd Westbound Lane suddenly crossed the double white Line to overtake a car with close to ¾ of the width of its body coming onto the Eastbound Lane;
c. When this happened, the 7 Seater and the LGV was only 2 car lengths apart on a head-on direction ;
d. He immediately turned the steering to the left, entered into the Bus Stop and braked the LGV. There was no collision between the 7 Seater and the LGV and the 7 Seater disappeared from the scene; and
e. He has enclosed a photograph on which he labeled the position the 7 Seater when he first spotted it, the position of the LGV at the same time, and the position of the LGV when it came to a stop inside the Bus Stop after avoiding the collision. (“the Photograph”, Trial Bundle p. 292)
16. During cross-examination, the 1st defendant agreed with the estimation that the approaching speed of the 7 Seater was 60-70 km per hour. Although he was not sure, he said the 7 Seater was driving much faster than normal speed.
17. The 1st defendant also confirmed that when he stated “car lengths” in his witness statement, he meant roughly the length of the LGV, i.e. about 5 metres. So he agreed that “two car lengths ahead” means about 10 metres ahead.
18. Further, the 1st defendant also confirmed that the Photograph accurately shows the position of the 7 Seater and the LGV when he first saw it crossing the double white line. The white mark is labelled the 7 Seater and the leftmost yellow mark labeled “TY2815” is the LGV. The two marks do appear to be about 10 metres (or two car lengths) apart.
19. From the Photograph, the yellow arrow showed how he turned the LGV into the Bus Stop. The rightmost yellow mark showed the position of how the 1st defendant managed to brake and stop the LGV with its front having entered the Bus Stop.
20. I find this not plausible.
21. Firstly, as submitted by Mr. Ricky K.Y. Li, counsel for the plaintiff (“Mr Li”), according to the Code (p. 46, Exhibit “P5”) the “thinking distance” (i.e. the distance that a vehicle would have travelled during the “reaction time” of a person) of a vehicle travelling at 40 km per hour is 10 meters. Further, the “stopping distance” (i.e. the distance the vehicle would have travelled when braking was applied to a full stop “on a dry surface with good functioning brakes and tyres” ) is another 10 meters.
22. Indeed, the Code stated that (as I translate):
“On a dry road surface, only when the driver was paying attention and that the brake system and vehicle tyres are in good condition that the vehicle could be stopped in the shortest distance.
The stopping distance is the total distance by adding the “thinking distance” on the “braking distance” .
Thinking distance
Thinking distance is the distance the vehicle has travelled from the time when the driver discovered a danger to the time he applied the brake.
…
Braking Distance
This means the distance that the vehicle would continue to travel forward from the time the brake was applied until the vehicle stopped.
…”
23. Thus, according to the Code, even under the best conditions (dry road, good brake and tyres and driver paying good attention), it would have taken a total of about 20 meters for the LGV to come to a stop from the position when the 1st defendant allegedly first spotted the 7 Seater.
24. However, evidence of the 1st defendant was that the 7 Seater was only 10 meters ahead when it crossed the double white line onto his lane in a head-on direction.
25. Therefore, even if the 7 Seater was stationary at the time, the 1st defendant would have likely crashed into it: he would have crashed into the 7 Seater before he could react to turn the steering wheel since the “thinking distance” would be 10 meters.
26. Of course, this “thinking distance” only applied at a speed of 40 km per hour: in this scenario, the 7 Seater was not stationary but was travelling at around 60-70 km per hour towards the LGV, thus the combined closing speed of the two vehicles were at about 100 km per hour.
27. A simple extrapolation of the Code will show that at 100 km per hour, the “thinking distance” would be 25 meters. Clearly, if the two vehicles were only 10 meters apart approaching each other at 100 km per hour, there would not be enough time for either drivers to react, let alone for one to swerve and brake to a stop.
28. Further, even if the 1st defendant possessed a scientifically impossible reaction time of zero seconds (as he claimed in court), and thus had applied his brake simultaneously as the 7 Seater encroached onto the Eastbound Lane, the LGV would not be able to stop at the position he indicated in the Photograph. The Braking Distance from 40 km per hour to a stop alone (with no “Thinking Distance”) would have been 10 meters according to the Code (Exhibit “P5”).
29. Thus, even in this impossible scenario, the LGV would have stopped at the distance around where the 7 Seater mark was on the Photograph (i.e. 2 car lengths or 10 meters from the LGV according to the 1st defendant’s own evidence). This would mean that the LGV would have overshot the end of the Bus Stop. The 1st defendant indicated in the Photograph that the LGV could somehow, metaphorically, “stop on a dime” within a car length or so (i.e. around 5 metres).
30. In short, according to the Code, the total stopping distance of a vehicle travelling at 40 km per hour would be 20 metres under optimal conditions, but the 1st defendant’s case was that he managed to stop the LGV in about ¼ of that distance (around 5 metres). The Code (exhibit P5) provides a visualization of such distance: 20 metres is the length of two double decker bus parked end to end, but 5 metres is roughly length of one big 7 seater or a light goods lorry.
31. Thus even if one grants some margins of error as to the exact distances and speeds of both vehicles, the 1st defendant’s case still appears to defy science and is therefore highly implausible.
32. There are further problems to 1st defendant’s case.
33. There is no dispute between all the witnesses that at the time of accident, the Eastbound Lane had a smooth traffic flow but both the 1st and 2nd Westbound Lanes were congested with heavy traffic.
34. As such, one would question why anyone would consider overtaking in the 2nd Westbound Lane, especially that this lane would come to a traffic light ahead. What advantage would any driver gain by overtaking a car or two when one might still have to wait at the traffic lights?
35. Further, just slightly further down the Road, on the bend just beyond the beginning of the Bus Stop, there is a traffic island with two upright signs separating the 2nd Westbound Lane and the Eastbound Lane (upper left photograph, Trial Bundle p.843). It would be impossible for any overtaking car to re-enter its own lane at that location (without crashing into the traffic island and the signs). Of course, there is no evidence from this same (post-accident) photograph that the traffic island or the signs were in any way damaged.
36. Thus, if the 7 Seater indeed wished to overtake at the location as claimed by the 1st defendant, it would have very limited distance to do so.
37. Indeed, the problem of re-entry to its own side of the lane would also be hampered by the fact that there was heavy traffic so finding a gap might have been more difficult. This would be especially for a big and cumbersome 7 seater instead of a small, fast and nimble car. In addition, the 7 Seater would also then needed to brake from its speed of 60-70 km per hour to match the slow speed of the traffic queue in order not to collide with the vehicle in front!
38. All these factors make that location under the circumstances, logically, a very unlikely place for any car, let alone a relatively big and cumbersome 7 seater, to attempt any overtaking manoeuvre.
39. Also, given that the 7 Seater would likely be a relatively wide vehicle, one might wonder how it could overtake any car when 1/4 of its width remained in its own lane? It is clear from the Photograph that both the Second Westbound Lane and the Eastbound Lane are not particularly wide but there is no evidence that the 7 Seater made any contact with any vehicles.
40. I also question this claim that 3/4 of the width of the 7 Seater was over on the Eastbound Lane. The post-accident photograph (e.g. Trial Bundle p.840) showed that the plaintiff and his motorbike occupied about half of the Eastbound Lane. If the 7 Seater had passed the LGV with 3/4 of its width inside that lane, it would have likely had a head-on collision with the plaintiff and his motorbike, possibly running over both, after which it would likely strike the traffic island and the sign on it. There was no evidence of any such.
41. Thus, if the 1st defendant was telling the truth, not only that :
a. He possessed zero reaction time;
b. The LGV had an unbelievably short braking distance;
c. The 7 Seater made an implausible manoeuvre having crossed 3/4 into the Eastbound Lane at 60-70km per hour but somehow able to avoid colliding head-on with the plaintiff, presumably by swerving back into his own lane which happened to have a gap despite heavy traffic (and without making any contact with any vehicles on that lane);
d. The 7 Seater needed to complete all this before reaching the traffic island just a short distance ahead;
e. The 7 Seater then somehow disappeared very quickly without a trace despite the heavy traffic and traffic lights ahead of it, because after this 7 Seater had passed the 1st defendant, he heard a loud noise and looked at his mirror, and he could see the plaintiff on the ground but could not see this 7 Seater; and
f. Furthermore, the driver of the 7 Seater presumably took all these risks just to overtake perhaps one or two cars ahead (if at all) before reaching a traffic light, which he might still have to wait for.
42. In all, the 1st defendant’s case is factually illogical and implausible, and scientifically impossible.
43. In comparison, the plaintiff‘s version of events is far more plausible.
44. The plaintiff‘s evidence is consistent: he was travelling on the Eastbound Lane where traffic was smooth, and the LGV was initially travelling on the 2nd Westbound Lane where there was heavy traffic. The LGV suddenly made a U-turn around Lamp post 40527 and turned onto the Eastbound Lane only about 10 metres ahead of the plaintiff.
45. First of all, by sheer logic and common sense, the plaintiff’s case is far more likely than the 1st defendant’s case.
46. When a driver encounters busy and slow moving traffic ahead, he may likely consider making a U-turn to find an alternative, less congested way to the destination (as the 1st defendant allegedly did in the defendant’s case). It is far less likely for the driver in that situation to consider overtaking the car ahead (as the alleged driver of the 7 Seater did in the 1st Defendant’s case). As stated above, the driver would likely understand that there is little to be gained (and with all the risks and difficulties) in attempting to pass a car or two in a busy traffic queue in a single lane.
47. Secondly, if a driver is considering making a U-turn, this location around Lamp post 40527 is a good place because the Road is widened by the Bus Stop thus facilitating the U-turn. Thus, the location of the accident also adds weight the defendant’s case.
48. The plaintiff braked but lost control of his motorbike, which skidded sideways to the right. He was thrown out of the motorbike and the left side of his body impacted with the left side of the LGV before he landed on the ground.
49. This is also consistent with the objective evidence: the main injuries suffered by the plaintiff was on the left side of his body (fractured left scapula, left humerus, left ribs, left cervical transverse processes). The photographs (Trial Bundle p.832) also clearly showed that the plaintiff was lying on his right side. His evidence was that he lost conscious so he would not have moved after falling on the ground. The motorbike had also fallen to its right side from the photographs and the apparent damages were on its right side (Trial Bundle p. 841). This would be consistent with the motorbike having skidded sideways with its left side facing forwards and fell onto the ground on its right side.
50. More importantly, the plaintiff’s evidence that he impacted the left side of the LGV is consistent with the LGV in the middle of an attempted U-turn: the LGV would have likely presented its left side to him in the initial manoeuvre.
51. It is obvious (and not in dispute) from the width of the Road at that location that a long vehicle like a LGV (which tend to have a big turning circle) would not likely able to make a complete U-turn in one go. It would have required at least a “3 point turn” (or even more manoeuvres) to complete the U-turn.
52. The plaintiff’s witness, Mr. Chahal Gurdeep-Singh (“Mr. Chahal”), gave evidence that:
a. He was travelling on the 1st Westbound Lane around that time (but confessed that he did not witness the accident);
b. The traffic on both Westbound Lanes were congested at the time and he saw a person lying on the Road on the Eastbound Lane;
c. He stopped his own motorbike and parked it on the side of the 1st Westbound Lane;
d. He saw the LGV reversing about 2 metres in front of the person on the Road so he shouted at the driver: “Stop! Stop! Stop!”;
e. He crossed the Road and saw that the person on the ground (the plaintiff) had his eyes opened but unresponsive when he attempted to talk to him;
f. He called 999 for help;
g. His attention was on the plaintiff and at some point later, he saw that the LGV was parked in the Bus Stop as shown in the photographs (Trial Bundle p. 832-844); and
h. He took those photographs after the police and the ambulance had arrived.
53. Mr. Chahal claimed that he only knew the plaintiff by face because they both worked in the delivery business. They were not acquainted.
54. On cross-examination, Mr. Chahal appeared inconsistent in his memory as to the exact time he saw the LGV reversing and shouted. At first he said this was when he was still on his motorbike and later he said this was after he had parked his motorbike and was crossing the Road.
55. However, Mr. Chahal explained that at the time, his attention was mainly on the plaintiff. In any case, he was certain that at some point he did see the LGV reversing and had shouted.
56. I think this was understandable. Logically, Mr. Chahal did not witness the accident so would not have known the role of the LGV in the accident, so his focus of attention would be on the plaintiff on the ground. One may assume that he might have noticed the LGV reversing when he was close enough to the scene of the accident to notice the distance between the plaintiff and the LGV. Of course, all this happened some 7 years ago.
57. Mr. Li, Counsel for the plaintiff, suggested that if Mr. Chahal was “recruited” by the plaintiff to give false evidence to support his case, he could have simply made up a better story. He could have claimed, for example, that he saw the whole accident: that the LGV made the sudden U-turn manoeuvre etc.. Mr. Chahal did not do so.
58. Thus, I find that Mr. Chahal a credible witness. He is a public-spirited citizen who has offered his assistant to the plaintiff after the accident, and he has simply told the court what he saw to the best of his memories.
59. In any case, the 1st defendant did not dispute that he did reverse the LGV.
60. I think this is another crucial fact. If the 1st defendant heard a loud noise behind him and saw someone on the ground in his mirror (as he claimed in his witness statement), why would he attempted to reverse his vehicle?
61. The 1st defendant agreed that there was no central rear view mirror and only side mirrors on his LGV. There were therefore, substantial blind spots behind the LGV (p. 42 of the Code, exhibit P6 also illustrates such blind spots).
62. Thus, if the 1st defendant heard a loud sound and saw in his mirror something on the ground, he would not be able to see the entire picture of what else (if anything or anyone) might be directly behind the LGV because of the blind spots. It would have been a very risky, if not outright reckless, move to reverse the LGV.
63. During the cross-examination, the 1st defendant explained that he had reversed into the Bus Stop so as not to block the traffic on the Eastbound Lane.
64. This explanation is illogical. The 1st defendant already saw the plaintiff and his motorbike fallen on the Eastbound Lane, clearly blocking the traffic already. One might question why there was a need or priority to park the LGV out of the way, not to mention the dire risk of running something unseen (in the blind spots) over?
65. When he was confronted with the question why he did not stop immediately after an accident as required by law, the 1st defendant firstly attempted to explain that he only saw a bundle of something on the ground. He claimed that he did not realise that there was an accident. This was inconsistent with paragraph 8 of his own witness statement.
66. Of course, if he truthfully did not think that there was an accident, one would question why he did not just drive off.
67. When questioned further, the 1st defendant simply shrugged his shoulders (metaphorically) saying to the effect that, “So I was wrong!”
68. Of course, the logical deduction for such was that the 1st defendant was aware of the Accident but was more eager to complete his U-turn manoeuvre (in how many turns and reverses that it might take) so to avoid showing obvious evidence that he had caused the Accident.
69. Mr. Chahal arrived after the Accident so this would explain why he saw the LGV reversing: it was in the middle of these manoeuvres.
70. On balance of probability, the court accepts the plaintiff’s case and finds that, at the relevant time, the plaintiff was driving the LGV on the 2nd Westbound Lane but made a sudden U-turn manoeuvre crossing the double white lane onto the Eastbound Lane of the Road. In doing so, he had endangered the plaintiff because he had failed to give due care and attention to the plaintiff approaching on the Eastbound Lane on his motorbike. In doing so, the 1st defendant has clearly fell below the duty of care expected of a reasonable driver (including those established by the Code) and had caused the Accident.
Contributory Negligence
71. Given that the court accepts the plaintiff’s case, many of the heads of contributory negligence would fail: there was clearly not enough time or distance for the plaintiff to stop his motorbike given that the 1st defendant suddenly made the U-turn about 10 metres ahead of the plaintiff.
72. As for the claim that the plaintiff failed to wear a proper helmet. I accept that the plaintiff was exempted by the Transport Department from wearing a crash helmet whilst driving a motorcycle due to religious reasons (Trial Bundle B, p. 86). Ms. Ronald, counsel for the defendants (“Ms. Ronald”) has not produced any precedent to show why, under such circumstances, the court would still find contributory negligence on part of the plaintiff.
73. I would also observe that the vast majority of the injuries on the plaintiff were not caused by any head injury but by the impact on the left side of his body. Arguably, wearing a helmet would not have reduced such injuries.
74. I would therefore dismiss any claims in contributory negligence.
Quantum
75. The plaintiff was 41 years old at the time of the Accident on 2 June 2018. He was taken by ambulance to the Accident & Emergency Department of Queen Mary Hospital and was admitted to Intensive Care Unit.
76. He was diagnosed with the following:
a. Left scapula fracture;
b. Left humerus shaft fracture;
c. C7 to T1 transverse processes fracture;
d. Multiple fracture of the sternum, including the manubrium and body;
e. Multiple left sided ribs fracture (2nd to 6th ribs);
f. Nasal bone fracture; and
g. Small haemothorax of the left lung
77. The plaintiff’s left humerus fracture was treated by open reduction and fixation with plating operation. His other injuries were treated conservatively. He was discharged on 8 June 2018.
78. The plaintiff was followed by the orthopaedics, cardiothoracic surgery and ENT out-patient departments. He underwent 45 sessions of physiotherapy from August 2018 to February 2020 for his fractured scapula and humerus. He had then received physiotherapy and traditional herbal treatment in India between March and July 2020 (due to, as the plaintiff explained in court, that he was unable to return to Hong Kong due to Covid). Upon his return to Hong Kong, he was referred to a second course of physiotherapy but did not attend any (since August 2020).
79. Besides physiotherapy, the plaintiff also underwent 12 sessions of occupational therapy treatments from January to April 2019.
80. The plaintiff was granted sick leave from 2 June 2018 to 9 December 2020. However, the plaintiff’s evidence was that he returned to work as a freelance part-time delivery worker in September 2020 so he accepts that the reasonable sick leave period should be up until the end of August 2020, or approximately 27 months (paragraph 82 of the Plaintiff’s Opening Submission).
81. There are two joint expert reports before the court. One dated 4 January 2022 by Dr. Chan Tun Kut (“Dr. Chan”) and Dr. Tsoi Chi Wah Danny which was prepared for the Employees’ Compensation proceeding (Trial Bundle p.845-872). The second one dated 18 January 2023 prepared for the current action by Dr. Chan and Dr. Miu Yin Shun Andrew (“the JMR”, Trial Bundle p.313-344).
82. In summary, according to the experts in the JMR, the plaintiff still complained of pain over his left shoulder with reduced strength. He also suffered from left “frozen shoulder”: decrease range of movement of abduction and flexion due to pain. In other words, he could not lift his left arm beyond around 90 degrees. He also complained of chest pain and neck pain. Incidentally, he also have left knee pain which was caused by an old traffic accident and not related to the current case.
83. On examination, the experts found mild muscle wasting at left scapula, decreased range of movement and muscle power of the left shoulder (Trial Bundle p. 328-329). These findings appeared consistent with his left shoulder complaints. There are also diffuse tenderness over cervical spine, left scapula, left sternum etc.
84. The plaintiff has two previous accidents but both Dr. Chan and Dr. Miu agreed that the current injuries were not related to those accidents.
85. Further, both experts agree that the plaintiff has reached maximal medial improvements and his current physical condition is a stable one. Further conservative treatment would very unlikely cause significant change in his present condition. Thus his various residual pains, weaknesses and stiffness will remain.
86. Overall, Dr. Chan opined that the plaintiff suffered from 13% whole person impairment while Dr. Miu opined 8%.
87. The plaintiff main problem for his daily life appeared to his left frozen shoulder. His inability to lift his left arm meant that he could no longer manage his long hair or tie a turban. Indeed, the court noted his emotional distress when he explained how he needed to cut his hair short. Further, this also affected his daily work riding a motorbike. As a result, he could only work as a part-time delivery worker.
Pain, suffering and Loss of Amenities (“PSLA”)
88. I have considered the following cases below presented by Mr. Li.
89. In Lam Fuk Pau v Contain Wall Engineering Limited & Anor (HCPI 488/2004), the plaintiff fell from height and suffered fracture of transverse processes of 3 lumbar vertebrae and a small subdural haematoma, and was treated conservatively. He has various residual symptoms and was rewarded HK$330,000 under this head of claim.
90. In Chung Chun Man v Chow Wai Kin and Ors (HCPI 713/2004), the plaintiff was a passenger in a car involved in a road traffic accident which resulted in fracture of 4 ribs, pneumothorax, contused lung, liver laceration, heamoperitoneum and laceration to the abdomen which required an exploratory laparotomy operation and conservative treatment. He was awarded HK$350,000 under PSLA.
91. In Teng Wei Yan v Kwok Kai Wing & Ors (HCPI 54/2005), another road traffic accident case, the plaintiff also suffered from multiple injuries: fractured ribs, haemo-pneumothorax, fractured clavicle and ruptured spleen requiring a splenectomy operation. The PSLA award was HK$330,000.
92. I have also considered other cases like Yip Kin Fun v Lau Hon Kit (DCPI 349/2009) and Leung Yiu Sheung v Pa Ling Logistics Company Limited (DCPI 2458/2016).
93. I have also considered the cases below presented by Ms. Ronald.
94. In Wai Ching Fong v Leung Yau Nam and Ors (HCPI 825/1998), the plaintiff suffered a slip and fall resulting in scalding and fracture left humerus which was treated conservatively. The PSLA award was HK$100,000.
95. In Chan Yiu Man v Ha Ching Man Maria (DCPI 349/2020), the plaintiff involved in a road traffic accident but suffered no fracture and only various soft tissue injuries like sprains. The PSLA award was HK$100,000.
96. In Chau Wing Chuen v Jenkins Roy Ian & Anor (DCPI 2652/2015), another road traffic accident case but the plaintiff suffered “no bony fractures or intracranial lesions” and, again, only soft tissue injury like a neck sprain. The PSLA award was HK$80,000.
97. On the whole, the cases presented by Mr. Li are concerned with accidents with a certain degree of violence that resulted in multiple injuries both to the bones (fractures) and internal organs. Most required surgical as well as conservative treatments. On the other hand, the cases presented by Ms. Ronald do not involved multiple injuries (some involved only sprains) and did not require any surgical treatment.
98. Clearly, Mr. Li’s cases are more comparable to the current case. After due consideration, I find the plaintiff’s claim of HK$350,000 under this head of claim reasonable and would award this sum.
Pre-trial loss of earnings
99. There is no dispute that the plaintiff was earning HK$18,000 as monthly wages before the Accident.
100. In addition, the plaintiff also claimed that he has earned about HK$2,500 per month as tips and he was offered free meals from his employer each working day worth around HK$100 (HK$50 x 2 meals), so his total monthly income should be HK$24,000.
101. In court, the plaintiff gave evidence that when a customer paid in cash, he or she tended to round it up so he could “keep the change”. As such, each day he could earn about HK$100 as tips this way and since he work about 25-26 days a month, this would come to around HK$2,500 a month. I find this reasonable.
102. With regard to the provision of free meals, Ms. Ronald pointed out that the employer failed to fill in any entry under “Food Allowance” in Form 2.
103. However, in court, the plaintiff was able to give details of the arrangement of the free meals offered by his employer in three of its restaurants during meal times at lunch or at dinner. He was also able to recall (to the best he could) the names of these three restaurants and what types of food he was allowed to order in each.
104. Since his then employer was Black Sheep which ran many restaurants, it is reasonable for it to arrange for free meals (in some of its restaurants) instead giving out food allowance to its delivery drivers. Overall, I find this evidence credible.
105. I would therefore find that the pre-accident monthly income for the plaintiff should be HK$24,000.
106. Despite that the plaintiff was granted sick leave from 2 June 2018 to 9 December 2020, he has returned to work by the end of August 2020 (or 27 months after the Accident). I also note that Dr. Miu also opined that a sick leave of around two years should be a maximum.
107. I would therefore find that 24 months should be the appropriate length of sick leave.
108. As to the question of the plaintiff’s ability to resume his pre-accident job, I note that Dr. Chan is of the view that he could not but Dr. Miu opines that he could but probably with some mild impairment in work capacity.
109. I would think that the evidence from the plaintiff clearly showed that Dr. Miu’s opinion was more accurate: he could resume his delivery worker job but not in full capacity. The defendants’ position as stated in the Answer to the Revised Statement of Damages (paragraph 8 of the Answer to the Revised Statement of Damages, Trial Bundle p. 53) was that the plaintiff could resume his pre-accident at full capacity. This is not supported by any expert opinion.
110. I therefore accept that the plaintiff could only perform the work of a part time delivery worker 24 months after the Accident. He has been working as such for another food delivery company and earning about HK$9,000 per month (HK$7,000 as wages plus amount to HK$2,000). I accept this figure.
111. The trial date is 12 May 2025 or about 83.5 months after the Accident.
112. Thus the claim for Pre-trial loss of earnings (including MPF) should be:
(HK$24,000 x 24 + (HK$24,000 - HK$9,000) x (83.5 - 24)) x 1.05 = HK$1,541,925
Post-trial loss of earnings
113. The plaintiff is now 48. According to the Black Sheep Employment Contract, the retirement age is 65 (see paragraph 11, Trial Bundle p. 421). The appropriate multiplier should therefore be 13.53 (table 9 of the Personal Injury Tables of Hong Kong 2019).
114. The plaintiff has updated his monthly earnings at trial and submitted that he is able to earn HK$11,000 per month.
115. As such, the plaintiff’s future loss of earnings should be:
HK$(24,000 – 11,000) x (13.53 x 12) x 1.05 = HK$2,216,214
Loss of earning capacity
116. Due to his permanent residual disabilities (including the frozen left shoulder), it is clear that the plaintiff would be at risk at losing his job in the future and suffer a disadvantage in an open employment market.
117. I think that a reasonable award under this head of claim should be HK$50,000
Future medical expenses
118. Although Dr. Chan appeared to suggest that there were further treatment to be considered for the frozen shoulder if conservative treatment was not successful (paragraphs 79 and 81 of JMR, Trial Bundle p.339), he did not give any specifics as to such considerations: e.g. risks, complication and success rates, and costs etc.
119. Given that the plaintiff did not attend any physiotherapy for more than 5 years, I do not think that the plaintiff would likely consider further treatment and incur such costs. I would not allow any award under this head of claim.
Special damages
120. The plaintiff has disclosed a schedule of medical expense amounting to HK$5,850 and receipts for travel expenses amounting to HK$124.50. The plaintiff also claim for tonic food expenses but has provided no specifics.
121. In all, I think it is reasonable to give an award of HK$10,000
Employees’ Compensation
122. There is no dispute that the plaintiff has already received HK$485,360
Summary
123. In summary, the quantum should be:
HK$
PSLA
350,000
Pre-trial loss of earnings
1,541,925
Post-trial loss of earnings
2,216,214
Loss of earning capacity
50,000
Future medical expenses
0
Special damages
10,000
Less: Employees Compensation
(485,360)
Total:
3,682,779 (plus interest)
124. Mr. Li submitted that, if applicable, without prejudice to the plaintiff’s claim, the plaintiff waive any damages in excess of the District Court jurisdiction (paragraph 187 of the Closing Submission of the plaintiff).
Order
125. The court would therefore make the following orders:
a. Judgement be entered for the plaintiff;
b. The 1st and 2nd defendants shall pay damages to the sum of HK$3,000,000 (plus interest) to the plaintiff;
c. Interest on damages for PSLA be at 2% per annum from the date of the service of the Writ to the date of this judgment, and the interest on pre-trial loss of earnings and special damages be at half judgment rate from the date of the Accident to the date of this judgment; and
d. Costs of the action be to the plaintiff to be taxed if not agreed (with certificate for counsel). The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.
(Harold Leong)
Mr. Kin Yeung Ricky Li, instructed by M/s LWC & Co., Solicitors, assigned by the Director of Legal Aid Department, for the plaintiff
Miss Rachel Ronald, instructed by M/s C.Y. Tsang & Co., for the 1st and 2nd defendants