CHEUNG BING KAI v. TSUI KAM HUNG

HCPI 116/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.116 OF 2000

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J U D G M E N T

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Introduction

1. On 31 July 1997, at about 12:15 a.m., a road accident happened on the pedestrian crossing at the westbound of Argyle Street near the junction with Nathan Road, involving the plaintiff, who was crossing the road there, and a taxi DF 3033 driven by the defendant. As a result, the plaintiff suffered personal injuries. He claims that the accident was caused by the defendant's negligence. The defendant denies liability and disputes the quantum of damages allegedly suffered by the plaintiff.

2. In this judgment, I will first deal with the issues concerning liability.

Plaintiff's case on liability

3. The plaintiff's evidence on how the accident happened can be found in his witness statement, which he adopts as his evidence in chief. In summary, it is this. At the material time, there was a traffic congestion on Argyle Street. A row of vehicles were parking on the 1st lane and the vehicles on the 2nd and 3rd lanes had stopped completely because of the congestion. He was on the southern pavement of Nathan Road. Before he crossed the pedestrian crossing to the northern pavement, he had checked that all the traffic had stopped and no traffic was coming towards him. He was following a group of eight to ten pedestrians, who were about six to seven feet ahead of him. When he noticed that the traffic on the 2nd and 3rd lanes began to move, he increased his pace. However, when he was on the 3rd lane, about to reach the northern pavement of Nathan Road, the defendant's taxi came form his right and collided with him. He lost balance and fell onto the ground. The taxi did not stop at once until its left rear wheel ran over his left foot.

4. Under cross-examination, the plaintiff admits certain matters that may have a significant bearing on liability. Firstly, he did not look at the traffic light before or during crossing the road. Secondly, he also did not look at the traffic on his right, that is, the direction from where the defendant's taxi was coming. Thus, the traffic condition he observed was on his left alone. Thirdly, when the group of pedestrians was on the road, the pedestrian traffic light was red. It should, however, be noted that this admission was made when counsel was putting the defence case. It was suggested to the plaintiff that the group of pedestrians was standing on the 2nd lane; that the traffic light was then red against them; and that the plaintiff suddenly dashed out of the group and hit the taxi. The plaintiff denies the first and third suggestions but agreed with the second. Unfortunately, this aspect of his evidence has not been further clarified. Fourthly, the plaintiff admits that before collision, he was walking quickly and further increased his pace at the 2nd and 3rd lanes when the traffic on his left began to move. Finally, he agrees that the defendant's taxi stopped at the 3rd lane after the collision although he could not tell if the taxi was travelling at a moderate speed.

5. Further, it is not in serious dispute that the taxi stopped at about one car's length after the collision.

Defendant's position on liability

6. The defendant does not give evidence. Accordingly, there is no evidence to contradict the plaintiff's account. However, Mr Kwok, counsel for the defendant, submits that even on the plaintiff's evidence alone, the defendant was not negligent. Alternatively, counsel contends that the plaintiff was at least guilty of 90% contributory negligence.

7. Mr Chan, counsel for the plaintiff, accepts a 30% contributory negligence on the part of the plaintiff.

Liability

8. In my view, any reasonable driver should exercise a higher degree of care when approaching a pedestrian crossing, particularly when pedestrians are using it, than elsewhere on a road : cf. Au Ching Bun v. Chan Siu Pui, HCA 6699 of 1983, discussed in Lee Hon Cheung (an infant) v. Chan Tang Kai Lan & another [1995] 3 HKC 640 at 650G-I. In attempting to exonerate the defendant from any liability, Mr Kwok places much reliance on the plaintiff's admission that the traffic light was red against the pedestrians when they were on the road. Mr Kwok submits that the distance between the pedestrians and the plaintiff was so short that by necessary implication, the traffic light was also red against the plaintiff. But the plaintiff has all along maintained in his evidence that he had not looked at the traffic light before and during crossing. In the absence of clarification, I do not think too much weight should be attached to this admission elicited in the context of cross-examination as noted above. Consequently, I am not satisfied that there was sufficient evidence to enable me to draw the inference that the traffic light was against the plaintiff. Indeed, there is simply no evidence before me, whether direct or by inference, on what the traffic light was. In any event, a green light in favour of the defendant does not entitle him to lower his standard of care : Au Cheung v. Choi Lai Fan [1979] HKLR 543. It does not mean that he could disregard the presence of the pedestrians : Lee Hon Cheung (an infant) v. Chan Tang Kai Lan & another, supra, at 649F-G. Accordingly, I would reject Mr Kwok' submission that the plaintiff was wholly to blame for the accident.

9. It is apparent from the evidence before me that when the defendant's taxi was approaching the crossing, the group of pedestrians and the plaintiff was making use of it. In the absence of any evidence to the contrary, I accept the plaintiff's evidence and find that at that time, the pedestrians and the plaintiff were walking on the crossing at a hurried pace. Obviously, their presence would have been obvious to the defendant. The defendant had either failed to keep a proper lookout or failed to stop the taxi in time to avoid the accident. Thus, I find that the defendant was negligent in causing the accident.

10. However, I am also satisfied that there was contributory negligence on the part of the plaintiff. He had obviously failed to keep a proper lookout before and during crossing. He should have looked at the traffic light and also observed the traffic condition on his right. But he had simply failed to do so. Having regard to all the circumstances and counsel's submissions, I hold that the plaintiff's liability amounts to 30%.

11. I now turn to the issues concerning quantum.

Plaintiff's personal particulars

12. The plaintiff was born on 10 March 1947 in the Mainland. At the time of the accident, he was 50. At trial, he is nearly 54. He is married with a son. His parents live with the family. He received education up to primary six can read and write little Chinese. Prior to the accident, he enjoyed good health and had no problem regarding movement. I will come to his employment history later.

Injuries and treatment

13. After the collision, the plaintiff was sent to the Orthopaedic & Traumatology Department of Kwong Wah Hospital. There the doctors examined his injuries. Multiples abrasions were found on his right elbow, right knee and left leg. X-ray examination revealed that there was fracture dislocation of his left ankle and fracture of right clavicle. An emergency operation was performed for the left ankle injury, the open wound was debried, an open reduction and internal fixation were performed. The fracture of clavicle was treated conservatively. The plaintiff was hospitalized in Kwong Wah Hospital until 12 August 1997 when he was transferred to Wong Tai Sin Hospital for rehabilitation. He was eventually discharged on 26 August 1997.

14. After discharge, the plaintiff had to attend follow-up assessments in the out-patient clinic of Kwong Wah Hospital as well as regular out-patient physiotherapy at Tuen Mun Hospital. On 7 June 1999, he had an operation at Kwong Wah Hospital to remove the metal implant from his left ankle. He was discharged on the following day. He had to use wheelchair for six months and then a pair of crutches for a further six months. He also received treatments from a bonesetter in Yuen Long.

15. The plaintiff complains that due to his injuries, he suffers from persistent residual pain and numbness over his left ankle. Occasional numbness attack affecting the entire left leg occurs once to twice each week and each attack lasts for 15 to 20 minutes. On weight bearing and movement of the left ankle, there is increasing pain. He cannot stand for more than 30 minutes and cannot walk for 15 minutes continuously. There is stiffness of the left ankle every time he starts moving it after rest.

16. He suffers from no rest pain at right shoulder with previous fracture clavicle but the fracture area is still tender on palpation. The range of movement of the right shoulder joint has become diminished than the left side. He feels pain over the right elbow and proximal on exertion.

17. He has frequent dizziness particular when he gets up from a sitting position and before starting to walk. He now walks with limping on left side and cannot squat down fully. He agrees that prior to the accident, he walked with some limping because of minor leg-length difference but it was not noticeable.

18. There is a 5 cm surgical scar over the medial mallelous on his left ankle. There is also another 14 cm scar across the front of the left ankle joint to the lateral mallelous. He feels pain when the left ankle joint stretches to its extreme position. His left ankle joint is also slightly weaker than his right one. There is also diminished light touch and pinprick sensation over the dorsum of his left foot.

Employment history

19. The plaintiff used to be a piece-rate causal garment worker. He had to operate a sewing machine by using his feet. His left foot stepped on a pedal to lower or lift the pressing device. His right foot stepped on another pedal to operate the motor. The left pedal was a heavier operation that required 30 odd pounds of force. In operating the sewing machine, he had to repeat the stepping many times a day. His average daily income was $400. He normally worked 28 days per month and thus earned about $11,200 per month.

20. The plaintiff was granted sick leave from 31 July 1997 to 27 May 1998. He resumed work on 1 June 1998 but due to the pain and weakness of his left ankle, he found difficulties in operating the sewing machine. Therefore he could not carry out his normal duties but could only managed to earn a basic monthly salary of $1,200 by introducing new workers to his employer until the end of July 1998 when the factory closed down. Since then, the plaintiff had tried to find a new job that does not require high academic qualification, like office assistant, warehouse assistant or caretaker, but so far have been unsuccessful. He agrees that he could not find a new job partly because of his age and low education. But he complains that his present physical condition also affect his chance of obtaining employment. For example, he cannot squat down fully, he may not be able to work as a vehicle attendant.

21. Under cross-examination, he denies that he was a sub-contractor providing workers to the factory. He explains that he was the only worker operating the sewing machine. Occasionally when he could not cope with the production demand, he introduced workers to work in the factory. But they were paid by the employer and not him. He denies the suggestion that he did not have to operate the sewing machine in the manner he had described. However, the plaintiff accepts that had there been no accident, after the factory had closed down, it would be very difficult for him to find a new job. He accepts that he is now out of work also because of the market.

Video tape

22. The defendant had instructed a private investigator to carry out surveillance on the plaintiff in November and December 2000 with a view to determining the plaintiff's current physical condition. The investigator had taken a video tape of the plaintiff consequently. The video tape is admitted as evidence and played in court. It shows that the plaintiff had no apparent difficulty in walking and standing on his left foot alone. It also shows that on one occasion, the plaintiff was squatting but not fully. Mr Kwok seeks to rely on the tape to show that the plaintiff's left foot is now full weight bearing. This is readily accepted by the parties' experts, to whose evidence I now turn.

Opinions of the experts

23. The plaintiff had been examined by his own expert, Dr Patrick Wong Kwok Shing and the defendant's, Dr Lam Kwong Chin. Both doctors are specialists in orthopaedics and traumatology. Their main difference in opinion lies in the severity of the plaintiff's injury, and the loss of earning capacity. In their reports, the doctors adopted different approaches in assessing the plaintiff. Counsel, however, are not concerned with their difference in approach. Further, the doctors have also given in percentage their assessment on the plaintiff's permanent disability and loss of earning capacity. As I understand from counsel, they are not seriously relying on those percentages. Accordingly, I do not propose to deal with those parts of their evidence. Further, thanks to counsel's efforts, the main differences in the experts' reports have been canvassed in their oral evidence. Consequently, I do not think it is necessary to quote any excerpts from their reports.

24. Dr Wong says that the injury to the ankle was a serious one. He took into account the following factors. Firstly, it was a sizeable open wound. An open wound with associated fracture gave rise to worse prognosis. Secondly, the ankle was grossly deformed with resulting bone loss. Thirdly, the fracture line went through the weight-bearing surface of the ankle, which is the most important part of the joint. Fourthly, there was damage to the articular cartilage. An adult's ability to replace the cartilage layer is limited. The joint function will be very much impaired in the long run. There is already evidence of arthritis setting in. He expects the plaintiff's condition will get worse in 10 years time when he would have too much pain to walk.

25. Under cross-examination, Dr Wong agrees that as at December 1999 when he examined the plaintiff, he was in a state of satisfactory recovery with regard to the kind of injuries he had. He also agrees that his ankle is full weight bearing. But there is reduced motion of ankle and sub-tabular joint. He does not think the plaintiff would be able to return to his pre-injury work.

26. Dr Lam examined the plaintiff in December 2000. He agrees that an open wound associated with fracture might result in complications but there was none in the present case. The deformity was a low residue deformity. The chance of having progressive arthritis is very minimal. He thinks the plaintiff can return to his pre-injury work.

27. Under cross-examination, Dr Lam accepts that the plaintiff's injury was a bad one. He agrees that the X-rays showing the plaintiff's initial injuries are relevant but he had not seen them when he prepared his reports. He acknowledges that Dr Wong had done so when preparing his supplemental report. He also agrees that the fracture at the weight bearing surface of the joint, a point taken up by Dr Wong from the initial X-rays, is also reflective of the seriousness of the injury. Dr Lam admits that he had not asked the plaintiff about the details of how he had to perform his pre-injury work. He only "perceived" how a garment worker worked from his experience. When it is described to him how the plaintiff had to operate the sewing machine with his left foot, Dr Lam suggested that it would be a good exercise for the plaintiff. Finally, he agrees that there is already clear evidence of onset osteoarthritis.

28. I now turn to the various heads of damages.

Pain, suffering and loss of amenities ("PSLA")

29. Mr Chan submits that the plaintiff's injury falls within the lowest end of the "Serious Injury". He refers to Chan Tak Chi v. Wong Siu Tao [1998] 4 HKC 16 and submits that damages for the "Serious Injury" starts at $480,000. The plaintiff's claim of $400,000 is accordingly very reasonable. Mr Chan also refers to Lam Kwok Yip v. Yuen Yun Kui [1997] HKLRD C46, Lau Man Nin v. Man Hau Tak, HCPI 1183 of 1995 and Siu Wai Man v. Lee Chi Chong, HCPI 174 of 1994. But I do not think it is necessary to deal with them in detail here.

30. Mr Kwok submits that the injury does not fall within this category and contends that $250,000 is appropriate.

31. Having regard to the nature and extent of the plaintiff's injuries, I am of the view that the plaintiff's injury falls within the lower end of "Serious Injury" category. In this regard, I prefer Dr Wong's evidence to Dr Lam's. The initial X-rays showing the initial injury are obviously relevant in considering the severity of the plaintiff's injury. Dr Lam had not looked at them at all. Dr Wong's opinion which is based on more complete source material is thus more reliable.

32. I agree with Mr Chan that a claim of $400,000 is reasonable. I would so award under this head.

Special damages

(1) Pre-trial loss of earnings

33. The plaintiff was given sick leave from 31 July 1997 to 27 May 1998. Dr Lam seems to suggest that a shorter sick leave would be sufficient. Mr Kowk submits that six months would be reasonable. However, I agree with Mr Chan's submission that the decision of the treatment doctor should be preferred. The loss of earnings for this period is therefore $11,200 x 10 months = $112,000.

34. It is the plaintiff's case that he resumed work on 1 June 1998 but would not return to his pre-injury work because of the injury. Dr Wong agrees that he could not do so. Dr Lam disagrees. In this regard, I would again prefer Dr Wong's evidence. Dr Lam's evidence is very much undermined by the fact that he had not asked for the details of how the plaintiff need to perform his pre-injury work. I also reject Dr Lam's evidence that going back to his pre-injury work is a good physiotherapy treatment or exercise. Working and having treatment are obviously two different matters. I find it difficult to accept that stepping on the machine pedal in the way as described by the plaintiff can in any sense be regarded as physiotherapy treatment or exercise. The plaintiff earned $1,200 monthly before he lost his job by the end of July 1998. The loss of earning of this period is $11,200 - $1,200 x 2 months = $20,000.

35. What remains is the period from 1 August 1998 up to trial. The plaintiff lost his job on 1 August 1998 because the factory closed down. He had tried to find a new job but in vain. He is unemployed. It should be borne in mind that the plaintiff himself accepts that so far he has been unable to find a new job partly because of his age and low education.

36. Mr Kwok submits that I should act on the following factors. The garment industry in Hong Kong is a vanishing trade and had effectively ceased by 1997. The plaintiff was 51 when the factory closed down. Regardless of the accident, it was highly unlikely that he could locate similar employment. Accordingly, it was likely that he would be forced to retire or to do some other job. Given his age and background, the alternative was a variety of other sedentary jobs with less income. Alternatively, he would have retired in any event after the factory closed down. The major downturn of economy and labour market since 1997 would make it more difficult for the plaintiff to find employment in 1998, even assuming that there was no accident. Counsel therefore contends that the defendant is not liable for any further pre-trial loss.

37. Mr Chan submits that the defendant has failed to adduce evidence to prove the alleged demise of the garment trade : Ho Chi Kin v. Chan Hoi Shing [1987] 1 HKC 143. Counsel argues that the defendant has to prove that even without the injury, the plaintiff would not have been to find employment in the garment trade after the factory closed down.

38. With respect, I agree with Mr Chan. In the absence of any evidence, I do not accept that the garment industry in Hong Kong had effectively ceased since 1997 or that the economy downturn in 1997 and 1998 would have the adverse effect on the plaintiff's finding employment as suggested by counsel. He has difficulty in finding new jobs partly because of his age and background. But I am not satisfied that he would have retired in August 1998 after the factory closed down. Both parties agree that the plaintiff still has residual working abilities. He is able to do some sedentary jobs that are less onerous physically. I will proceed to assess his loss of earning on this basis. I also bear in mind that it was partly due to his age and low education that he has difficulty in finding new employment and partly due to his injury.

39. Mr Chan submits that the defendant is liable for the complete pre-trial loss. In my view, this submission ignores the fact that the plaintiff was forced to seek new employment because the factory closed down and the plaintiff's own admission about how his age and low education had affected his finding a new job.

40. Having regard to all the circumstances and doing the best that I can on the evidence before me in coming at a fair and reasonable assessment for his pre-trial loss, I will hold that within nine months after 1 August 1998, he would have been able to find a new job that he was able to do. And the notional monthly income of that job is $5,000. Accordingly, the loss of earning from 1 August 1998 up to 12 February 2001 is $11,200 x 9 months + ($11,200 - $5,000) x 21 12/28 months = $233,657.

41. The total pre-trial loss of earning is thus $112,000 + $20,000 + $233,657 = $365,657.

(2) Medical expenses

42. The parties agree at a figure of $3,528.

(3) Bone setter fees

43. The plaintiff claims $3,400 and the defendant accepts $1,000 in the absence of documentary evidence. I find $2,000 a reasonable figure and so award.

(4) Traveling expenses

44. The defendant accepts the plaintiff's claim of $1,805.

(5) Tonic food

45. The plaintiff claims $10,980 in the absence of documentary evidence. The defendant accepts $5,000. I find $7,000 a reasonable sum and so award.

(6) Other expenses

46. They include clothing and rent for wheelchair. The defendant accepts the claim of $1,140.

Loss of future earnings

47. Mr Chan asks me to adopt a multiplier of 4. He refers to Li Yuen Huen v. Yau Yuk Lan, HCPI 504 of 1995. Mr Kwok accepts a multiplier of 3. Having regard to the authority, I agree with Mr Chan and would adopt a multiplier of 4. The loss of future earnings is thus ($11,200 - $5000) x 12 months x 4 = $297,600.

Future loss of earning capacity

48. The plaintiff claims a sum of $100,000 under this head. Mr Chan asks me to bear in mind Dr Wong's evidence that in 10 years time arthritis would set in and the plaintiff would be unable to work by then. Kwok submits that given his age, the plaintiff would have retired by then. The question of loss of future earning capacity does not arise. I agree. Accordingly, the claim under this particular head fails.

Conclusion

49. The total amount of damages the plaintiff is entitled to recover before deduction arising from contributory negligence is therefore :

A.	General damages
	(1) PSLA	$400,000
	(2) Future loss of earnings	$297,600
B.	Special damages
	(1) Pre trial loss of earnings	$365,657
	(2) Medical expense	$3,528
	(3) Bone setter	$1,805
	(4) Tonic food	$7,000
	(5) Other expenses	$1,140
Total :		$1,076,730

50. There will be a deduction of 30% from the above sum, leaving $753,711. I will therefore enter judgment for the plaintiff in this sum. As agreed, interest on the PSLA will carry interest at 2% per annum from date of service of writ to judgment and interest on special damages will be at 5.84% from date of accident to date of judgment. Thereafter, the award will carry interest at the judgment rate until payment.

51. I also make an order nisi that the plaintiff will have the costs of this action, to be taxed if not agreed. The order nisi will be made absolute within 14 days after handing down. The plaintiff's own costs are to be taxed in accordance with the legal aid regulations.