SINGH INDERJEET v. HO CHUN BONG AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 874 OF 2007

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J U D G M E N T

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1.  This is a claim for damages for personal injuries arising out of a traffic accident.  Both liability and quantum are in dispute.

LIABILITY

2.  At about 8 p.m. on 31 October 2004, the plaintiff was riding a motor scooter along Pokfulam Road towards the western district of Hong Kong, that is, in a northerly direction.  Pokfulam Road’s junction with Pokfield Road is governed by traffic lights.  The plaintiff arrived at the lights and stopped as they were on red.  The road is divided into three lanes.  The inside lane is for traffic turning left into Pokfield Road.  Lanes 2 and 3 are for traffic going straight on.  Further on the road narrows into two lanes because lanes 1 and 2 merge into one lane.  The plaintiff was stationary in lane 2.  He was returning to his place of work in Central.  His work, in the evenings, was a delivery worker of ready meals such as pizzas.

3.  When the light turned green he moved off.  A little further down the road the accident occurred.  The plaintiff was either knocked off or fell off his scooter.  Exactly how this occurred has been difficult to discern, primarily for three reasons :

(i)  the plaintiff’s recollection of the accident when giving evidence in court was poor.  Moreover he had made three or four statements to the police and two witness statements which contain inconsistencies.

(ii)  The driver of the other vehicle involved, which either touched the scooter or got so close as to cause the plaintiff to lose his balance, has consistently said, in written statements, that he had been unaware, at the time, that any accident had occurred.  Although available in court, he was not called to give evidence.

(iii)  There was an independent witness, a Mr Luk Shu Wing who was driving behind the plaintiff and the defendant but since giving a statement it has not been possible to locate him and, by agreement, his written evidence was read in court.

4.  It is clear that the defendant’s truck came from behind the plaintiff’s scooter and was travelling faster than the scooter.  At some point, either just before or in the process of overtaking, the truck caused the plaintiff to lose control of his scooter.

5.  Doing the best one can from the limited and at times confusing evidence I consider it proper to find, and I do so find, that immediately prior to the accident the defendant’s vehicle occupied the third, that is the outside, lane of Pokfulam Road.  In his witness statement he says that he had earlier indicated to his right and moved into that lane because two stationary buses were occupying all of the inside lane and some of the middle lane.

6.  Further evidence of his position in the outside lane comes from the plaintiff himself who said, and I accept, that immediately prior to falling off his scooter he had looked in his right hand wing mirror and had seen the reflection of the whole of the front of the truck very close to him.  The written statement of Mr Luk Shu Wing also says that the truck driver had moved into the outside lane.

7.  Two further issues of fact need to be addressed.  Was the truck driver travelling too fast?  Did the plaintiff also move towards the outside lane?”

8.  I am able to find that the answers to both these questions are in the affirmative.

9.  As to the speed of the truck, Mr Luk states that prior to reaching the traffic lights the truck had been behind him and had been “following the rear of my vehicle tightly”.  This creates a reliable picture of the truck “tailgating” the car and wanting to overtake it.  Also when asked about the truck driving after the traffic lights he states that it was “using high speed”, and that after the plaintiff lost control the truck “immediately accelerated.”

10.  As to the question of whether or not the plaintiff was also moving towards the outside lane, in evidence he stated that he was always in the middle lane and the truck collided with him from behind.  I am not able to rely on this part of his evidence because there is an abundance of contrary suggestions contained in both his own statements to the police, his own witness statement and Mr Luk’s statement.

11.  My finding is that, because of the buses in the near side and part of the middle lanes he too intended to and did in fact commence to move to his right.  Mr Luk was adamant that the two vehicles did not make contact but that the overtaking truck caused the scooter to lose control.  Further evidence that there was no actual contact between the vehicles come from the vehicles themselves.  On later inspection no marks or damage was found on the truck.  Also no paint marks from the truck were found on the scooter.  The absence of such evidence is not conclusive of there being no contact but it is consistent with Mr Luk’s observations.

12.  The absence of contact lends further support to the scenario that the plaintiff had started to move into the outside lane but noticed, too late, that the truck was overtaking him at speed.  He then lost control. 

13.  It is not possible to discern the exact position of the truck in relation to the scooter at the moment that the plaintiff lost control.

14.  In my judgment, on the limited available evidence, neither driver can be said to be wholly blameless. 

15.  On the balance of probabilities, I find that the truck was travelling too fast and did not pay sufficient attention to the scooter’s movement in front of him, below him and to his left.

16.  The plaintiff did veer to his right, he did look in his right hand wing mirror, he did see the truck close behind him travelling fast.  However he probably veered and looked in his mirror almost simultaneously.  His checking of the road conditions behind him was slightly too late in the circumstances and thus the closeness of the fast moving truck caused him to lose balance.

17.  I think the primary cause of the accident was the truck driver’s speed but one quarter of the blame must also fall on the plaintiff for his failure to check behind in sufficient time.

INJURIES

18.  Falling from a motor scooter in the middle lane of a busy highway must have been a very frightening experience.  The plaintiff banged his helmeted head on the road surface and rolled over his scooter and ended up by the kerb of the fast lane.  He sustained abrasions to many parts of his body, he probably lost consciousness for a short time, he was taken to the nearby Queen Mary Hospital where he was detained overnight.  Although the accident was at 8 p.m. he was unfortunately not attended to by a doctor until 11 p.m.

19.  By order of the Master no medical experts gave evidence at trial.  Both sides rely on the written reports from their respective experts.  There are two separate heads of injuries (a) orthopaedic and (b) psychiatric.  Unfortunately there is a significant measure of disagreement between the experts in both of the above areas.  The plaintiff relies on reports prepared by Dr Arthur Chiang Si Chung, the defendant on a report from Dr Lam Kwong Chiu, both specialists in orthopaedics and traumology.  The specialists in psychiatry were Dr K. Singh for the plaintiff and Dr Benjamin Lai for the defence.  

ORTHOPAEDIC INJURIES

20.  The reports are comprehensive and little will be served by reciting lengthy extracts.  In short the plaintiff sustained physical injuries, apart from the multiple abrasions, to his neck and back.  The worst feature of the back injury was a “mild posterior L4/5 disc bulge”.  The diagnosis for the neck “remained at soft issue level”.  Dr Chiang opined in February 2006 that “the diagnosis of prolapsed disc in the lumbar spine and soft tissue injury in the neck is consistent with the type of injuries sustained … the permanent impairment of the whole person for the satisfactorily resolved lower lumbar disc prolapse is 5%.  The permanent impairment of the whole person for the soft tissue injury of the neck is 2%.  The total impairment of the whole person is 7%.”

21.  The plaintiff’s complaints persisted and in February 2007, Dr Chiang stated :

“2).  Basing on the orthopaedic or physical aspect of the injury with good recovery from the soft tissue sprain of the neck, and mild prolapse at the L4/5 disc in the low back, Mr. Singh should be able to work in the part-time motorcyclist delivery job with a satisfactory capacity.

In referring to Comment 13, p.15 of my report of 19 February 2006, it had been discussed that Mr. Singh might not be able to work in full capacity in the pre-injury construction site jobs and should be able to work in some of the casual jobs in construction site and in interior decoration.  With the full-time job being of lighter work activities already, his physical status would still allow him to work in a part-time job for pizza delivery.”

22.  As will be seen later however, the plaintiff has an understandable phobia of riding a motor scooter.  Thus although he may be physically able to do so, psychologically he is not.

23.  Dr Lam examined the plaintiff in August 2007.  His lengthy report concludes, in effect, that the plaintiff’s injuries were not as bad as were being claimed.  As for the neck he stated there was “mild tenderness at midline and both sides of upper cervical spine.  However there was no loss of lordosis and no paraspinal muscle spasm showing that the neck pain, if any, should not be a severe one … it is of soft tissue origin.  There is no evidence of bony damage or radiculopathy.”

24.  Similarly, as to the lower lumbar pain Dr Lam also noted the tenderness at the lumbo-sacral junction but considered it to be of soft tissue origin.  He found no compression of the nerve and no radiculopathy due to disc damage.  He considered 8 months sick leave, at the most, to be allowable.

25.  To summarise, his present orthopaedic complaints are back pain and neck pain when he is tired, which sometimes radiates to the head and caused headaches.

26.  In addition to the evidence of the plaintiff and his wife and the medical reports, a video of the plaintiff was taken, without his knowledge, whilst he was walking around the streets of Hong Kong on three separate days in March and April 2008.  The video lasted 45 minutes.

27.  Valiantly, but in my judgment forlornly, Mr N. Pririe on behalf of the plaintiff attempted to rely on aspects of the video in his favour.  The reality however was that the film showed the plaintiff to walk with a normal gait, at a normal speed, without difficulty and without support.  His movement up and down steps was normal, at times sprightly, and without use of banister rails.  When seen talking to people he appeared to be cheerful. 

28.  In short, the evidential value of the video was that it lent some support to the defence contention that the plaintiff exaggerated his orthopaedic injuries.  As to his psychiatric condition it did little to advance either case.

PSYCHIATRIC PROBLEMS

29.  On their own, I would have regarded the orthopaedic injuries to be comfortably below the ‘serious injury’ threshold.  They must however be considered together with the psychiatric reports to which I now turn.

30.  His current psychiatric complaints are depressive mood, suicidal ideas, impairment of sleep, memory and concentration.

31.  In March 2007, the plaintiff’s expert, Dr Singh, opined that the plaintiff was suffering from Post Traumatic Stress Disorder (“PTSD”) and Major Depressive Disorder (“MDD”), both as a result of the accident.  He concluded that the plaintiff’s complaints were genuine but that they could be exaggerated.  He was still suffering the symptoms associated with these disorders such as lack of concentration and drive, lack of self-confidence and impaired family and social relationships.  With treatment his condition should become “mild”.  The treatment would involve psychotherapy and medication.  At present he is between the “moderate” and “mild” levels.  His whole person impairment is 20% but that could be reduced to 7% when he would be able to return to his pre-accident work, albeit with some distress and inefficiency.

32.  Dr Benjamin Lai in April 2008 considered his psychiatric condition to be “of a milder degree” and assessed it to be “within 3%” impairment.  After a detailed and lengthy report he disagreed with Dr Singh about the genuineness of the plaintiff’s complaints and the amount of future treatment necessary.  He evaluated the loss of earning capacity at 3%.

33.  In a supplemental report Dr Singh addressed the differences between Dr Lai and himself and, basically, maintained his original opinion.  He repeated that he thought the plaintiff was not fit to return to pre-accident work.  I fully accept that the accident itself was a terrifying experience.  I accept that for a moment the plaintiff thought he was going to die.  I accept also that his “scooter phobia” may well be permanent. 

DAMAGES

1.  Pain suffering and loss of amenity

34.  Counsel’s estimates are far apart under this heading.  Mr Pirie, who at one point, somewhat surprisingly, described the consequences of the accident to the plaintiff as “catastrophic” seeks $600,000.  Mr Patrick Lim, counsel for the defence, submits a figure of about $150,000.  Both sides have provided previous cases as “comparables”.  As always, the facts very considerably and the awards very considerably.  I am nonetheless grateful to counsel for providing these cases which I have taken into account.

35.  Mr Pirie has referred me to the cases of Anderson v. Wui Yip Co. Ltd & Others HCPI 244/1998 and Geissler v. Troika International Ltd HCPI 1/2000.  In both cases I considered the injuries sustained to be more serious than the present case.  They were nonetheless of some assistance.

36.  Mr Patrick Lim cited nine previous cases in support of his contention that an appropriate award in this case was about $150,000.

37.  The plaintiff’s wife, Kuldeep Kaur Saini, also gave evidence.  I found her to be an impressive witness and helpful on the question of the plaintiff’s psychological state.  She confirmed his low moods and low self-esteem.  She was anxious to make it clear that he was “not mental” but that his personality had changed.  I regarded this as a common sense, realistic layperson’s assessment.  She believed that his present low self-esteem was directly linked to his poor employment situation.  I agree with and accept her lay perspective which amounted to a ‘catch 22’ situation, namely that he was depressed because he was under employed and under valued and he was under employed and under valued because he was depressed. 

38.  To summarise, he was hospitalized for one night and on sick leave for about 12 months.  His pain has subsisted but has been exaggerated.  His PTSD and MDD are genuine and persist in a mild form.  They are treatable and will improve particularly if his employment situation improves.  His physical injuries were a prolapse of L4/5 lower back, soft tissue neck damage and multiple abrasions.  Minor aspects of these injuries still linger.  I refrain from assessing a percentage impairment but merely note those calculated by the experts. 

39.  In all the circumstances I think $300,000 is a reasonable figure under this head of damage.  Taking all the factors together, in my judgment, it cannot be assessed as a ‘serious damage’ case.

2.  Pre-trial loss of earnings

40.  The experts’ assessment of the reasonable length of sick leave varies between 6 and 9 months.  I am willing to accept the latter figure.

41.  I assess his pre-accident daytime earnings (as a construction work with “Yuen Kwong”) to be, on average, $8,000 per month.  In addition he said he was earning $4,000-$5,000 a month as a delivery worker in the evenings.  I select the figure of $4,500.

42.  His pre-trial loss of earnings whilst on reasonable sick leave is therefore 9 x $12,500 = $112,500 namely, up to the end of July 2005.

43.  Since then he has demonstrated an ability to do daytime work valued at about $7,000 per month.  I am prepared to accept that this reasonably reflects his daytime earning capacity from 2005 up to now.

44.  I accept also that his “scooter phobia” and associated psychiatric condition has prevented him from obtaining evening employment since then.  Since August 2005 therefore his monthly loss has been $5,500 for 3 years and 10 months, $253,000.

3.  Future loss

45.  I find this aspect of the case particularly difficult.  If there was a permanent loss the appropriate multiplier would be 15 years.  Whilst it is true that some of his symptoms, both physical and psychiatric, are subsisting I doubt that they should significantly reduce his earning potential for the next 15 years.  The remaining orthopaedic complaints are fairly minor and (I largely accept the defence expert evidence) should not affect his future earning capacity by much more than a token amount.  His psychiatric condition is treatable.  Medication will help, a better job might cure.  Of course, getting a better job cannot be guaranteed.  The economic climate is poor but I am not satisfied that he has been so physically and/or mentally incapacitated from getting employment almost equivalent to his pre-accident jobs in the reasonably near future.

46.  Whilst I suspect that the defence experts’ reports are the more realistic (which, if accepted, would result in a future loss claim of nil) I am prepared to be more sympathetic.  In assessing claims such as this one an element of “the broad brush” approach is unavoidable.  In the absence of specific evidence on certain issues (such as the average current earnings for part-time evening drivers or valet parking workers, both of which, as can be seen from the video, the plaintiff is capable of doing) the court must take a pragmatic view so that the parties are given a clear and final outcome to the litigation.  I think it is reasonable to continue to give the plaintiff his pre-accident loss of earnings for another year.  Thereafter I recognize there will be minor persisting problems which will reduce his earning capacity.  Because of his physical complaints I will treat his daytime earning capacity to continue at $7,000 rather than $8,000.  As far as his evening work is concerned, I accept that his “scooter phobia” may eliminate that particular type of job.  However I consider his evening earning capacity to be $4,000 a month.

47.  Thus his future loss will be ($5,500 x 12) + ($1,500 x 12 x 14) = $318,000.

4.  Damages for loss of earning capacity

48.  This has been made out but, in the circumstances, must be at the lower end of the scale.  I award $12,500 for 6 months, a total of $75,000.

5.  Special damages

49.  Medical expenses of $2,000 are allowed.  The claim for two return airfares to India is not allowed.  It is said that it was necessary to see doctors in India.  I am not satisfied that this was the main purpose of the trip neither is there any medical evidence to support its necessity or even advisability.

SUMMARY

51.  There will be judgment for the plaintiff in the sum of $620,650 plus interest and costs.  I invite the parties to agree a figure for interest at conventional rates for both general damages (from 15 November 2007) and special damages (from 31 October 2004).  Both orders for interest and costs on a nisi basis.