YEUNG YUK YIU v. CHEUNG TUNG HO AND ANOTHER

HCPI 573/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 573 OF 2004

______________________

______________________

______________________

J U D G M E N T

______________________

1.  The plaintiff in this matter sues for compensation for injuries which he sustained in a collision with a public light bus driven by the 1^st defendant.  Proceedings against the 2^nd defendant have been discontinued.  Both liability and quantum fall for decision.

2.  Neither the fact of the collision nor the fact that injuries were sustained in it is in issue. 

Liability

3.  The collision occurred in Soy Street, Yau Ma Tei, shortly before 8 a.m. on 4 July 2001, when the plaintiff and one of three companions, were headed, eventually, straight to work after having been together in a discotheque throughout the preceding night.  The purpose of the visit to the discotheque was to say farewell to the other two of the plaintiff's companions who were leaving for Australia later that day.

4.  The configuration of the roads is of relevance.  Soy Street runs approximately east to west, carrying traffic only in a westerly direction.  At its eastern end, where the collision occurred, it meets Yim Po Fong Street (on its western side) which runs approximately north to south, carrying traffic in both directions.  The eastern end of Kwong Wa Street, which runs approximately south-west to north-east, also meets the western side of Yim Po Fong Street very close to that intersection, to the south of Soy Street: Kwong Wa Street carries traffic only in a north-easterly direction. 

5.  The passage of vehicles arriving at the intersection of Kwong Wa Street and Yim Po Fong Street is regulated by a requirement to yield to vehicles in Yim Po Fong Street.  The effect of the meeting of the roads is to create a triangular corner between Soy Street and Kwong Wa Street.  As a result the turn from Kwong Wa Street into Soy Street is a singularly sharp one and the pavement area at that point may be regarded as being common to both streets.  The following illustration may be easier to comprehend:

6.  Soy Street itself comprised two lanes for motor vehicles.  At the time of the collision the northern lane was closed for roadwork, thus narrowing the street to one, the southern, lane.  On each side of the street is a pavement.

7.  It is the case of the plaintiff that he and his companions had walked along Yim Po Fong Street, crossed Kwong Wa Street and turned the corner into Soy Street.  There is nothing to contradict the route they took.  The 1^st defendant says that he saw the four of them when they were on the pavement on the northern side of Kwong Wa Street close to where it meets Yim Po Fong and Soy Streets.  That is not inconsistent with the plaintiff’s version.  The 1^st defendant was driving along Kwong Wa Street and their noisy, boisterous behaviour, on the pavement to his left, attracted his attention.

8.  The plaintiff says that he and his three companions then walked along Soy Street in a westerly direction: for reasons which differ between the statement he made to the police and his evidence, the plaintiff said that his three companions walked on the pavement itself whilst he walked on the road surface some 2 feet away from the pavement.  If this were correct, it would mean that he was walking with his back to approaching traffic in an area where the roadway upon which that approaching traffic could travel was severely restricted by the existing road works.  His evidence is that he had walked for some 10 seconds in this manner when, without warning, he was struck from behind by the P.L.B..

9.  As a result of the collision the plaintiff says “I lost balance and fell on the ground.  The wheel of the P.L.B. then ran over my left thigh and my left calf.”  He amplified this by saying that he had been unaware of the approach of the P.L.B. and “I think it must have been driving fast.  (I did not hear the noise of the P.L.B. shortly before it hit me, I think it was running fast)” and “... I believe that it was the left side of the public that bus that ran into me, and it was left front wheel that ran over my left thigh and my left calf.”  He went on to say “I was hit at my back by the front left of the P.L.B....”.

10.  He was assisted at the scene by one or more of his companions as well as by a passenger or passengers from the P.L.B..  In due course the police arrived.  He was thereafter removed to hospital.

11.  I do not accept that the collision occurred in the manner suggested by the plaintiff.  He was not a convincing witness.

12.  In his initial statement to the police made some six weeks after the date of the collision he said, in part, “Suddenly I was hit at my back by the front left of a minibus... from behind.  I fell forward onto the ground.  The left front tyre... rolled over my left thigh and calf without trapping them.” yet in a subsequent statement to the police he said “... I was hit from behind and was rolled over by the left rear tyre of the minibus”.

13.  In his initial statement to the police the plaintiff explains the reason he was walking on the roadway as being “... because there were many people on the pavement at that place.  Thus I did not use the pavement.” yet in his second statement to police the explanation was “... because we were walking along the pavement side by side and there was not enough space for me to walk so I walked out onto the carriageway without noticing it and walked further and further away from the pavement.”  In his witness statement which he adopted as his evidence in chief he said: “Although there were not many pedestrians at the time, I was a big guy and the pavement was too narrow for the four of us walked side by side ... so naturally I walked onto the carriageway of Soy Street.”

14.  Apart from the obvious discrepancies between the various statements made by the plaintiff there are several real difficulties with his version which arise from the remainder of the evidence.

15.  Firstly, although he did sustain trivial injuries to the right-hand side of his body, none of which required treatment according to the medical reports, the serious injuries which he suffered were to his left femur and fibula.  On the face of it, those injuries are inconsistent with being struck from behind by the left front side of a vehicle travelling in the same direction as the plaintiff was walking in the manner in which he described.

16.  Secondly, was the evidence from a Mr CHUNG Ping Him who was a passenger on the P.L.B..  He was called as a witness by the plaintiff.  He was seated on the first single seat by the door of the P.L.B..  That seat is on the left-hand side of the P.L.B..  I see no objection to taking judicial notice of the fact that vehicles of this nature conform to a standard configuration in terms of which the front wheel is ahead of the passenger entrance whilst the seat upon which Mr CHUNG was seated is immediately to the rear of that passenger entrance.

17.  When Mr CHUNG made a statement to the police he said that he “... suddenly heard a bang by my side (the nearside bodywork of the vehicle)... I heard a passenger sitting at the back say that someone had been knocked down”.  In his oral evidence Mr CHUNG testified that the sound of the impact had come from “the rear left of my side” but that does not seem to me to be inconsistent with his earlier recollection.  There is no reason not to accept Mr CHUNG's evidence on this aspect of the matter.  The effect of doing that is to discount the possibility that it was the front left wheel of the P.L.B. which rode over the plaintiff's left leg.

18.  Thirdly, it was also Mr CHUNG's statement to the police that “... the injured person was lying between the front and rear wheel, closer to the rear wheel.  I am sure that the rear tyre did not run over the injured person.”.  In his witness statement which he adopted as his evidence in chief he reiterated that the plaintiff's legs “... were between the front wheels and the rear wheels”.

19.  Another witness called for the plaintiff, his companion TSANG Kai Yiu, also describes the plaintiff as “…lying between the front and rear wheels of the P.L.B. on its left-hand side”. 

20.  The effect of that evidence, which I accept, is twofold: firstly, it must mean that the rear left wheels of the P.L.B. also could not have ridden over the plaintiff's leg: secondly, it demonstrates that the P.L.B. was travelling at a very low speed, which is a fact which Mr CHUNG states and is also consistent with the evidence of the 1^st defendant.

21.  It is pertinent here to mention the evidence of the plaintiff's companion TSANG Kai Yuk.  In his witness statement he said “When I looked at (the plaintiff) he had already been hit by the P.L.B. and had lost balance.  He fell on the road and the wheels of the P.L.B. ran over his leg…  I think it was the left side of the P.L.B. that hit (him).  I am not sure if the front of the light bus that hit him.  Nor am I sure if it was the front wheel of the light bus or the rear one that ran over (his) leg.”.  However, he accepted in his oral testimony that he actually had not seen the collision. 

22.  There is the evidence of the 1^st defendant.  He testified that he had brought his vehicle to a halt at the intersection of Kwong Wah Street and Yim Po Fong Street to check for vehicles approaching from his right before he commenced the tight left turn into Soy Street.  He stated that he saw that it was safe for him to proceed and did so. 

23.  It was his evidence that the P.L.B. was already travelling straight ahead at approximately 5 k.p.h. and he was about to accelerate when he became aware of the plaintiff colliding with the side of his vehicle.

24.  The passenger on the P.L.B., Mr CHUNG, says that it had not straightened up completely.  Obviously, then, his evidence conflicts with that of the 1^st defendant.  It will be remembered that Mr CHUNG said that he was reading his newspaper at the time his attention was attracted by the sound of the impact:  I am satisfied that he simply erred when saying that the vehicle had not straightened up completely. 

25.  I accept the evidence on this aspect of the 1^st defendant which, moreover, finds support from the position of the P.L.B. as depicted on the sketch drawn by the police officer who attended the scene.  There is evidence that the vehicle had not been moved prior to their arrival. 

26.  There was a tentative suggestion made on behalf of the plaintiff, which was not fully articulated, that the collision between the side of the P.L.B. and plaintiff may have come about whilst the P.L.B. was still in the process of effecting its turn into Soy Street.  This runs contrary to the plaintiff's own evidence that he had been walking down Soy Street for some 10 seconds.  It is further gainsaid by the position of the P.L.B. as shown on the police sketch.

27.  In the circumstances, I am satisfied that it was not the front of the P.L.B. that collided with plaintiff.  I am further satisfied that the plaintiff was not walking along Soy Street with his back towards the approaching traffic. 

28.  It follows that I am satisfied that it was the side of the P.L.B. somewhere behind the front left wheel but in front of the rear left wheels that collided with plaintiff.  In short, I accept overall the evidence of the 1^st defendant as to the manner in which he was driving the motor vehicle both prior to and at the time of the collision and reject the version of the plaintiff.

29.  There are a number of other issues that were raised largely in regard to credibility.  In particular, the question of consumption of alcohol by the plaintiff - and he was less than convincing on this issue - would not, in the circumstances, affect the outcome.  Nor would the issue of whether he was wearing a shirt and long trousers at the time of the collision or simply a pair of shorts.  I have borne them in mind but in view of my finding I see no necessity to traverse them. 

30.  It was suggested to the plaintiff in cross-examination that the collision had come about either by him simply dashing into the road heedless of the presence of the P.L.B. or by being pushed into the side of the P.L.B. by his companions.  Naturally, he denied these suggestions.  His companion, TSANG Kai Yuk, likewise rejected them.  It would be pure speculation for me to make a finding that either of these scenarios occurred for, once I have rejected the plaintiff’s version as to how the collision occurred, there is no evidence other than the fact that it did occur.

31.  Mr Lim, who appears for the 1^st defendant, submits that in the circumstances the plaintiff’s claim simply should be dismissed because it is impossible for me to determine just how it was that the collision occurred.  As attractive as that argument may be superficially, I do not agree. 

32.  Upon his own evidence, the 1^st defendant was well aware of the presence of the four young people when he was in Kwong Wah Street:  indeed, it was his evidence that it was their boisterous conduct which attracted his attention to them.  As is plain from the description of the scene and the 1^st defendant’s own description of where they were in relation to the P.L.B. when he was stationary at the intersection, they were on that portion of the pavement which may be regarded as common to both Kwong Wah Street and Soy Street.  The 1^st defendant was aware that they were pushing and shoving one another.

33.  In my judgment the reasonably prudent driver would have paid attention to the presence of the four young people appreciating that, given their proximity to Soy Street and their conduct, they may constitute a potential hazard even after the public light vehicle had executed its turn and entered Soy Street.  I recognise that the collision was between the plaintiff and the side of the P.L.B. which means that the front of the P.L.B. must have already passed by the plaintiff but that fact does not, in my judgment, excuse the 1^st defendant from having failed to keep the four young people under observation.

34.  I am consequently satisfied that the plaintiff has shown that the 1^st defendant was negligent in that he failed to keep a proper lookout in the sense that, being aware of the presence of the plaintiff and his companions and the behaviour they were exhibiting, he failed in his duty to keep them under further observation.

35.  That said, I am entirely satisfied that, however it may have been that the plaintiff actually came into collision with the side of the P.L.B. on the roadway of Soy Street, the greater degree of fault lay on the plaintiff rather than on the 1^st  defendant.  I assess the 1^st defendant’s negligence as contributing one third towards the collision.

Quantum

36.  There is no dispute that the major injuries sustained by the plaintiff were a fracture of the left femur, a fracture of the left fibula and a laceration of the left popliteal fossa.  Medical reports have been prepared by Dr AU Ka Kau for the plaintiff and Dr David CHENG for the 1^st  defendant.

37.  As treatment the plaintiff received an open reduction and internal fixation on 5 July 2001 and skin graft on 12 July 2001.  The implants were removed on 19 December 2002.  He underwent physiotherapy and occupational therapy.  He was on sick leave for an initial period of 9 months and 22 days and then again for the removal of the implants.

38.  He contends that he now suffers from left knee stiffness, left ankle stiffness, and residual left ankle pain.  As a result of these sequelae his activities of daily living and working capacity have been impaired: although he has resumed his pre-accident occupation, he has done so with reduced efficiency.  He is embarrassed, he says, by scarring on his legs. The plaintiff is still a young man. 

39.  In his report Dr Cheng comments:

“

The treatment was standard, adequate and entirely satisfactory.  The results were excellent.  The doctors at QEH had done a good job.  The present condition of [the plaintiff] is that the fractures have united in perfect position.  There is no weakness.  Range of motion of the left knee is good, with only slight loss of flexion.  The prognosis is good.  [Plaintiff] is a young man.  With time and resumption of daily activities, there is likely to be improvement in the stiffness”.

40.  He continues when dealing with the plaintiff's ability to carry on his former occupation as a painter:

“

The only physical impairment is the slight stiffness of knee which means that he probably needs to squat with a wider base.  However, the knee joint is not damaged and is in good shape.  With adaptation this slight impairment would improve.  I doubt his work would be affected in any significant way.  There is no need for job restriction or change of job on medical grounds.”

41.  A short video tape was played during the trial which showed the plaintiff going about his daily life.  His ability to rapidly descend, in what can only be described as a jaunty fashion, the stairs leading into the MTR spoke volumes of his recovery and demonstrates the accuracy of Dr  CHENG’s 2004 prognosis.  I accept it.

42.  Plaintiff claims an amount of $400,000.00 in respect of PSLA.  I have been referred to a number of awards made in other matters where the plaintiffs have sustained, inter alia, similar injuries.  It is unhelpful to repeat them.  I assess the appropriate compensation to the plaintiff under this head as being $300,000.00.

43.  Medical expenses are agreed in the sum of $4,020.00; travelling expenses in the sum of $2,910.00; $3,000.00 in respect of tonic food; and $300.00 in respect of damage to clothing.

44.  That leaves loss of earnings and earning capacity.  The only evidence in regard to his pre-accident earnings came from the plaintiff himself: he did not call as witnesses either his main employer or any of the other persons by whom he was allegedly employed. 

45.  He initially said in his witness statement (Para 3.3) “My daily wage was $450-$520 and I worked about 20 days each month.”  He went on to relate how he had been primarily employed by one LAW Kim Fai for whom he had been working for approximately 2 years at the time of the accident.  He detailed his daily wages working for Mr Law as $450.00 plus a meal worth $24.00.  In addition, he received the various bonuses which added an additional $200.00 per month on average.

46.  He went on to state that he had worked for various other persons at the same time as he was working for Mr LAW but that only Mr  LAW had made contributions to his Mandatory Provident Fund.  He states (paragraph 4.10):

“	Around the time of accident I worked for Mr Law … for 10 odd days a month and in other places for other masters for 8 to 10 days a month.  The masters paid higher wages to me but they did not pay my MPF.”

He then went on to assert that he worked in total for “25 or 26” days a month.

47.  However, when he was cross-examined, quite specifically, about this issue he confirmed that on average he had not worked more than 20 days a month.  In re-examination he stated that the maximum number of days he had worked per month pre-accident was 20 although he partially qualified that by saying it was “around 20”.

48.  20 days a month seems to be more consistent with his earlier assertion of having worked for Mr LAW for around 10 days a month and for others for eight to 10 days per month.  It also, in my judgment, accords with the probabilities.  In the light of his evidence I propose to calculate his monthly income, at the time of the collision, as follows:

($450.00 + $24.00 x 20) + $200.00 = $9,680.00.

49.  It seems appropriate that he be compensated for loss of MPF contributions in accordance with his evidence of his employment by Mr  LAW, that is ($450.00 + $24.00 x 10) + $200.00 = $4,940.00, at a rate of 5% which equates to $247.00 per month.

50.  I have already indicated that I accept the contents of Dr  CHENG’s medical report.  Dr CHENG indicated that he regarded the period of sick leave authorised by QEH as reasonable.  That was from 4  July 2001 to 30 April 2002 and again from 18 December 2002 to 3  January 2003.  That amounts, in terms rounded in favour of the plaintiff, to 10½ months.  Consequently the loss of income sustained by the plaintiff in that period amounts to $101,640.00 and the loss of MPF contributions to $2,593.50 to which amounts he is plainly entitled in full.

51.  The plaintiff was not a persuasive witness when it came to the question of his inability to find employment after the end of his sick leave or the reason for his reduced a daily wage when he was able to find employment.  I simply do not believe that his current reduced income of approximately $400.00 per day is due to his accident rather than to the employment climate.  His evidence that after his sick leave had terminated he had “tried to look for jobs” and that people he had contacted had said there were no jobs available for him despite the fact that “[he knew] that they had jobs but they did not ask me to take them” is entirely unsupported and simply does not ring true.

52.  I am satisfied that this is, however, a matter in which the plaintiff has shown it to be appropriate to make a Smith v Manchester award:  despite his recovery from his injuries I recognise that in the future he may be placed at a disadvantage in the open labour market.  Assessments of this nature are notoriously difficult: I judge that the plaintiff should receive an amount approximately equivalent to three years earnings, $30,000.00.

Interest

53.  The plaintiff has claimed interest on PSLA at 2% p.a. from 30  June 2004 to date of judgement. This is not disputed.  It amounts to [($300,000.00 x 2% x 1) + ($300,000.00 x 242/365)] = $9,978.08. The plaintiff also claims interest on special damages at half judgment rate from the date of the collision to date of judgment, which is not disputed.

SUMMARY

54.  There will be judgement for the plaintiff in the following amounts:

PSLA	$300,000.00
Interest thereon	$9,978.08
Past loss of income	$101,640.00
Loss of MPF contributions	$2,593.50
Past medical and material loss	$10,230.00
Loss of earning capacity	$30,000.00
	$454,441.58
Less contributory negligence	$302,961.04
Total	$151,480.54

plus interest on special damages at half judgement rate from the date of the collision to date of judgement.

55.  There is also an order nisi for the costs of the plaintiff, as taxed or agreed to be paid by the defendant.  Liberty to restore for argument on costs or any consequential matters on notice given within 14 days of this judgment.