KU CHIU CHUNG WOODY v. TANG TIN SUNG

LA/RD 12352/99 (DK6)
HCPI 288/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 288 OF 2001

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JUDGMENT

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The Accident

1. Shortly before 17.50 p.m. on 7th November, 1998, the Plaintiff was driving his motorcycle HD1279 along the westbound carriageway of Cornwall Street. There were 2 lanes on that carriageway. The Defendant was on the slow lane near the pavement. That lane will hereinafter be referred to as "Lane 1" whilst the fast lane will hereinafter be referred to as "Lane 2".

2. At about the same time the Defendant was driving his medium goods vehicle (DS 9764) ["the Defendant's Truck"] ahead of the Plaintiff. He was on his way to a construction site of the KCR. The entrance to that construction site was on the left of Lane 1. The Plaintiff lost control of his motorcycle whilst the Defendant attempted to gain access to that entrance.

3. The Defendant was summoned to appear before Magistrate Mr. J.T. Glass on 25th June, 1999 on a careless driving charge and a failing to stop charge. After hearing evidence from the Plaintiff, the Defendant, Mr. Yam Wing Lun (an independent eye-witness) ["Mr. Yam"], Mr. Wong Lung (passenger on board the Defendant's Truck) and various police officers, the Learned Magistrate acquitted the Defendant of the careless driving charge but convicted him on the failing to stop charge. The Learned Magistrate rejected the evidence of the Plaintiff "as untrue and unreliable".

Liability

4. The Plaintiff gave evidence before me. He told me that he started following the Defendant's Truck after he went past a set of traffic lights. Both of them were in Lane 1 and were traveling at an even speed so that the distance between them was maintained. The Defendant's Truck then moved from Lane 1 to Lane 2. Most of the body work of the Defendant's Truck had cut onto Lane 2. Seeing that the Defendant's Truck had moved into Lane 2 and there was no vehicle in front of him in Lane 1, he accelerated to go uphill. When he was accelerating, the Defendant's truck was completely within Lane 2. It stayed in Lane 2 for 10 to 20 odd seconds. The Defendant's Truck then cut back into Lane 1. The Defendant did not give any indication of his intention to turn left. He disagreed with the suggestion that the hazard lights of the Defendant's Truck were switched on. His right shoulder and the case at the back of his motorcycle came into contact with the side of the Defendant's Truck. His motorcycle crashed onto the pavement and he sustained physical injuries as a result.

5. The Defendant told me that he obtained his driving licence 30 years ago and he had been working as a professional driver since 1974. He had only 1 careless driving conviction in 1979. His truck was about 9.2 m (about 30 feet) long and 2.4 m (about 7.8 feet) wide. Each lane on the west bound carriageway of Cornwall Road was about 9 to 10 feet wide. It was his first visit to the KCR construction site. Mr. Wong Lung was giving him directions along the way. At about 10 meters before reaching the entrance to the construction site, he realized that he had to steer right in order to gain access to that entrance. He drove half his truck onto Lane 2. The rear part of his truck was on the dividing lines between the 2 lanes when he made his 90 degrees turn. There was then a 5 feet gap between the rear of his truck and the pavement which he accepted as sufficient for a motorcycle to go through in Lane 1. He asserted that his truck had never entirely gone into Lane 2. When he turned, his speed was lower than 20 km.p.h. He said he checked his wing mirrors but did not notice any traffic in Lane 1. He accepted in cross examination that his wing mirror would not show the scene at "the middle rear". He also said that he turned his head to check but Mr. Wong Lung was blocking his sight. After making the turn, he estimated that the gap between the pavement and the left side of his truck was about 1 foot. The first time when he caught sight of the motorcycle was when it flashed passed him in the wind screen.

6. There is therefore a direct conflict between the Plaintiff and the Defendant as to how the accident occurred. The Plaintiff's case is that he had a clear lane in front of him when the Defendant suddenly switched back to Lane 1 from Lane 2. The Defendant's case is that the Plaintiff was trying to squeeze his way through a 1 foot gap between the front of the Defendant's Truck and the pavement.

7. The Plaintiff commenced working as a cook after he completed Form I. He was a young driver. He bought his motorcycle on 21st May, 1998. In the course of his evidence before me, he experienced particular difficulties in estimating the speed of his motorcycle and the Defendant's Trucks in terms of km.p.h. Inconsistent answers were given at various stages of his testimony which might weigh against his credibility. However, when he was asked to describe either the speed or the distance in relative terms, he was able to cope with the questions with ease. I am particularly impressed by the occasions when he candidly informed this Court of his inability to recall the finer details of the accident. Bearing in mind the level of his education, I do not find the Plaintiff to be an untruthful or unreliable witness.

8. In contrast, there are instances when I find the Defendant less than forthcoming. He grudgingly conceded in cross examination that his wing mirror might not show the scene at "the middle rear" and that Mr. Wong Lung was blocking his sight in the course of his shoulder check. I am not prepared to accept his evidence that he switched on the hazard lights of his truck prior to his turn. It was the first time that he visited the KCR construction site. Mr. Wong Lung was giving him directions. The overall impression I have is that his attention was focused on the whereabout of the entrance and to gain immediate entry after having located the same.

9. In resolving the conflict between the Plaintiff and the Defendant, I derive assistance from the Police statement furnished by Mr. Yam dated 30th November, 1998. Mr. Yam told the Police that at the material time, he was driving up slope on Lane 2. He saw a goods vehicle straddling diagonally between Lane 1 and Lane 2 in the direction towards the left hand side and blocking his way forward. He stopped his car and waited. There was another vehicle ahead of him. He then saw a motorcycle moving forward from behind along Lane 1. When the motorcycle drove passed the front of the goods vehicle, the motorcycle mounted onto the pavement on the left hand side. When he first saw the goods vehicle "it was stopped on the 2nd lane and slowly steered to the left into the 1st lane". There was no vehicle waiting on Lane 1 when he stopped on Lane 2. The motorcycle was not traveling very fast when it traveled from behind. He did not see any collision between the goods vehicle and the motorcycle as the goods vehicle was blocking his vision. When the goods vehicle stopped diagonally along Cornwall Street, the distance between the front part of that vehicle and the pavement on the left hand side was about 3 to 4 feet. When the motorcycle approached the goods vehicle, the goods vehicle "moved a bit forward".

10. I am of the view that this statement of Mr. Yam lends general support to the testimony of the Plaintiff. First, he confirmed that the Defendant's Truck was in Lane 2 when he first saw it. It was blocking the traffic in that lane. Secondly, his estimate of the distance between the front part of the Defendant's Truck and the pavement is more in line with the Plaintiff's evidence than that of the Defendant. Thirdly, he corroborated the Plaintiff's evidence that there was no traffic in Lane 1. Finally, he made no reference to any hazard lights or other indicator lights of the Defendant's Truck whilst it was negotiating its turn.

11. Having weighed the evidence before me, I make the following findings on a balance of probabilities :

12. I am of the view that the accident arose as a result of the Defendant's negligence. He was trying to move his vehicle from Lane 2 to Lane 1 and across the path of on-coming traffic. He did not give any indication of his intention. He did not keep a proper look out in the course of his manouevre.

13. I find it difficult to attribute any blame on the Plaintiff. He was following the Defendant's Truck. The Defendant's Truck had moved completely onto Lane 2. There was no warning of the Defendant's intention to revert to Lane 1. As far as he was concerned, he had a clear lane ahead of him. Mr. Yam said he was not traveling very fast. It was the sudden reversion of the Defendant that caused the accident.

14. For these reasons, I find the Defendant wholly to blame for the accident.

Damages for pain and suffering and loss of amenities

15. The Plaintiff was admitted into the Caritas Medical Centre immediately after the accident. Physical and radiological examinations revealed close fracture of the left acetabulum with dislocation of the left hip; open fracture of the left proximal tibia; open complete tear of the anterior cruciate ligament of the left knee; open partial tear of the lateral meniscus of the left knee and closed fracture of the shaft of the left tibia. Emergency operations were performed on admission for open reduction of the left hip and internal fixation of the left acetabular fracture; open reduction and internal fixation of the left proximal tibia and closed reduction of the tibia shaft fracture with external fixator. Repeated operation for adjustment of the tibial shaft fracture was performed on 18th November, 1998. He was discharged from the Caritas Medical Centre on 24th December, 1998.

16. The Plaintiff was readmitted into the Caritas Medical Centre on 12th January, 1999 for readjustment of the external fixator. He was discharged on the following day. He continued to receive out-patient follow-up and physiotherapy treatments in the Caritas Medical Centre (14 times); in the Pamela Youde Nethersole Eastern Hospital (51 times) and in the Chai Wan Health Centre (33 times). He eventually progressed to walking with a cane. The external fixator was removed in about mid 1999.

17. Dr. Arthur Chiang (the Plaintiff's expert) ["Dr. Chiang"] examined the Plaintiff on 10th July, 2000. According to his medical report dated 10th July, 2000, all the fractures, ligament and mensical injuries had been satisfactorily treated . The Plaintiff maintained before Dr. Chiang and still maintains before this Court that he has the following disabilities :

Dr. Chiang was of the view that "because of the multiple injuries and the fact that all these injuries were all localized to the left lower limb, a longer period of weakness and pain would be present. At this stage, I think most of the complaints described are likely to be genuine". Dr. Chiang was of the further view that "at the stabilized stage, some of the current complaints would remain. It is estimated that at the stabilized stage, he might perform a moderate amount of standing and walking activities. The endurance for longer duration of squatting would be decreased. He could probably perform some on and off object lifting, but might not be able to perform more than occasional lifting of heavy objects". Dr. Chiang estimated the chance of late future degenerative arthritis developing at 10% to 15%. Taking into account the chance of further improvement in the strength of the left lower limb by a course of 30 to 40 physiotherapy treatments, Dr. Chiang estimated the permanent impairment of the whole person at about 12% to 15%. Dr. Chiang opined that at the stabilized stage, the Plaintiff might not be able to return to his pre-injury job as a cook which required prolonged standing but he "would probably be able to work in the selected light duty cook's jobs, e.g. in the less busy restaurants with shorter duration of continual standing during peak hours and with rest in between. If these light duty jobs are not available, he could work as a cashier, shopkeeper, security guard or messenger".

18. Dr. Danny Tsoi (the Defendant's expert) ["Dr. Tsoi"] examined the Plaintiff on 25th May, 2001. According to his medical report dated 29th May, 2001, Dr. Danny Tsoi is of the view that the Plaintiff's "muscle weakness has reached a static stage" and the further physiotherapy as suggested by Dr. Chiang "will unlikely improve the muscle bulk and strength". Dr. Tsoi however finds the 10% to 15% chance of developing symptomatic arthritis in the future as estimated by Dr. Chiang to be "a very reasonable figure". He himself estimates the injuries to be equivalent to 12% impairment of the whole person. Dr. Tsoi also shares Dr. Chiang's views that the Plaintiff "will encounter some difficulty in resuming his pre-injury job requiring continuous long hours of standing, frequent squatting and weight lifting." His advice to the Plaintiff is "not to stand continuously for more than two hours and the total working hours should not exceed eight hours. All activities requiring heavy weight lifting, climbing and squatting should be discouraged".

19. In the final quarter of 2001, the Defendant engaged investigators to conduct surveillance on the daily activities of the Plaintiff. His movements on 22nd January, 2002 and 28th March, 2002 were recorded in 2 video tapes. The Plaintiff was seen walking at a brisk pace with a cane in the first tape. He was also using a cane in the second tape and he boarded a bus with relative ease. These recordings were reviewed by Dr. Chiang. By his letter dated 3rd June, 2002, Dr. Chiang accepts that "there had likely been improvement since [his] last examination".

20. Mr. Lim, Counsel for the Plaintiff, submits that the Plaintiff's injuries fall within the "serious category" as defined in Lee Ting Lam v. Leung Kam Ming [1980] H.K.L.R. 657 and the award for pain and suffering and loss of amenities should be in the sum of $550,000. Reliance is placed on the awards made in Ho Ah Look v. Nam Kin Scaffolding Ltd. HCPI No. 56 of 1996 and Li Wan Choi v. Choi Wan Hing HCPI No. 1200 of 1998. Mr. Lam, Counsel for the Defendant, submits that the award under this head should be no more than $350,000. He cites Yu Kok Wing v. Lee Tim Loi [2001] 2 HKLRD 306; Lau Kin Wah v. Lam Shu Kan HCPI 11208/1998 and Ho Sik Tung v. Lau Kin Sun HCPI 1408/1999 in support of his position.

21. I derive little assistance from the 2 authorities cited by Mr. Lim. The Plaintiff in Ho Ah Look sustained head injury and the Plaintiff in Li Wan Choi was injured in his pelvis. I find the case more in line with Lau Kin Wah and Ho Sik Tung cited by Mr. Lam. The Plaintiff did not have as many operations as the Plaintiff in Ho Sik Tung. I am of the view that an award of $375,000 is appropriate in the circumstances of this case.

Pre-trial loss of earnings

22. At the date of the accident (7th November, 1998), the Plaintiff was a Senior B Cook working in the La Cite Restaurant ["La Cite"] in Pacific Place. He resumed working in La Cite on 1st July, 1999 at a salary of $10,600 per month. By notice dated 29th February, 2000, the Plaintiff was informed by La Cite that he was promoted from Senior B Cook to Senior A Cook at a new salary of $12,500 per month. His employment with La Cite was terminated as from 16th June, 2000. The Plaintiff did not resume gainful employment until 1st November, 2001 when he started working as a Junior clerk with Plenty More Credit Management Salary Limited ["Plenty More"] at a salary of $6,000 and a traveling allowance of $500 making in total of $6,500 per month.

23. In relation to the Plaintiff's pre-trial loss, the first issue between the parties is the earnings of the Plaintiff as at the date of the accident. The Plaintiff contends that his average salary was $12,340 per month whilst the Defendant submits that the correct figure should be $12,230 per month. The Plaintiff's figure was arrived at on the basis of a basic salary of $10,600 per month together with half yearly bonus of about 90% of his basis salary plus tips of $100 to $200 per month. The Defendant's figure is based on the Plaintiff's tax returns for 1997/98 and 1998/99 and the receipts as reflected in the Plaintiff's bank account. I prefer the case of the Defendant. It is supported by primary evidence. I therefore hold that the Plaintiff's income at the date of the accident was $12,230 per month. His loss of income for the period between the date of the accident (7th November, 1998) and the date when he first resumed working in La Cite (1st July, 1999) is therefore $$94,782.5 [$12,230 per month x 7 3/4 months]. His sick leave pay during this period amounted to $26,874.36. I would therefore award him $67,908.14 for this period.

24. The Plaintiff told me that after he resumed working in La Cite on 1st July, 1999, his income was not less than before. He suffered no loss during the period between 1st July, 1999 and 12th June, 2000 when his employment with La Cite was terminated.

25. The second issue between the parties is the reason leading to the termination of the Plaintiff's employment with La Cite. Mr. Lam drew my attention to the fact that the Plaintiff worked as Senior B Cook as from 1st July, 1999. He was promoted to Senior A Cook as from 1st March, 2000. The suggestion seems to be that the Plaintiff failed properly to mitigate his loss and his departure from La Cite was unrelated to his injuries. The Plaintiff told me that his normal working hours prior to the accident was from 9 a.m. to 6 p.m. He was responsible for cutting and cooking food. He had to carry meat (3 pieces of sirloin each weighing 10 kgs), soup and other items in the course of his duties. When he resumed work on 1st July, 1999, he had to stand for the same number of hours although he was assigned lighter duties. His sought his colleague's assistance in carrying things but such assistance was not always forthcoming. He felt weak and easily fatigued. His employer expressed dissatisfaction sometime after he resumed his work. He was promoted by virtue of his seniority. He had more duties after his promotion. He became involved in managing the junior staff of the restaurant. His employment came to an end because he cannot stand and cannot carry things. His employer was receiving complaints that his work was not so good. He and his employer came to an agreement that he would resign.

26. I accept the evidence of the Plaintiff. His employment between 1st July, 1999 and 12th June, 2000 suggests to me that he tried hard to retain his employment but his efforts were in vain due to his inability to carry weight and to stand for long hours as a result of the accident.

27. The third issue between the parties relates to the period between 12th June, 2000 (when the Plaintiff left La Cite) and 1st November, 2001 (when the Plaintiff commenced work with Plenty More). The Plaintiff says that he decided to take time off as his leg was painful after long walk. He registered with the Labour Department on 5th September, 2001 for employment guidance. He says it took him 6 months in order to find his new job. He was looking for jobs in the $8,000 to $10,000 range. He made 3 other job applications before his present engagement by Plenty More. His principal responsibility in Plenty More is in the delivery of documents. Mr. Lam submits that the Plaintiff should have resumed work well before 1st November, 2001. Mr. Lam further submits that the Plaintiff should have secured a job which pays more than $6,500. There is force in the former submission of Mr. Lam but 2 pieces of evidence prompt me to reject it. The Plaintiff visited the Chai Wan Health Centre on 13th October, 2000. He was complaining of left knee pain and physical examination showed depression over left knee. The Plaintiff was examined by Dr. Tsoi on 25th May, 2001. He was still complaining about pain over left hip, knee and leg even at rest. Dr. Tsoi did not cast any doubt on the genuineness of these complaints in his report of 29th May, 2001. About 4 months elapsed between the Plaintiff's consultation with Dr. Tsoi and his registration with the Labour Department. I am not prepared to find fault in the Plaintiff over this period. As far as the second submission of Mr. Lam is concerned, one has to bear in mind that the Plaintiff started working as a cook after he left Form I. He has no other training since that date. Given the economic climate of Hong Kong in November, 2001, I am not prepared to accept any criticism of the Plaintiff's reasonable acceptance of the offer from Plenty More. I accept the Plaintiff's evidence that it is unrealistic to expect that a properly run restaurant would be eager to engage a cook for lighter duties.

28. When the Plaintiff's employment with La Cite was terminated on 12th June, 2000, he was receiving a basic salary of $12,500. He was further entitled to tips at about $100 per month and bonus equivalent to 1.5 times his basic salary. His total monthly income was about $14,162 [$12,500 + $100 + ($12,500 x 1.5 ?12)].

(i)	Plenty More drew 2 cheques dated 20th November 2001 for $4,500 and 30th November, 2001 for $2,000 in favour of the Plaintiff. These 2 cheques do not support Mr. Lim's contention that the Plaintiff's starting salary was $6,000 per month.
(ii)	According to the offer of employment from Plenty More dated 1st November, 2001, the Plaintiff is entitled to a traditional bonus equivalent to 1 month's salary (or a proportion thereof on a pro rata basis) payable at Lunar New Year. I therefore hold that the Plaintiff's average monthly salary from Plenty More is the sum of $7,000 [$6,000 + $500 + ($6,000 ?12)].
(iii)	His loss for the 8.5 months period between 1st November, 2001 and the date of the hearing amounts to $60,877 [($14,162 - $7,000) x 8.5].

Loss of future earnings

29. For reasons stated in paragraphs 25 and 26 above, I am of the view that by virtue of the Plaintiff's injuries, he is unable to maintain his pre-accident occupation. Given the current economic climate, I am of the further view that it is unlikely for the Plaintiff to find an employment that yields better pay.

30. I adopt as multiplicand the sum of $7,162 [$14,162 - $7,000]. The parties are ad idem on a multiplier of 15. I therefore award a sum of $1,289,160 [$7,162 x 12 x 15] under this head.

Cost of further physiotherapy and traveling

31. I reject this claim of the Plaintiff. I accept the view of Dr. Tsoi that further physiotherapy is unlikely to improve the Plaintiff's muscle bulk and strength. Furthermore, Dr. Chiang opined in his letter of 3rd June, 2002 that the Plaintiff had made improvement since his last examination. Having seen the Plaintiff's movement as depicted in the video tapes, I am not persuaded that the Plaintiff will benefit from any further physiotherapy.

Loss of MPF

32. MPF was introduced as from 1st December, 2000. According to Ng Chi Chung v. Lau Kam Ping [2000] 2 HKC 759, the Plaintiff loss under this head should be computed at 5% of his loss of earnings.

33. In respect of the period between 1st December, 2000 (when MPF was first introduced) and 10th July, 2002 (commencement of hearing before me), the Plaintiff's loss amounted to $6,982.95 [($14,162 - $7,000) x 191/2 x 5%].

34. As far as future loss of MPF is concerned, the award is $64,458 [$1,289,160 x 5%].

Loss of earning capacity

35. The Defendant accepts that the Plaintiff will suffer a handicap in the labour market as his choice of employment has become more restricted. The Defendant submits that a lump sum award of $100,000 should be appropriate under this head. Alternatively, the Defendant submits on the basis of Tsang Hing Yuen v. Nishimatsu Kumagai Joint Venture [2000] 1 HKLRD 796 that the Plaintiff should be awarded 6 months salary [$8,000 x 6] of the alternative employment which the Plaintiff is now capable of doing. The Plaintiff contends that the award under this head should be the sum of $156,000 arrived at on the basis of 24 months of the Plaintiff's current salary.

36. I accept the broad submissions of Mr. Lam. The decision of Seagroatt J. in Lau Kin Wah (above cited) provides me with a helpful yardstick. I make an award of $125,000 under this head.

Summary of award

37. Claim

38. There is agreement between the parties on the special damages of $33,531.

Interest

39. Interests will be awarded at 2% on general damages for pain and suffering and loss of amenities from the date of the writ until judgment. Interest at half judgment rate will be awarded for pre-trial loss of earnings and special damages from the date of the accident to the date of this Judgment.

Costs

40. I make a costs order nisi that the costs of this action be to the Plaintiff to be taxed if not agreed. I do not know whether the Plaintiff is legally aided. If so, I make a further order nisi that the Plaintiff's own costs be taxed in accordance with Legal Aid Regulations.