TANG WAI TAK Plaintiff and CHIU HING CONSTRUCTION & 1st Defendant TRANSPORTATION CO. LTD KUAN KUOK KUONG 2nd Defendant

HCPI 188/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 188 OF 2006

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J U D G M E N T

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1.  This is a personal injuries claim.  The plaintiff was a double-decker bus driver.  He claims damages for a whiplash allegedly caused by the negligent driving of the 2nd defendant.  He sues the 1st defendant for vicarious liability.  The 1st defendant was at the material time the employer of the 2nd defendant.  Counsel for the defendants conceded that if the 2nd defendant should be found liable, the 1st defendant would have vicarious liability.  Hence, the issue is whether the 2nd defendant is liable.

LIABILITY

2.  On 30 July 2003 at about 2:55 p.m., the plaintiff was driving a double-decker bus along Hong Chong Road in Hung Hom approaching the Cross-Harbour Tunnel.  Hong Chong Road at that point has four lanes.  At the southern end of the road that faces the tunnel, the two lanes on the right merge into one.  The leftmost lane is a bus-only lane.  This lane also terminates at the southern end but at a point slightly beyond the merger of the two lanes on the right.  The traffic in the bus-only lane then merges with that in the lane to its right.  After the bus-only lane has ended, Hong Chong Road has only two lanes left.  It then proceeds a little bit forward and merges with Chatham Road North on its left.

The plaintiff’s evidence on liability

3.  The plaintiff adopted his witness statement as part of his evidence in chief and gave oral evidence to supplement it.  He said at the material time he was driving his double-decker bus along the bus-only lane at a speed of 5 to 10 km.  When he was near the end of this lane, he had to cut into the lane on his right (or the 2^nd lane from the left).  He switched on the right turn indicator lights.  He saw from the rear mirror that the traffic on the next lane had stopped to let him cut into that lane.  He turned left slowly and cut into that lane.  When he was moving into that lane, he saw from the rear mirror a yellow private car behind his bus that was also cutting into that lane but from the 3^rd lane from the left.  He later learnt that the 2nd defendant drove this car.  

4.  After cutting into the 2^nd lane from the left, he moved forward to the point of merger with Chatham Road North.  Chatham Road North is on his left and has two lanes.  He had to cut across to the leftmost lane of Chatham Road North and then drive forward to a bus-stop at some distance ahead.

5.  The traffic at that time was relatively heavy.  He was moving forward at a stop-start manner at 5 to 10 km per hour.  His left turn indicator lights were on and he was watching the traffic on the two lanes of Chatham Road North on his left.  He also from time to time observed the traffic in his front.  Suddenly, he saw the yellow vehicle dashing abruptly from his right to his front and stopped at about one metre in front of his bus.  Prior to slanting in and stopping in his front, the driver of the private car had not blinked the lights or tooted the horn or given him any prior warning of the car’s approach.  The driver had done nothing to catch his attention.

6.  Since it happened all of a sudden, he had to jam on his brakes immediately and pulled the bus to a stop.  When he did that, his upper body jerked forward.  He had his seat belt on and his body was restrained.  He then jerked backward.  The jerks were very forceful.  He then felt a pain in his neck.

7.  He put up with the pain and left his seat to enquire if any passenger had fallen or been injured.  He had over 20 passengers on both decks.  He also walked up the stairs to enquire with those on the upper deck.  Luckily no one was hurt.

8.  After this, the 2nd defendant came out of the yellow private car and told him that he had earlier on brushed against and damaged the left side mirror of the 2nd defendant’s car.  He did not know about this and denied the allegation.  He then arranged the passengers to board another bus.  The 2nd defendant called for the police.  Before the arrival of the police, the 2nd defendant had manoeuvred his car to align it with leftmost lane of Chatham Road North and at about one private car length from his bus.  He also called for an ambulance that arrived 10 odd minutes later.  He was then taken to the A&E Department of Queen Elizabeth Hospital. 

9.  Dr Lee Chi Keung of Queen Elizabeth Hospital made a memorandum on 2 August 2005 on the diagnosis and treatment of the plaintiff’s by the A&E Department:

“	The above named was attended by Dr Lai Chung-Chuen at 15:55 hours on 30 July 2003 at the Accident & Emergency Department of Queen Elizabeth Hospital.  He sustained neck injury whilst on duty on 30 July 2003.  He sustained flexion and extension injury of neck.
	2.	On examination, the findings were: -
		·	General condition was good.
		·	There was tenderness (pain) at right paraspinal muscle of neck.
		·	Neurological examination was normal.
		·	X-ray of neck showed no abnormality.
		·	The clinical diagnosis was sprain back.
	3.	He was treated & discharged.  Sick leave was recommended from 30 July 2003 to 2 August 2003 inclusive.  Permanent disability is unlikely as a result of the jury.”

In cross-examination, he said his pain was all along on the left side of the neck and not as recorded in the memorandum of Dr Lee.

10.  He maintained in cross-examination that before hearing the 2nd defendant’s accusation, he did not know why the 2nd defendant had slanted the private car in front of him.  He also confirmed that as soon as he jammed on his brakes, his bus stop instantaneously.  He was later charged by the police for careless driving which damaged the 2nd defendant’s left side mirror.  He was tried for this on 24 January 2004.  He denied the charge or that he had damaged the 2nd defendant’s left mirror.  He gave evidence in his defence, but was convicted after trial.  He now accepts that he had indeed damaged the 2nd defendant’s left mirror in a collision at some point before the 2nd defendant had slanted his car to his front and he was at fault.

11.  Regarding how his neck was injured, his statement to the police had a slightly different version.  He said after the 2nd defendant had stopped the car abruptly before him, he had a dialogue with the 2nd defendant and denied the collision.  The 2nd defendant then reported the matter to the police.  He then arranged the passengers to board another bus.  In the meantime, he felt that he had sprained his neck and had a pain. 

12.  The transcript of the magisterial proceedings has been produced by the defendants as hearsay evidence.  It contained another slightly different version.  He had said he had stepped on the brake and had a jerked.  He was concerned about the passengers.  He looked back to see if anyone had fallen or been injured.  At that moment, he sprained his neck.  He was not aware of it and did not feel the pain yet.  The 2nd defendant then came out of his car and came forward to him.  He also opened his window and had a dialogue with the 2nd defendant.  He denied of having damaged his mirror.  The 2nd defendant then reported the matter to the police.  He therefore arranged his passengers to take another bus of the same route.  After he had transferred his passengers, he returned to his bus and felt the pain.  He then called for an ambulance.

13.  His sick leave ran continuously.  His employer paid him employees’ compensation.  He knew that he could receive such compensation for up to two years if his sick leave should continue for so long and, in the meantime, his employer could not terminate his contract.  But he gave notice of election to his employer in January 2004 to participate in a voluntary retirement scheme.  He retired on 30 April 2004 pursuant to the scheme when his sick leave was still continuing.  Upon retirement, he was paid about $150,000 by his employer.  He said he opted for retirement because he had neck pain and felt dizzy and was unable to drive a bus. 

14.  He also denied the whole of the 2nd defendant’s case when it was put to him.

15.  In re-examination, he said the 2nd defendant was very angry when accusing him of damaging the mirror of the car.  The 2nd defendant also kept on scolding him and threatened to report him to the police. 

16.  In answer to a question from the court, he agreed that even with his window closed, he could still hear the tooting of horn by nearby drivers.

The 2nd defendants’ evidence on liability

17.  The 1st defendant was the owner of the private car.  In 2003, the 2nd defendant was its contract driver.  The contract ended in April 2005.  The 2nd defendant is now employed by a new employer doing ceiling works.

18.  The 2nd defendant adopted his witness statement dated 4 July 2006 and his supplemental witness statement dated 22 January 2007 as part of his evidence in chief and supplemented them with oral evidence. 

19.  When he was working as a contract driver of the 2nd defendant, his duty was to drive the staff of the 2nd defendant and engineers of the Government from one site to another.  He said in his witness statement that in the afternoon of 30 July 2003, he was driving three persons along Hong Chong Road towards the Cross-Harbour Tunnel.  One of his passengers was a Mr Cheung Pok, a transport engineer of the Highways Department.  He was heading south for the Administrative Building of the Cross-Harbour Tunnel.  He was then on the 2^nd lane from the left and was next to the bus-only lane.  The traffic was relatively heavy. 

20.  When he was close to the point where the bus-only lane ended, he saw a double-decker bus coming up from behind in the bus-only lane.  The bus had no indication of slowing down but the road ahead was not wide enough to accommodate both vehicles, he thus stopped to give way to the bus.  When the bus drove pass him, it brushed against his left mirror and dragged it forward thereby crushing it to the front.  He immediately tooted his horn to alert the bus driver.  But the bus did not stop.  It continued moving towards the Cross-Harbour Tunnel and cut into the leftmost lane of Chatham Road North. 

21.  Since the traffic was relatively heavy, the bus was only moving at 5 to 10 km per hour.  When the bus was cutting into the leftmost lane of Chatham Road North, he followed it and drove to its side.  When he was abreast of it, he rolled down his window and told the plaintiff that the bus had hit his car earlier on.  The plaintiff denied this and said that it was impossible as the bus was so big.  Whilst the bus was still stationary and the traffic in front of it had moved off, he drove his car to the front of the bus at leftmost lane of Chatham Road North.

22.  He provided more details in his supplemental witness statement made on 22 January 2007.  He said he had his indicator lights on soon after the collection.  Since the traffic was quite congested and there were other vehicles on the leftmost lane in front of the bus, the bus could only cut into the leftmost lane slowly.  Before the bus had completely moved into the leftmost lane, there was an occasion when his car was abreast of the bus.  He then tooted his horn several times, wound down his window and told the plaintiff that the bus had damaged the mirror of his car.  The plaintiff said he was crazy as the bus was too big to knock on his car.  He then moved forward side by side with the bus for about four lengths of a private car.  The bus then came to a stop inside the leftmost lane.  The two private cars in front of the bus then moved off.  He then drove forward and stopped in front of the bus.  His left indicator lights were blinking all the time.  He said he was sure that when he drove into the leftmost lane, the bus had not started to move.

23.  He said in his oral evidence that he made the supplemental witness statement on legal advice.  He was told to provide every single detail in the supplemental statement.  He denied that he had abruptly cut into the leftmost lane without warning to the plaintiff.  He also denied that he was angry when speaking to the plaintiff.  He said he had told the plaintiff that his bus had damaged his mirror earlier on and he said so in a calm but firm tone.  He also denied that he had driven his car so as to align it with the leftmost lane before the arrival of the police. 

24.  He was referred to the transcript of the magisterial proceedings where one of his passengers Mr Cheung Pok had given evidence.  Mr Cheung was a transport engineer of the Government whose direction he had to follow.  The transcript showed that Mr. Cheung had told the magistrate that after he had stopped his car and gone out to reason with the plaintiff, Mr Cheung had told him to come back to the car and manoeuvre it into a straight position so as not to block the traffic from behind.  He denied that Mr Cheung had so directed him.

25.  In cross-examination, he denied that he had lost his temper when the bus just drove away after hitting his car and despite his tooting the horn.  He just thought that the bus driver was not behaving properly.  But there was nothing he could do.  So he just followed the bus to see if there was any chance that he could talk to the driver.  When the bus was straddling the two lanes of Chatham Road North, he drove up to and was abreast of the bus.  He then rolled down his window and talked to the plaintiff.  He did not lose his temper when the plaintiff reacted rudely.  He said there were engineers in his car and he could not behave in an impolite way.

26.  He admitted that after he had stopped his car before the bus, the plaintiff had indeed enquired if any of the passengers had been injured.

27.  He had given a statement to the police about four hours after the incident, but he had not mentioned in the statement about his switching on the indicator lights and his winding down the window to talk to the plaintiff when the two vehicles were abreast of each other.  Though he had said in his statement that he had tooted the horn after the collision, he had not mentioned that he had tooted the horn again before talking to the plaintiff.  He explained that the statement he gave the police was a report about the collision at the scene.  He also said that he was responding to the question of the police officer and thus had omitted matters that he had not been asked.  He was also referred to the transcript of the magisterial proceedings where he had also not mentioned the same details.

28.  He agreed that when he stopped his car in front of the bus and the bus was then straddling both lanes of Chatham Road North, he in effect obstructed the traffic on these lanes.  However, he denied that he did so because of his eagerness to stop the bus driver from driving away.  He instead replied that after the accident, he should stay in a safe place to wait for the police as some passenger in the bus could have been injured as a result of the earlier collision on Hong Chong Road. 

29.  On whether he had been told by Mr Cheung Pok to manoeuvre his car to avoid obstruction, he changed from what he had said in evidence in chief and agreed that Cheung Pok had given him this direction.  He explained this by saying that he had not follow the direction because there was a traffic accident between his car and the bus and the traffic from behind was in fact blocked by the bus.  He maintained that the plaintiff had not jammed on the brakes to stop the bus when he slanted his car into the front of the bus.

The police statements

30.  The statements given by the plaintiff, the 2nd defendant and Cheung Pok were adduced as hearsay evidence.  Counsel for the plaintiff placed emphasis on the 2nd defendant’s omissions in his police statement.  The 2nd defendant did not tell the police about his conversion with the plaintiff when the two vehicles were abreast of each other or that his indictor lights were on when his car was following the bus.  It is useful to consider the contents of these police statements.

31.  The 2nddefendant gave his statement to the police on 30 July 2003 at 18:40 hours which was about four hours after the accident.  He told the police how the bus had crushed his mirror.  He also said that he had immediately tooted his horn to alert the bus driver, but the bus did not stop.  He then followed the bus and eventually stopped his car in front of it on Chatham Road North.  He was asked a number of questions by the investigating police officer.  One of the questions was whether he had driven his car to the front of the bus and then stopped horizontally in its front to stop it.  He denied that he had done so.  He said it was only after the private car in front of the bus had been driven away that he drove his car to the front of the bus.  The officer did not ask him if he had dashed forward and stopped abruptly in front of the bus and without any prior warning to the bus driver.  This did not appear to have been a matter of investigation.  There is no evidence that such allegation had been made or made known to the police officer at that early stage.

32.  The plaintiff then gave his statement to the police on 6 August 2003.  It was a cautioned statement as the police suspected that he had committed the offence of careless driving.  He said the 2nd defendant’s car had suddenly slanted in from his right and blocked the 1^st and 2^nd lanes ahead of him.  Since the 2nd defendant’s car slanted in at about one metre in his front, he had to jam the brakes to stop the bus instantly.

33.  Cheung Pok gave his statement to the police on 12 August 2003.  He described how the bus had crushed the mirror of the car.  He also told the police that when the bus and the vehicles before it had stopped on the left most 1^st and 2^nd lanes, the 2nd defendant then drove his car to the front of the bus and stopped there.  Mr. Cheung also said something similar to the magistrate (p. 165B to C).  The police officer asked him the specific question of whether the 2nd defendant’s car had suddenly slanted in from the right of the bus and stopped there horizontally to block the bus to a halt.  He denied that.  He said the bus had already stopped and it was only then did 2nd defendant’s car stop in front of it.  In the light of these statements, there did not appear to be the need for Cheung or the officer to go into what had happened before the 2nd defendant had driven to the front of the bus.  Possibly for this reason, Cheung also did not refer to the conversation between the plaintiff and the 2nd defendant at the middle of the road.

Analysis and finding on liability

34.  Counsel for the plaintiff submitted that the initial accident, which damaged the mirror of the car, was only relevant as background material.  However, counsel said that this accident also helped set the scene for the attitude, response and driving manner of the 2nd defendant thereafter.  Counsel said that the 2nd defendant’s actual behaviour at the time was not calm, cool, collected or normal, as the 2nd defendant had put it.  Counsel further said that the 2nd defendant had in fact:

“

decided to ‘chase’ the plaintiff’s bus, and then remonstrate with the plaintiff by rolling down the window and then suddenly position his car in a manner blocking busy tunnel traffic across two lanes, despite the fact that he agreed he could have moved ahead and stopped his car at the bus stop ahead.  All these clearly reveal a person who is upset at the driving and attitude of the plaintiff and wishes to teach him a less.  It is submitted that “it would require a man of exceptional self-control and benign temper not to be upset and enraged under such circumstances”.

But why was the 2nd defendant so angry?  It was because of the plaintiff’s denial of the initial accident when the 2nd defendant remonstrated with him about it by rolling down the window.  But it is the plaintiff’s case that the 2nd defendant had neither rolled down his window nor told him about the initial accident before blocking his way forward.

35.  The plaintiff therefore faced a dilemma.  On the one hand, his counsel wanted to paint a picture of an angry man in the 2nd defendant.  On the other hand, he also wanted to maintain that he had no communication with the 2nd defendant and was totally ignorant about the initial accident until after his way was blocked.  It was because of this lack of communication and his ignorance of the accident that he was unaware of the 2nd defendant’s intent to cut into his way.  However, if there were indeed no communication between them, there would have been nothing to ignite the anger of the 2nd defendant.  If the plaintiff’s version were true, then the 2nd defendant’s behaviour would be strange. 

36.  Since the traffic was relatively heavy, the plaintiff could not have driven the bus away quickly.  Since, the 2nd defendant’s car was eventually in front of the bus, he must have driven to the plaintiff’s side.  He must also have an opportunity to tell the plaintiff about the initial accident.  It was unnecessary for him to have suddenly dashed into the front of the bus without warning and without telling the plaintiff about the accident.  Before talking to the plaintiff, he would not have known his attitude towards the initial accident.  It was possible that the plaintiff was unaware of the initial accident.  The evidence produced at the magistracy showed that it was the rear part of the long bus that had brushed the mirror of the car.  It was unlikely that the 2nd defendant would have become angry before talking to the plaintiff.

37.  In any case, even if the 2nd defendant wanted to block the way of the bus, it was unnecessary for him to dash into its front and without any warning to the plaintiff.  It was also a very dangerous act too.  If the plaintiff was totally unaware of his approach and did not stop the bus in time, the bus could just knock his car over.  One must also not forget that he had three passengers including an engineer Mr Cheung Pok on board. 

38.  On the whole, the plaintiff’s story did not show any provocation to the 2nd defendant.  Therefore, on the plaintiff’s version, the 2nd defendant’s conduct was inexplicable.  It was because of the need for provocation that counsel for the plaintiff had submitted that the 2nd defendant had remonstrated with the plaintiff by rolling down the window, but this contradicted part of the plaintiff’s case. 

39.  The 2nd defendant’s version of event however sounded more reasonable.  He had tooted his horn when the bus brushed against this window.  When that did not appear to have caught the plaintiff’s attention, he followed the bus.  When he was side by side with the plaintiff, he tooted his horn, rolled down his window and told the plaintiff about the initial accident.  The plaintiff denied liability and rebuked him.  Though he said he was still calm, cool and composed, I find that he was then unhappy or even angry.  He then followed the bus and waited for the opportunity to block its way and prevent it from going away.  Since he was angry with the plaintiff, he did not wait until the bus had reached the next bus stop.  He just stopped the bus when it was straddling the 1^st and 2^nd lanes of Chatham Road North as the cars before the bus had moved off.  He ignored the traffic coming up from behind.  He was angry and wanted to stop the bus as soon as he could.  But I do not think he did so without any warning or signal to the plaintiff or that the plaintiff was unaware of his approach. 

40.  I find that the plaintiff was fully aware of his intention and actions at the latest when they had the conversation in the middle of the road.  The left turn indictor lights of the 2nd defendant’s car were also on as that was to catch the plaintiff’s attention too.  I also find that the 2nd defendant had not dashed into the front of the bus.  It was unnecessary for him to have to do so.  A big double-decker has a lot more inertia than a private car.  If the traffic was in a stop-start fashion, once the car before the bus had moved off, the 2nd defendant could safely manoeuvre his car to front of the bus.  Even if he should have driven his car to jus one metre of the bus so as to prevent its escape, it was still unnecessary for him to have dashed in.  The bus needed some time to overcome the inertia so as to move.  The plaintiff was also aware of the 2nd defendant’s move and would not have driven the bus forward to knock over the car.  On this point, the 2nd defendant is amply supported by the hearsay evidence of Cheung Pok who told the police and the magistrate that the bus was stationary when the 2nd defendant drove to its front.

41.  Counsel for the plaintiff queried why the 2nd defendant should have failed to tell the police officer and the magistrate about his travelling side by side with the bus, tooting his horn, rolling down the car window and talked to the plaintiff about the initial accident (though counsel relied on the happening of these events to say that the 2nd defendant was angry).  However, there is no evidence that the police officer was then aware of the plaintiff’s complaint that the 2nd defendant had suddenly dashed into his path without any prior warning.  Such complaint was not under investigation then.  There might have been a complaint that the 2nd defendant had driven his car to the front of the bus and stopped there horizontally, but that was a different allegation and that had been covered by the officer’s questioning of the 2nd defendant.  The officer was also not investigating why the 2nd defendant had to stop the bus at a point that caused traffic congestion.

42.  I do not think any criticism can be made against the 2nd defendant for not relating to the officer matters that were not under investigation.  The same can be said about the magisterial proceedings.  The charge was the plaintiff’s careless driving, not the 2nd defendant’s careless driving.  The 2nd defendant also maintained that the bus had already stopped when he drove the car to its front.  In these circumstances, I do not think the 2nd defendant can be blamed for the omission.  I also do not agree that the events leading up to the conversation between the plaintiff and the 2nd defendant when they were side by side were recent fabrications or embellished evidence.

43.  Counsel for the plaintiff further submitted that the 2nd defendant had not been truthful by referring to the 2nd defendant’s contradicting evidence on whether he had been told by Cheung Pok to align his car with the road.  The evidence of Cheung Pok only appeared once in the magisterial transcript.  It was not in his police statement.  The 2nd defendant said when Cheung Pok gave this evidence, he was not in the courtroom and did not hear it. 

44.  Bearing in mind that the accident took place in July 2003, it was not surprising that the 2nd defendant did not recall this when it was raised with him for the first time in this trial.  It was also possible that he had not moved his car despite Cheung’s direction as Cheung had left the scene immediately to attend a meeting.  The sketch drawn by Cheung as annexed to his police statement also showed that the location of the 2nd defendant’s car did not produce much aggravation to the traffic congestion.  The congestion was mainly created by his stopping the bus which straddled both lanes coming up from Chatham Road North.  The position of the 2nd defendant’s car was sheltered by the bus.  The plaintiff also did not say in his police statement that the 2nd defendant had straightened his car after having stopped it in front of the bus.

45.  Counsel for the plaintiff also made the point that the plaintiff had called for an ambulance before the 2nd defendant had called for the police.  Counsel submitted that this sequence of event showed that the plaintiff’s injury was not a fabrication.  Counsel also said that on this point, the 2nd defendant’s evidence was inconsistent with his police statement. 

46.  The 2nd defendant’s evidence was that after he had told the plaintiff that he would call the police, the plaintiff made a phone call.  In his police statement, he said: 

“	I saw him making a phone call on the bus.  I therefore phoned the police”  (Translation).

I do not see any inconsistency between the two statements.  What the 2nd defendant said in evidence at the trial was that he had told the plaintiff of his intention to call the police.  In his police statement, he referred to his act of calling the police which took place later.  If there should be any doubt about this, the doubt can be cleared by a perusal of the relevant part of the plaintiff’s own police statement which is quoted below. 

47.  Counsel also submitted that the 2nd defendant only called the police after the plaintiff had told his passengers to change to another bus.  I think counsel wanted to show that it was after the plaintiff had shown that he had been injured that the 2nd defendant made a report to the police to protect himself.  However, the plaintiff’s police statement showed that it was only after the 2nd defendant had announced his intention to call the police that the plaintiff arranged his passengers to board another bus.  It is instructive to look at the plaintiff’s answer to the 3^rd question in his police statement:

“

The driver of KM771 got off and came up to the driver’s seat of my vehicle and spoke to me.  He said my vehicle had ‘hit’ onto the left side mirror of his vehicle.  I saw from my vehicle the left side mirror of KM771 was folded forward but then at the time I did not feel there had been a collision between our 2 vehicles.  He then said he would report to the Police.  I arranged another bus to carry my 20 odd passengers away.  At the scene I also felt my neck had been strained and I experienced pain there.  Soon Police and Ambulance arrived and I was sent to Queen Elizabeth Hospital for treatment and I was not hospitalized.”  (Translation)

Since the 2nd defendant had blocked the plaintiff’s way and told the plaintiff that he was going to report the matter to the police, the plaintiff had to arrange for his passengers to go by another bus unless he was prepared to admit liability for the damage to the mirror.  This was so regardless of whether he had suffered any injury to his neck.  The arranging of passengers to another bus need not be because of any injury to the 2nd defendant.

48.  Counsel’s next point was the plaintiff’s enquiry of whether any passenger on the bus had been hurt.  This evidence was corroborated by the 2nd defendant.  Counsel said if there had not been any emergent braking or throwing forward or backward, the plaintiff would not have made such enquiry with his passengers.  However, one can see that both the plaintiff and the 2nd defendant were then in belligerent moods.  The plaintiff had denied liability for the initial accident.  He did so by rebuking the 2nd defendant.  But the 2nd defendant did not let him go.  He followed the bus.  His intention to stop the bus at some point was obvious to the plaintiff.  It was likely that when he was swerving his car into the path of the bus, the plaintiff was also stepping on his accelerator with a view to gain the way forward.  But when he saw that he could not prevail over the 2nd defendant, his only option was to step on the brakes and he did.  That could explain a bit of jerking by the bus.  However, it was not a serious one as the bus was stopped at the point when it had just gained a forward potential and none of the 20 odd passengers had been hurt.  This was not a hard jerk caused by the unannounced dashing in by the 2nd defendant. 

49.  This also does not mean that the bus was not in a stationary position when the 2nd defendant swerved in.  It was only that the plaintiff wanted to start the bus moving but could not have done it in time.  His subsequent enquiry with the passengers was consistent with his belligerent mood.  If someone should have been hurt, he would then have an apparently good cause to charge the 2nd defendant with.  Though the 2nd defendant could not give a proper answer as to why the plaintiff had made the enquiry, I do not think he should be blamed.  He might not have been aware of the jerk of the bus as he was swerving his car.

50.  Counsel further submitted that the 2nd defendant had said in evidence that he had switched on his left indicator lights to show his intent to cut into the path of the bus, but the Amended Defence pleaded “flashing lights”.  I do not think this is an inconsistency.  Flashing lights could no doubt refer to indictor lights although it could also refer to hazard lights or warning lights.

51.  Counsel also submitted that it would be difficult to imagine that the plaintiff would be so quick in his mind to come up with the vicious idea of filing a bogus claim as he called for an ambulance soon after the incident.  Counsel thus submitted that the injury was probably sustained as a result of the incident involving the 2nd defendant.  However, it seems that the plaintiff had initially enquired if any passenger had been injured before asking for an ambulance for himself.  He has indeed said so in his witness statement.  I am not surprised that he would feign an injury when none of the passengers had any.

52.  Furthermore, the injury alleged by the plaintiff was on the left side of his neck.  But the medical report given by Dr Lee of QEH recorded a neck injury whilst on duty and the finding of tenderness (pain) at right paraspinal muscle of neck upon the plaintiff’s admission to the A & E Department.  The clinical diagnosis was sprain back.  Counsel submitted that Dr Lee was not the treating doctor and he might have misread the notes of Dr Lai the treating doctor.  However, the notes of Dr Lai could have been obtained from QEH to verify if they were illegible or had been misread by Dr Lee.  The notes were not obtained and I am not prepared to hold that the notes of Dr Lai were illegible or Dr Lee had misread them.  I would hold that Dr Lee’s medical report reflected what the plaintiff had revealed to Dr Lai upon his admission to the A & E Department.  Nevertheless, even if the medical report should contain an error as submitted by counsel, it simply means that the plaintiff was consistent in his complaint.  It does not alter my analysis and findings above.

53.  I also agree with counsel for the 2nd defendant that the plaintiff has been inconsistency on how he developed the neck injury.  He gave different versions in his evidence at this trial, his police statement and his evidence at the magistracy.

Medical evidence

54.  Counsel for the plaintiff submitted that the symptoms complained of by the plaintiff including dizziness were consistent with whiplash.  Counsel in particular submitted that dizziness is not commonly known to be associated with whiplash.  Hence, the plaintiff’s complaint of dizziness showed that he indeed had suffered whiplash. 

55.  Dizziness as one of the symptoms of whiplash is not unknown or rarely known.  A number of the cases relied on by the parties on quantum for PSLA as referred to below showed that dizziness was associated with whiplash.  I do not want to speculate on why the plaintiff would complain about dizziness in addition to other symptoms.  There are however numerous articles on the internet saying that whiplash would produce dizziness.  In any event, I do not think this point alone can change the tide. 

Conclusion on liability

56.  On the whole, I prefer the 2nd defendant’s version as it is reasonable though I do not accept that he was cool, calm and composed after he had been rebuked by the plaintiff in their conversation in the middle of the road.  It was because his anger that he stopped the bus at Chatham Road and did not wait until the next bus-stop.  However, I do not think he was angry before he had been rebuked by the plaintiff as there was no provocation.

57.  I do not prefer the plaintiff’s version because the conduct of the 2nd defendant as described by him was inexplicable so much so that his counsel had to accept the he and the 2nd defendant had a conversation in the middle of the road when the 2nd defendant remonstrated with him about the initial accident.

58.  On the 2nd defendant’s case, it was difficult for the plaintiff to have suffered the whiplash as the plaintiff was in full control of himself and was fully aware of the actions by himself and by the 2nd defendant.  The speed of his bus was also very slow.  It was more likely than not that he was merely trying to start his bus moving when his way was blocked.

59.  Base on the above analysis and findings, I hold that the plaintiff has failed to prove his claim on a balance of probabilities.  I do not accept that the 2nd defendant had driven his car to the front of the bus in the way he described.  I also do not accept that he had suffered any injury in the cause of this event.  I therefore dismiss this action.

QUANTUM

60.  In case I were wrong on my finding on liability, I would also deal with the quantum for the plaintiff.

Injuries, treatment and prognosis

61.  The plaintiff was sent to the A & E Department of QEH because of the alleged neck injury.  The medical report by Dr Lee of the A & E Department stated that physical examination revealed tenderness of the paraspinal muscle of his neck.  There was no abnormality detected in the x-rays of the cervical spine.  He was discharged with analgesic and four days sick leave.  Dr Lee said in the report that permanent disability was unlikely to result from the injury.

62.  The plaintiff had followed up treatment in the Robert Black Health Centre for about two months and was referred to the Department of Orthopaedics and Traumatology of Caritas Medical Centre and Our Lady of Maryknoll Hospital.  He also received physiotherapy from Kowloon Hospital for two months.

63.  He started to complain of dizziness when he was receiving physiotherapy.  He was then referred to the Medical Department and the Ear, Nose and Throat Department of Caritas, but no abnormality was detected.

64.  MRI scan of the cervical spine performed on him on 3 November 2004 revealed a minimally bulging disc at C3/4, C4/5 and C5/6 without nerve root or cord compression.  He is still having follow-up treatment at the Department of Orthopaedics and Traumatology of Caritas once every one to two months and the Medical and ENT Department of Caritas once every one to two years.

65.  His present complaints include:

(a)	on and off neck pain especially at night which is aggravated by neck movement requiring relief by analgesic taken once a day.
(b)	on and off dizziness especially in the morning brought on by neck rotation or concentrating at a task.

The neck pain has improved as time goes on and it is mainly the symptom of dizziness that is troubling him now.

66.  His expert Dr Wong See Hoi has supplied three reports dated 10 July 2006 and 11 and 12 January 2007.  Dr Wong reported that the plaintiff walked with a stick and said that it was because of dizziness.  Dr Wong’s examination did not reveal any abnormality.  There was no problem with the range of movement of the neck.  The plaintiff may need continuous treatment on an “as and when required” basis in future.  Dr Wong assessed the plaintiff’s permanent impairment of the whole person at 5%.

67.  Dr Wong in the first report also stated:

“

Regarding his present orthopaedic condition, I believe he is able to resume his pre-injury work as a bus driver but with a reduction in efficiency and capacity as he still has those bizarre symptoms, like occasional dizziness.  It is expected that his neck plain may adversely affect his concentration span when driving.  Prolonged driving without rest may also aggravate his neck pain.  I would recommend him to prevent prolonged working, he should take a rest from his work and do some stretching exercise every hour to relieve his neck problem.”

In his second report, Dr Wong further said:

“

With on and off neck pain and dizziness, it is foreseeable that his concentration span in driving may be adversely affected.  As frequent turning of neck when observing road condition and prolonged sitting are required, his neck pain or dizziness would be aggravated leading to decreased efficiency.  Since it is important for a bus driver to ensure the safety of all passengers, I would recommend him to take a rest after each turn of driving and do some stretching exercise to relieve pain and discomfort.  Alternatively, he may take up moderate work such as watchman or gas station attendant, etc.”

68.  The defendants’ expert Dr Cheng assessed the plaintiff’s permanent impairment of whole person at 2%.  Dr Cheng also said the plaintiff could resume work as a bus driver. 

69.  Counsel for the plaintiff submitted that Dr Wong’s recommendations were unrealistic in the practical world of bus driving and a bus driver could not be expected to take a rest after each turn of driving and do some exercise.  I do not agree.  I think even for bus drivers who do not have any health problem, they should also take a rest and do some exercise after each turn.  Though there is no evidence in this case on whether bus drivers are afforded such opportunity at the end of each turn, we do see buses lining up at the terminals and their drivers only appeared when their turn came.  There is also no outcry by bus drivers that they have to drive continuously without rest.  After all, the job of a bus driver, though demanding, is not known to be a dreadful one.

70.  Counsel also drew my attention to my decision in Chan So Kwan v Mak Siu Kwan Victor & Another, HCPI 1487/2000 where I accepted that the plaintiff there could not return to her previous job as a bus driver for KMB.  However the plaintiff there was in a worse psychiatric condition than the plaintiff here.  Dr Wong has thoroughly examined the plaintiff and was aware of his conditions.  I accept Dr Wong’s opinion which sounds reasonable.  This is also the opinion of Dr Cheng.

71.  I find that the plaintiff can and should go back to his pre-injury job of a bus driver.  I also do not accept the plaintiff’s reason for joining the Voluntary Retirement Scheme within six months after the injury.  He said he could not predict when he could recover completely from the dizziness and hence sought retirement.  But he was then still on sick leave.  His dizziness might just disappear when the sick leave expired.  He would not know.  There was no need for him to retire because of the dizziness.

72.  On the sick leave period, since the dizziness does not prevent him from returning to work as a bus driver, I see no reason why he should be given sick leave for that.  The medical reports do not clearly show when did the neck pain subside.  The evidence however does not suggest that it was a very serious problem or that it had lasted a long period.  In the light of the low speed frontal impact described by him.  I accept the suggestion of the defendant’s expert Dr Cheng that six months’ sick leave would be enough for him.

PSLA

73.  The 1st case relied on by the plaintiff is Chan So Kwan v Mak Siu Kwan Victor & Another where a female bus driver suffered a whiplash injury in a traffic accident.  She was given $300,000 for PSLA.  But her psychiatric symptoms were very serious.  She had phobia for driving and had to retire.

74.  The 2nd case relied on by the plaintiff is Anil Jhuremalani v Rodelio O Fajada & Another, DCPI 134/2001.  The plaintiff there was a front seat passenger who sustained a whiplash in a traffic accident.  He had a permanent neck pain on rotation of the neck, neck stiffness, lethargy and insomnia.  The neck pain reduced his sessions of tennis from three to one per week or per fortnight and prevented him from doing Thai boxing.  Before the accident, he was a top amateur tennis player in Hong Kong.  His condition was slightly more severe than that of the plaintiff herein.  He was awarded $200,000 for PSLA.

75.  The 3rd case relied on by the plaintiff is Leung Siu Ping v Mak Sin Yee & Another, HCPI 831/2000.  The plaintiff there was involved in a traffic accident and sustained a whiplash injury, lacerations over her forehead and a contusion to her right eye with peri-orbital haematoma.  She continued to suffer neck pain and dizziness and her permanent impairment of the whole person was assessed at 5% because of the neck injury.  PSLA was agreed at $200,000. 

76.  The last case referred to by the plaintiff is Kwok Sui Shum Dorothy v Hui Lam Ho & Another, HCPI 375/2001 where a female sustained a whiplash injury in a traffic accident.  She was fully conscious after the accident and did not wait in the hospital for treatment, but she later developed residual symptom of periodic neck pain and numbness of left thumb and left forearm and psychiatric symptoms.  MRI showed central prolapse of disc at C3/4, C5/6 and C6/7 level.  Award under PSLA was $240,000 with a 40% discount for other contributing factors to her psychiatric symptoms.  But for the other contributing factors, this award would have been $400,000.  Her case was obviously more serious than that of the plaintiff in this case.

77.  The defendants rely on Chan Siu Youn v Ng Kam Nam, HCPI 533/1999 and Chiu Wing Sze v Chan Ying Wai, HCPI 616/1999.  Mr Chan Siu Youn suffered a whiplash in a traffic accident.  The occasional residual neck pain was a permanent feature and it was difficult for him to perform long hours of overhead ceiling work.  He was awarded $100,000 for PSLA. 

78.  Ms Chiu Wing Sze’s condition was closed to that of the plaintiff.  She also suffered a whiplash with residual back pain and was assessed to have 5% permanent impairment of the whole person.  She was awarded $150,000 for PSLA. 

79.  Having reviewed these cases, I conclude that I should award $150,000 to the plaintiff for his PSLA.

Pre-trial Loss of Earnings and MPF

80.  With six months sick leave and a salary of $17,240.90, the pre-trial loss of earnings plus MPF is $17,240.90 x 6 x 105% = $108,617.67.

Future Loss of Earnings and MPF

81.  Since the plaintiff can resume working as a bus driver, there is no future loss of earnings or MPF.

Loss of Earning Capacity

82.  I agree with counsel for the defendants that there is no evidence of any real or substantial risk that the plaintiff will lose his job with City Bus had he not chosen to retire about six months after his injury.  Following Moeliker v Reyrolle & Co. Ltd [1977] 1 WLR 132, I will not make any award under this heading.

Special Damages

83.  These are agreed at $50,295.

Interest

84.  I award interest at 2% for PSLA from the date of writ to the date of judgment and interest at half of the judgment rate for special damages from the date of accident to the date of judgment.

Costs

85.  Since I have dismissed the action for want of liability, I also make a costs order nisi that the plaintiff do pay the defendants the costs of this action and the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.