KONG KAN YING v. LI MAN KWONG

HCPI 755/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 755 OF 2013

(transferred from DCPI 134/2012)

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J U D G M E N T

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INTRODUCTION

1. This case concerns the plaintiff’s claim for damages for personal injuries suffered as a result of a traffic accident which happened at around 9:00 am on 19 January 2011, when the defendant was driving his private vehicle HP 3173 (“the Vehicle”) from Hong Keung Street towards Shung Ling Street and collided with the plaintiff, who was crossing Hong Keung Street in front of the Vehicle from the defendant’s left to right (“the Accident”).

2. On 27 April 2011, the defendant was convicted of the offence of careless driving upon a guilty plea at the Kowloon City Magistracy in relation to the Accident.

3. In paragraph 2 of the defendant’s Written Opening dated 22 July 2014, the defendant made clear that liability would be contested only to the extent that the plaintiff should bear half of the blame for the Accident – ie 50% contributory negligence.

4. In other words, primary negligence on the part of the defendant is conceded but the plaintiff should bear half of the blame for the way she crossed the road.

LIABILITY

5. The allegation of contributory negligence is based on the particulars set out in paragraph 6(a) to 6(g) of the Defence.  In a nutshell, the defendant alleges that the plaintiff emerged from the gap between two stationary public light buses into the path of the Vehicle, and in so doing failed to have any proper lookout for the road condition.

6. The plaintiff’s evidence material to the question of liability can be briefly summarised as follows:

(1) In the morning of the Accident, she was walking back to her hair salon located nearby.

(2) She waited for at least 10 seconds to check the road condition.

(3) At the time, the Vehicle was at the sub‑branch of Hong Keung Street about five vehicles’ length from her.

(4) She then walked slowly in crossing Hong Keung Street.

(5) Whilst she was in the middle of the road, the Vehicle started to move.

(6) When she was about to step onto the pavement on the other side, she was hit by the Vehicle.

(7) She was not sure if the Vehicle had moved after the accident.

(8) Her right leg was hit and she fell onto the front part of the Vehicle and she then fell onto the ground.

(9) It was the right hand side of the Vehicle that hit her right leg.

(10) The final position of the Vehicle was about an arm’s length from her body after the Accident.

7. The defendant’s evidence on the Accident can be briefly summarised as follows:

(1) In the morning of the Accident, he was looking for a parking space around Hong Keung Street.

(2) As the parking spaces along the sub-branch of Hong Keung Street were full, he decided to leave the area.

(3) At the intersection between the sub‑branch and the main‑branch of Hong Keung Street, he pulled up the Vehicle to check the traffic condition.

(4) He looked to the left to check the traffic on the main-branch of Hong Keung Street.  There was a vehicle coming. He waited for 2 to 3 seconds for the vehicle to pass.

(5) He then looked to the right to check the traffic.  At that time, he did not see any pedestrian at the roadside.

(6) The front part of the Vehicle was about 1.5 vehicles’ length from the right side of the public light buses which were parked along the main-branch of Hong Keung Street.

(7) The total time he spent on looking left, right and left was about 5 seconds.

(8) After that, he looked ahead and then turned right from the sub-branch onto the main-branch of Hong Keung Street.

(9) He drove the Vehicle slowly at about 5 km/hour.  After he drove forward for about 1/4 of the Vehicle’s length, he suddenly saw the plaintiff at about 1 foot away from the right front of the Vehicle.

(10) He immediately applied the brake and stopped the Vehicle, yet the right front of the Vehicle still collided with the plaintiff.

8. I agree with Mr Peter K C Wong, counsel for the plaintiff, that on the whole, even if the defendant’s evidence is accepted, the defendant has still failed to discharge the burden of proof on him to show that the plaintiff was to blame in any way for the Accident.  As stated above, the defendant’s evidence is that after checking left for the second time, he looked to the front and turned right.  All of a sudden, the plaintiff appeared only 1 foot in front of the right side of his Vehicle and he did not know why she was there.

9. There is simply no evidence that the plaintiff had dashed out from the space between two public light buses so as not to afford any chance for the defendant to react.  On the contrary, there is undisputed evidence that the plaintiff was hit in the middle of the road by the offside front part of the headlight/bumper of the Vehicle.  I agree that this piece of evidence is sufficient for the court to conclude that the defendant was wholly to blame for the Accident.  The plaintiff must have already walked across the front of the Vehicle from left to right by the time the defendant noticed her.  This was not a case where the plaintiff had dashed out in front of the Vehicle.

10. The defendant argued that the plaintiff chose a bad spot to start crossing the road.  Again, this is not supported by any evidence.  With or without the public light buses, the defendant should have seen the plaintiff because the Vehicle was facing the parked public light buses as the defendant commenced the right turn.  It was not a situation where the Vehicle was travelling parallel to the parked public light buses along Hong Keung Street, and the plaintiff was hidden between two public light buses.

11. The defendant further argued that the plaintiff was not crossing the road at the proper angle.  This is also unsupported by the evidence.  At the time when the plaintiff was crossing the road, she did not have her back facing the traffic.  The sketch drawn by the plaintiff suggested that she was indeed facing the Vehicle while she was crossing the road.

12. For the reasons stated above, I hold that the plaintiff should not bear any responsibility for the Accident and there was no contributory negligence on her part.

QUANTUM

13. I turn now to deal with the quantum of damages.

Plaintiff’s background

14. The plaintiff was born in 1974 and aged 36 at the time of the Accident.  She is now 40 years of age.

15. The plaintiff was born in the PRC and educated up to Secondary Form 1 standard.  She came to Hong Kong in around 2002.  She is married with two children.  At the age of around 17 or 18, she became a hair‑stylist apprentice in the PRC.  Subsequently, she was employed as a hair stylist in various salons in the PRC.

16. In July 2009, the plaintiff opened a hair salon (“the Salon”) in the San Po Kong area.  The plaintiff hired 1 to 2 staff to run the Salon, and she worked from 8:00 am to 8:00 pm for six days per week before the Accident happened.

Injuries and treatment

17. Immediately after the Accident, the plaintiff was admitted to the Accident and Emergency ward of the Queen Elizabeth Hospital.  X‑ray examination showed fracture of the pubic ramus superior and inferior.  Further examinations showed decreased range of motion of the right hip, with pelvis stable but left hip axial painful.

18. The plaintiff was hospitalized for nine days and had been treated at the Intensive Care Unit for around three days.  No surgery was done.  She was treated conservatively.

19. On discharge, the plaintiff was on wheelchair.  She was taught walking exercise with frame during hospitalization.

20. From March to June 2011, the plaintiff underwent four sessions of physiotherapy at the Our Lady of Maryknoll Hospital.

21. The plaintiff attended a further 12 sessions of physiotherapy at the Queen Elizabeth Hospital from July to September 2011. As at 11 August 2011, the plaintiff reported a 50% improvement of her condition.

22. Physiotherapy progress report dated 6 September 2011 showed that the plaintiff reported an overall improvement of 80‑90%, but still complained of left hip pain on prolonged standing, walking and sitting. Examination revealed Active Range of Movement of hip (right/left), flexion: 120/115 degrees; abduction: 45/40 degrees.

23. The joint physical examination of the plaintiff conducted by the two medical experts on 6 August 2012 revealed, inter alia, the following:

(1)   Normal gait, able to walk on tiptoes and heels bilaterally, to perform stable unilateral standing bilaterally, and to squat fully.

(2)   The pelvis showed no swelling, deformity or limb length discrepancy, with compression test negative, full and symmetrical hip flexion and extension, internal and external rotation 45°, and abduction/adduction 30° symmetrical bilaterally.

(3)   Normal sensation of the lower limbs and buttocks.

24. Further,both experts in their Joint Medical Report dated 26 September 2012 agreed that the sick leave period from the date of the Accident up to 7 September 2011 was reasonable, and opined that the plaintiff could return to her pre‑accident work as a hair stylist.

25. The experts differed on the whole person impairment of the plaintiff, being assessed at 2% by Dr Chun and 5% by Dr Fu respectively.  The difference is only slight.

26. The plaintiff still has the present complaints:

(1)   Distending pain at the pelvis, at bilateral groin, buttocks, bilaterally down the medial thighs and the upper legs, day and night continuously; and

(2)   Knife cutting pain both buttocks intermittently.

Pain, suffering and loss of amenities (“PSLA”)

27. This court has been referred to a number of local cases in respect of past awards for PSLA.  Those cases referred to are contained in the written submissions of both counsel for the respective parties.  It is not necessary for me to go into the details of those past awards save to say that they serve as a useful guideline for making the award which should be assessed under this head of damage.

28. I agree with Mr Victor Gidwani, counsel for the defendant, that the proper award for PSLA in this case should be $150,000.

29. Mr Gidwani relies in particular on the following three cases: Chan Ha v Lee Hon Ming, HCPI 414/2001 (Judgment dated 7/07/2007); Chan Kwok Wah v Tsoi Leung Ming,DCPI 412/2004 (Judgment dated 24/06/2005) and Leung Ho Mimi v Morning Corporation Ltd, DCPI 440/2005 (Judgment dated 14/06/2006).

30. I agree with Mr Gidwani that the injuries suffered by the plaintiffs in the above cases are similar to those suffered by the plaintiff in the present case.  In all the circumstances of this case, I take the view that the proper amount of damages to be assessed for PSLA should be $150,000.

Pre‑trial loss of earnings

31. In July 2009, the plaintiff set up the Salon in San Po Kong.  The rental agreement showed that the plaintiff paid a monthly rental of $8,500.  The lease was for three years running from 1 July 2009 up to 30 June 2012.

32. The plaintiff was actively involved in the management and operation of the Salon.

33. According to the tax return for the year of assessment 2010/11, the plaintiff made on average a monthly after tax net profit of $66,143.

34. I am prepared to accept the figure of $66,143 as the monthly income of the plaintiff before the Accident for the calculation of loss of earnings.  This figure is by and large supported by the documentary evidence available in this case, including the tax returns, the profit and loss table prepared by the plaintiff’s accountants, the plaintiff’s handwritten books and ledgers, and importantly, the plaintiff’s savings account passbooks.

35. Relying on the opinion of the two medical experts that the plaintiff was able to return to her pre‑accident work (see: paragraph 24 above), the defendant submitted that the plaintiff is not entitled to any damages for pre‑trial loss of earnings beyond the expiry of the 232‑day sick leave period on 7 September 2011. 

36. The plaintiff argued that this is wholly unrealistic.  Mr Peter K C Wong submitted, and I agree, that running a business is different from working as an employee.  For the latter, the injured person can more or less immediately resume earning his monthly salary by reporting to work after recovering from his injuries.  On the other hand, to run a hair salon, one needs to manage the staff, build up and maintain the customer base, maintain a good image, to advertise, as well as to oversee the day‑to‑day business.  In other words, the plaintiff could not reasonably be expected to be able to restart her business and to earn a similar level of income immediately after the expiry of sick leave.

37. The plaintiff further submitted that, if not for the Accident, it is reasonable to infer that the plaintiff should be able to maintain her monthly net profit at least up to the expiry of the lease for the Salon, ie 30 June 2012.  I agree.

38. On this basis, the plaintiff should have been able to earn the net sum of $1,144,273 from the date of the Accident up to 30 June 2012 (ie $66,143 x 17.3 months).

39. Instead of making a profit, the plaintiff in fact sustained a loss of $51,567 during the same period (the calculation of which is set out in paragraph 31 of the plaintiff’s Written Opening).

40. Accordingly, the total amount of damages for pre‑trial loss of earnings should be $1,144,273 + $51,567 = $1,195,840.

41. I do not consider that the plaintiff is entitled to any further damages for loss of earnings beyond 30 June 2012, which is more than nine months after the expiration of sick leave on 7 September 2011.

Post-trial loss of earnings

42. Relying on the expert opinion that the plaintiff was able to return to her pre‑accident work by 7 September 2011 with only mild reduction of work efficiency, and may need some rest after every one to two hours of standing, Mr Gidwani submitted that the plaintiff is not entitled to any damages under this head.  Mr Gidwani further submitted that in her normal course of work, there should be intermittent breaks in any event – eg, when there was no client or during her smoking breaks.  Taking a rest after one to two hours of work should not cause any loss of profits.

43. I fully agree with the defendant’s submissions in this regard and hold that no damages should be awarded under this head.

Loss of earning capacity

44. I also agree with the defendant that the plaintiff is not entitled to any damages under this head.

45. To succeed under this head, the plaintiff must first prove that she is under a real and significant risk of losing her present employment before she is entitled to general damages for loss of earning capacity.  There is no such evidence.  Even accounting for her mildly reduced work efficiency, it remains unlikely that she will suffer any disadvantage in the hairdressing industry as such.

Special damages

46. For special damages, parties have agreed to the respective sums of $18,170 and $1,000 for medical expenses and travelling expenses.

47. Regarding the $5,000 claimed for tonic and nourishing food, the defendant agrees to a sum of $2,000 in the absence of any supporting documentary evidence for such claim.

48. In dealing with this claim, I take into account the prolonged period of sick leave that had been granted to the plaintiff and therefore the longer time taken for her rehabilitation.  In those circumstances, it would be reasonable to award the full sum of $5,000.

49. The total amount assessed under this head therefore comes to $24,170.

Summary on quantum

50. In summary, the total amount of damages is assessed as follows:

(1)	PSLA	$150,000
(2)	Pre‑trial Loss of Earnings	$1,195,840
(3)	Post‑trial Loss of Earnings	Nil
(4)	Loss of earning capacity	Nil
(5)	Special damages	$24,170
	Total:	$1,370,010

51. Interest is allowed at 2% per annum on general damages for PSLA from the date of the Writ to the date of judgment.

52. On pre‑trial loss of earnings and other special damages, interest is allowed at 4% per annum (being half judgment rate) from the date of the Accident to the date of judgment.

CONCLUSION

53. Accordingly, there will be judgment to the plaintiff against the defendant for the sum of $1,370,010 together with interest thereon as aforesaid.

54. I make a costs order nisi that the defendant do pay to the plaintiff the costs of this action, such costs to be taxed if not agreed.  The costs order nisi shall become absolute in the absence of application to vary within 14 days.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

55. Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.