YIU YUET CHI v. YICK KAI CHEUNG AND ANOTHER

HCPI 291/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 291 OF 2006

------------------------------

------------------------------

------------------------------

J U D G M E N T

------------------------------

1. This action arises out of an accident which befell the plaintiff a then 49-year-old accounts clerk on 22 April 2003.  It is not disputed that she was on her way to work at around 10 a.m. that day and had started to cross Wah King Hill Road when she was struck by a public light bus (“PLB”) driven by the 1^st defendant and owned by the 2^nd defendant.  She suffered injuries including those to her right shoulder, head and face. 

2. She claims damages based on the alleged negligence of the 1^st defendant.  

3. The defendants deny any negligence but the 2^nd defendant accepts that he would be vicariously liable if there was a finding of negligence on the part of the 1^st defendant.  

4. No criminal proceedings were instituted against the 1^st defendant.  The plaintiff was summonsed for the offence of being a pedestrian negligently having endangered herself, contrary to section 48 of Road Traffic Ordinance, Cap. 374.  She was acquitted after a trial in which she elected not to give evidence. 

THE PLAINTIFF’S ACCOUNT

5. The plaintiff’s evidence was that she had left home a little later than usual that morning and was looking for a taxi to take her to inspect one of her employer’s projects.  Having failed to find a taxi in the vicinity of the block where she lived she walked down Wah King Hill Road until she reached a spot just past the entrance of Carmel Alison Lam Foundation Secondary School where there was a break in the railings that separated the pavement from the road and a pedestrian island in the centre of the road.  She stopped and looked to see if there were any taxis in the vicinity.  There were none.  She decided to cross the road and wait for a taxi on the other side.  Before she crossed the road she looked to the right and noticed a stationary public light bus which was picking up a female passenger in the vicinity of a fire hydrant some six to eight PLB van lengths from where she was standing.  Bearing in mind that it was stationary and that the female was just stepping into the vehicle she believed she had sufficient time to cross the road.  She said that she had then started to cross the road at what she described as “a bit faster” pace than usual.  She said that she made what seemed to be one step before she must have been hit.  She had no idea of the speed of the vehicle.  Indeed she had no recollection of what had occurred before she woke up in hospital. 

THE 1^ST DEFENDANT’S ACCOUNT

6. The account of the 1^st defendant, a 72-year-old PLB driver, was quite different.  He accepted that there was a PLB stop at the place where the plaintiff said she had seen a stationary PLB but denied that he had stopped his vehicle there.  He had slowed down to see if there were any passengers wishing to board his vehicle there but had then driven on.  He was then travelling in 3^rd gear at just over 30 kph about 1 metre from the kerb.  

7. It was only just before reaching the place where the accident occurred (he described it as about a vehicle’s length) that he noticed two to three pedestrians on the pavement walking in the same direction as his PLB was travelling.  He believed that the plaintiff was in front of this group.  The pedestrians were separated from the roadway by a metal barrier but they were close to the opening.  Since none of the pedestrians were turning or showed any other sign that they were about to cross the road and no other pedestrian was standing at the gap in the barrier waiting to cross the road, he had not slowed his vehicle down. 

8. He said that the plaintiff suddenly had “hurried out” from the pavement into the path of his vehicle.  He had had no time to sound his horn but had swerved his vehicle, however it was too late. 

9. It is common ground that the speed limit was 50 kph on that stretch of road and that the weather was fine and dry on the day in question.  The position of the blood stains on the ground and the plaintiff’s bags visible in the photographs taken after the accident are consistent with her having been very close to the pavement at the time she was hit. 

10. In the statement which the plaintiff made to the police on 22 June 2003 she made no mention of ever having seen a stationary PLB before crossing the road.  She had stated that she had no recollection of anything that occurred after she reached the outside of the school.  In her evidence in court the plaintiff explained her statement by saying that she had regained some recollection of what had occurred when she visited the scene after receiving the summons from the magistrates’ court alleging negligence.  It is noteworthy however that during course of the trial in the magistrates’ court on 16 January 2004, nine months after the incident, it was never suggested to the 1^st defendant in cross-examination by her counsel that he had stopped his PLB to pick up a passenger higher up Wah King Hill Road. 

11. I am satisfied that the plaintiff’s present account cannot be correct.  Bearing in mind that the accident occurred when she cannot have been much more than a metre from the pavement, there simply would not been insufficient time for the PLB to have started to move from the place she indicated and to have reached her if she had started to cross the road immediately after she had seen a female passenger entering the vehicle. 

12. Even the plaintiff was at a loss to explain how it was possible for the PLB she had seen stationary further up the road to have had time to reach her. 

13. There is nothing to contradict the 1^st defendant’s evidence that he was driving at a relatively slow speed of just over 30 kph.  Indeed there is evidence which supports the 1^st defendant in this regard.  Madam Lung Mei Yue, a passenger in the PLB, both in her witness statement and in her evidence in the magistrates’ court stated that the vehicle was not travelling very fast.  From the photographs taken by the police of the scene after the accident, it is apparent that the 1^st defendant managed to stop the PLB very close to where the impact had occurred.  There were no tyre marks on the road to indicate a sudden application of the break.  The position of the PLB is consistent with it having been moving at a relatively low speed.  Furthermore the clinical history taken at Caritas Medical Centre, where the plaintiff was taken after the accident, states that there was no loss of consciousness and that the plaintiff was “hit by a van (low velocity)”.  There is nothing in the notes to suggest that that history was not provided by the plaintiff herself. 

14. Even Mr Wong, the plaintiff’s counsel, conceded in his final submissions that the plaintiff’s account of how the accident had occurred was improbable.  He nonetheless submitted that the 1^st defendant’s account provided evidence of contributory negligence.  This submission was based upon the fact that higher up Wah King Hill Road, before the entrances to a housing estate and the school there was a warning sign that there might be pedestrians on or crossing the road ahead, the fact that the accident occurred at an uncontrolled pedestrian crossing and the point at which the 1^st defendant said he first observed the pedestrians including the plaintiff. 

15. I have carefully considered these submissions.  In the light of the road sign it was incumbent on the 1^st defendant to pay particular regard to pedestrians on that stretch of road.  While it is understandable that he should have been paying attention to the road junction beyond the school and despite the fact that there was a barrier separating the road from the pavement, I find it to be fair criticism of the 1^st defendant that he did not observe the pedestrians on the pavement until he was a very short distance from them. 

16. However I did not find that evidence inconsistent with his account that the plaintiff had not shown any indication that she was about to cross the road.  If she was at the end of the barrier it would have only taken one or two steps for her to bring herself into the path of the 1^st defendant’s PLB. 

17. The question that the court has to consider is whether the plaintiff has established that the failure of the 1^st defendant to observe her earlier contributed to the accident.  In other words, has the plaintiff shown that if the 1^st defendant had observed the pedestrians earlier he would have been in a position to and should have taken steps at that time to avert the accident?

18. I do not find that the plaintiff has demonstrated that to be the case. 

19. Even at the point the 1^st defendant admits that he first observed the pedestrians, bearing in mind that none of the pedestrians gave any indication that they were about to cross the road, he did not consider that there was any need to take the precaution of slowing the PLB still further.  Even if the evidence had shown that the plaintiff was walking towards or waiting at the side of the road in order to cross rather than simply walking ahead I consider that would have been a reasonable view to take unless there had been something else to suggest that the plaintiff might unexpectedly disregard her own safety and cross the road.  The position would not have been any different if the 1^st defendant had observed the pedestrians earlier. 

20. The words of Lord Dunedin in Fardon v. Harcourt-Rivington [1932] 146 LT 391, 392 are often cited in this sort of case :

“

… If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.”

21. I find there was nothing to indicate to the 1^st defendant that the plaintiff would not exercise the care of a reasonably prudent pedestrian and might walk into the path of his vehicle. 

22. In my view, a driver is not obliged to sound his horn or slow down to a crawl on the off chance that an adult pedestrian who has shown no sign of doing so, might act dangerously. 

23. The situation in this case can be distinguished from that in the case of Kong Chung Ching & Another v. Lam King Ho & Another [1992] 1 HKC 104 relied upon by Mr Wong where it was proved that the pedestrian had climbed over the railings separating the pavement from the road and was not looking in the direction of oncoming traffic.  

24. I find that the plaintiff has not proved any negligence on the part of the 1^st defendant.  

25. This action must therefore be dismissed against both defendants. 

Quantum

26. If I had found any liability on the part of the defendants I would have assessed damages as follows :

27. Following the accident the plaintiff was sent to Caritas Medical Centre by ambulance.  She was found to have right facial swelling with laceration/wounds over her right forehead and right upper lip, fracture of her right 2^nd and 3^rd ribs, cerebral contusion with oedema, right orbital wall fracture with orbital emphysema and dislocation of her right acromio-clavicular joint (“ACJ”). 

28. She was transferred to St Teresa’s Hospital where she underwent emergency surgery on 23 April 2003.

29. Chest X-ray there revealed fracture right 4^th rib.  There were also multiple foreign bodies in the eye ball.  Exploratory surgery for the removal of foreign bodies and repair of the orbital wall with titanium mesh was performed on 28 April 2003.  After the surgery, she still suffered persistent dizziness so that a MRI brain was performed on 2 May 2003.  The MRI revealed a thin rim of subdural blood clot and diffuse axonal injury of brain.  It was treated conservatively.  The right ACJ was reduced and fixed on 5 May 2003.  The screw for fixing the right ACJ was removed on 18 July 2003.  She then received a lengthy course of physiotherapy for her right shoulder.   The plaintiff also received plastic surgery for the right eyelid scar on 27 May 2003 and 7 July 2003 in St Theresa Hospital.”

30. Damages for pain suffering and loss of amenities were agreed in the sum of $350,000. 

31. The plaintiff’s pre-accident salary of $27,083 per month was admitted.  The plaintiff withdrew her claim that the accident had resulted in a reduction of her salary after the period of her sick leave.  

32. The plaintiff’s pre-trial loss of salary during her sick leave from 22 April to 30 November 2003 (217 days) was not disputed.  Her loss of salary was therefore $27,083/30 x 217 days = $195,900.  

33. Her pre-trial loss of Mandatory Provident Fund contribution was therefore $195,900 x 5% = $9,795. 

34. The plaintiff’s claim for nourishing food was agreed in the sum of $5,000. 

35. Hospitalisation and Accident & Emergency charges totaling $200 at Caritas Medical Centre were agreed. 

36. The medical expenses of Dr H.K. Li of $400 and Dr T.T. Lee of $18,390 were also agreed. 

37. The matters in dispute were :

(a)	whether the plaintiff should be entitled to the cost of her private treatment in a 2nd class ward at St Teresa’s Hospital ($403,410) and private physiotherapy sessions ($23,760) thereafter;
(b)	whether the plaintiff should be entitled to the costs of travel by taxi to medical and physiotherapy appointment from her mother’s flat in Pokfulam;
(c)	the costs of future medical treatment; and
(d)	damages for loss of earning capacity.

Medical expenses

38. The plaintiff’s evidence was that it was her younger sister who had recommended that she be transferred to St Teresa’s Hospital rather than remain in the Caritas Medical Centre.  The plaintiff was in a financial position to afford private medical care as she had been paying premia on a hospitalisation insurance policy for some years.  Her treatment was in a 2^nd class ward at St Teresa’s Hospital.  There is nothing to suggest that this was an unreasonable decision or that the expenses in St Teresa’s were disproportionate to the actual cost of the treatment she received.  I am satisfied that the costs of private treatment in hospital ($403,410) and subsequent physiotherapy ($23,760) would have been recoverable. 

Travelling expenses

39. The claim for travelling expenses by taxi from her mother’s home from Pokfulam was as follows :

(a)	for physiotherapy session in Central :
	65 visits x $110	=	$7,150
(b)	for travel to St Teresa’s Hospital :
	15 visits x $240	=	$3,600
(c)	for travel to Dr T.T. Lee :
	21 visits x $250	=	$5,250
(d)	for travel to Dr Danny Choi :
	4 visits x $250	=	$1,000
(e)	for travel to Dr To Wai Hei :
	1 visit at $250	=	$250
(f)	for travel expenses to Dr H.K. Li :
	1 visit at $250	=	$250
	Total :		$17,500

40. Bearing in mind the nature of the plaintiff’s injuries I consider that the plaintiff was justified in seeking to avoid infection that might have resulted from travelling on public transport.  The figure of $17,500 would have been recoverable. 

Costs of future medical treatment

Plastic surgery

41. Dr Chow Sik Kuen recommended that the plaintiff undergo further cosmetic surgery at a total cost of $132,900 (see page 287 of his report of 1 October 2005).  Dr Nicolson recommended more limited surgery at a cost of $49,000.  The principal difference apart from cost between the two recommendations is whether she should have treatment for the minor depression on the right side of her face.  Dr Chow said it is a safe procedure.  Dr Nicolson advised against such an operation in view of possible complications and an unpredictable end result.  In the absence of oral evidence I cannot resolve the question of the safety of such an operation.  

42. On the basis of the evidence before me, I would have been prepared to allow the $49,000, being the cost estimated by Dr Nicolson.  

Shoulder surgery

43. Dr Fu Wai Kee in his report of 29 June 2005 recommended that the plaintiff undergo arthroscopy of her right shoulder, lysis of adhesions and repair of torn tendon if found in arthroscopy in order to relieve her shoulder pain.  His recommendation was based on the proposition that reduction of the plaintiff’s dislocation of her ACJ joint was necessary to regain normal movement and prevent complications. 

44. Dr Lam Kwong Chin on the other hand, while accepting that the joint was still widened said in his report a year later that it should carry no functional or cosmetic significance and that no further treatment was required. 

45. He pointed out that Dr Danny Tsoi had reached the same conclusion in September 2004 and it stated that the plaintiff’s right shoulder had reached a stage of maximal medical improvement.  Although Dr Fu disagreed with Dr Lam’s view that the widened joint was of no functional or cosmetic significance he did indicate that the risks of the operation included infection, injury of surrounding nerve and blood vessels, persistence of pain and risks of general anesthesia.  

46. Although this operation was recommended by Dr Fu 2½ years ago, the plaintiff still has not chosen to undergo it.  Although in evidence she stated that she was prepared to undergo the operation I am not persuaded that, if the conflicting views of doctors was explained to her, she would be prepared to accept the risks or indeed that on balance, the potential though not guaranteed benefits outweigh the risks. 

47. I would have disallowed the claim for further surgery on the plaintiff’s shoulder. 

Loss of earning capacity

48. The applicant has been working for the same employer for over 30 years and continues to work for them.  The risk of her losing her employment now is slight.  She is able to continue to perform her work as accounts clerk.  Bearing in mind her age and the nature of her work I do not consider her injuries will have any effect on her earning capacity.  I would have disallowed the claim under that head.  

Summary

49. I would accordingly has assessed damages as follows :

(a)	PSLA	$350,000
(b)	Pre-trial loss of earnings	$195,900
(c)	Pre-trial loss of MPF contributions	$9,795
(d)	Future medical expenses	$49,000
(e)	Special damages :
	Hospitalisation (Caritas Medical Centre)	$200
	Hospitalisation (St Teresa’s Hospital)	$403,410
	Dr H.K. Li	$400
	Dr T.T. Lee	$18,390
	Physiotherapy	$23,760
	Travelling expenses	$17,500
	Nourishing food	$500
	Total :	$1,068,855

50. The employees’ compensation of $490,733.33 received by the plaintiff would have had to be deducted from any damages awarded. 

51. In view of my dismissal of the plaintiff’s claim I make the following order nisi as to costs that unless any party applies within 14 days to be heard on the question of costs the costs of the 1^st and 2^nd defendants be taxed and paid by the plaintiff.