HO HING YUEN v. LEE WAI KAI

HCPI 58/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.58 OF 2003

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J U D G M E N T

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1. This is a claim brought by the plaintiff, suing by his father and next friend, against the defendant for damages for personal injuries caused to the plaintiff in a traffic accident which occurred about 5.40 a.m. on 1 November 2000 when the plaintiff was knocked down by a light goods vehicle (Registration no. HX 3452) driven by the defendant along Chuk Yuen Road outside the Chuk Yuen Shopping Centre, Kowloon.

2. It is alleged that the defendant was negligent in that the defendant :

(a) failed to keep a proper lookout;

(b) failed to see the plaintiff in sufficient time to avoid the collision;

(c) failed to give any adequate warning of his approach;

(d) driving too fast; and

(e) failed to stop, slow down or swerve to avoid hitting the plaintiff.

3. The defence denies negligence and pleads that the plaintiff emerged suddenly without warning from in front of a double decker bus parked on the nearside lane of the westbound carriageway of Chuk Yuen Road into the path of the defendant's vehicle and that despite all reasonable care, the defendant could not avoid the accident.

4. As such it is alleged that the accident was caused wholly or contributed to by the plaintiff.

The accident

5. As a result of that accident, the plaintiff sustained (inter alia) a severe head injury with skull fracture. This severe head injury has resulted in multiple impairments in the plaintiff's cognitive functions including general intelligence. It has also diminished the plaintiff's comprehension and ability to communicate. Furthermore the plaintiff suffers from global aphasia in that the plaintiff now has an almost total loss of language ability.

6. Because of the disability suffered by the plaintiff from the accident, the plaintiff was in no position to give evidence as to how the accident occurred.

7. The only evidence of how the accident occurred came from the defendant, both from the statement given by him to the police investigating this accident and from his witness statement and evidence in this matter.

8. According to the defendant, at about 5.43 a.m. on 1 November, he was driving along the westbound carriageway of Chuk Yuen Road heading towards Tuen Mun, having come from his home at Shatin Pass Estate. He was driving in third gear at a speed of 45 to 46 kph. The speed limit for that part of the road was 50 kph. As it was still dark, he had his headlights on. The streetlamps were also lit. The weather was fine and the road was dry. On that stretch of Chuk Yuen Road, there were a number of vehicles parked on the inner lane on his left hand side. He was travelling on the outer lane. He did not see any pedestrian waiting in the gaps between the parked vehicles to cross the road. When he came to outside the Chuk Yuen Shopping Centre, (the plaintiff) suddenly ran out without warning from a gap between a stationary bus and a coach both of which were parked on the left side of the road on which he was travelling. He first saw (the plaintiff) about four feet from the front of his vehicle. The (plaintiff) did not stop and did not look at his vehicle but instead was looking straight ahead. He could not see (the plaintiff) before (the plaintiff) ran out from the gap.

9. The defendant admits that he did not sound his horn before the collision. However he knew that part of the road well as he had been driving along that road for the past one year regularly.

10. He also gave evidence that because of the number of vehicles parked along the inner lane, he had driven more to his right (i.e. closer to the central refuge in the middle of the road to his right side) leaving a gap of some 1.5 metres between his vehicle and the parked vehicles on his left side.

11. When the plaintiff ran out from the gap, he had immediately braked and was able to stop his vehicle immediately without skidding. Nevertheless he could not avoid hitting the plaintiff with the nearside front of his vehicle. The plaintiff was thrown the length of one and a half light goods vehicle from the point of collision.

12. When he was cross-examined, the only matter of any significance to emerge was that while in his statement he referred to the bus (in front of which the plaintiff had ran out) as being stationary and parked in the inner lane of the road, but when cross-examined he said that this bus was a KMB double decker bus which was setting down/picking up passengers at the time.

13. Although this is a departure factually from what was stated in his statement (and therefore his evidence-in-chief) it will be seen in the latter part of this judgment that this factual difference does not in any way alter my decision on liability in this case.

The other evidence

14. As already stated, there was no other evidence from any other witness as to the occurrence of the accident apart from the defendant.

15. However, there was produced into evidence a sketch plan prepared by PC 34445 and also photographs taken of the defendant's vehicle at the scene shortly after the accident.

16. The sketch plan does not show the position of the injured person. That is because when PC 34445 arrived at the scene, the plaintiff had already been taken into the ambulance and was receiving emergency first aid treatment in the ambulance. The sketch plan also does not show any skid marks. To that extent it may support the evidence of the defendant that he was able to stop without skidding.

17. As for the photographs they show the damage to the nearside windscreen of the defendant's vehicle which again supports the defendant's evidence that it was the nearside front of his vehicle which hit the plaintiff.

18. The photographs also show that the position of the defendant's vehicle was very close to the central refuge in the middle of the road and again support the defendant's evidence that he had driven more to his right and closer to the central refuge in the middle of the road.

19. There is nothing in the documentary evidence which contradicts in any way the evidence given by the defendant.

Finding of facts

20. In so far as the slight factual difference between the statement of the defendant and what he said in cross-examination which I have already referred to above, I am of the view that this difference came about by reason of the fact that what was stated in his witness statement was an oversimplification of his evidence and that the correct details of the matter was as stated by him in his cross-examination, namely that it was a double decker KMB bus setting down or picking up passengers.

21. In the absence of any other evidence to challenge the evidence given by the defendant, but rather both the sketch plan and the photographs support those parts of the defendant's evidence which I have already referred to, I find the facts of this case to be as stated by the defendant in his evidence as summarized by me above.

Liability

22. On the issue of liability, counsel for the plaintiff was content to accept the evidence given by the defendant as to how this accident occurred. In the circumstances the plaintiff was in, it is difficult to see what else she could have done.

23. Upon those facts as recounted by the defendant, counsel for the plaintiff submitted that the defendant had conceded in his evidence that he had realized that there was a possibility that pedestrian may emerge from between the gaps of the parked vehicles to his left. On that basis, it was submitted that the defendant was negligent in not sounding his horn to warn of his approach. It was also submitted that the defendant ought not, with the realization of such possibility in mind, have travelled at the speed of 45 to 46 kph. Initially counsel for the plaintiff was hesitant to suggest what would be a reasonable speed in the circumstances despite submitting that 46 kph was an excessive speed. However, when pressed on this aspect, she submitted that a reasonable speed in the circumstances ought not to exceed 20 kph.

24. It was also submitted that the defendant was also negligent in not flashing his headlights to alert possible pedestrians who might possibly emerge from between the gaps of the parked vehicles.

25. Thirdly, it was also submitted that the defendant ought to have sounded his horn as he was passing that line of parked vehicles on his left and that he was negligent in failing to do so.

26. I do not accept any of those submissions by counsel for the plaintiff.

27. As for the speed, it is common ground that the speed limit of that stretch of Chuk Yuen Road was 50 kph. His speed of 45 to 46 kph was within the speed limit of the road. Circumstances in the road may make it such that one must drive well below the speed limit as for instance if the road was so full of people and cars that it would be negligent to drive close to but below 50 kph. However those instances must be rare. In the present case, the evidence from the defendant was that immediately before the accident, there were very little pedestrian traffic in the vicinity and that there were no vehicles travelling on the road in front of him.

28. The fact that a long line of cars were parked on the inner lane without more is, in my view, not such circumstances as would impose a duty upon a normal reasonably competent driver to slow down to well below the speed limit of 50 kph.

29. As for his failure to flash his headlights, the evidence of the defendant, which I have accepted, was that at the time, it was still somewhat dark, and he had his headlights on. I cannot see how in those circumstances he should be under a duty to keep flashing his headlights instead of just having them on or how that would make a difference.

30. Thirdly, as for the failure to sound his horn, with the greatest respect to counsel for the plaintiff, this submission was made with a total disregard for the fact that at the time it was before 6.00 a.m. in the morning in a residential district of Kowloon. It would be wholly unreasonable for any driver to have to continuously sound his horn just because he was passing a long line of parked vehicles on his left hand side.

31. Indeed counsel for the plaintiff went as far as to suggest that the defendant was under a duty to expect that a pedestrian may run out from between the parked vehicles as distinct from a duty to expect pedestrians to emerge from between the parked vehicles.

32. To say that a reasonable and competent driver is expected to have to guard against pedestrians running out (as opposed to emerging) from between parked vehicles as in the present case is to put the duty of care far too high on a driver.

33. Counsel for the plaintiff sought to rely on the judgments of three cases to support her proposition that a driver is under a duty to expect that pedestrians may run out into his path from between parked or stopped vehicles. The three cases relied on are :

(a) Chan Siu Lun v. Hui Cho Yee and anr., CACV No.124 of 1998;

(b) Moore v. Poyner [1975] RTR 127; and

(c) Lau Shun Hing v. Ng Ching Hung [1991] 1 HKC 179.

34. However, on a close reading of the judgments in all three cases, they are either readily distinguishable from the present case on facts or do not support the proposition advanced by counsel for the plaintiff.

35. On the facts of Chan Siu Lun's case, there is nothing in the judgment to suggest that the plaintiff in that case could not have been seen by the driver even when he was crossing the gap between stationary vehicles going downhill if the driver had kept a proper lookout.

36. Moore v. Poyner is a case involving a child which is not so in the present case.

37. Lau Shun Hing's case contains a somewhat misleading headnote which reads :

"Held, allowing the appeal :

In the circumstances of this case, there was an appreciable risk that a passenger who had alighted from the maxicab might be hidden by the maxicab and that he might run into the path of the defendant's light good vehicle." (my emphasis)

38. However, when the full judgment of Power JA in the Court of Appeal is gone into, what is stated in the headnote is not reflected and indeed the judgment of the Court of Appeal does not in the least lend support to the proposition advanced by counsel for the plaintiff.

39. I accept, and so did the defendant, that he was under a duty to reasonably expect that pedestrians may emerge (not run out) from between the parked vehicles. To that extent, the defendant had taken reasonable care to drive more to his right and closer to the central road divider leaving a greater gap between the nearside of his vehicle and the parked vehicles on his left so that if a pedestrian did emerge from between the parked vehicles, there would be sufficient space for the pedestrian to check for traffic conditions before crossing the road. That is as much as any reasonable driver could do in those circumstances. This defendant did just that and has been shown by the photographs to have done so.

40. The same reasoning would be applicable whether the bus was a stationary bus along with all the other vehicles parked on the inner lane or whether it had momentarily stopped for the purpose of setting down or picking up passengers.

41. Whether the bus was stationary or whether it was picking up or setting down passengers can only be material to the issue whether or not the defendant should be alerted to the possibility of a pedestrian emerging from in front of the bus. That possibility was already in the forefront of the defendant's mind as admitted by him by the action he had taken in driving more to his right.

42. The cause of this accident therefore can only be due to the plaintiff running out from between the bus and the coach in front of it. By so doing, he gave the defendant no chance to avoid hitting him.

43. For the reasons given above, I come to the conclusion that the defendant was in no way negligent or responsible for this accident having done all that could be expected of a normal and reasonably competent driver in the circumstances.

44. The plaintiff's claim is therefore dismissed with costs, being a cost order nisi.

45. In the event that I should be wrong on the question of liability, I shall deal with the issue of quantum.

Injuries and treatment

46. After the accident, the plaintiff was admitted to Queen Elizabeth Hospital where he was diagnosed to have sustained a severe head injury with skull fracture. Emergency craniotomy was carried out and thereafter he was put in the Intensive Care ward. Subsequently he was transferred to Kowloon Hospital for rehabilitation and convalescence. He was discharged home after some three months of hospitalization, but continued to receive follow-up treatment.

47. The plaintiff now suffers from the following disabilities as a result of his injuries. He has dementia from the head trauma. He also suffers multiple impairments in cognitive functions. This includes his general intelligence and also aphasia which is the inability to communicate with people by language or gesture. He has also undergone personality change such that at times he displays aggressive behaviour for no apparent reason.

48. The plaintiff however has the use of all four limbs and can move about by himself.

49. His inability to understand simple commands, inability to communicate with others and his global aphasia and reduced general intelligence has made it such that he is unable to function as a social organism. In these respects further improvement is not expected.

50. He also suffers from post traumatic epilepsy but that is in remission.

Pain suffering and loss of amenities

51. From the above disabilities suffered by the plaintiff, his counsel has pitched his case on the basis of categorizing him in the "Disaster" category as it is understood in the case of Lee Ting Lam.

52. I have grave reservations that the plaintiff comes within the 'Disaster' category for the simple reason that the plaintiff has no restriction in mobility on his own.

53. In my view all his disabilities when looked at together would put him in the category of 'Gross Disability' and for which an award of $1 million would be reasonable.

Loss of earnings and MPF benefit (pre-trial)

54. There can be no question but that the plaintiff should be assessed at full loss of earnings from the kind of injuries sustained by him.

55. There is a letter from his pre-accident employers that the plaintiff, a restaurant worker before the accident, was earning on average HK$13,501.47 per month. This takes into account his basic monthly salary of $11,000.00 and also overtime and meal allowances, bonus, tips as well as year end bonus.

56. In the absence of any other evidence to contradict or challenge that amount stated by his pervious employers to be his average monthly income, I shall adopt it.

57. For the pre-trial period (up to judgment) this gives a sum of $567,061.74.

58. The loss of MPF for this same period (MPF came into force in December 2000) will be $13,501.47 x 5% x 41 = $27,678.00.

59. Together they give the total amount of $594,739.74.

Other pecuniary losses (pre-trial)

60. This have been agreed at $45,162.00.

Value of parents' services (pre-trial)

61. There is a claim by the plaintiff for the value of services rendered by the parents looking after him since the accident.

62. The claim is put on the basis of $15,000.00 per month as the cost of such services.

63. The evidence from the plaintiff's mother is that the plaintiff requires only supervision due to his disabilities already stated above. He does not need the kind of constant care and attention as would a paraplegic or tetraplegic.

64. The defendant is ready to accept an assessment under this head of claim on the basis of $5,685.00 per month as being the value of the care and services. In my view that is a reasonable offer because the plaintiff in this case only requires supervision.

65. On that basis the claim under this head is assessed at $238,770.00.

Future loss of earnings and MPF benefits

66. The dispute between the parties under this head relates to the multiplier to be adopted as I shall be using the same multiplicand which was used for loss of pre-trial earnings, namely, $13,501.47 per month.

67. The plaintiff wishes a multiplier of 15. The defendant says 12 is reasonable.

68. The plaintiff was 30 years old at the time of the accident and 34 at trial.

69. The following cases have been referred to in so far as the correct multiplier to be adopted is concerned :

(a) Yeung Tung Sang v. Jasmart Cleaning Services Co. Ltd, HCPI 826 of 2001;

(b) Shek Kam Ching v. Po Kee Construction Engineering Ltd, HCPI 434 of 2001;

(c) Lo Chi Bun v. Leung Wah Kwan, HCPI 984 of 1997.

70. Taking account of the multipliers adopted in those cases, the age of the plaintiff and the nature of his work in the present case, I am of the view that a multiplier of 14 should be used.

71. That gives an assessment of $2,268,247.00 for future loss of earnings.

72. As for the future loss of MPF benefit, it comes to 5% of that amount which is $113,412.30

73. The total assessment under this head comes to $2,381,659.30.

Future care and attention

74. Firstly, the plaintiff now accepts that none of the experts have specified that a live in trained nurse is necessary and has abandoned that part of the claim pleaded in the Revised Statement of Damages.

75. However, the plaintiff now says that a live in care assistant would be more appropriate and claims an amount of $4,320,000.00 on the basis that such a live in care assistant would cost no less than $20,000.00 a month and applying a multiplier of 18.

76. The defendant dispute such a claim. The defendant's primary contention is that the plaintiff should be placed in an institution in all the circumstances of this case and that no provision need be made under this head of claim.

77. Failing that, the defendant's fall back position is that at the most, the plaintiff should only be allowed the cost of a domestic helper under this head of claim and the figure of $1,159,740.00 is suggested by the defendant on the basis as contained in their Revised Answer to the Revised Statement of Damages.

78. Having considered all the evidence and submission in this case, I find myself in agreement with the defendant that it is in the best interest of the plaintiff to be placed in an institution. The reasons for that conclusion will be dealt with under the heading of "alternative accommodation".

79. In the circumstances, I accept the primary submission by the defendant that no award ought to be made under this head of claim.

Alternative accommodation

80. There is a claim by the plaintiff for alternative accommodation of a flat with an area slightly larger than the present flat in which the plaintiff is living with his parents. The underlying reason for wanting a larger flat is because it is intended for the sister of the plaintiff to move in and stay with the family so that the sister can assist in looking after the plaintiff in his present condition.

81. The stance of the defendant, however, is that the plaintiff, in his present condition, should be placed in and cared for by an institution.

82. Having heard all the evidence and submission made by both counsel in this case, I have no hesitation in accepting the submission made by the defendant that institutional care is in the best interest of the plaintiff. There are a number of reasons for coming to this conclusion and they are as follows.

83. Firstly, it is the recommendation of Dr Chung and echoed by Professor Ho that the plaintiff should be cared for in an institution. Such a regime will provide the plaintiff with a happy, safe and comfortable environment since both his parents are getting on in their years and will not be able to supervise or care for him for very much longer.

84. Secondly, it is common ground that at about the time of this accident, the sister of the plaintiff was in fact living together with the plaintiff and their parents. The sister has a son (now about nine years old) who also lived with them. However, because of his injuries which resulted in the condition that the plaintiff is now in, on a number of occasions the plaintiff became violent towards his young nephew to the extent that the nephew became extremely fearful of the plaintiff. As a result the sister of the plaintiff had to move out of the home with her young son in order to avoid the violent behavior of the plaintiff. For the last one and a half years, this nephew of the plaintiff has been receiving psychological counselling because of his fear of the plaintiff.

85. Under such circumstances, it would be extremely unfair, not just to the nephew of the plaintiff but also to the sister, to expect her to return to live with the plaintiff and their parents bringing along her young son into the same household in which the plaintiff resides. That is simply not a viable alternative.

86. Once that alternative (of the sister moving back to live with the plaintiff and the parents) is excluded, it can hardly be expected of the parents in their advanced age, to have to look after the plaintiff. Indeed the time will come when the parents will not be around to look after the plaintiff. Sooner or later therefore the plaintiff will need to be cared for in some sort of institution. The sooner that is achieved the better it is for all concerned. I have no doubt at all that course is in the best interests of the plaintiff and his family.

87. No doubt it is for these reasons that the plaintiff's solicitors have made enquiries with an appropriate home to take in the plaintiff. The reply from them well indicate that they can cater appropriately to the plaintiff's needs in the condition that he is at present.

88. I therefore accept the calculations of the defendant that the award for institutional care of the plaintiff should be assessed at $1,856,400.00.

Future medical expenses

89. Under this head of claim, the defendant is prepared to concede the sum of $193,600.00 which is made up as follows :

(a)	neurological follow up and medication	$ 9,600.00
(b)	occupational therapy	24,000.00
(c)	psychiatric treatment	75,000.00
(d)	speech therapy	85,000.00

90. The above amounts were all recommended and supported by the medical experts in this case.

91. The plaintiff has not pursued its claim for physiotherapy. However, over and above the figures stated above, the plaintiff seeks also to recover two further sums of $64,800.00 (for medical consultation) and $72,000.00 (for hospitalization) on the basis that these two amounts are to cover the possibility of the plaintiff having epileptic attacks in the future albeit that the medical expert evidence is that the post traumatic epilepsy of the plaintiff is presently in remission. These two amounts are calculated on the basis of annual cost for medical consultation being $3,600.00 and annual cost of hospitalization being $4,000.00 and using a multiplier of 18 for both figures. This further claim for medical consultation and hospitalization are disputed by the defendant.

92. These figures for both the medical consultation and hospitalization were not recommended by any of the experts in the case.

93. Dr Wu had examined the plaintiff in October 2002 when he assessed the plaintiff's post traumatic epilepsy to constitute a 2% impairment. At that time the recommendation by Dr Wu was for the plaintiff to have regular neurological follow up evaluation every three months and anticonvulsant prophylaxis for at least another two years.

94. In the absence of any special provisions for medical consultation and hospitalization by the experts in respect of his epilepsy, I can only conclude that the recommendation by Dr Wu in respect of the plaintiff's epilepsy is already covered by the provisions for neurological follow up.

95. In the circumstances, the additional claim by the plaintiff for the amounts of $64,800.00 and $72,000.00 will not be allowed.

96. The total assessment under this head therefore comes to $193,600.00