CHING YUK YEE v. FURNISS JACQUELINE ELIZABETH AND ANOTHER

HCPI 127/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 127 OF 2012

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J U D G M E N T

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INTRODUCTION

1. The plaintiff’s case is that on 25 April 2010 at about 4:53 pm, the plaintiff was walking across westbound Lockhart Road northerly on the traffic-light controlled pedestrian crossing, when the 1^st defendant’s vehicle failed to follow the road sign and made an illegal left turn from Marsh Road into Lockhart Road.

2. The plaintiff claims that the 1^st defendant’s illegal turn caused her to be scared and so she fell onto the ground.  As a result of the fall, she suffered injuries to her left ankle.

3. The 1^st defendant denies liability, averring that the plaintiff slipped and fell on her own volition, and that the 1^st defendant only turned left after the plaintiff had slipped.  The 1^st defendant’s illegal left turn thus could not have caused the plaintiff’s injuries.

4. The 2^nd defendant is the insurer of the 1^st defendant, and adopts the 1^st defendant’s defence.

FACTS NOT IN DISPUTE

5. The following facts are undisputed:

(1) The plaintiff was crossing Lockhart Road when the pedestrian crossing signal was green;

(2) The 1^st defendant pleaded guilty to a charge of careless driving in ESS 32467/2010 at the Eastern Magistrates’ Court on 30 September 2010 and was fined $1,200;

(3) The 1^st defendant’s vehicle did not make physical contact with the plaintiff; and

(4) The plaintiff did fall and sustain injuries on the traffic-light controlled pedestrian crossing on Lockhart Road.

THE PLAINTIFF’S CASE

6. Very briefly, the plaintiff says that when she was on the crossing on Lockhart Road following the pedestrian green light, the 1^st defendant’s vehicle suddenly closed in from her right side having just turned into Lockhart Road from Marsh Road, which the 1^st defendant was not permitted to do, and the distance was so close that the plaintiff became scared, lost balance and fell.

THE 1^st DEFENDANT’S CASE

7. In a nutshell, the 1^st defendant’s case is that, at the material time, her vehicle had neither physically collided with the plaintiff (which is agreed), nor come anywhere near the plaintiff who was on the pedestrian crossing, nor caused her to fall.

8. In her oral evidence, the 1^st defendant said that she had not turned left into Lockhart Road when she saw the plaintiff falling on the pedestrian crossing.  However, she stopped her vehicle at the intersection (ie in the yellow box) and got off to help the plaintiff as a Good Samaritan.

RELEVANT LEGAL PRINCIPLES ON LIABILITY

9. Pursuant to section 62 of the Evidence Ordinance, Cap 8, the plaintiff is entitled to rely on the 1^st defendant’s conviction of careless driving in the magistrates’ court as evidence of her having committed that offence, hence negligence on her part.  The burden is upon the 1^st defendant to prove the contrary.

10. The 1^st and 2^nd defendants, however, dispute the weight to be attached to the conviction on the basis that it was, inter alia, a “plea of convenience”.  Lord Denning MR in Stupple v Royal Insurance Co Ltd [1971] 1 QB 50, held at 72 D‑E and G‑H as follows:

“…If the defendant has not been convicted, the legal burden is on the plaintiff throughout. But if the defendant has been convicted of careless driving, the legal burden is shifted. It is on the defendant himself. At the end of the day, if the judge is left in doubt the defendant fails because the defendant has not discharged the legal burden which is upon him. The burden is, no doubt, the civil burden. He must show, on the balance of probabilities, that he was not negligent…

…

  In any case, what weight is to be given to the criminal conviction?  This must depend on the circumstances.  Take a plea of guilty.  Sometimes a defendant pleads guilty in error; or in a minor offence he may plead guilty to save time and expense, or to avoid some embarrassing fact coming out.  Afterwards, in the civil action, he can, I think, explain how he came to plead guilty.”

11. The burden is upon the 1^st defendant to prove, on balance of probabilities, that the facts she admitted in the magistrates’ court were otherwise and hence, she was not negligent.

DISCUSSION ON LIABILITY

12. I agree with Mr Y L Cheung, counsel for the plaintiff, that the 1^st defendant is not a credible witness and I reject her account of how the accident occurred.

13. First, the 1^st defendant’s evidence given at trial is clearly inconsistent in material respects with the account previously given by her to the police.

14. According to PC 3618, who arrived at the scene shortly after the accident, the 1^st defendant claimed to him that:

“…at the material time she was making a left turn from Marsh Road to Lockhart Road, that making a left-turn was not allowed. Her vehicle almost hit the injured person. The driver claimed that at the material time, she was driving along Marsh Road in a northerly direction and making a left turn into Lockhart Road that made the accident happened.”

15. Further, at page 1 of the statement given by the 1^st defendant to the police on 22 June 2010 (which was written down by the 1st defendant in her own handwriting), the 1^st defendant stated that:

“I was on Marsh Road, trying to find my way to Lockhart Road. When the vehicle approached the left lane of intersection I did not clearly see any sign indicating no left turn. I was very careful and when light turned green I began to move forward to turn left onto Lockhart Road but I noticed further down the pedestrians were crossing so I paused stopped car, and thought maybe this/my turn, is not correct, at which point I saw a woman in back side of crosswalk fall down.” (emphasis supplied)

16. At the top of page 3 of the same statement, the 1^st defendant wrote this down in her own handwriting:

“…that is why when the light turned green for me, I began to make a left-turn, only when I saw pedestrian crossing down in the zebra crossing, I thought – wait… this may be incorrect on my part. At that point the lady fell and I helped her rather than self-correct and try to drive straight.” (emphasis supplied)

17. Under cross-examination, the 1^st defendant attempted to explain away by saying that there was a language barrier with the police officers.  She further put forward her own “interpretation” on certain plain words appearing in her police statement, such as “I began to move forward to turn left onto Lockhart Road” in the statement in fact means “thinking of turning left”, and “when the light turned green for me, I began to make a left-turn” in the statement means “I was thinking of making a left turn”. 

18. I find the 1^st defendant’s explanations strained and incredible.  I have no hesitation in rejecting the same.

19. On the question of the path in which her vehicle was moving when she first saw the plaintiff, the 1^st defendant further ran linguistic arguments such as the definition of the words “turn left”, citing the Oxford English Dictionary, as meaning “a turn that brings a person’s front to face the way their left side did before”.  She argued that by such definition, she did not actually “turn left”, and so the statement in her own handwriting to the police should be qualified when it came to the meaning of “turn left”.

20. I agree with Mr Cheung that the 1^st defendant’s unreasonable attempt to re‑interpret two simple English words simply further illustrates the 1^st defendant’s evasiveness and lack of credibility when trying to explain away her previous inconsistent statements.

21. Secondly, the 1^st defendant’s case is inherently implausible and improbable.

22. If the 1^st defendant’s case at trial were to be believed, it would mean that at the material time while she had intended to turn left into Lockhart Road approaching a pedestrian crossing (but had not quite started to make the turn), at that juncture, the plaintiff for no apparent reason fell on the crossing.  Hence, as the 1^st defendant’s story goes, her unfortunate intention to negotiate a corner occurred at the very same moment of an unfortunate fall accident which happened at an unfortunately close proximity.  All the events were totally separate and unrelated, yet the plaintiff decided to frame her and blame her for the fall.  I find this inherently implausible and improbable.

23. On the other hand, I find the plaintiff’s case much more inherently plausible and probable.  I agree with Mr Cheung that the plaintiff, like every other pedestrian, was perfectly entitled to assume that her use of the pedestrian crossing following a pedestrian green light would be safe and free from interference from other vehicles.  Had there not been the sudden emergence of the 1^st defendant’s vehicle, it would be hard to imagine how and why for no apparent reason the plaintiff would have lost her balance and fell.

24. For the reasons stated above, I hold that the 1^st defendant is liable to the plaintiff on her claims in this action.

QUANTUM

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

Injuries and medical treatment

26. The plaintiff sustained a left ankle fracture as a result of the accident.

27. On 5 May 2010, the plaintiff underwent a surgery for open reduction and internal fixation at the Yan Chai Hospital.

28. On 23 June 2010, the plaintiff underwent another surgery for the removal of part of the implant (one of the syndesmotic screw installed on her left ankle).  On the date of the joint examination by the joint orthopaedics experts (1 February 2013), the plaintiff still experienced left ankle pain, left lower limb stiffness, right lower limb pain and stiffness.

29. In about May 2010, the plaintiff started to develop anxiety and sleeping difficulties.  She was diagnosed with post‑traumatic stress disorder (“PTSD”) and depression.  The plaintiff’s mental state was allegedly further aggravated by the disclosure by the defendants about the surveillance videos taken by private detectives hired by them.  On the date of the joint examination by the joint psychiatric experts (5 March 2013), the plaintiff still experienced mild depression.

Expert medical evidence

30. On the plaintiff’s physical injury, a Joint Orthopaedics Expert Report dated 20 March 2013 was prepared by Dr Tony Hung and Dr Peter Ko.

31. On the plaintiff’s psychiatric injury, a Joint Psychiatric Report dated 3 April 2013 was prepared by Dr Benjamin Lai and Dr Chung See Yuen.

32. Regarding the plaintiff’s physical injury, the joint orthopaedic experts agreed that:

(1) there were no pre‑existing problems;

(2) post‑accident, the plaintiff may have pain and discomfort when she exerts her left ankle such as prolonged walking, squatting, etc; and

(3) the plaintiff will be able to resume her pre‑accident occupation (foot massage therapist) with some degree of impairment of work efficiency and capacity, in particular, she will have difficulties if she uses her feet for massage.

33. Dr Hung observed, in particular:

(1) the plaintiff’s complaints of numbness, pain and stiffness over the left ankle are genuine; and

(2) the plaintiff’s physical pain could be intensified by psychological factors.

34. It is the plaintiff’s case that her main problem is the residual pain and the impairment of her foot/leg, which has rendered her not as agile as before the accident.

35. As to the plaintiff’s psychiatric condition,both psychiatric experts agreed that:

(1) the plaintiff’s mental disorder was caused by the accident;

(2) there were no pre‑existing mental problems;

(3) the impairment caused by the mental disorder is mild and, therefore, the plaintiff is mentally fit to return to her pre‑accident work; and

(4) the plaintiff suffered from adjustment disorder with mild anxiety and depressed mood.

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

36. 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 respectively the plaintiff and the 2^nd defendant. It is not necessary for me to go into all 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.

37. Mr Victor Gidwani, counsel for the 2^nd defendant, relies in particular on the following two cases:

(1) In Chan Sik Pan v Wylam’s Service Ltd and others, HCPI 648/1995 (Judgment dated 16 December 2002), Suffiad J considered a number of awards made in local cases of personal injuries encompassing varying degrees of severity resulting from injuries to ankles, and some in particular to the calcaneum.  The learned Judge held that the range of the PSLA awards for ankle fracture, and depending on the resulting disability, would range from $150,000 to $400,000.

(2) In Li Chi Sing v Equal Link Ltd, DCPI 1930/2011 (Judgment dated 6 March 2013), the plaintiff was a 50‑year‑old man who slipped and fell and fractured his left ankle.  He underwent one surgery for open reduction and internal fixation with plate and screws.  Orthopaedic expert estimated impairment to whole person at 3%.  The plaintiff complained of intermittent left ankle pain, occasional left ankle wound numbness and stiffness.  There was no psychiatric disorder.  HH Judge Alex Lee awarded PSLA of $220,000.

38. Mr Gidwani submitted, and I agree, that the Li Chi Sing case, a 2013 decision, is the most apposite in the current case.  The plaintiff in that case was aged 50 and suffered from similar injuries and residual complaints.  Although the plaintiff did not suffer from psychiatric conditions in that case, the plaintiff in the present case has suffered from only mild psychiatric symptoms in any event. 

39. In all the circumstances of this case, taking into account the severity of the plaintiff’s injuries and the residual disabilities, I take the view that the proper amount of damages to be assessed for PSLA should be $250,000.

Pre‑trial loss of earnings

40. The plaintiff’s average income as a foot masseuse at the time of the accident was pleaded to be $22,360 per month ($9,360 base salary plus $13,000 tips).

41. At the time of the accident, the plaintiff was working at the Oriental Palm Spring Sauna Spa.  Her income very much depended on the attending customers hence was irregular.  Her pre‑accident income allegedly comprised of (i) service fee, paid in cheque and documented; and (ii) tips from customers, paid in cash without record.

42. The sick leave period from 26 April 2010 to 5 January 2011, ie for a period of about eight months, as recommended by both joint orthopaedic experts, and covering the recommended psychiatric sick leave, is undisputed by the parties.

43. The joint orthopaedic experts both agreed that the plaintiff should be able to resume her pre-accident occupation as a masseuse with some degree of impairment of work efficiency and capacity.  Her efficiency and endurance at work may be “slightly reduced” when she uses her hands and upper limbs to massage her clients.

44. The joint psychiatric experts both agreed that the psychiatric impairment, regardless of the diagnosis, is “mild” and that the plaintiff is mentally fit to return to her pre‑accident job.

45. In the circumstances, I agree with Mr Gidwani that no more than four more months may be given to the plaintiff after sick leave ended to look for work, ie a total loss of 12 months.

46. As discussed above, all the evidence shows that the plaintiff had no problem (orthopaedic or psychiatric) in returning to her pre‑accident work after the end of sick leave period.

47. Regarding the plaintiff’s claim in respect of tips, Mr Gidwani referred to World Realty Ltd v Kwan Ngar Yin [1987] 3 HKC 148, citing at 151 E‑F Bonham‑Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177:

“Plaintiffs must understand that, if they bring actions for damages it is for them to prove their damage; it is not enough to write down particulars, and, so to speak, throw them at the head of the court, saying: ‘this is what I have lost; I ask you to give me these damages.’ They have to prove it.”

48. Further, in Chase International Express Ltd v McRae [2004] PIQR 314, at 322 line 36, per Newman J:

“…the basic principle that the claimant must prove his case by evidence capable of supporting the conclusions to which the court is invited to come… No doubt he had in mind the principles often expressed to the effect that judges must often simply do their best or approach an issue on broad brush basis, but these principles have limitations. There is a need for evidence and there is a need for an analysis of such evidence; then the judge can make findings of fact by drawing inferences and doing the best he can, but on the evidence of which is available.” (emphasis supplied)

49. Mr Gidwani submitted, and I agree, that the plaintiff’s case on tips suffers from exactly the problem that was envisaged in the Bonham‑Carter case.

50. The plaintiff stated in paragraph 8 of her Witness Statement that she received tips regularly from customers at $500 per day, amounting to $13,000 per month.

51. These are not substantiated by any documentary evidence and her oral evidence on this matter is highly unreliable.

52. The documents from the Inland Revenue Department do not reveal any tips.

53. In cross‑examination, the plaintiff admitted that the tips she received “varies day to day”, ranging from “zero to over a thousand”.

54. However, she did not keep any records for tips.

55. Under cross‑examination, she was also unable to give an estimate of how much tips she earned per month.  She is unable to repeat what she said in her Witness Statement, ie on average $500 a day.

56. In re‑examination, when asked to give a rough estimation of the percentage of tips with reference to her documented income from the employer, the plaintiff said it was “one or two times” of the documented income, ie if she earned $10,000 service fee, her tips would amount to about $10,000 to $20,000 in cash.

57. I agree with Mr Gidwani that the plaintiff’s evidence in this regard is highly unsatisfactory, and I find the plaintiff not to have discharged her burden in proving any income in the form of tips on top of her base salary.

58. The plaintiff has provided a tax return filed for the year of assessment 2008/09, and a tax return filed by her previous employer, one Kingsley Development Ltd (trading as “Royal Palace Sauna”).  It can be noted that based upon such documentary evidence:

(1) The plaintiff earned a total of $27,460 at the Royal Palace Sauna from 1 April 2008 to 20 June 2008, an average monthly sum of $10,297.50.

(2) The plaintiff also earned a total of $55,173 at the Oriental Palm Spring Sauna Spa from 1 July 2008 to 31 March 2009, an average monthly sum of $6,130.33.

(3) Thus, she earned a total income of $82,633 during this period of 11 months and 20 days, an average monthly sum from 1 April 2008 to 31 March 2009 of $7,082.83.

59. Based on the above, the plaintiff’s pre‑trial loss of earnings should be assessed as follows: $7,082.83 x 12 months = $84,993.96.

Post‑trial loss of earnings

60. For the reasons set out in paragraphs 42 to 46 above, I agree with the 2^nd defendant’s submissions and hold that no future loss of earnings should be awarded.

Loss of earning capacity

61. Both in its Answer to the Revised Statement of Damages and Written Opening, the 2^nd defendant conceded that a sum of $30,000 should be allowed under this head of damages.

62. I am not prepared to award any sum above that figure.

63. In assessing loss of earning capacity, it is for the plaintiff to prove that:

(1) She has a real and significant risk of losing her present employment; and

(2) Should she lose her current employment, she would be in a weakened position in the open labour market.

64. In fact, all the evidence available, including the joint medical expert statements (orthopaedic and psychiatric) – where all experts unanimously agreed that the plaintiff could return to her pre‑accident work; and the surveillance video, shows no signs of disability in function.

Special damages

65. For special damages, the plaintiff and the 2^nd defendant have agreed to the sum of $15,407 for medical expenses and travelling expenses, which I find to be reasonable.

66. Regarding the $5,000 claimed for tonic food, the 2^nd defendant agrees to a sum of $2,500 in the absence of any supporting documentary evidence for such claim.

67. 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.

68. The total amount assessed under this head therefore comes to $20,407.

Future medical expenses

69. The psychiatric expert recommends further psychiatric treatment for four weeks at $3,000.  The plaintiff also claims cost for the surgical removal of the implant at around $30,000, plus a three‑month recovery at around $60,000.  The total amount claimed is thus $93,000.

70. The 2^nd defendant is only prepared to allow $1,000 under this head as per its Written Closing.

71. I am only prepared to award $1,000 under this head of damages.  I agree with Mr Gidwani that there appears to be no special reason in this case why the plaintiff should receive further treatments at private, rather than government hospitals.

Summary on quantum

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

(1)  PSLA	$250,000
(2)  Pre-trial Loss of Earnings	$84,993.96
(3)  Post-trial Loss of Earnings	Nil
(4)  Loss of earning capacity	$30,000
(5)  Special damages	$20,407
(6)  Future Medical Expenses	$1,000
Total:	$386,400.96

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

74. 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

75. Accordingly, there will be judgment to the plaintiff against the 1^st defendant for the sum of $386,400.96 together with interest thereon as aforesaid.

76. I make a costs order nisi that the 1^st and 2^nd defendants 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.