LAM KOON YIN v. THE KOWLOON MOTOR BUS COMPANY (1933) LTD AND ANOTHER

HCPI 521/2015

[2020] HKCFI 2959

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 521 OF 2015

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JUDGMENT

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1.  The plaintiff (“Lam”) was a pedestrian who has been knocked down by a bus of the 1^st defendant (“KMB”) driven by its then employed driver, the 2^nd defendant (“Yip”). Lam commenced this action against KMB and Yip for damages for personal injuries.

The accident

2.  The accident happened at the Shatin New Town Plaza Bus Terminus.  At about 12:50 pm on 26 August 2012, Yip was driving a double decker bus (Registration No GX9712) (“the Bus”) inside the terminus on the driveway between platforms nos 4 and 3 from east to west, and made a left U-turn into the driveway between platforms nos 3 and 2 from west to east.  At about that time, 26-year-old[1] Lam set foot from platform no 3 to cross the driveway towards platform no 2.  The left front of the Bus hit the right side of Lam causing him to fall onto the ground.  The left front wheel of the Bus ran over his legs before coming to a halt.  Lam crawled out from underneath the Bus, sustaining injuries.  Because of the accident, Yip has been charged with careless driving, but was acquitted after trial by the magistrate.

The contentions

3.  In May 2015, Lam commenced the present action.

4.  The claim against Yip focuses on the alleged negligence in his lookout, speed and control of the bus at the material time. The claim against KMB focuses on its vicarious liability for the negligence of Yip.  However, by way of reply, Lam also contends that KMB has failed to instruct Yip to take care because of similar accident at the location before.

5.  KMB and Yip deny liability, and alternatively allege contributory negligence on the part of Lam mainly for his failure to keep a proper lookout before and when crossing the driveway.

The evidence

6.  About how the accident happened, Lam was brief in his witness statement.  However, he also adopted what he stated to the police back in 2012.  According to these statements and his evidence in court, he was inside the terminus at the time looking for the stop for the bus of the route number that he intended to take.  He came to platform no 3.  He expected there could be bus coming from his right.  He looked and saw no bus coming, before crossing the driveway in a slightly oblique direction towards platform no 2.  He was holding his cell phone in his hand but not using it.  His pace was faster than walking.  About halfway, he was knocked down by what he subsequently found out to be the Bus. He came to be aware of a pedestrian crossing about 50 metres from where he stood only after the accident.

7.  Yip had more than 3 years of experience as a bus driver immediately prior to the accident.  At the time, he regularly drove the bus for this particular route number on about 12 to 13 days in a month.  In other words, he was familiar with driving into the driveway in question.  He knew from experience that people would cross the driveways between different spots of the platforms instead of using the pedestrian crossing.  At the material time, he slowed down the Bus with the brake on, and proceeded to take the U-turn into the driveway between platforms nos 3 and 2 at the speed of about 15 kph.  He kept his lookout for the people on the platforms and saw no one was crossing the driveway.  After making the turn, he released the brake and straightened the position of the Bus in the driveway.  It was in the course of that when he heard someone shout and the sound of the left of the Bus hitting something.  He brought the Bus to a halt, and then discovered that the Bus had run over Lam.  It was a matter of a second or two.  He did not see Lam, but subsequently gathered from the witness of the accident that Lam crossed the driveway and was knocked down halfway by the Bus.  Yip is no longer a bus driver.

8.  The witness of the accident that Yip referred to was Chan Kin Cheung (“Chan”).  He served as a prosecution witness in the criminal proceedings against Yip, and now called by the defence to testify in this trial.  He is an independent witness.  He adopted what he stated to the police in 2012.  According to that and his evidence in court, Chan was with his wife and 11-year-old son on platform no 3 at the time, also waiting to cross the driveway to platform no 2.  A person, later known to be Lam, suddenly advanced from about 3 persons’ distance to his left on the platform into the driveway with his head down and hands operating his cell phone.  Lam was close to running across the driveway.  Chan shouted to Lam to watch out, when the latter was about 1/3 of the length of a bus’s distance from the Bus.  However, that did not prevent the collision between Lam and the Bus.  Chan gauged the speed of the Bus to be about 10 to 20 kph.  He also said that the collision happened in just one to two seconds.

9.  The witnesses have rehearsed their evidence in the criminal proceedings before the magistrate.  Transcript of the evidence was also adduced for the purpose of this trial.  Mr Lun appearing for Lam invited this court to give weight to the magistrate’s observation about the evidence in her verdict.  I should be careful about that course.  The witnesses gave evidence in this trial by adopting their statements and giving oral evidence in court.  The transcript serves as evidence of their testimony in the criminal proceedings.  Such evidence might be used for the purpose of cross examination in this trial.  However, it would be for this court to assess the evidence actually given by the witnesses in the trial, and to make my own findings on the balance of probabilities.

Liability of Yip

10.  There is no real dispute that all the parties concerned in the accident were somehow aware that people at the bus terminus would cross the driveways between platforms, quite regardless of whether or not there existed a pedestrian crossing nearby.  Partly because of that and partly because of the making of the U-turn, Yip in fact cared to slow down the Bus before making the U-turn and maintaining the same into the driveway in question.  I do not find that the speed of about 15 kph was excessive or unsafe at the time.

11.  However, the circumstances put Yip under a duty to keep a proper lookout at all times for pedestrians between the two platforms, particularly whether anyone attempted to cross the driveway between the platforms.  That Yip had to watch out for what was in his front when proceeding along the driveway, as he suggested in evidence, could not be the answer to what proper lookout in these circumstances requires of him.  The dispute is whether Yip should have noticed Lam.

12.  Mr Cheng for the defendants submits that Lam must fail in proving such failure on the part of Yip.  The reason is that Lam lacks evidence in respect of the respective positions of him and the Bus when he started to make his way into the driveway.  It follows, Mr Cheng argues, that there is lack of evidence to show that Yip should have seen Lam and in sufficient time to allow him to react to avoid the collision.  Carefully considering all the evidence, I do not agree.

13.  One can infer from the evidence that Lam was present, perhaps in motion, when the Bus was proceeding into the driveway after making the U-turn.  However, this was not a case of collision right upon the making of the U-turn when there might have been insufficient opportunity for the bus driver to notice the existence of a pedestrian round the corner.  The evidence of Chan, the photographs taken and the sketch of the scene drawn by the police after the accident all suggest that the collision occurred when the position of the Bus was almost straightened along the driveway after the U-turn.  The photographs and sketch show that the Bus, when stopped, was almost parallel to platforms nos 3 and 2.

14.  The distance of 1/3 of a bus’s length between Lam and the Bus that Chan witnessed at the time is also corroborated by what the photographs depicts.  The distance between the Bus, when stopped, and platform no 3 was at least as wide as the Bus.  Therefore, this was not a case where the left side of the Bus, when it was turning into the driveway, leaned so close to the curb of platform no 3 so as to create any possible blind spot of Yip’s view.

15.  I notice slight discrepancies between the rough sketches attached to the statements given by Lam and Chan to the police, though both were apparently drawn by the same police officer.  The rough sketch drawn according to Lam’s statement suggests that Lam crossed slightly obliquely to his left towards platform no 2.  That drawn according to Chan’s statement however suggests that Lam crossed slightly obliquely to his right towards platform no 2.  In court, Chan agreed that Lam was heading slightly towards the left front of the Bus, and thus confirming what he stated to the police. Whichever version depicted the accurate occurrence, this was clearly not a case where Lam was coming from so behind the left side of the Bus that he fell into possible blind spot of the view of Yip.

16.  Considering the movement and speed of the Bus as well as the likely relative positions of the Bus and Lam when and after the Bus made the U-turn and proceeded in the driveway, I find on the balance of probabilities that Yip should have noticed Lam crossing the driveway.  On this basis, I find that Yip was negligent in failing to keep a proper lookout.

17.  Mr Cheng labours on the point that even assuming that Yip should have seen Lam prior to the collision, Lam still fails to prove that had Yip reacted, the collision would have been avoided.  He emphasizes the short time in which the whole accident happened.  Such argument can only be understood in the context of a contention of an inevitable accident.  The suggestion effectively is that the failure to keep a proper lookout on the part of Yip, in the circumstances, did not effectively cause the accident.

18.  Even assuming that no pleading point is taken in respect of such contention of the defendants, I do not agree that the defence could go that far in the circumstances.  The accident involved first the collision and then the impact of that on Lam.  The undisputed evidence was that Yip was totally unaware of the presence of Lam, and thus unable to avoid the collision and the impact of the collision.  Lam, albeit substantially to blame as well, has a valid cause in negligence against Yip for causing the collision; further or alternatively, the impact of the collision.  Yip indeed pleaded his cause this way[2]. It would be going too far to suggest that the collision, once unavoidable, must entail trapping Lam underneath the Bus and rolling over any part of his body.

Liability of KMB

19.  As mentioned, it was only by way of reply that Lam pleaded an apparently separate duty of KMB, namely that to warn Yip of the need to be cautious due to similar kind of accidents at the location.  By way of answer to request for further and better particulars, Lam produced newspaper clippings reporting traffic accidents involving buses and pedestrians at the terminus that happened in November 2012 and September 2015.  Both accidents happened after the accident in the present case.  The evidence does not serve the purpose intended by Lam.

20.  In any event, as mentioned, there is no issue of lack of awareness on the part of any party concerned in the accident of the rather usual pedestrian movements between platforms across the driveways.  Hence the undisputed duty on the part of Yip to keep proper lookout for such possible situation.  Yip was admittedly aware of that.  There is no issue of whether KMB was in breach of its duty on the basis of failure to make Yip so aware.

21.  Therefore, it boils down to vicarious liability of KMB for the negligence of Yip.  It follows from the finding of negligence against Yip that KMB, as its principal and employer at the time, should be so vicariously liable.

Contributory negligence

22.  Mr Cheng is right in that there are material aspects of the evidence of Lam and Chan that could not be reconciled.  It is evident from the above discussion that I accept the evidence of Chan as fair and accurate.  Insofar as the differences between the evidence of Chan and Lam are concerned, I prefer the former to the latter.  This leads to the following findings, which are particularly relevant to the issue of contributory negligence.

23.  The evidence of Lam that he looked and found no bus coming before he set foot into the driveway and then hit by the Bus in a couple of seconds is simply unbelievable.  In question was a double decker bus.  It defies understanding that the Bus could all of a sudden appear unnoticed in terms of its size and sound.  His evidence in this respect is contradicted by that of Chan, which was independent and aligns with common sense.

24.  I also prefer the evidence of Chan that Lam did not keep any lookout at all when and after setting foot into the driveway.  I find that he did proceed fast and at the same time occupied himself with his head down handling his cell phone.  Much is said about the evidence of what Chan observed about Lam and how he attended to Lam after the accident.  That in my judgment is of peripheral significance, and does not serve to compromise the reliability of the evidence of Chan.

25.  In the circumstances of this case, it is simply unrealistic for Lam to escape from a finding of negligence on his part in contributing to the accident.

26.  Counsel refer to numerous decided cases to assist this court in assessing the relative blameworthiness of Lam and Yip for the occurrence of the accident[3]. However, to the extent that Mr Lun submits that as a rule, the apparent disparity between a driver, by reason of his putting a vehicle on the road, and a pedestrian per se causes the court to blame the former more than the latter, I cannot agree.

27.  Each case is decided on its own facts.  The likelihood that a bus would cause relatively more serious injuries to a pedestrian than an ordinary vehicle in an accident is but one of the relevant circumstances.  I say so, because the scene of the accident in the present case was a bus terminus.  The bus drivers should know full well the possible dangerous situation created by pedestrians crossing the driveways between different points of the platforms.  That however does not excuse the pedestrians inside the bus terminus, who should well expect the constant confluence of moving buses and take care of themselves accordingly.  The particulars of contributory negligence I find above reflect badly on Lam as he failed to do so.

28.  All the decided cases and the circumstances of the present case considered, I find that Lam was 40% to blame for the accident.

Injuries and treatment

29.  Immediately after the accident, Lam was conscious.  He managed to crawl out from underneath the Bus.  Lam was then sent to the Prince of Wales Hospital (“PWH”) by ambulance.  He had injuries mainly to his lower limb and mouth.  The diagnosis was right knee Grade I posterior cruciate ligament injury, right ankle medial malleolus fracture (with disastasis of syndesmosis), left patella comminuted fracture and mandibular fracture.  It was also found that Lam’s occlusion was deranged with anterior open bite and the lower dental midline was deviated to the left.  CT scan showed left parasymphyseal fracture of the mandible.

30.  On 30 August 2012, right knee anthroscopy, fixation of right ankle medial malleolus fracture, left patella fracture and mandibular fracture were carried out.  So was open reduction and internal fixation of his fractured mandible.  The upper right lateral incisor was found to be non-vital and root canal treatment was recommended.  Surgical extraction of the lower tooth was also recommended.  The dental treatment was subsequently performed in December 2015.

31.  Lam was transferred to Tai Po Hospital (“TPH”) on 16 September 2012 for rehabilitation.  There he also received 13 sessions of occupational therapy before his discharge on 6 October 2012.  He was referred to outpatient occupational therapy afterwards.

32.  In October 2012, the right ankle screw was removed.  Lam also received initial assessment by the physiotherapy department of the PWH, when he was found to have residual left knee weakness and needed to use one elbow crutch for stair walking.  In June 2013, the left patella wire was removed.  Re-assessment in December 2013 showed posterior cruciate ligament laxity.

33.  In court, Lam confirmed that he has received no more medical treatment at all since 2015.

Orthopaedic expert evidence

34.  A joint examination of Lam by Dr James Kong and Dr Arthur Chiang, engaged by Lam and the defendants respectively, took place on 3 March 2016.  The experts produced their joint report dated 11 April 2016, which was adduced without the experts being called to testify.

35.  During the joint examination, Lam complained about right ankle pain, stiffness and discomfort, left knee pain and stiffness, left lower limb weakness, right knee pain and inability to resume teaching swimming as he could not lift the bodies of the learners during tuitions.

36.  Dr Kong opined that Lam could not resume his pre-accident job as a swimming coach due to the modest residual orthopaedic impairment including right knee pain, soft tissue residue of left knee pain and stiffness, right ankle pain and stiffness as well as left lower limb weakness. He recommended jobs of sedentary nature as the alternative for Lam.

37.  Dr Chiang held a different view, but in view of the fact that Lam has undergone partial patellectomy, his anterior-inferior knees might be sensitive to prolonged and continuous deep pressure such as kneeling and therefore Lam might not be able to work as a swimming guard in full capacity.

38.  From the orthopaedic perspective, Dr Kong considered that Lam suffers from 12% impairment of the whole person while Dr Chiang suggested 10%.  The experts agreed that sick leave from the date of accident to 25 October 2013, ie 14 months, was reasonable, and no further treatment was considered necessary.

Dental expert evidence

39.  A joint examination of Lam by dental experts, Dr Alexander Tang and Dr William Yung engaged on behalf of Lam and the defendants respectively, was carried out on 5 July 2016.  The dental experts produced their joint report on 20 September 2016.  They testified in court.

40.  The experts agreed that there would be some residual impairments, including lip paraesthesia and limitation in lateral excursion jaw movement.  It was said that the former impairment may affect Lam’s perception and self-image, and the latter impairment may affect his dental function.  There was also the surgical scar on the right lower border of Lam’s chin, which, as apparent during the trial, did not appear to leave him with noticeable cosmetic impairment.  The experts agreed that the dental condition would not prevent Lam from resuming his pre-accident job as a swimming coach.

41.  The experts assessed the permanent impairment in terms of diet modification, limitation to lateral jaw excusion and lower lip parathesia.  Dr Tang assessed them to be in the region of 1-2%, 3% and 1 % respectively.  Dr Yung assessed them to be in the region of 1% each.

42.  The major difference between the dental experts lies in their opinion in respect of the current and projected condition of various identified teeth, and the need for their further treatment.  For the purpose of the joint report, various examinations were performed, including an electric pulp test to detect the vitality of the teeth in question.  Of the four teeth in question, one gave negative reading (suggesting no vitality) and three gave intermediate readings (suggesting what Dr Tang described as borderline vitality).

43.  Dr Tang opined that the non-vital tooth should undergo root canal treatment now and he recommended the same treatment to the other teeth with borderline vitality.  He so opined out of concern about the possibility of deterioration and bacterial infection of those teeth that could give rise to life threatening result.  However, he could not estimate when the possibility might materialize in the case of the three teeth with borderline vitality.

44.  Dr Tang also projected the possibility that the root canal treatment, even if performed now, might fail in 10 years and thus requiring implant replacements.  He therefore projected implant replacements for 5 teeth (ie also including the one tooth treated by the hospital in 2015) as well as replacement of crowns once every 10 years for the rest of Lam’s life.  He further recommended professional maintenance of the gum health, including deep cleaning, for the rest of Lam’s life.  Altogether Dr Tang estimated the total cost to be in the region of HK$605,000 to 790,000.

45.  Dr Yung advised against allowing the vitality readings from the electric pulp test to dictate the prognosis, and refused to endorse the recommendation of root canal treatment on the basis of such readings.  Dr Yung so opined because of the existence of subjective element in the patient’s response to the test and other contributing factors such as the anatomical uneven layer of enamel of the teeth.  Dr Yung opined that the vitality readings for teeth after trauma should not be determinative of causation, when there was lack of such readings prior to the accident.  He observed that whilst the hospital found it necessary to carry out root canal treatment to one tooth (which was performed in 2015), it has not reported that those other four teeth were suspected victims of the accident.

46.  Further, whilst positive and negative electric pulp test readings might be reflective of the condition of the teeth, intermediate readings created a large spectrum for interpretation.  Dr Yung recommended against allowing the readings to dictate now the prognosis and the course of treatment.  He referred to the root canal treatment by the hospital (performed in 2015) to one tooth of Lam’s, as that was necessitated by actual finding of pulpal necrosis.  The hospital made no similar finding and recommended no similar treatment in respect of other teeth.  He recommended against irreversible endodontic procedure until a tooth indeed presented signs and symptoms of pulpal necrosis and periapical infection.  Whilst Dr Yung agreed that root canal treatment would be good for at least 10 years, he did not agree that one could therefore suggest that such treatment must fail afterwards.  He opined that dental crowns or implants recommended by Dr Tang were definitely not indicated for the present or future.  Dr Yung recommended the course of annual follow-up by the dental officers/oral maxillofacial surgeons of the public hospital.

47.  Contrary to Mr Lun’s submission, it matters not whether the electric pulp test was carried out at Dr Yung’s clinic.  Dr Yung did not deny the value of the test for the purpose of forming his opinion. Only that he was on guard about the interpretation of intermediate vitality readings and, more significantly, about allowing such readings to dictate the prognosis and recommendation for treatment.  He did not deny that in case of deterioration, the treatment recommended by Dr Tang should be carried out.  His emphasis was on justification by actual evidence suggesting pulpal necrosis and bacterial infection.  Hence his recommendation to keep the teeth of Lam in question under regular monitor for the time being.

48.  Mr Cheng points out that Dr Yung’s opinion should be preferred for the reason that his expertise is more relevant than that of Dr Tang.  Dr Yung no doubt has vast experience in restorative dentistry as a prosthodontist for decades in Hong Kong while the latter specializes in orthodontics.  However, the context of the expert opinion does not appear to be an exclusive subject of a prosthodontist instead of an orthodontics.

49.  That said, considering their relative expertise and the evidence, I am more convinced by the opinion of Dr Yung.  It should be noted that whilst Dr Tang recommended root canal treatment for all the teeth in question out of his concern about the possibility of their deterioration and development into life threatening conditions, he acknowledged that this would happen only if there was in fact dental infection which was left uncontrolled. In court, Dr Tang confirmed that infection could be attributable to various factors, including oral hygiene.  Dr Yung was right in his observation that there was no such evidence since the accident for concluding that such possibility is more likely than going to happen in Lam’s case.  I am more convinced that the approach recommended by Dr Yung is adequately prudent.

50.  The reality, as Lam confirmed in court, is that ever since the conclusion of the outpatient follow-up treatment, he has not attended any dental checkup since 2015.  Nor has he done so, despite the recommendations of the dental experts in 2016.  Nevertheless, his oral hygiene was said to be good.  In court, he expressed his concern about his dental condition after the accident, but never went for annual check-up.  His explanation was his fear about what the dentist might recommend to him and his financial ability to proceed as recommended.  I am not impressed by such claim.  I am not impressed that Lam in fact ever took the matters of debate between the dental experts discussed above as a material concern of his own dental health.

51.  Lam also complained about the impact of his dental injuries on his proficiency in oral Japanese language.  The speech test administered by the experts for English and Chinese languages yielded normal results.  This should also be apparent during the course of Lam’s evidence in court.  The experts did not possess the expertise to comment on the complaint about oral Japanese proficiency.  No consultation of the relevant linguistic expert has been made.  Nor was there recommendation, after test and study, for speech therapy to Lam.  The evidence of Lam in court suggested that he managed his post-accident jobs, including the present one, which required some oral Japanese in daily communication.

General damages – pain, suffering and loss of amenities (PSLA)

52.  In court, Lam added that he still feels residual pain and discomfort at the right ankle, left knee and the lower limb.  However, he does not need to take painkillers.  He no longer jogs or cycles.  He plays badminton three times a month.  Whilst he has resumed swimming once or twice a month, the styles he could manage became limited.  As to his dental condition, the above discussion refers.

53.  Counsel cite various decided cases as reference for the assessment of the damages for PSLA[4].  Whilst some of the cases are referred to specifically for orthopaedic and dental injuries, neither counsel asks this court to make separate awards for PSLA on account of these injuries and disabilities.  Both ask for a lump sum.  Taking into account the nature and extent of injuries, the treatment and surgical intervention carried out, the residual impact of the orthopaedic and dental injuries as well as the personal circumstances of Lam, I assess this head of damages to be HK$500,000.

Loss of earnings

54.  Lam is a university graduate in business information and technology.  However, he earned his living as a private swimming coach prior to the accident.  He has stopped working as such since the accident.  As mentioned, one major difference between the orthopaedic experts lies in their opinion in respect of the ability of Lam to resume his pre-accident swimming coach job.

55.  In my view, it is not just about the ability of Lam to resume swimming activities after the accident.  Dr Chiang acknowledged the residual problem with the knees of Lam, which might cause him inability to resume his swimming coaching job in his full capacity.  This, in my view, should not be under-estimated in assessing the competence of Lam in discharging the responsibility as a swimming coach.  Safety of the learners, and thus his ability to react and to rescue should not be ignored or lightly treated.  Hence the realistic view, which I prefer, that Lam could not responsibly resume his pre-accident job as a swimming coach.

56.  Lam was embarrassingly economical in his witness statement in respect of his loss of earnings as a result of his inability to resume his pre-accident job, and actually the quantum as a whole.  Reliance on his statement of damages, which has subsequently been revised, for the relevant information is not problem-free either.  This explains the repeated requests by the defendants for further and better particulars of this aspect and eventually their interrogatories to obtain the necessary information and clarification from Lam.  The attention of Lam to discovery of documents has not been up to reasonable expectation either, which necessitated this court’s order for discovery even after the pre-trial review.  It is not unfair for Mr Cheng for the defendants to describe this as a haphazard way of disclosing evidence in respect of the single issue of his pre-accident income.

57.  With the evidence disclosed in this manner, Lam assembled his case on his loss of earnings as a result of the accident.  According to him, he used to give swimming tuitions for three different establishments and charge various hourly rates.  From such job, he earned on average a monthly income of not less than HK$22,000.  By answering the defendants’ interrogatories, Lam stated on oath that subject to variation in district and establishments, he charged an hourly rate of around HK$350 to HK$400 for individual learners, HK$500 for a group of two learners, and HK$800 for a group of four learners. He charged an hourly rate of around HK$500 for international school students. He was paid in cash.

58.  It is clear that the alleged average monthly income does not have the support of any inland revenue document.  Lam admitted that he had not filed any tax return, which he explained was because he had not earned enough to attract tax liability.  The explanation is odd.  For the present purpose, this court has to consider what other proof Lam tendered in support of the alleged pre-accident average monthly income.

59.  With his answers to interrogatories mentioned above in May 2016, Lam enclosed a “balance sheet” (referred to as “the Table” by Mr Lun in his submission), which is a table prepared by Lam setting out the calculation of his monthly income between 1 August 2010 and 1 August 2012.  For each month, Lam set out the number of tuition hours per day in a week.  He then times it by four to arrive at what he described as the “expected salary” of that month.  Quite clearly, Lam put together the Table and, according to him in court, without reference to any record of teaching hours and charges over that period of two years but his mere memory and estimation. It is not, and is not based on, contemporaneous documentary evidence.  It remains bare assertion.

60.  In his 4 separate instalments of discovery during 2016 and 2017, Lam has not disclosed any documentary proof of how the alleged pre-trial average monthly income was calculated.  It was by his further list of documents filed in May 2019 that he disclosed what was called “timetables tabulated some of the swimming classes/activities conducted by the plaintiff in 2012 (prior to the road traffic accident)” (referred to as “the Schedule” by Mr Lun in his submission).  Not surprisingly, the defendants sought explanation of how the Schedule came about.  According to Lam, it was only after the parties’ unsuccessful mediation when he came to realise in July 2018 that he could check his electronic calendar in his cell phone, and therefore proceeded to compile the Schedule out of the information recorded in the calendar.  Again, he put together the Schedule for the purpose of this trial. Somehow, the document was still described as an “estimated timetable”.

61.  Not long prior to the trial, Lam disclosed the letters from two of the three establishments where he gave swimming tuitions (“the Letters”).  The Letters were dated 24 July 2019, that was just weeks before the trial.  They contained identical wordings, including the introduction that “this is to certify the service hours you provided and payment by us in cash for the months of July and August 2012”.  As Lam admitted in court, it was he who caused the establishments to confirm the contents of the Letters in those terms.

62.  On the one hand, one would have expected the establishments to issue their respective letters of confirmation or alternatively for Lam to obtain from these establishments their own records as evidence.  On the other hand, it may be said that the two establishments in question in any event were prepared to confirm the records of engagement of Lam in July and August 2012 set out in the Letters.  Assuming that this is accepted, one would find that those records again contradict Lam’s case that he charged HK$350-400 per hour and even higher for groups.  The Letters suggest that his charges were the lower hourly rates of HK$120 or HK$200 for swimming classes and HK$200 or HK$250 for private classes.  The “estimated salary” set out in the Table mentioned above also suggests that the hourly rates charged by Lam in 2010, 2011 and 2012 were HK$200, HK$250 and HK$300 respectively. However, the rates for 2012 differed from that seemingly verified by the Letters.  The monthly income pursuant to the Table and the Schedule do not tally.

63.  The only seemingly contemporaneous documentary evidence of Lam’s coaching sessions is the electronic calendar (or the “Google Calendar”), which was disclosed pursuant to the order of this court after the pre-trial review.  In court, Lam explained that he has made the entries in the Google Calendar since using this new smart phone in August 2012.  The entries represented the appointments only, and the Schedule mentioned above was compiled out of the record of these appointments.  Unfortunately, the Google Calendar does not improve the quality of Lam’s evidence as he may intend.  As mentioned, Lam claimed that he somehow managed to recall the existence and relevance of the Google Calendar only after the mediation in July 2018, notwithstanding its existence and constant use for the very purpose of recording his appointments.  The inherent credibility of his explanation is questionable.

64.  Various records in the calendar were examined in court.  As to an engagement that is expected to have been cancelled because of typhoon, Lam explained that he did not bother to alter the record, though there was allegedly a replacement session for that.  As to two consecutive engagements at different swimming pools, Lam explained that he had the time to travel between the two locations because he was somehow able to leave early from the first one, because the learner normally would not endure till the last minute.  As to a particular learner, who appeared in the Table but never in the Google Calendar, Lam explained that that learner’s schedule was so unstable that he would simply memorise the engagements instead of recording it in the calendar.  As to the entries regarding sessions on three days of a week at a particular school, the entry in the Google Calendar for that was confined only to a particular day of a week.  Lam explained that he found it troublesome to record all of those engagements.  Credibility of his explanation is one thing. But the other thing is that Lam’s own evidence diminishes the accuracy and reliability of the Google Calendar as containing a contemporaneous record of his engagements.

65.  What is this court left with?  Lam did earn his living before the accident as a private swimming coach and that there is some evidence of how much he charged and the extent of his engagement.  That said, Lam leaves this court with a difficult path in the assessment.  To address that, Mr Lun proposes possible explanations which Lam did not himself say in evidence.  Mr Lun pleads for understanding that Lam might be disorganized.  However, such character of Lam only serves to work against him, instead of excusing him, in the discharge of his burden of proof. Mr Lun also presents a theme in his submission, effectively that Lam, if he had been untruthful, could and would have fabricated or exaggerated beyond what are being questioned above.  That Lam did not do so, he submits, reflects that he is credible.  I find it difficult to embrace the logic of that.

66.  There are overlaps amongst the information contained in the various documents mentioned above, which Lam did not manage to sort out neatly.  There was according to him seasonal variation, which must be reasonably taken to mean that summer was peak season and engagements for tuition in fall would decline.  The information in the Google Calendar, the Schedule and the Letters should relate to the couple of months during the peak season only.

67.  With the evidence adduced by Lam, it is virtually impossible to accurately establish the figures.  On behalf of the defendants, an alternative figure for Lam’s pre-accident average monthly income is suggested first in their answers to the revised statement of damages and then during the trial.  The former is HK$15,000, and the latter, with reference to the monthly salary of Lam in his post-accident new job, is HK$12,500. Adoption of either is hard to justify.

68.  At the end of the day, I still have to do my best in the light of the quality of evidence in this respect.  Whilst not free from criticism, the Letters, which the two establishments for which Lam gave his swimming tuitions were prepared to confirm, suggested the payments to Lam in a monthly sum of HK$12,000-13,000 during July and August 2012.  On the one hand, it would seem that his earnings should be more than that as he also gave tuitions for one more establishment.  On the other hand, he has produced no reliable evidence of his earnings during the low season.  The high and low would have to be averaged out.  With some arbitrariness to the extent permitted by the evidence, I adopt as Lam’s average monthly income from his pre-accident job a sum in the range of HK$15,000-16,000 for the present purpose.

69.  In his calculation of his pre-trial loss of earnings, Lam factored in an annual increment and the mandatory provident fund entitlements.  However, Lam has not adduced evidence, such as that of the pattern of any previous annual increment of Lam’s rates or the post-accident rates charged by his successor in giving swimming tuitions for the 3 establishments or simply the post-accident market rate of private swimming coaches.  Further, Lam received cash from his pre-accident job, and there is no evidence of any mandatory provident contribution.  In other words, there is no evidential basis for assuming that Lam would somehow be entitled to such annual increment and mandatory provident fund accumulation from his pre-accident job, had he not met the accident.  This court will only adopt the high end of the range of pre-accident monthly income, ie HK$16,000, mentioned above.

70.  In respect of his pre-accident income and alleged annual increment, Lam has himself to blame for the stringent approach taken by this court.

71.  Whilst the orthopaedic experts agreed that reasonable sick leave was 14 months, Lam should have been able to continue his pre-accident job for quite a number of years but for the accident.  It could be seen from the discussion below that Lam was reasonably keen to resume working and to secure a job after the accident.  The loss of income arising out of the period during which he was between jobs after he has resumed working should still be attributed to the accident.  The loss of earnings since the accident until trial (September 2019) would be HK16,000 x 84 months = HK$1,344,000.

72.  Whilst he was still on sick leave (which lasted until 25 October 2013), Lam acquired a job as a trading assistant in early 2013 with a Bid In One Limited, earning HK$12,500 per month.  The employment was terminated at the end of May 2016, when his salary was HK$13,000.  According to his tax assessments, his income in 2013/2014, 2014/2015 and 2015/2016 were HK$142,750, 141,000 and 154,000 respectively.  The total income since his resumption of work after the accident up to the end of May 2016 was HK$(142,750 + 141,000 + 154,000) = HK$437,750.

73.  Since 5 December 2016, Lam has been working for Daishinku (HK) Ltd earning a monthly salary of HK$15,000 per month.  This was increased to HK$15,500 after 3 months’ probation.    According to the Form IR56B filed by his employer, his income plus allowance until end of March 2017 was HK$58,986.

74.  In court, Lam confirmed that his salary in 2019 was HK$16,000, which is therefore comparable to his pre-accident average monthly income adopted as mentioned above.  The median income between April 2017 and trial (September 2019) would be HK$(15,500 + 16,000) / 2 = HK$15,750. His income since the end of his probation until trial (September 2019) would be HK$15,750 x 29 months = HK$456,750.

75.  Lam’s loss of earnings up to the trial (September 2019) was thus HK$(1,344,000 – 437,750 – 58,986 – 456,750) = HK$390,514.

76.  As mentioned, Lam managed to earn a monthly income at the time of the trial, which is comparable to his pre-accident average monthly income.  On the available evidence, it is inappropriate to find any further loss of earnings since then.

Future loss of earnings

77.  The evidence does not satisfactorily show that Lam will continue to suffer future of earnings.

Loss of earning capacity

78.  This head covers the likelihood that the plaintiff would suffer handicap in the labour market in the form of inability to secure his current employment or alternative employment.

79.  The previous and the present post-accident jobs of Lam were in trading and, as he admitted, his business duties were sedentary.  I reject his projection of the possibility of demand of him to handle weight or business travel, which is not supported by objective evidence.  Whilst he complained about compromise of his oral Japanese proficiency by his dental condition, his evidence in court revealed that he has been managing the daily communication in both Japanese and English required by his current job.  There is no evidence to convince the court in respect of his inability to manage his current or similar kind of sedentary job, and thus exposure to the risk of being unable to secure such kind of employment on account of his physical condition as a result of the accident.  In the circumstances, there is insufficient basis for making an award under this head of claim.

Medical expenses

80.  This head is agreed at HK$7,700.

Tonic food

81.  This head is agreed at HK$5,000.

Travelling expenses

82.  This head is agreed at HK$4,000.

Future medical expenses

83.  The discussion in respect of the dental expert evidence above refers.  I am prepared to award a lump sum of HK$20,000 under this head, which should be regarded as generous in the circumstances.

Summary

84.  In summary, the quantum is assessed as follows:

	HK$
PSLA	500,000
Pre-trial loss of eanrings	390,514
Future loss of earnings	nil
Loss of earning capacity	nil
Medical expenses	7,700
Tonic food	5,000
Travelling expenses	4,000
Future medical expenses	20,000
	_______
Total:	927,214

85.  Discounting 40% contributing negligence, the quantum becomes HK$927,214 x 60% = HK$556,328.40.

Interest

86.  Interest on damages for PSLA, subject to discount for contributory negligence, runs at 2% per annum from the date of writ to judgment.  Interest on accrued special damages, subject to discount for contributory negligence, runs at half judgment rate (say 4% per annum) from date of accident to judgment.  Interest from judgment until full payment runs at the judgment rate.

Order

87.  Judgment is entered against the defendants in favour of Lam in the sum of HK$556,328.40 with interest as aforesaid.  I make a nisi order that the defendants do pay Lam’s costs of this action, including any costs reserved, to be taxed, if not agreed.  In the absence of application in 14 days to vary, the costs order shall become absolute without further order of the court.