CHAN WAI MING v. LEUNG SHING WAH

HCPI 591/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 591 OF 2012

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J U D G M E N T

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1. On 22 October 2010, at about 6 o'clock in the evening when it was dusk, the defendant was riding his Suzuki motorcycle along the Wo Yi Hop Road, Tsuen Wan, in the direction of Kwai Chung. Road conditions were good, the weather was fine and there was negligible moving traffic. The road is a dual carriageway, each one being of two lanes. Travelling as a pillion passenger on his motorcycle was the plaintiff who happened to be the defendant’s employer. The defendant said that he was travelling in the outside lane at a speed of about 45 kilometres an hour. The permitted maximum speed along this stretch of road is 50 kilometres an hour.

2. When he reached a point at or near a series of bus stops, or one bus stop, at which he says were four or five stationary double-decker buses, a dark car suddenly emerged from between two of the stationary buses into his lane, forcing him to brake and swerve or steer to his right, lose control of his motorcycle and fall, with his passenger, to the ground.  The dark car did not stop and no record of its number was taken and it has not been traced.  There was no contact between the dark car and the motor cycle.

3. The police were called to the scene, took details, and a statement was taken by them, on 9 November 2010, from the defendant and, on 3 January 2011, from the plaintiff.  Both had been injured in the accident with the plaintiff having suffered serious head injuries.  The plaintiff had no recollection of the accident.  He was in a coma for about one week after the accident.  The defendant, according to the police officer who took his statement, said that he was about 1 metre away from the black car when it suddenly pulled into his path and that, only one second later, the accident happened.

4. Based on the details given by the defendant, the police officer drew a sketch plan showing three double-decker buses stationary in the inside lane at and just short of the bus stop, with a car positioned at an angle to pull out from the space or gap between the second and third bus. The course of the motorcycle as related by the defendant was also shown.  There is no central barrier between the two carriageways, just double continuous white line markings on the road.

5. It is not known, when the police arrived at the scene, what they found, whether any of the buses were still at the scene, whether there were any marks on the road which might be attributed to the motorcycle, or what further inquiries they made.  This is because the Commissioner of Police refused to supply a copy of the recording officer’s notebook, a refusal reiterated two years later when it was long past the time when any prosecution was likely to be pursued.  I shall return to consider this unsatisfactory state of affairs and its implications at a later stage.

6. Although I assume there is recourse to the Motor Insurers Bureau by reason of the agreement in relation to untraced motor vehicle drivers responsible by reason of negligence, the plaintiff has had to pursue an action against the motorcyclist.  He alleges - and I repeat only the material allegations of negligence in short form - that the defendant failed to keep a proper lookout and failed to drive without due car and attention. Within the allegations made is a failure to observe in time or at all the emergence of a black motorcar.  The maxim of “res ipsa loquitur” is also relied upon.

7. The defendant, in turn, has to rebut the principle relied upon.  In his defence, he claims the driver of the black car for the accident, but by some strange aberration, alleges contributory negligence on the plaintiff’s part in that the plaintiff failed to give the defendant prior warning of the pulling out of the black car and failed to keep any or any proper lookout for traffic. 

8. I have grown accustomed to seeing such bizarre and inappropriate allegations in pleadings, but Mr Patrick Lim was very quick to disassociate himself from this pleading which was not settled by him.  Although the defendant has to rebut the “res ipsa loquitur”, he does not have to disprove an allegation of negligence on his part.  The burden remains upon the plaintiff to prove the defendant was negligent.

Liability

9. The plaintiff has only to establish a degree of liability on the part of the defendant to succeed against him. 

10. The defendant’s own evidence and extraneous factors are determinative of this.  He explained that he had passed through a set of traffic lights showing green situated somewhere before the scene of the accident.  It has not been possible to ascertain the exact distance between these traffic lights and, say, the bus stop at which the buses were stationary.  He was then in the outside lane and continued along it, not moving to the inside lane because of the stationary buses occupying it some distance ahead.  He estimated his speed to be 45 kilometres an hour, approximately 30 miles an hour, and there was no vehicle in front of him.

11. It is incumbent upon motorists travelling in the outside lane of a carriageway to take account of moving or stationary traffic in the inside lane.  There is always the possibility or a risk of a stationary vehicle in a line of vehicles pulling out of that line into the outside lane in order to make progress or faster progress.  It is not sensible for a motorist travelling in the outside lane in such conditions to discount such possibility simply because the lane in which he is travelling is entirely free from other traffic.  One regularly sees buses, for example, pulling out of a line of vehicles, stationary and moving, in order to move ahead and meet a timetable. He has to take account of all traffic conditions.

12. Although the defendant said that there were four or five buses stationary at the stop, whereas the police officer recorded only three at the defendant’s narration on the sketch, I do not think that the actual number of buses is material.  There were at least three.  What is important is that, on his evidence, a gap must have existed between two of those buses from which the black car emerged.  That gap must have been equivalent, more or less, to the length of one of these buses. 

13. He said that he could only see the first and last bus as he approached but, at some stage, he must have seen more in order to claim that there were four or five buses there.  In answer to a question from me, he said that he had not seen the gap between two of the buses from which the black car emerged.  He had told the police officer that he was only a metre from the car when it pulled out.  In his evidence, he gave a distance between two features of the courtroom which was agreed to be no less than 5 metres and is probably nearer 7 metres. 

14. If he was only 1 metre away from the car, as he told the police, when he first saw it, and it was in the act of pulling out, he was failing, in my judgment, to keep a proper lookout.  In my judgment, he ought to have seen this car stationary in that gap much earlier.  The very fact that he was unaware of the gap shows that he was not keeping a proper lookout. He ought to have anticipated that even one of the buses might pull out from the line and if he had noticed the gap, he ought to have been prepared for something to emerge from it.  He ought to have been aware of the presence of the car much earlier. 

15. In my view, he had discounted any of these possibilities. He does not even seem to have considered the possibility that passengers leaving one of the buses might have appeared in the road behind a bus, as passengers sometimes do, looking for an opportunity to cross both carriageways.  His crucial answer confirms this:  “This accident would not have happened if I had noticed the car”. 

16. His unpreparedness for a problem created by an emerging vehicle was an indication of a failure to keep a proper lookout.  He was, as I find, just travelling along, albeit at a permitted speed, ignoring what he took to be simply stationary traffic which he thought would remain stationary as if nothing could happen.  He ought to have seen that car much earlier and, had he done so, as he said himself, he could have avoided the accident.

17. Nonetheless, accepting his version of events about the black car, something must have occurred to cause him to swerve to the outside.  I consider his degree of negligence to be far less than that of the driver of the black car and I hold it to be 25 per cent.

Quantum

Pain and Suffering and Loss of Amenity

18. This man is now 60 years of age.  I have read the joint medical report dated 22 October 2012 from the experienced consultating neurologists, Dr Brian Choa, and Dr Edmund Woo, who reviewed the medical history following the plaintiff’s admission to Yan Chai Hospital, where he was put in intensive care, having been admitted in a critical condition.  He was in a moderately deep coma, Glasgow Scale 7 out of 15, for about one week.  He was an in-patient for nearly seven weeks.  He suffered facial fractures, a haemorrhage of the left frontal lobe and endured a bout of pneumonia whilst in hospital. 

19. Following discharge from hospital, he attended follow-up at Princess Margaret Hospital Dental Clinic.  There was some left-sided facial paresthesia and some depression of the left side of his face.  There was also neurological follow-up at the Prince of Wales Hospital when mild right-sided weakness was apparent.  He was using a stick but was otherwise independent in his daily living.  His diplopia eventually resolved. Mild clumsiness of the right hand was noticed during occupational therapy sessions in 2011.  He has significant residual weakness of the right arm and leg, needs to use a stick when out and about and finds negotiating stairs and uneven surfaces occasions difficulties for him.  He is reliant upon the balustrades, particularly when climbing stairs.

20. The surveillance videos taken on behalf of the defendant’s insurers amply testify to his difficulties and condition and confirm the genuineness of his visible condition.  The commentary on the video is superfluous and where it contains subjective comments is, of course, inappropriate, as I have said many times in the past. 

21. His speech has improved substantially over the past two years.  Both consultants consider his condition is more or less static.  It is not possible for him to return to his pre-accident work because of problems with balance and dexterity and the condition of his right hand and arm.  His right hand is, in fact, his dominant one but he has had to develop a degree of dependency upon his left hand.  This too is readily seen on the video film. 

22. The consultants considered him to be co-operative and forthcoming and uncomplaining.  I found him to be entirely genuine and, in fact, doing his best to make light of his disability or handicap.  Dr Choa and Dr Woo refer to his remarkable recovery.  I sense that that is as much a tribute to the patient himself as it is to the medical care he has received.

23. His pre-accident medical history has been noted.  He had a congenital problem when young, resolved in his teens, but now, for the past 10 years or so, he has had diabetes mellitus, hypertension and hyperlipidemia, that is abnormally high concentrations of fats and liquids in the blood, which are controlled by medication.  Neither consultant considers that this state of affairs affects his life expectancy, although the head injury from the accident will affect it marginally. 

24. In his younger days, he was active in sports, playing badminton, table tennis, bowling and other leisure interests.  He is still of athletic build, well-muscled, and I do not doubt that even now he is as active as possible.  His pre-accident weight was about 75 kilograms, about 11¾ stones.  None of those sporting activities is open to him now.  He is, of course, more vulnerable to falls and further injury. 

25. He has been deprived of being able to run his business properly but, quite reasonably, wants to keep it going.  It is a good form of occupational therapy at least.  He would not, in normal circumstances, have retired until he was about 70 years of age. 

26. Although obviously a youthful 57-year-old at the time of the accident, he does not now have the strength of a man in his 20s or 30s to make further progress in his recovery, despite his resilience and obvious determination.  This was quite a serious injury, leaving him with a noticeable and incapacitating degree of hemiplegia.  General damages should be $850,000.  Other and earlier awards are not necessarily helpful but I have been aided by the 11th edition, 2012, of the English Judicial Colleges’ Guidelines for the Assessment of Damages in Personal Injury Cases. 

Pre-trial Loss of Earnings/Profit

27. He was and is the sole proprietor of Man Long, an electrical installation and maintenance business.  In the seven months prior to the accident, ie, from 1 April 2010 to 22 October 2010, his income was HK$98,240 after deduction of trading expenses.  The defendant agrees the monthly loss at HK$15,113.85 to which should be added the value of meals paid by the business.  The defendant suggests a monthly sum of HK$500, ie, roughly HK$20 per day.  I think that is too low and a figure of HK$1,000 per month is reasonable.  The other items are expenses of the business to generate the net profit.  Accordingly, the monthly base figure is $16,113.85. 

28. For the period 22 October 2010 to 18 November 2013(, that is today,) almost 37 months, I will adopt that base figure and the loss is, therefore, HK$596,212 rounded down.  During that period, he was able to obtain a contract which gave him a net figure of HK$5,000 profit.  That needs to be deducted from the overall loss for the period.

29. Reference was made in the medical evidence to a period of sick leave of two years, predicated on the basis that after that period, he was able to carry out some work, if he could find it, as, for example, a cashier.  I am far from convinced that this is realistic in practical terms, although it is a somewhat technical medical assessment.  Given the manual problem, obvious difficulties when it comes to seating and the need for aptitude in modern technology, I do not think it is appropriate to regard him as having that form of remunerative employment open to him.

Future Loss of Earnings

30. I will adopt the same base figure and look ahead from his current age, 60 years, until a notional retirement age 10 years hence.  A multiplier of 8 is appropriate.  I have to bear in mind that had he not been injured, he might have been able to develop his business, improve the return and perhaps sell it as a going concern.  His annual loss is $193,366.20 and so the total figure is $1,546,930 rounded up to the nearest dollar.  I have assumed that the base figure taken from the pleadings is, in fact, a figure net of tax.  If this is not so, then the parties must present me with the necessary calculation so that I may make the exact determination in respect of these heads of damage.

Claim for Rental

31. He has continued to pay the rental on his business premises since the accident, renewing it for a further three year term in November last year, 2012.  Currently, his wife pays the rent because, although the liability is his, he has no income and, as he explained, he had continued the tenancy because he hoped to get better.  It is harsh on a man who has been so badly injured as to be deprived of his functioning business, to say that he should no longer nurture such hopes.  Indeed, if the hope was realistic, the defendant would be entitled to the benefit of this in a reduction of the loss of earnings claimed.  Furthermore, it was reasonable for him to continue to rent the premises with a view to mitigating his loss.  Why should the defendants be liable for the continuation of an expenditure which is a liability which can no longer be turned to advantage?  I have concluded that although it was reasonable to keep the premises up to the date of trial in the genuine and reasonable hope that he could resurrect the business, it is now no longer reasonable and I will allow the rental expense only up to the date of this judgment.  That figure is HK$91,630.

Loss of Earning Capacity

32. I do not consider this to be a valid head of claim in view of the fact that I have made the award for his loss of earnings on the basis of a full-time loss up to the time of his normal retirement.

Agreed Figures for Other Losses

33. There are agreed figures for other losses which I will not set out here but are itemised in the following summary.  The summary I give is, of course, subject to the question of any tax deduction*.

General damages (for pain and suffering and loss of amenities)	$850,000
Past loss of earnings (that is after the $5,000 for the contract has been deducted)	591,212
Future loss of earnings	1,546,930
Special damages:
Rental expenses	91,630
Past medical expenses	7,500
Future medical expenses	10,000
Loss of earnings of wife	21,000
Tonic foods	10,000
Past travel expenses	10,000
Future travel expenses	10,000
Total:	3,148,272
Less:
* Now agreed at $780 HKD	780
	3,147,492

34. There will, therefore, be judgment for the plaintiff for the appropriate total, subject to the resolution of the matter of tax, together with costs to be taxed if not agreed.  There will also be an order for a legal aid taxation of the plaintiff’s costs. 

35. Interest will be paid on the relevant items at the prevailing rates for the appropriate periods.

The Disclosure of Police Reports and Statements in respect of Traffic Accidents

36. I find it necessary, regretfully, to restate the Commissioner of Police’s obligation with regard to disclosure of such documents over which the Commissioner has control.  The matter was fully considered by Suffiad, J. as long ago as 1998 in Tse Lai Yin Lily and Ors v The Incorporated Owners of Albert House and Ors [1999] 1 HKC 386, and more recently, I had to review the position on a broader basis, consistent with Suffiad J’s approach, in Chan Chuen Ping v The Department of Justice, 19 November 2013.  Tomorrow the judgment will be handed down.

37. In this case before me, the defendant’s solicitors wrote to the Commissioner of Police in October 2012, two years after the accident.  It appears that there had been earlier unproductive correspondence but I am concerned with the correspondence of this later time. 

38. The police provided some statements that had been taken, the sketch plan and details of injured persons, involved vehicles and the motor vehicle examination report on the motorcycle.  The standard pro forma type of accompanying letter then contained a number of inaccurate statements, eg: “Court prosecution is still pending” (in fact, this contradicted an earlier statement in the letter); “no person was injured in this accident” (both persons on the motorcycle were injured); “the vehicle involved was not inspected after the accident” (it was); “no sketch plan was drawn by the police” (it was).  There was a number of other odd statements.  Finally, it was asserted that:  “A copy of the notebook will not be supplied to you as it did not contain any information of the third party that is material to your civil proceedings”.  The defendant’s solicitors responded, quite properly, by saying it was highly relevant.  The Commissioner then responded:  “The police notebook record should not be used for the purpose of civil proceedings”.  The reply contained other comments which were clearly the result of a misconception. 

39. It is not, with respect, for the Commissioner of Police to decide what is or is not relevant for the purpose of civil proceedings.  He is not in a position to make such a decision.  That lies initially in the hands of the parties or potential parties to the proceedings.  His obligation is to supply the material reasonably requested as Suffiad. J, and I have set out in the decisions cited.  If refusal is persisted in, then requesting solicitors must issue a subpoena ‘duces tecum’ against the Commissioner for his or his officer’s attendance at court, or, at an early stage, take proceedings to obtain disclosure by him.  In either case, the costs implications are clear.