HO KING LAM v. LEE CHIEN HUA

HCPI45 / 2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 45 OF 2006

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J U D G M E N T

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A.  Introduction

1.  At about 9:30 pm on 20 March 2003, Mr Ho (the Plaintiff) was riding his motorcycle along Hing Shing Road.  He (and his motorcycle) later ramped into the front right part of Mr Lee (the Defendant)’s light good van.  

2.  Because of the accident, Mr Ho suffered certain serious injuries.  His right hip joint was dislocated.  He also suffered what is medically known as brachial plexus injury of his right arm. 

3.  As a result of these injuries, the uncontroversial medical opinions are that Mr Ho’s right arm is no longer of any practical functional use.  He also walks with a limp and could not fully squat because of his right hip problem.  He would need replacement of his right hip joint every 10-15 years.  At the time of the accident, Mr Ho was 31 years old.

4.  This it the trial of Mr Ho’s claim against Mr Lee for negligence in causing the accident and his injuries.  Mr Ho claims damages in the sum of HK$5,727,506^[1].

5.  Mr Lee denies liability and, if liable, disputes the quantum. Mr Lee also claims on an alternative basis that Mr Ho was contributorily negligent in causing the accident.

6.  The core dispute in relation to liability is, as expected in cases of this nature, how did the accident occur. 

7.  But before I deal with the disputes on liability and quantum in detail, I will first set out what I regard as the essential and uncontroversial facts below.

B.  The undisputed facts

8.  On the night of the accident, Mr Ho attended the evening class for training electricians conducted by the Hong Kong Institute of Vocational Education (“IVE”) held at the Kiangsu-Chekiang College (Kwai Chung) (“the School”).  After finishing the class, Mr Ho came out of the School riding his motorcycle at about 9:30 pm.

9.  After coming out of the School, Mr Ho turned left onto the lane of Hing Shing Road heading the southwest direction towards Kwai Fuk Road.

10.  Hing Shing Road is a long straight two-lane road for two-way traffic.  The two lanes are divided by a dotted white line in the middle.  The width of each lane is about 4 metres[2]. 

11.  When one travels along Hing Shing Road in the direction towards Kwai Fuk Road (as Mr Ho did), one first passes the junction with Ko Fong Street on the left side, which is about 120 metres from the School.    Further down towards that direction and right after the Ko Fong Street junction is the Lutheran School for the Deaf on the left side of the lane.  After passing Ko Fong Street, and travelling for another 80 metres or so after the School for the Death, one passes on his left the entrance of the residential development known as Hibiscus Park.  Thus, the total distance between the School and the entrance of Hibiscus Park is about 200 metres.

12.  On the night of the accident, it is common ground that the traffic was light and smooth.  The weather was fine and Hing Shing Road was well lit with the streetlights.

13.  After coming out of the School, Mr Ho travelled along the lane of Hing Shing Road towards the Hibiscus Park direction (i.e., towards Kwai Fuk Road direction). 

14.  When he was approaching the Ko Fong Street junction, there was a private car entering into Ko Fong Street, with the tail of the car still partly on Mr Ho’s lane.  Seeing the private car, Mr Ho steered his motorcycle towards the right and got past the tail of the private car.  In doing so, he was still within the lane that he was travelling.

15.  After passing the Ko Fong Street junction in the above-mentioned manner, Mr Ho continued to travel along Hing Shing Road on his motorcycle, and went past the School for the Deaf. 

16.  When he was near the Hibiscus Park, Mr Ho and his motorcycle collided with the right front head of Mr Lee’s van, which was then on its way heading into the direction of the entrance of Hibiscus park.  Mr Lee was driving his van from the opposite lane of Hing Shing Road, turning to his right across the lane where Mr Ho’s motorcycle was travelling, heading into the direction of Hibiscus Park’s entrance.  At the point where the collision occurred, Mr Lee’s van was partly across Mr Ho’s lane. 

17.  Upon the collision, Mr Ho fell from the motorcycle, and landed onto the ground.  He was then sent to the A&E department of Princess Margaret Hospital (“PMH”), where he was diagnosed to have suffered from a fractured right pelvis and dislocation of the right hip joint.  Later he was also found to have suffered from right brachial plexus injury.  

18.  Mr Ho has since undergone a number of surgeries for his right hip joint and brachial plexus injury.

19.  In relation to the accident, Mr Ho was prosecuted for careless driving.  However, at the trial on 5 January 2004, the prosecution decided to offer no further evidence, and dropped the prosecution. 

C.  Liability

C1.    How did the accident occur?

C1.1  Mr Ho’s caseand his evidence

20.  Only Mr Ho gave evidence in relation to his case on how the accident occurred.  His evidence at trial could be summarized as follows.

21.  When he came out from the School riding on his motorcycle, he was travelling at a speed of some 40 km/h along Hing Shing Road towards the direction of Kwai Fuk Road.   He went past the tail of the private car entering Ko Fong Street by steering to the right but within his own lane, as he saw no risk or danger in doing that way.

22.  After passing the junction of Ko Fong Street and the private car, he continued to travel along Hing Shing Road at a speed of about 40 km/h.  He noticed for the first time Mr Lee’s van at the opposite lane of Hing Shing Road outside Hibiscus Park when the van was about 20 to 30 metres away from him.  The van was then stationery on the opposite lane, slightly turned to its right towards the Hibiscus Park, with its front bumper positioned just above the dividing dotted line.  It appeared to Mr Ho that the van was waiting to turn into Hibiscus Park across the lane he was travelling. 

23.  As the van then was stationery, and he understood that he had the right of way, Mr Ho therefore continued to ride his motorcycle along Hing Shing Road towards the direction of Kwai Fuk Road.  He kept his speed at about 40 km/h.

24.  However, when he was only about 4 to 5 metres away from the van, the van suddenly and quickly turned into his lane going to Hibiscus Park. 

25.  As the van moved into the middle of his lane so suddenly and when he was so close to it, Mr Ho did not have sufficient time to brake or slow down the motorcycle.  The motorcycle rammed into the right front part of the van.

26.  It is Mr Ho’s case that the accident was thus caused by Mr Lee’s negligence in turning into Mr Ho’s lane without a proper lookout of the traffic (in particular in light of Mr Ho’s oncoming motorcycle), in turning too fast and without proper manoeuvre to avoid the accident.  

27.  The pleaded particulars of Mr Lee’s negligence are as follows:

(1)  driving the van without due care and attention;

(2)  making a turn into the opposite carriageway when it was unsafe to do so;

(3)  driving the van at a speed excessive in the circumstances;

(4)  failing to pay any or any sufficient heed to traffic conditions at the material time;

(5)  failing to pay any or any proper look-out or to have any or any sufficient regard for the approaching motorcycle at the material location;

(6)  failing to see the motorcycle;

(7)  failing to stop;

(8)  failing to give way to the motorcycle;

(9)  failing to brake, steer, swerve, or manoeuvre the van as to avoid the accident.

C1.2  Mr Lee’s caseand his evidence

28.  Mr Lee himself gave evidence at trial to support his case. He also called one Ms Leung Lai Ha and subpoenaed one Mr Yip Chi Shu to give evidence.

29.  Mr Lee’s evidence and case as to how the accident occurred is in essence as follows.

30.  On the night of the accident, he was driving the van after work along Hing Shing Road at the lane towards the direction of Ko Fong Street, intending to go back to Hibiscus Park, where he had been living for some 10 years.

31.  When he arrived outside Hibiscus Park, he stopped the van on his lane facing directly forward without touching the dividing line between the two lanes. He also applied the handbrake.

32.  He then checked the traffic condition around him to prepare himself to drive and turn the van across the opposite lane to go into Hibiscus Park. He looked to his front towards the direction of Ko Fong Street  upto 100 metres and found that there was no oncoming traffic on the opposite lane towards him.    He also checked that the pedestrian pavement outside Hibiscus Park was clear without any pedestrians.

33.  After making sure that both the vehicular traffic on the opposite lane and the pedestrian traffic were clear, he used the remote control to open the electric gate at the entrance of Hibiscus Park, and released the handbrake. He also engaged the 1^st gear of the van and started to turn right into the direction of Hibiscus Park’s entrance.

34.  He stopped the van to check the traffic for no more than 10 seconds before he started to drive and turn his van to its right.

35.  After turning across into the opposite lane of Hing Shing Road, at a speed of about 1-2 km/h (which according to Mr Lee was the usual speed he kept of the van in entering into Hibiscus Park) for about 2 to 3 seconds, and when his van was already into about two-third of the width of the opposite lane, he suddenly saw a bright light coming from his left front, which was about 100 metres away.  He felt that the light was coming towards him fast, although at that time he did not know what was the source of that light.

36.  He immediately stopped the van to see and check what was happening.  The van thus remained across at about two-thirds of the width of the opposite lane.

37.  After about 4 to 5 seconds, he realized that it was the headlight of a fast moving motorcycle (which was Mr Ho’s motorcycle).  Mr Lee said Mr Ho did not slow down the motorcycle but tried to steer it to its left seeking to pass in the van’s front, but failed. The motorcycle ramped into the right front part of the van with a big bang, and collapsed.

38.  Mr Ho emphasized that the motorcycle was coming at high speed although he would not venture to give an estimate of the speed.

C1.3  Ms Leung’s evidence

39.  On the evening, before the accident occurred, Ms Leung was waiting outside the School for her husband’s car to come and pick her up.  She said she witnessed the accident.  Her evidence at trial can be summarized as follows.

40.  While she was waiting on the side of the School, Ms Leung was looking towards the direction of Kwai Fuk Road, as she was expecting her husband’s car to come from that direction on the opposite lane of Hing Shing Road.

41.  She noted that there was a van (which was Mr Lee’s van) stopping at the opposite lane outside where Hibiscus Park was.  She reckoned that the van was waiting to turn into Hibiscus Park.

42.  Then she heard a loud engine sound of a motorcycle, which was just coming out from the School and got onto Hing Shing Road in front of her.  The motorcycle then went along Hing Shing Road on the lane towards the direction of Kwai Fuk Road.  Ms Leung said the motorcycle went off with high speed in front of her, with a loud engine noise[3] signifying that it was accelerating. 

43.  There is no dispute that this motorcycle was Mr Ho’s motorcycle.

44.  Mr Ho’s motorcycle then went past the Ko Fong Street junction at high speed and the tail of a private car that was then entering into Ko Fong Street, by steering steeply to the motorcycle’s right.  Ms Leung however confirmed that the motorcycle did not go over to the opposite lane when it steered past that private car.

45.  After passing Ko Fong Street, Mr Ho’s motorcycle continued to travel along the lane towards the direction of Hibiscus Park, with similar high speed and the occasional engine sound of acceleration.

46.  Under cross-examination, it was Ms Leung’s estimate that the motorcycle should be travelling at about 80 km/h or so.

47.  At the time when the motorcycle reached the School for the Deaf (which was just after passing the junction of Ko Fong Street), Ms Leung saw that Mr Lee’s van started to turn into the lane that the motorcycle was travelling heading towards the entrance of Hibiscus Park.  It is Ms Leung’s estimate that between the time she first saw the van stopping at the opposite lane, and the time when it started to turn towards Hibiscus Park, the van had stopped and waited there for about 1 to 2 minutes.

48.  Notwithstanding the van had started to turn towards Hibiscus Park, she saw that Mr Ho’s motorcycle continued to run at high speed along the lane where the van was crossing. 

49.  Given these, Ms Leung said she thought to herself at that time that the motorcycle was going to collide heavily with the van, as the van was already at two-thirds of the width of that the motorcycle’s lane.

50.  As she did not want to directly see the unavoidable collision, just as the motorcycle was running towards the van without stopping or slowing down, she by reflex closed her eyes and prayed. 

51.  She afterwards heard a big “bang” sound of collision.  Ms Leung accepted in her oral evidence that she did not in fact see how the motorcycle collided with the van as her eyes were then closed.

52.  After hearing the sound, she opened her eyes and saw that the motorcycle was lying on the ground.  She believed she should tell the police as to what had happened (as she thought that if she did not tell what she had seen, people might think that it was the fault of the van driver which had caused in the accident).  She therefore walked all the way from outside the School to the accident scene and, when the police arrived, offered to assist the police investigation. 

53.  She later gave a police statement on 10 April 2003, which she adopted as part of her evidence in chief at trial.

54.  Ms Leung confirmed at the trial that she was not acquainted with either Mr Ho or Mr Lee. 

C1.4  Mr Yip’s evidence

55.  Mr Yip was and still is a security guard working at Hibiscus Park.  He was at the entrance gate of Hibiscus Park when the accident occurred. 

56.  He gave a police statement in relation to the accident on 29 March 2003.

57.  Mr Yip however did not give any witness statement for this action.  As I mentioned above he was subpoenaed by Mr Lee to give evidence.

58.  At the trial, when asked by Mr Lee’s counsel, Mr Yip said he could not remember anything about the accident.  He explained that after having been admitted to hospital for a heart problem in 2005, he had only a vague memory of things that happened before the hospital admission.   He also said he could not even remember whether there was an accident that involved Mr Lee, although he confirmed that he knew Mr Lee as a resident of Hibiscus Park.

59.  When asked about the police statement, Mr Lee again repeated that he could not remember anything.  Although specifically asked by Mr Lee’s counsel, he did not confirm whether the content of the police statement was accurate or not. 

C1.5  Discussion

C1.5.1     Mr Lee’s evidence

60.  I accept the evidence of Mr Lee as to how the accident occurred.  I find him a reliable, honest and credible witness:

(1)  He gave evidence in a straightforward and direct manner.  He answered questions directly.

(2)  He was not shaken in any material aspects under cross-examination.

(3)  He had no hesitation in giving evidence which was inconsistent with that provided by Ms Leung (a witness called by him):  he answered under cross-examination without hesitation that he had only stopped at the opposite lane for about 5 to 10 seconds before moving onto the other lane, when he knew[4] that Ms Leung’s evidence was that his van stopped and waited for 1 to 2 minutes.

61.  Mr Lam (counsel for Mr Ho) asked the Court to reject Mr Lee’s evidence that he drove at a speed of 1 to 2 km/h when moving from the opposite lane towards Hibiscus Park as inherently incredible.   Mr Lam submitted that any ordinary and reasonable drivers would not have driven the vehicle at such a slow speed, in particular if that driver, as Mr Lee, was familiar with the road surroundings.

62.  I do not accept Mr Lam’s submissions.  First, I do not find it inherently incredible per se for a driver to move his car at a speed of 1 to 2 km/h, when he is turning at a right angle from a stationery position to enter into the entrance of a car park or residential compound.   Secondly, there is no evidence before me to suggest what an ordinary or reasonable driving speed should have been in the situation as that faced by Mr Lee on the night of the accident.   Thirdly, given (and as fairly accepted by Mr Lam) that everyone’s driving habit is or could be different, even if there were such evidence, without more, I do not accept that it renders Mr Lee’s evidence on the speed so inherently incredible as suggested by counsel.

C1.5.2 Ms Leung’s evidence

63.  I also accept Ms Leung’s evidence on the fact that Mr Ho’s motorcycle was travelling at a high speed on the night of the accident. I find her evidence on this aspect reliable:  

(1)    It is unchallenged evidence that she was standing close to Mr Ho’s motorcycle, when it started to travel along Hing Shing Road upto say the School for the Deaf.   It is thus inherently reliable as to her appreciation of whether the motorcycle was travelling at a high speed.

(2)    Her account of this evidence was consistent, clear and unshaken under cross-examination.

(3)    She is an independent witness, and there is nothing to suggest why this part of her evidence is unreliable or inaccurate.

64.  I further accept Ms Leung’s evidence that Mr Lee’s van started to turn towards Hibiscus Park when Mr Ho’s motorcycle was at about the School for the Death.   That is about 80 or so metres away from Hibiscus Park. This is consistent with the evidence of Mr Lee (which I have accepted) that after he started turning the van towards Hibiscus Park, he noted the headlight of Mr Ho’s motorcycle coming from about 100 metres away.  I do not regard it a significant discrepancy between 80 metres or 100 metres, when these are all estimates of the distance by witnesses recalling events that occurred almost 6 years ago.

65.  Notwithstanding the above, I do not accept Ms Leung’s evidence on what the actual speed of the motorcycle was at the time of the accident. As fairly accepted by Ms Leung, it was purely her speculation and assessment, which I do not find it safe to rely on since (a) there is no suggestion that Ms Leung (albeit holding a driving licence) possesses any particular experience or skill to give an accurate estimate on vehicular speed, and (b) the motorcycle only went past in front of her for a very brief moment, which then travelled way from her in a relatively straight line, this is likely to render any subjective assessment or estimation of the speed difficult and inaccurate.

66.  I also reject Ms Leung’s evidence that Mr Lee’s van had stopped and waited for 1 to 2 minutes at the opposite lane before turning.  This is inconsistent with Mr Lee’s evidence, which I accepted.  On the other hand, I do not find this unaccepted part of Ms Leung’s evidence having any adverse impact on my above acceptance of her other parts of the evidence.  Ms Leung emphasized a few times under cross-examination that, since these were all her present estimates of time (which she was not good at in any event) of certain fast occurring events 6 years ago, they might well not be accurate.   I therefore do not find my rejection of her evidence on the estimated waiting time of the van in any way affects Ms Leung’s credibility and reliability of the other accepted parts of her evidence, which do not depend on her estimate of time.

67.  Other than the above accepted parts of Ms Leung’s evidence, I do not attach any weight to her other evidence in determining what happened right before and at the time of collision, as it is her evidence at trial that she did not witness that since she had closed her eyes by then.

68.  Mr Ho’s counsel invited the Court to reject Ms Leung’s evidence entirely as unreliable, since her evidence that she closed her eyes before the motorcycle collided with the van was in stark contradiction with what she said in the police statement.  It is suggested by Mr Ho’s counsel that she said in the police statement she actually witnessed the collision.  The relevant part of the police statement reads as follows:

“此時我親眼見到架電單車JW7938車頭直撞向輕型貨車EL8433車頭，之後我就睇唔到。”

69.  On a proper reading of that part of the police statement in Chinese, I am of the view that it is equally consistent with Ms Leung’s evidence at trial that she saw the motorcycle heading towards the van (where a collision was inevitable), and then she closed her eyes and did not see the actual impact. The Chinese words “直撞向[5]” are in my view consistent with the evidence that the motorcycle was heading towards (but before impacting) the van. They do not clearly or unequivocably suggest that Ms Leung was saying in the police statement that she saw the motorcycle hitting the van (as the translation suggested).   In fact, coupled with what she was recorded to have said later in the police statement that “之後我就睇唔到”, it reinforces my above reading of Ms Leung’s police statement. 

70.  When confronted with these parts of her police statement under cross-examination, Ms Leung said it had twisted or distorted what she meant, and that she had some reservations about that meaning.  She also said by now it was really a long time after the accident.  When later asked by this Court as to whether she said the police had distorted what she had said, Ms Leung fairly said that she did not mean that.

71.  When looked at her evidence in this respect as a whole, I understand what Ms Leung was saying was that it was a distorted reading of the police statement if it was suggested that it meant she personally witnessed the actual moment of collision of the motorcycle and the van.   

72.  For the reasons set out above, I accept her explanation.   I therefore do not find this challenge on the reliability or credibility of her evidence made out or justified.

C1.5.3 Mr Yip’s evidence

73.  In relation to Mr Yip’s police statement, I do not attach any weight to it for the purpose of the trial.  First, he has not adopted it as part of his evidence.  Secondly, he did not confirm its contents.  Thirdly, he could not remember anything about the accident. 

C1.5.4 Mr Ho’s evidence

74.  I reject Mr Ho evidence insofar as there is any conflict between his evidence and that of Mr Lee and Ms Leung. 

75.  I do not find Mr Ho a reliable witness in this respect.  In giving evidence on the material aspects, Mr Ho was evasive and his evidence was inconsistent:

(1)  He gave evidence at trial that when he first saw Mr Lee’s van at about 20 to 30 metres away, it was stationery on the opposite lane with its front turned slightly towards the direction of Hibiscus Park and the bumper already above the central dividing dotted line.

(2)  This is contradictory to what he said to the police and recorded in the first police statement dated 19 May 2003, where he accepted (under cross-examination) that he was painting a picture that the van was moving along on its own lane when he first saw it, and then without stopping first, the van suddenly turned to its right across his lane.

(3)  Mr Ho could not offer any explanation as to why there was such inconsistency.

(4)  In his second police statement dated 6 June 2003, he said after he went past the tail of a private car at the Ko Fong Street junction, he vaguely saw a van stopping on the road with its front tilted to the right.  He further said that one minute later he collided with the van but did not know why there was a collision.

(5)  As to this version of events, he could not answer to the suggestion under cross-examination that the estimate of one minute could not have been correct as it would have meant that the motorcycle was travelling at a speed of less than 10 km/h between Ko Fong Street and the entrance of Hibiscus Park (for the distance of 80 to 100 metres). 

(6)  When further asked under cross-examination as to what he did when he realised that the van was turning into his lane, he initially said he released the accelerator of his motorcycle and slowed down the motorcycle from 40 km/h to about 30km/h. 

(7)  However, when it was pointed out to him that he never mentioned in his witness statement that he slowed down the motorcycle before the collision, Mr Ho changed his evidence and said that he remembered it incorrectly. He said that as he had reduced the speed when getting past the private car at the Ko Fong Street junction and (when he answered the question earlier), he therefore assumed that he also reduced the speed when he saw the van.

(8)  I do not accept his explanation.  The question asked of him was a simple and direct one.  It is difficult to see how he could have mixed it up and made the assumption as he subsequently suggested. 

(9)  All of he above show that Mr Ho was prepared to give and change his evidence in a casual manner in order to suit his case.

76.  Further, although it is not disputed that he did not brake the motorcycle before the accident, I find his explanation that he did not do so because there was insufficient time inherently incredible.  This is so, since if he had seen (as his evidence suggested) the van moving into his lane when it was still 4 to 5 metres away, there should still be time for him to apply the brake, which was simply by pressing the brake handle with his hand.  It is important to note that the question was whether he had braked before the collision, but not whether he could have stopped the motorcycle before collision by braking it. 

C1.5.5 Finding of facts

77.  Given the above conclusions on my acceptance of the respective witnesses’ evidence, and coupled with the common background set out earlier in this judgment, I make the following findings of material facts as to how the accident occurred:

(1)  Mr Lee stopped his van at his lane (which travelled towards the direction of the School) outside Hibiscus Park.  He checked the traffic conditions (including pedestrian traffic) around him. 

(2)  When he was satisfied that the traffic was clear, and that there was no oncoming vehicle at about 100 metres away from him on the opposite lane, he started to drive his van to the right and across the opposite lane, heading towards the entrance of Hibiscus Park. He had stopped the van for no more than 10 seconds in doing so.

(3)  Mr Lee drove the van at a speed of about 1 to 2 km/h while turning towards the entrance of Hibiscus Park, and when the van was at about two-thirds across the opposite lane of Hing Shing Road at a diagonal position[6], heading towards Hibiscus Park, he noticed that Mr Ho’s motorcycle was coming towards his direction at about 80 to 100 metres away.

(4)  Mr Lee then stopped his van when the van was still occupying two-thirds of the lane heading in the direction of Hibiscus Park’s entrance.

(5)  At the same time, Mr Ho was riding his motorcycle after passing Ko Fong Street towards the direction of Kwai Fuk Road.

(6)  When Mr Ho’s motorcycle passed the School for the Deaf (which was still about 80 metres away from Hibiscus Park), Mr Lee’s van started to turn into his lane heading towards the direction of Hibiscus Park.  Mr Ho however continued to travel on his motorcycle ahead at a relatively high speed.  It is more likely than not that he was thinking that he would have sufficient space to go past Mr Lee’s van by the time he reached near Hibiscus Park, as the van was then already moving into the direction of Hibiscus Park.

(7)  However, upon seeing Mr Ho’s motorcycle’s headlight coming from about Ko Fong Street junction at speed, Mr Lee stopped his van while it was still at two-thirds of the lane where the motorcycle was coming. 

(8)  The van stopped for about 4 to 5 seconds.

(9)  Mr Ho’s motorcycle by then came close to Hibiscus Park, noticing that the van was still stationery and occupying substantially of the lane, Mr Ho did not try to brake or slow down the motorcycle, but tried to steer to his own left in trying to pass the van at its front.

(10) Mr Ho was unsuccessful in so trying to steer past the van, and the motorcycle ramped into the right front head of the van.

78.  Since I accept Mr Lee’s evidence and find that the accident occurred after 4 to 5 seconds after he noticed Mr Ho’s motorcycle coming from about 80 to 100 metres away, insofar as necessary, I also find that on the balance of probabilities, Mr Ho’s motorcycle was travelling at a speed between 57.6 km/h (0.08km/5s x 60 x 60) to 90 km/h (0.1/4s x 60 x 60) before the accident.   The safety speed limit of the road was 50km/h.

C2.    Was Mr Lee negligent in causing the accident

79.  Given the above finding of facts, I find that Mr Lee was negligent in causing the accident. 

80.  In my judgment, after noticing that a strong light was coming from about 80 to 100 metres away on the traffic lane, a reasonable driver in the position of Mr Lee would and should have continued to drive the van ahead towards the entrance of Hibiscus Park to avoid any collision with the oncoming vehicle.  In my view, it must have been obvious to Mr Lee that the oncoming bright light represented the headlight of an oncoming vehicle (whether a motorcycle or not) travelling on the road.  When I asked him what else could the light represent, Mr Lee simply could not answer it.

81.  In a situation like this, a reasonable driver should have appreciated the real possibility of a collision, and ought to have taken the precaution of moving his vehicle out of the lane to try to avoid the accident.  As said by Lord Dunedin in Fardon v Harcourt-Rivington[7]:

“The root of this liability is negligence, and what is negligence depends on the facts with which you have to deal.  If the possibility of danger emerging is reasonably apparent, then to take no precaution is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.”

82.  Taking into consideration of the fact that the oncoming motorcycle was still about 100 metres away,there should still be sufficient time for a reasonable driver (and Mr Lee) to react and continue to drive away the van, which was occupying the oncoming motorcycle’s lane, to try to avoid the accident by leaving sufficient space on the lane to allow the oncoming vehicle to pass through. 

83.  Had Mr Lee continued to drive his van towards the entrance of Hibiscus Park, he would have either been able to clear the van from the lane entirely or at least leave sufficient space of the lane to allow Mr Ho’s motorcycle to go through.   The accident could have been avoided.

84.  I am satisfied that the above finding of negligence falls with the pleaded general particulars[8] that Mr Lee failed to “steer … or manoeuvre the [van] as to avoid accident”.   It must be noted that there have not been any request for further and better particulars of this plea, and I am of the view it is general and wide enough to cover the above negligence of Mr Lee as found.

85.  In any event, under the authority of Poon Hau Kei v Hsin Chong Construction Co Ltd[9], it is open to this Court to find negligence on the part of the defendant by reference to the defendant’s own case as accepted by the Court. 

C3.    Was Mr Ho contributorily negligent

86.  I also find that Mr Ho was contributorily negligent in causing the accident in failing to have a proper lookout of the traffic condition and/or in travelling too fast.    Had he paid a proper lookout, he should have noticed that Mr Lee’s van had stopped in the middle of his lane, and slowed down or brought his motorcycle to a halt in time to avoid the accident.  The fact that Mr Ho was riding his motorcycle at a relatively high speed also added to his failure to slow down or stop the motorcycle in time.

87.  I am also satisfied that the above finding of negligence on the part of Mr Ho also falls within the pleaded particulars of negligence[10] of the Defence, that Mr Ho was “driving too fast in the circumstances” and failed to “keep any or any proper lookout or to have any or any sufficient regard for traffic that was or might reasonably be expected at the said road”.

88.  I would attribute 50% contributorily negligence to Mr Ho in the circumstances in causing the accident.

D.  Quantum

D1.    Relevant facts

89.  I accept and find the following facts as relevant to my determination on quantum.

90.  Mr Ho is now about 37 years old.  At the time of the accident, he was about 31.  He was right handed and worked as an office messenger before the accident, earning HK$8,000 per month. 

91.  At the time of the accident, Mr Lee was attending the 2^nd (and final) year of the part-time evening course of the Craft Certificate for Electricians at IVE.    He was likely to have graduated with the certificate for electricians by the summer of 2003 if not because of the accident.

92.  As a result of the accident, Mr Ho had been admitted to hospitals on several occasions for a total of 2.5 months or so, and had undergone 5 operations for his fractured right pelvis with the dislocated hip joint, and right brachial plexus injury. He had attended many sessions of occupational therapy and physiotherapy over a period of 3 years.  He was given a total of three years sick leave.

93.  It is the common medical opinion that:

(1)    Mr Ho has effectively lost the use and function of his right hand.  His right upper arm movement is also severely reduced and affected.  He could only lift his right arm up to shoulder level.  The damage to the right hand and arm is likely to be permanent and no treatment is likely to help.

(2)    His right hip joint suffered a complete destruction followed by complication of avascular necrosis and collapse of the head of the femoral bone.  His right leg is shortened by 5 cm and he walks with a limp and could not fully squat.  He also suffers from a serious and deteriorating degeneration (osteoarthritis) of his right hip joint.  It is expected that he would require a total hip replacement anytime after 2005, and will require further hip replacement in every 10 to 15 years’ time.

94.  During his recovery, Mr Ho has trained himself to use his left hand and is now generally able to take care of his activities of daily living though with some difficulty and slowness. He would however need help for major household works such as laundry, and cleaning the home if necessary.

95.  Mr Ho is living with his retired parents, who take care of him.  His mother usually cooks for him.

D2.    PSLA

96.  Mr Ho asks for HK$1,200,000 under this head.  His counsel submitted that the injuries fall into the upper limit of the “gross injury” category as defined in Lee Ting Lam v Leung Kam Ming[11] as revised by subsequent authorities in view of inflation.

97.  Ms Tsui (counsel for Mr Lee) fairly accepted that Mr Ho’s injuries fell within the “gross injury” category, but contended that it should be at the lower end of the category. She submitted that an award of $800,000 was appropriate.  Ms Tsui also said it was only in the cases of injuries of an extreme nature that would attract the Court in awarding PSAL in excess of $1m. 

98.  Ms Tsui cited a number of authorities as examples in support of her submissions.  However, it must be borne in mind that no two cases are of exactly the same facts and of identical injuries and personal particulars of the victim. Thus, authorities on quantum (other than those laying down the general legal principles) should be considered as no more than a general guideline or examples of what had been awarded as damages on a particular set of facts.

99.  Bearing this in mind, I find the following authorities of some relevance to my present determination:

(1) In Li Yuet Yee v Ng Chi Hang[12], the plaintiff suffered closed fracture of her right femur, dislocation of her left knee and fracture of her right acetabulum.  There was also reduction of her hip joint space.  The medical opinions said that she needed total hip and knee replacements.  She also suffered from separation of her right sacro-iliac joint and fracture of the tip of the left transverse process of her 5^th vertebra.  She was also suffering from adjustment disorder.  The Court further found that she was unable to resume work, even of a sedentary nature. The plaintiff was awarded $800,000 for PSLA.

(2) In Cham Cheung Sing v Yung Pak Wa[13], an award of $2,000,000 was awarded under PSLA for the plaintiff, who had no effective movement below the neck excepted limited shoulder movement.  He was assessed at 98% impairment of the whole person by the medical experts.

(3) In Cheung Wai Ping v Chan Yuen Yee[14], the plaintiff had suffered irreparable brain damage and could no longer conduct his own affairs.  He needed to be looked after for most of the time.  The Court described his condition as a “shambling hulk of a man who has lost any meaningful existence when compared to that which he enjoyed prior to this accident.”  $1,000,000 was awarded for PSLA.

100.  Gaining some guidance from the above authorities, and having had regard to (a) the severity of the injuries suffered by Mr Ho, the facts that (b) he was only 31 years old at the time of injury and that it is likely that he will have to live with these injuries for a significant part of his lifetime, and (c) both his dominant right upper and lower limbs are seriously affected, I am of the view that his injuries are more serious than the ones in Li Yuet Yee but less than that in Cheung Wai Ping. In my judgment, an award of $900,000 is an appropriate award.

D3.    Pre-trial loss of earning

101.  It is Mr Ho’s case that he would no longer be able to find any gainful employment because of the injuries.    He also said in evidence that he had aspired to become a licensed electrician[15], which (if not because of the injuries) he would have been able to become one 3 years after he had obtained the certificate for electricians from IVE (which was expected to be the case in July or so 2003).  His original intended career path as a licensed electrician was as follows:

(1) He initially intended to become an electrician apprentice upon graduation from IVE with the certificate, and earning about $6,000 per month, as such apprenticeship was necessary to enable him to obtain the licence.

(2) After obtaining the relevant electrician licence (which his instructors in IVE informed him that it was likely that he would get it if he had obtained the certificate and done the necessary apprenticeship), he reckoned that he would start working in a company doing electrical maintenance work, earning a steady but fixed salary of $8,000 per month.

(3) He would, depending on the availability of opportunities, seek also to work as an interior decoration worker doing electrical installation work in residential or office units, earning a daily wage of about $700.  He said from his past experience, he would be able to work on an average of 20 days in a month, making a monthly earning of about $14,000.

102.  I accept Mr Ho’s above evidence on the career path, had there not been the injuries.  This evidence is inherently credible, which accords with the common ground that he was studying for the certificate for electricians at IVE before the accident, and was hardly materially challenged at trial. 

103.  I also accept Mr Lam’s submissions (for Mr Ho) that it is reasonable to expect that Mr Ho (with his previous experience as a decoration worker) would be able to find an electrician job for decoration works 1 year after he had obtained the licence as envisaged[16]. 

104.  Further, I accept Mr Ho has proved on the balance of probabilities with the following evidence that, prima facie, he is unable to find any gainful employment by reason of his injuries:

(1) The common medical evidence that Mr Ho is suffering from a significant permanent physical disability of the whole person in the region of 60-70%.

(2) Dr Lam (Mr Ho’s orthopaedic expert)’s opinion that, with the total disability of the right upper arm and that severely affected mobility the right hip rendering him only able to work in sitting posture, Mr Ho’s working potential is similar to that of a hemiplegia.  There is no challenge to this opinion. 

(3) Mr Ho’s evidence (which I accept) that, although he has been looking for one, and had attended an interview for the job of a security officer, he has not been able to find any jobs after the sick leave and completion of his studies.

105.  In rebuttal, in her written closing submissions, Ms Tsui (for Mr Lee) however submitted that Mr Ho should not be entitled to any pre-trial loss of earning after the expiry of the sick leave, as he should be able to find a job such as telephone operator or ticket sales earning at least $8,000 a month.  Counsel’s submissions are premised on the following evidence:

(1)  Mr Ho confirmed under cross-examination that he was confident that should be able to take up jobs such as a telephone operator for a taxi company or cinema ticket counter staff with use of computer.

(2)  Mr Ho also confirmed that he has trained to use his left hand, and despite his disabilities from the injuries, he managed to travel alone without much problem by way of public transports.

(3)  It is the medical evidence of Dr Cheng (Mr Lee’s orthopaedic expert) that Mr Ho should be able to carry out sedentary work in the field of computer.

(4)  By the time of the expiry of sick leave, Mr Ho possessed reasonable work experience and educational qualifications:

(a)  He had successfully attended two short-term computer courses equipping him with some basic computer knowledge.

(b) He had completed Form 4 and Form 5 evening courses (albeit he failed in all the subjects he took in HKCEE), and would describe himself as a Form 5 graduate.

(c) He had previous clerical work experience.

106.  With respect to Ms Tsui, I am not satisfied that it has been shown that, that on the balance of probabilities, Mr Ho is able to work as a ticket staff or telephone operator.  My reasons are as follows:

(1) Mr Ho’s own answer under cross-examination that he was confident to be able to take up such jobs cannot be taken to be sufficient proof that he is physically able to take up these positions:

(a)  There is no independent evidence before me to show what are the physical requirements (including the demands on the level of dexterity level of the operating hand) of an operator of such positions. 

(b) It is not suggested that Mr Ho himself understands what are the physical requirements of these jobs.  This is particularly so as it is not Mr Lee’s pleaded answer or case that Mr Ho is able to do these particular kinds of work.  The pleaded answer is Mr Ho “should change to a computer course and pursue a career in that direction” which is vague and unparticularized.  The suggestion of the job of a telephone operator or ticket staff came out of the blue in cross-examination.

(c) In the circumstances, in my judgment, it is unsafe to accept Mr Ho’s own answer under cross-examination that he was confident he would be able to take up such positions as sufficient evidence of his ability vis-à-vis these works. His answer must be viewed against Ms Tsui’s line of cross-examination pressing him to accept that he was still young and could not have been expected not to work at all for the rest of his life. 

(2) Dr Cheng’s expert opinion in Mr Ho’s ability to work is as follows:

“On a realistic and practical consideration, I consider that there are little changes [sic] for Ho to resume any manual heavy work. He is probably unable to handle a motorcycle again.  Ho is basically suitable for only sedentary work.  It is noted that Ho is studying an electrical maintenance course.  It would be better if Ho should change to a computer course, and pursue a career in that direction.”

(3) The reference to sedentary work and the pursuance of career in the direction of computer is vague and unparticularized.  Moreover, this must be read together with Dr Cheng’s own assessment of Mr Ho’s permanent physical impairment of 50% lower limb impairment (equalling 40% whole person impairment) and 70% upper limb impairment (equalling to 50% whole person impairment).  These assessments together represent a very significant permanent physical impairment of the whole person.

(4) On a proper reading of the opinion as such, I am not satisfied that Dr Cheng is saying anything to support the suggestion that Mr Ho is physically capable to take up the work as a telephone operator or ticket staff.  This is again underlined by the lack of any independent evidence to show what are the physical demands of these particular kinds of jobs. For example, I do not know whether it requires the coordination of both upper limbs to efficiently and adequately perform these jobs.  Therefore, taking it to the highest, what Dr Cheng is opining is that Mr Ho should be able to pursue some sedentary work and, if with the sufficient knowledge in computer, in the field of computer work.  That is very different from confirming as an expert that, with Mr Ho’s permanent physical disability, he is able to work as a telephone operator or ticket staff;

(5) The facts that Mr Ho has completed his Form 5 studies and two short courses in computer do not in any way affect my above view:

(a)  This do not add to his physically ability to take up the job of a telephone operator or ticket staff.

(b) Moreover, I do not think it could be challenged that, given he has only done short courses in computer and with his results from the studies, he is neither a computer literate nor a person of good academic ability.   There is no evidence to suggest that this alone adds any value to Mr Ho’s ability in working as a telephone operator or ticket staff.

107.  Moreover and in any event, Mr Lee provided no evidence at trial to show what the average earning of a taxi company telephone operator or cinema ticket sale staff is.   There is thus no evidence to support the alleged $8,000 per month earning:

(1)  Ms Tsui referred in her closing submissions[17] to certain printouts from the Labour Department Interactive Employment Service website and submitted that these show that such job positions command a salary of $8,000 per month.  However, these printouts were introduced and put under her list of authorities.

(2)  I reject these printouts as proper or admissible evidence, which the Court could and should consider.  It was not adduced at trial or put to Mr Ho.  It is put as part of the list of authorities, when it is not an authority.  Mr Ho simply had no proper chance to respond to or rebut it.

(3)  The lack of such properly put evidence is in my view particularly unfair to Mr Ho, when looked in the context that, in the Answer to the Revised Statement of Damage, it is Mr Lee’s pleaded answer that Mr Ho should be able to earn at least $3,500 a month (instead of the now submitted $8,000) in pursuing a career in computer.  This is entirely different from Mr Lee’s above case in the closing submissions. 

(4)  I also accept Mr Lam’s submissions that such print-outs could not be admitted as evidence as public records or documents under section 18 of the Evidence Ordinance (Cap 8), as it is a document of temporary nature, and not for permanent record keeping.  A public document admissible in evidence should be one which, inter alia, is made for keeping permanent record for the interest, use and inspection by the public afterwards, while a document made for a temporary purpose is not a public document[18].

108.  I therefore reject Mr Lee’s case under this issue.

109.  Mr Lee having failed to how a positive case on what Mr Ho is capable of working as in light of his injuries, I conclude that Mr Ho has proved on the balance of probabilities that he is practically unable to find any gainful employment by reason of the injuries

110.  In the premises, assuming that he had obtained the certificate in July 2003 and found an apprentice work thereafter, I accept Mr Ho’s case that he is entitled to pre-trial loss up to 19 January 2009 of $596,000, calculated as follows:

$8000[19] x 4 months	=	$ 32,000.
$6,000[20] x 36 months	=	$216,000.
$8,000[21] x 12 months	=	$ 96,000.
$14,000[22] x 18 months	=	$252,000.
Total:		$596,000.

111.  There would also be loss of MPF in the sum of $29,800 ($596,000 x 5%).

D4.    Future loss of earnings

112.  The parties agreed that the multiplier that should be applied under this head is 15.

113.  For the same reasons I set out under the head of Pre-trial loss of earning, I accept also as proved that the future loss of earning is $14,000 x 12 x 15 = $2,520,000.

114.  The loss of MPF benefits is thus: $2,520,000 x 5% = $126,000.

D5.    Loss of earning capacity

115.  Since I have concluded above that Mr Ho is unable to work anymore after the injuries, there is no question of awarding any further damages under the head of loss of earning capacity. 

116.  However, if I were wrong above, and that Mr Ho should have been able to work despite of the injuries, given Mr Ho’s injuries, and the common medical evidence on his permanent physical disabilities and the need for repeated future hip replacement surgeries, it is clear that Mr Ho would have suffered a significant disadvantage in the job market.  Under those circumstances, I would have awarded Mr Ho damages in the sum of HK$500,000 under this head.

D6.    Medical expenses, travelling expenses and special damages

117.  This is agreed by the parties in their closing submissions to be $25,988 (for medial expenses), $28,078 (for travelling expenses), $20,000 (for purchase of tonic food) and $17,640 (as special damages). 

D7.    Future medical expenses

118.  Mr Ho claimed $600,000 for future medical expenses as the cost for 3 total hip replacement operations anticipated in the future.  This is the only pleaded sum under this head.

119.  Mr Lee agreed to this sum in the closing submissions.

120.  Mr Ho in his submissions further claimed HK$100,000 as continuous orthopaedic treatments following these future operations.  This item of future expense was not pleaded and should not be open to Mr Ho.

121.  However, Mr Lee in the closing submissions in fact agreed that a sum of $50,000 was reasonable for such an item. 

122.  As Mr Lee took no objection to this item being claimed despite that it was not pleaded, I would allow $50,000 as agreed as well.

123.  The total damages under this head is thus $650,000.

D8.    Care of parents and domestic worker

124.  Mr Ho claimed $464,000 under this head, where $140,000 is attributed to the value of care and attention provide by his parents, while $324,000 to a part-time domestic helper.

125.  Mr Lee accepted in principle that continuous care and attention was required to be provided to Mr Ho. But it is Ms Tsui’s submissions (for Mr Lee) that it is only the part-time domestic helper’s cost that should be recoverable, but not the parents.  This is so because (a) the parents are retired, (b) it is Mr Ho’s own evidence that he could generally take care of his daily activities.

126.  I accept Ms Tsui’s submission, and rule that it is only the part-time domestic helper’s cost that is recoverable.

127.  However, there is no evidence before me as to what is the unit cost of such a domestic helper.

128.  Mr Ho’s pleaded case is $1,000 per month with a multiplier of 18 (assuming care is to be provided for the remainder of the his normal lifespan).

129.  Mr Lee’s in his answer pleaded that a reasonable sum is $800 per month with a multiplier of 18.

130.  I would adopt the figures pleaded by Mr Lee as a reasonable one, and thus award under this head damages in the sum of $800 x 12 x 18 = $172,800.

D9.    Total damages

131.  To summarize, the total quantum of damages awarded under the various heads of claim is $5,085,506:

PSLA	$ 900,000
Loss of pre-trial earning	$ 596,000
Loss of pre-trial MPF	$  29,800
Loss of future earning	$2,520,000
Loss of future MPF	$ 126,000
Medical expenses	$ 25,988
Travelling expense	$ 28,078
Tonic food	$ 20,000
Future medical expenses	$ 650,000
Part-time domestic helper	$ 172,000
Other special damages	$ 17,640
Total:	$5,085,506

132.  Taking into account of 50% contributory negligence, Mr Ho is entitled to damages in the total sum of $2,542,753.

E.  Conclusion

133.  For the reasons given above, I find that (a) Mr Lee was negligent in causing the accident, and (b) there is 50% contributory negligence on the part of Mr Ho in causing the accident.

134.  I therefore enter judgment against Mr Lee for damages in the total sum of $2,542,753 with interest on (a) general damages at the rate of 2% per annum from the date of the service of the writ to the date of judgment, and (b) on special damages at half judgment rate from the date of the accident to the date of payment. 

135.  As Mr Ho succeeds in his claim, there is no reason why costs should not follow the event, I therefore make an order nisi that costs of the action be to Mr Ho, to be taxed if not agreed.  This order will be made absolute 14 days from today unless any of the parties makes an application by Summons to vary the same.

[1] This is the final sum set out in Ho’s closing submissions.

[2]As shown on the scale sketch made by the police.

[3] Ms Leung’s evidence is that there had been repeated engine sound of “hmm hmm” coming from the motorcycle.  This as far as she understood meant that the rider of the motorcycle was accelerating the motorcycle.

[4] As he was in Court when Ms Leung was giving evidence.

[5]Emphasis added.

[6] As shown in the photos taken by the police of the accident scence.

[7] (1932) 146 LT 391 at 392.

[8] At paragraph 3(i) of the Statement of Claim.

[9][2004] 2 HKLRD 442 (CFA).

[10] At paragraphs (3)(a), (b), (c) and (e).

[11] [1980] HKLR 657.

[12] Unrep., HCPI 451/2006, 31 October 2008, Master J Wong.

[13] [2007] 3 HKLRD 33.

[14]Unrep., HCPI 668/2005, 8 February 2007, Deputy High Court Judge Muttrie.

[15] Holding what is known as Licence A, entitling him to do electrical works not exceeding 400A, which include electrical works envisaged in general decoration and construction sites.

[16] Ms Tsui (for Mr Lee) submitted that the reasonable period should be 18 months, which I reject as too long.

[17] Paragraph 70(xii).

[18] Halsbury’s Laws of England (4^th Reissue) (2002), Vol 17(1), para 666 (p 310); Halsbury’s Statutes of England and Wales (4^th ed), Vol 17 (1999 Reissue), section 14 of Evidence Act 1851 (p121) referring to p 115,  Notes on public document to Evidence Act 1845; Mercer v Denne [1905] 2 Ch 538; Sturla v Freccia (1880) 5 App Cas 623, 643-644 per Lord Blackburn.

[19] As an office messenger being his pre-accident job.

[20] As an electrician apprentice.

[21] As an employed electrician.

[22] As a decoration work electrician.