SIU LEUNG SING v. WONG FOOK WING AND ANOTHER

HCPI 1096/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1096 OF 1999

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J U D G M E N T

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Liability

1. On 6 October 1996, shortly after midnight, an accident occurred at the junction of Hennessy Road and Tin Lok Lane, Wanchai, as a result of which a 35 year old electrician, the Plaintiff in this action, suffered severe head injuries with consequent permanent disability. The events which I shall review thus occurred a little over 6 years ago. The proceedings were commenced in September 1999 shortly before the expiry of the limitation period. There is no excuse for the trial of this action, at least as to liability, being delayed for so long. In this day and age that is a sad reflection upon the efficiency of the legal practitioners concerned.

2. The junction calls for careful consideration Hennessy Road is well-known. At this junction there are east and west-bound tram tracks. These tracks in effect convert the road into a dual carriageway. There is also a tram track in Tin Lok Lane which feeds into both the east and west-bound tram tracks in Hennessy Road itself. The total width of Hennessy Road is 48 metres.

3. The part of the west bound lane free from tram tracks for other traffic is about 9 metres wide. Although it is difficult to tell from the scale police plan the exact lane formation, the nearside lane is essentially for traffic turning into Tin Lok Lane. The offside lane is, or appears to be, for traffic proceeding on down Hennessy Road.

4. At the material time, between these two lanes were road works, the area of which was coned off. Normally this is the middle lane. The east bound lane, free from tram tracks is also approximately 9 metres wide. On this occasion, the majority of the nearside east bound lane was coned off for roadworks reducing the width to 6 metres.

5. The junction itself is normally controlled by traffic lights. On this occasion, the traffic lights controlling pedestrian traffic crossing Hennessy Road from both sides, i.e. crossing the west bound carriageway to the east bound carriageway and vice versa, were covered by black plastic bags. The pedestrian crossing was described as being cordoned off by iron railings in a statement by the investigating Police Officer.

6. The Defendants' bus approached the junction along Tin Lok Lane and stopped at the traffic lights showing red according to the first Defendant, its driver. For present purposes I rely upon his statement to the Police on the day of the accident. In front of his bus was a saloon car. When the lights changed to green, the saloon car proceeded straight across the junction in a northerly direction. It played no part in subsequent events.

7. The Defendants' bus proceeded into the junction turning right, that is in an east-ward direction, and crossed on to the tram tracks as it did so. The bus-driver said he saw a pedestrian walking across the tram-track from south to north. That is, from his right across his path. He said he braked and stopped his bus. He said the step, no doubt meaning the walk of the man, was unsteady. He inclined to his left. The front offside of his bus struck the man. His bus came to a halt.

8. Overall I have interpreted that what he said is not that the man walked into his stationary bus but that his bus was still moving when he struck him. In the course of some supplementary questioning he added that the pedestrian light was covered due to road repair. Pedestrians, he added, are not allowed to cross the road here. I do not know for how long those road works had been in existence but this reply indicates a knowledge of prevailing conditions. In my judgment, it put him on notice to exercise extra care in negotiating this junction, particularly as he was entering a major road at a point at which it was obvious that pedestrians would seek to across. In normal circumstances, that is when the junction is functioning normally, the onus is upon traffic entering the junction and turning to its right (or left if that was the direction) to ensure that pedestrian traffic is not put at risk. Some people move more slowly than others. Some may be pushing children in chairs; other may be reliant upon a stick for support. These are everyday, reasonable and foreseeable events and circumstances.

9. He was subject to further questioning in a statement made three months later. He clarified that his comment that the pedestrian "smelt of drink" was based on passers-by saying the pedestrian smelled of drink.

10. More importantly he said he first saw the pedestrian when he was 5-6 feet away. He added that when he looked right before he started off from Tin Lok Lane he did not see any passengers walking across the road.

11. It is now relevant to consider the statement of a passenger aboard the Defendants' bus. Mr Chan Sau Kin was sitting in the first seat on the nearside of the lower deck of the bus. He recalled the bus stopping at the lights in Tin Lok Lane. When they changed to green the bus moved off and turned to its right into Hennessy Road. Whilst making the right turn, a passenger asked the driver where to get off the bus. The driver turned to his left and spoke to the passenger whilst continuing his turn. When the bus had turned near the tram tracks Mr Chan saw a pedestrian standing at the east-bound Hennessy Road facing the north side having crossed the east bound tram track (my underlining). There was then a distance of about 10 to 12 feet between the bus and the pedestrian. When the driver looked back to the front the distance had narrowed to between 3 to 4 feet. The pedestrian's reaction another crucial aspect of the passenger's evidence was to take a step backwards having seen the bus. The actual wording in his statement to the police was:

"When the bus turned into Hennessy Road the injured person had already seen the bus and walked one step backward.

12. This, as will be seen, is pivotal evidence. The bus driver said in his subsequent statement that no passenger had asked him at which stop he should get off the bus.

13. The Plaintiff has no recollection of the accident and his injuries were obviously so severe that the Police did not take even a formal statement from him.

14. The scale plan produced by a Police Officer one week later was based on the sketch plan taken by the same Police Officer at the scene. Regrettably this officer was not asked to produce his notebook which contained the original sketch. Reliance therefore had to be placed on the later prepared scale plan. As we shall see that was deficient in what could have been a material matter. It highlighted a lack of experience of the officer and, so it appears, shortcomings in Police instructions regarding what plans should show.

15. That plan does show the position of the double-decker bus after the accident. It is substantially across both sets of tram tracks, somewhat diagonally, and positioned to occupy the outer part of the east-bound carriageway because of the road works on its nearside.

16. To what extent has the picture disclosed on paper been altered or extended by oral evidence? The bus passenger, Mr Chan, adhered to the contents of his statement. He added that he had seen the pedestrian look in the direction of the bus before the collision. He was cross-examined and challenged on this since it did not appear in his written statement but he maintained it and what he said is entirely logical. He had said at the outset that the pedestrian had taken a step backwards on seeing the bus that must have involved a look towards the bus itself. He was able to identify the position that the passenger on the bus with whom the driver was conversing was positioned near the exit doors in the middle of the bus. The driver was looking well to his left when he spoke to that passenger. In fact Mr Chan had the impression that the Defendant was speaking to him such was the extent to which he turned his head to his left.

17. I thought he was a good, intelligent witness who was as forthright as he was observant. He had no vested interest in these proceedings. He was entirely independent.

18. I turn now to the evidence of the first Defendant, the bus-driver. There is no doubt that he is an experienced bus driver having driven such vehicles for 18 years. The route involving this junction is well known to him he having used it over that same period.

19. On this occasion he came to a halt at the traffic lights and stop line in Tin Lok Lane behind a car. When the lights changed that car proceeded, across into Marsh Road on the opposite side, and he followed, taking a circuitous route to turn into Hennessy Road east bound, which involved moving to his left and then looping to his right as demonstrated by him on the sketch plan. Traffic was very smooth by that I have assumed he means gentle or light and there was no-one about.

20. His speed was in the range 18-20 m.p.h. He watched carefully for traffic from his left but in the light of his earlier description of the nature of the traffic, the wide open junction and visibility this cannot have involved more than a quick check as he started to move off. It is at this stage that his oral evidence departs from, or becomes, at the very least, an amplification of his account to the Police Officer.

21. When he first saw the Plaintiff the latter was on the west bound carriageway i.e. before the tram tracks were reached. At that stage the Defendant said that he had not taken any action because there was no need, the Plaintiff not having reached the section of carriageway on which the Defendant was travelling or about to travel. Not only was this feature of his story not in either of his statements to the Police, it did not even feature in what has been described as a supplemental witness statement (in fact his proof of evidence) dated as recently as 17 October 2002, five days before this trial commenced. It was therefore a somewhat surprising addition. In answer to a question from the Police Officer he said "There were road repairs on both sides of the tram track. I didn't see any passengers (he clearly meant pedestrians it may be a mis-print) walking across the road".

22. The implication of this is that he paid no more attention to the Plaintiff even though it must have been apparent that the latter was crossing the road and would be expected to enter the east bound carriageway. The next time he saw the Plaintiff, the Defendant was a little past the mouth of Marsh Road and had almost straightened up his bus. This is more or less as shown on the Police scale plan but, he says, perhaps pointing a little more to the nearside pavement than there depicted. The Plaintiff was crossing the road in front of him to his left by that I have concluded that he means from the right to the left. He braked and stopped but could not avoid a collision. He had travelled on, he estimated, a further 8 feet from seeing the Plaintiff in front of him.

23. He conceded that a passenger had asked him where to alight from the bus whilst the bus was still stationary at the lights in Tin Lok Lane. The passenger was standing beside him as he moved off and turned onto Hennessy Road, and was speaking although he did not know to whom or what he said. The only glance he gave to his left was to check traffic from that direction.

24. I find his evidence on this entirely unconvincing. He made no mention of it in his two statements to the Police he simply denied any such conversation taking place whilst he was negotiating the right turn on to Hennessy Road in unequivocal terms "I remember no one asked me this." He did not say, as one would have expected him to say in the light of his current explanation, that that had occurred earlier, before he moved off to turn. Even his version of this in his signed proof of evidence is a somewhat lame explanation.

25. It is clear from the Police scale plan that the bus, far from taking a circuitous route, as the Defendant described, cut right across the corner diagonally to enter Hennessy Road. In so doing he did not give sensible clearance to the tram tracks or to any pedestrians crossing from south to north. The front nearside of the bus was about 4 metres from the cones on the north side and was in the middle of the east bound tram track. There was no need at all for the bus to give the cones such extravagant clearance but in so doing it encroached upon the centre of the road giving pedestrians less room to manoeuvre.

26. When Mr Allen Lam cross-examined him on behalf of the Plaintiff the Defendant said that he thought the Plaintiff might be crossing from the one carriageway to the other, but that he did not take any action because he was still on the west bound carriageway. He added "I think when I was driving that I did not think about these things". That reply is a fair indication of the negligence of the driver on this occasion.

27. He followed this statement with evidence to the effect that the roads were sealed off (I presume he meant from pedestrians) and each night when he turned at this junction there were very few people there. However in contrast to what he had said earlier he added that he was concerned about pedestrians and lifted his foot off the accelerator "I watched to see if a pedestrian would be coming out". If this was so he could hardly have failed to see the Plaintiff near the east bound carriageway, having seen him crossing the west bound carriageway not much earlier.

28. The only other evidence which assists on how and why this accident happened is that of the Police Officer who prepared the scale plan from a sketch plan drawn by him in his notebook when he attended the scene. He was not the first Police Officer at the scene but we have no information available from that person. For some odd reason, the officer who did attend court was not asked to bring his notebook with him so we have had to rely on the scale plan drawn one week after the accident.

29. Two features of interest emerged from his evidence. One was that the cones used to delineate the area of road works to be carried out on the west bound side of the usual crossing area had no barriers between them. Therefore pedestrians could simply walk across the area to the other side of the road by passing between those cones. The second was the existence of some barriers or barrier, iron railings, no doubt of the type we regularly see in Hong Kong, in position ostensibly to cordon off access to the roadway itself. These were not actually marked on the scale plan, a misleading omission, but his recollection was that they were positioned to cover the gap in railings normally open to afford access to the crossing for pedestrians. There were no actual crossing markings on the road way. This has been remedied now but their absence makes little difference. The Defendant well knew it was a crossing under normal circumstances and says he had seen the Plaintiff earlier using it as such.

30. Whether the Defendant in fact saw the Plaintiff at an earlier stage as he has belatedly said, makes little real difference to the importance of his evidence. He ought to have seen him certainly and, regardless of the roadworks and whatever access was sealed off, he ought to have been prepared for pedestrians to be about to cross the carriage-way into which he was turning his vehicle. He says he took his foot off the accelerator in case any pedestrian came out. I do not accept this. I consider that he proceeded as if no pedestrian would emerge. He had in any event taken a line of entry which gave too much clearance to his nearside and not enough to the centre of the road, and the tram track area where pedestrians could be expected to emerge or gather. Had he taken the looping turn he described he would not have come into contact with the Plaintiff whilst the bus was still straddling the tramtracks. The whole of the bus would have been straightened up in the east bound lane proper. The distraction of talking to the passenger occurred at a crucial time and prevented him from taking full account of the line he was taking with the bus and the position of the Plaintiff.

31. Mr Chan, who was in a good position to see what was happening, described the Plaintiff as taking a step back as the bus turned. This clearly indicated an awareness on the part of the Plaintiff of the proximity and line of approach of the bus. He could reasonably have expected the bus not to take a line of turning which would bring it into his path. That is why he had to step back in my view. Unfortunately his one step back was not far enough. He may not have had sufficient time or space to go back further.

32. The Defendant's negligence is clear cut. He was not keeping a lookout at a critical time. He allowed himself to be distracted. Knowing the junction as well as he says he did, he did not accord it the importance it deserved. He may well have "downgraded" it in the light of the roadworks and the sealing off of the crossing from pedestrians. He discounted the obvious likelihood that the Plaintiff would cross the remainder of the road at an appropriate time. He took a driving line which increased the risk for pedestrians. He was unarguably negligent on his own evidence, let alone that of his passenger, Mr Chan.

33. Is there any contributory negligence? It is based on three points: The Plaintiff should not have been crossing at this point, he should not have been in the bus 'path' as it was turning onto the eastbound carriageway, and he was inebriated or the worse for drink in the sense that his consumption of alcohol affected his judgment and alertness.

34. The Police Officer's evidence about the extent and position of barriers was less than satisfactory. He had no contemporaneous note available. His scale plan did not show the barriers. His recollection was that although barriers were in position, there was no notice informing pedestrians where to cross the road (or that they were not to cross at the usual place). Although barriers fixed in position without gaps are in normal circumstances a sufficient indication that pedestrians should not cross at that point, one has come to experience in Hong Kong that such barriers are frequently opened up, leaving gaps as pedestrians force through in order to continue to use a recognised crossing. Often they are not restored to their intended effective state as those responsible acquiesce in their being opened up. This Plaintiff may well have passed through a gap left by others to use the crossing. Plastic bags over the pedestrian lights would simply call for greater care.

35. The evidence of Mr Chan that the Plaintiff took a step back, and the position of the front of the bus after the accident, is consistent with the bus driver putting pedestrians at risk by not taking a more careful line, and the plaintiff trying to get out of the way of the bus' sharp line of approach.

36. Finally there is no evidence of inebriation, only that he had consumed some alcohol. His step back showed alertness and coordination. If he had had to climb over barriers and been able to do so it is in any event unlikely that he was inebriated. The Defendant did not make any point about his first observation of the Plaintiff to suggest lack of control on the latter's part. It would be wholly unjustified on this bare picture to translate the smell of alcohol into an inebriated state constituting a degree of negligence which contributed to the accident. The Casualty Officer's reference to "Inebriety" on admission to hospital is meaningless since he was unconscious. I am not prepared to find any contributory negligence on the facts of this case. Accordingly the Plaintiff is entitled to succeed wholly against the Defendants.

Quantum

Pain, suffering and loss of amenity

37. There is no doubt that this man suffered a severe head injury from which, in relative terms, he had made a surprising recovery. However his long-term limitations are quite clear and substantial.

38. He was unconscious for about five weeks. The head injury required a craniotomy, and tracheostomy was later performed. He also underwent surgery to improve his diplopia and head posture. He was in hospitals and rehabilitation units for almost nine months. At one stage he had great problems in communication, his speech and cognitive skills having been seriously affected for some time. In November 1999, Dr Edmund Woo who examined him for the Defendants considered that speech therapy was not required as there was no room for improvement, three years after the accident. He appears to have been mistaken. Within a year he had made significant progress. There may be some further improvement. Certainly therapy is worth maintaining in order to sustain his present level.

39. Ms Polina Chan of the Polina Chan Speech Therapy Centre had in June 1999 before he was seen by Dr Woo, recommended an extended period of speech therapy, with the hope that there might be improvement. Regrettably the therapy could not be instituted at that stage and it was not until November 2001 two years after Dr Woo's assessment that a three month course was commenced. The result in auditory word recognition was a significant improvement. Verbal fluency improved by 300% and confrontation object naming by almost 100%. Her overall conclusion was that the short course of therapy had brought about significant improvement in receptive and expressive language abilities. Substantial deficits remained. There was room for further improvement though he was likely to have permanent difficulties in using normal speech and language for daily communication. It requires little understanding to see that this alone is a substantial impediment to any remunerative employment.

40. Dr Yu Yuk Ling saw the Plaintiff in February 1999. At that stage the Plaintiff still had bi-temporal headaches daily. He had not had any epileptic seizures since June/July 1997, being on regular anti-consultant therapy. He noted poor memory and comprehension.

41. Dr Yu commented on Dr Woo's reports in August 2000. Dr Woo also had seen the Plaintiff only once. He thought the chances of recurrence of epilepsy were low but not negligible. Dr Yu on the question of speech therapy deferred to the therapist in that discipline. The prospects of the Plaintiff obtaining gainful employment appeared very low, a realistic assessment.

42. This man's diplopia has been considered in a number of reports. It is now regarded more exactly as left fourth cranial nerve palsy. The nerve controls one of the muscles of the left eye. As a consequence of the head injury, the left eye is in a higher position than the right. After surgery, he can control the diplopia effect by tilting his head to the right side. The present picture is best conveyed by a report of 5 January 2001 by Dr Cheung Sek Hong of the Hong Kong Ophthalmic Associates. The Plaintiff now needs to wear an optical lens with a correction in the left lens, and adopt an abnormal head posture to compensate fully for the binocular diplopia.

43. Dr Woo says the Plaintiff is "completely independent in all his activities of daily living". Dr Yu says that he is "independent in all activities of daily living". In my view he is not "completely independent". He can wash, dress and feed himself. He can do shopping for the fundamentals with the assistance of pictorial identification of items. He can travel on a few routes with which he has familiarized himself. He can go to the bank with withdrawal forms prepared for him. He is substantially aided by bank staff who know him. The limitations are obvious.

44. There is no realistic prospect of his obtaining gainful employment. He is dependent to a substantial extent, and permanently, on members of his family, and others in a variety of ways.

45. General damages under this head will be $900,000.00.

Pre-Trial Loss of Earnings

46. He was an electrician and had been so employed for a number of years. Evidence was given by a former working colleague of some years standing, certainly since 1990. It is contended on the Plaintiff's behalf that he was hardworking and worked about 26 days every month. Unfortunately the documentary support is sparse.

47. Wage slips for the nine months prior to his accident in October 1996 are a starting point. They show a range of earnings of from $5,400.00 to $17,145.00. Only three of those months show earnings below $10,000.00.

48. His work colleague Mr So Kan Wo, who also worked for Hang Chun Engineering in 1996 although not always on the same projects, earned between $16,000.00 and $17,000.00 monthly with a daily wage of $620.00. That equates to about 26 to 28 days work per month. His family says he worked about 26 days per month. How then can the lower wages from Hang Chun be accounted for in view of the fact that only in July 1996 did the Plaintiff receive over $17,000.00?

49. Mr So said that for a long time he had known the Plaintiff went off to do more highly paid roller-shutter work, according to what the Plaintiff had told him on occasions. Certainly, on the basis of Mr So's evidence it would be odd, even inexplicable, if the Plaintiff were to fluctuate so wildly in his working month without having some other source of income. Mr So's evidence was that there was a strong demand for electricians on construction sites in 1996 and that this remains so even now, although he has moved onto a more supervisory and administrative role as foreman earning less than an electrician on site. He prefers this type of work as a basis for his long-term future. As he explained, with age you cannot continue to expose yourself to conditions of work on a construction site.

50. He had of course been in partnership with the Plaintiff for about 2-3 years and would have had close first-hand knowledge of the Plaintiff's working ability and industry. I am satisfied that I can rely upon his evidence as far as it goes. It may be that the Plaintiff did not work for so many hours at his roller-shutter jobs because they were more remunerative. Furthermore when the industry contracted he may have favoured the security of continuing to work full-time for a business such as Hang Chun rather than on a part-time basis with an additional series of contracts with or for others.

51. I feel that I can safely take an average of $16,000.00 monthly earnings as the basis for his losses under this head. Accordingly the annual loss would have been $16,000.00 x 12 = $192,000.00. The actual period is 6 years 1 month (to the date of judgment). This produces $1,168,000.00. The current earnings of an electrician are still in the region of $600.00 - $620.00. They have been over $700.00 per day but it is reasonable to take the 1996 figure in the round.

Post-Trial Loss of Earnings

52. It is not realistic to regard him as having a potential for remunerative employment. There are too many obstacles in his path. I accept that he is keen to find work and has tried but it would be a rare employer who would take him onto his workforce. Even then it would have to be sheltered employment. The risks inherent in employing him are obvious.

53. Accordingly I approach this head of damage as a full loss. At the age of 35 it is reasonable to assume that he would have thirty years of working life remaining. I consider the appropriate multiplier is 16. I should take the same average monthly wage of $16,000.00. Accordingly this will produce ($16,000.00 x 12 x 16) $3,072,000.00.

Medical Expenses

54. These are agreed at $5,240.00

Travelling Expenses

55. Having considered the Plaintiff's post accident in-patient period and the out-patient follow-up attendances I have concluded that these expenses are reasonable and I allow them in the sum of $33,836.00.

Tonic Food

56. Some allowance for this should be made. I think $5,000.00 is reasonable.

Adult Diapers

57. This is agreed at $3,000.00.

Mother's Care & Services

58. There is no doubt that he has been substantially dependent upon her for varying periods and to a varying extent. She is entitled to be remunerated for this. The sum claimed at $6,000.00 per month is reasonable and a two year period is also reasonable. I will allow this at the sum claimed $144,000.00.

Speech Therapy (Past)

59. The claim for $47,000.00 is supported by receipts. The therapy was obviously justified. I allow the claim.

Future Domestic Help

60. I have concluded he does need some help. The areas became evident in the course of the evidence shopping, cooking, cleaning and washing. This help is necessary to compensate for obvious limitations. But part-time help is sufficient. I think that 3 hours daily 7 days a week is sufficient. I take the figure of $50.00 per hour. This produces ($150.00 x 365 x 20) $1,095,000.00. The multiplier is 20 because it will be for the rest of his life, not merely his working life.

Future Treatment Cost

61. I accept Dr Yu Yuk Ling's neurological assessment for future care. Although Mr Allen Lam has calculated this on the basis of the working life multiplier, it has in fact to be calculated on the basis of the whole life. Applying the 20 year multiplier to the balance of the period for consultations (in net terms, 16) and to the drug costs, the total should be $46,400.00.

62. Speech therapy is justified to maintain and consolidate progress. It is to be hoped that with the assistance of a domestic helper some 'in-house' maintenance will result. But the skilled support is essential. I will allow this in the sum of $300,000.00.

Future Travelling Expenses

63. This head is to cover the Plaintiff's costs of attending the medical/therapy sessions, and of someone to accompany him. They are appointments of which he will need to be reminded and it will be necessary to ensure he actually attends. Someone will need to accompany him. This too calls for a 20 years multiplier in relation to the medical visits. I will allow $40,000.00.

Fund Manager

64. I do not think that this is justified in this case. The Court will oversee the Plaintiff's funds. In due course perhaps even now it is better that his sister replaces his mother as the next friend with a view to becoming the committee of one for the administration of funds for his benefit. His daughter of course will need allowances for her maintenance and education.

Summary

*	Pain & Suffering	$900,000.00
*	Pre-Trial Loss of Earnings	$1,168,000.00
	Post-Trial Loss of Earnings	$3,072,000.00
*	Medical Expenses	$5,240.00
*	Travelling Expenses	$33,836.00
*	Tonic Food	$5,000.00
*	Adult Diapers	$3,000.00
*	Mother's Care & Services	$144,000.00
*	Speech Therapy	$47,000.00
	Future Domestic Help	$1,095,000.00
	Future Treatment Cost	$46,400.00
	Future Speech Therapy	$300,000.00
	Future Travelling Expenses	$40,000.00
		$6,859,476.00 ==========

65. I have marked with an asterisk those items which rank for interest at the usual rate for the appropriate periods.

66. There will therefore be judgment for the Plaintiff for $6,859,476.00 with interest, together with costs to be taxed if not agreed. The damages are to be paid into court to await request for payment out of appropriate sums and arrangements for a monthly sum to be paid into the Plaintiff's bank account for his and his daughter's support.