WANG YUK KIN v. HUI CHUN WAH

HCPI 592/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 592 OF 2003

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J U D G M E N T

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1.  This is a claim by the plaintiff for damages for personal injuries.  Liability and quantum are disputed although most of the heads of damage on the issue of quantum are agreed.

Liability

2.  The plaintiff’s case is that at about 10:50 am on 12 June 2000 he was riding motorcycle registration no. JH 5157 (“the motorcycle”) in the 2^ndlane along the Island Eastern Corridor in a westerly direction when the motorcycle was struck from behind by a taxi registration no. FT 8280(“the taxi”) driven by the defendant causing him to fall off the motorcycle.  There are 3 lanes for vehicles travelling in the westerly direction along the Eastern Corridor namely, the 1^st lane being the inner lane, the 2^nd lane being the middle lane and the 3^rd lane being the outer lane.  It is not disputed that after he fell off the motorcycle the plaintiff fell to the 1^stlane where he was struck by another vehicle travelling in the 1^st lane. 

3.  The defendant’s case is quite different.  His case is that the taxi never struck the motorcycle from behind.  The taxi was travelling behind the motorcycle in the 2^nd lane.  The plaintiff felloff the motorcycle as it was wobbling and the taxi never struck the motorcycle when it was still upright with the plaintiff riding it.  The taxi only collided with the motorcycle after it had fallen to the ground.  The defendant’s case is that the defendant is not responsible for the injuries sustained by the plaintiff.

4.  I heard evidence from the plaintiff and the defendant.  I also heard evidence from Mr. Lai Ying On (“Mr. Lai”) who was a police officer at the material time and who witnessed the events on 12 June 2000.

5.  It is not disputed that the plaintiff was at the material time employed by Transnational Logistics Solutions (HK) Ltd.as a driver.  He used to ride motorcycles or drive light goods vehicles to deliver letters and parcels on behalf of his employer for clients.

6.  The plaintiff was 33 years old at the time of the accident.  At that time he had held a license to ride motorcycles for about 14 years.  He had ridden the motorcycle for about 2 to 3 years before 12 June 2000.

7.  It is also not disputed that on the morning of 12 June 2000 the black rainstorm signal had been hoisted by the Hong Kong Observatory.  At about 10:00 am and after the black rainstorm signal had been lowered, the plaintiff rode the motorcycle to collect documents from Chai Wan and to deliver the same to Central.  It was on his way to Central riding the motorcycle along the Eastern Corridor that he met with his accident.  It was drizzling at the time and the road was wet. 

The plaintiff’s evidence

8.  The plaintiff gave evidence that he was travelling along the Eastern Corridor going in a westerly direction towards Central at a speed of about 60 km.p.h. and was travelling in the 2^ndlane. He noticed a police officer standing in the middle of the road in front of him also in the 2^ndlane.  The police officer was stopping vehicles at the time and there was a vehicle in front of the plaintiff which had stopped.  He started to slow down and changed gear from 4^th to 3^rd and braked gently.  After that he felt the motorcycle swaying a little but despite this the motorcycle was under his control.  He had previously experienced this and was able to bring it to a stop in the past without falling.  He said that his motorcycle was hit from behind with a pushing force when he was still on the motorcycle and that he then fell off landing on the 1^st lane.

9.  He described the force that he felt from behind when he was still on the motorcycle as a medium pushing force although in his witness statement he had said that he felt that there was a strong power hitting the back of the motorcycle pushing it forward.

10.  After he landed on the 1^stlane the plaintiff was hit by another vehicle travelling in the 1^st lane.  It is accepted that the other vehicle was driven by another person not a party to the action.  

11.  The plaintiff denied that he fell off the motorcycle as he failed to control it.  He accepted that he did not expect to see a police officer stopping traffic at that time and was a little surprised to see that.  He denied that he braked heavily and that he lost balance and fell off the motorcycle.  His evidence was that he had full control of the motorcycle before it was hit from behind and that had it not been hit from behind the motorcycle would not have fallen.

Mr. Lai’s evidence

12.  Mr. Lai is no longer with the police force.  On 12 June 2000 he was serving in the police force attached to the Transport Bureau.  He had been attached to the Traffic Section for over 10 years.  On 12 June 2000 he was assigned to motorcycle patrol duty.  At about 10:50 a.m. he was on duty at the Eastern Corridor at the slip road near Healthy Street on the westbound lanes.  He was there to stop traffic which was approaching west.  He had just stopped traffic in the 1^stlane and then walked out to stop traffic in the 2^nd lane.  He noticed a motorcycle which was travelling in the 1^stlane moving over to the 2^ndlane.  The motorcycle was travelling at about 50 km.p.h.  He saw the motorcycle decelerating and going out of control and falling.  He said that he saw the motorcycle wobble.  He saw a taxi travelling behind it immediately braking.  When he first saw the taxi it was travelling at about 50 to 60 km.p.h.  He said that after the motorcycle fell onto the ground the taxi came slightly into contact with the rear luggage box of the motorcycle and came to a halt.  He also said that at the time the taxi hit the rear luggage box of the motorcycle the motorcyclist was already off the motorcycle.  The motorcycle was already on the ground lying on its side when it was hit by the taxi.

13.  At the time that Mr. Lai saw the motorcycle on the 1^stlane he was about 15 metres away and at that stage he did not see the taxi.  He said that the motorcycle was travelling too fast and moved to the 2^nd lane.

14.  As the photographs show, the drivers of the vehicles approaching the place where Mr. Lai was standing would have to negotiate a bend shortly before arriving there.  Mr. Lai said that he did not see the taxi when he first saw the motorcycle.  He also said that the motorcycle moved from the 1^stlane to the 2^nd lane and once it had straightened it started to get out of control.

15.  Mr. Lai said that the distance between the taxi and the motorcycle when it fell was about 20 metres.

16.  Although in his previous statements Mr. Lai said that the plaintiff fell to the right, he corrected himself in evidence and said that he fell not to the plaintiff’s right but to the plaintiff’s left towards the 1^st lane.  This was obviously a mistake in his statements as it is accepted that the plaintiff fell to the left to the 1^stlane where he was struck by another vehicle. 

17.  Mr. Lai did not see the other car strike the plaintiff after he fell off the motorcycle.  He said that after the motorcycle had fallen to the ground he went over to the injured person and it was only then that he noticed the other vehicle which had stopped ahead on the 1^st lane.

18.  The sketch drawn by Mr. Lai showed skid marks left by the taxi but he did not take measurements of the same.  He was not involved in the investigation of the accident and the investigation team took the measurements. The exact measurements were not adduced in evidence.  However, Mr. Lai estimated that the approximate length of the skid marks left by the taxi was roughly 15 to 20 metres.

19.  Mr. Lai was cross-examined on his witness statement where he said that in the course of changing lanes the motorcyclist lost control and fell.  He said in evidence that it was after the motorcyclist had already moved to the 2^nd land and straightened that he then lost control.  This took a short time as Mr. Lai said.  In my view his evidence has not been undermined.  I believe Mr. Lai and accept his evidence.

The defendant’s evidence

20.  The defendant said that he had 24 years’ driving experience.  He was driving the taxi in the morning of 12 June 2000 heading west along the Eastern Corridor from Chai Wan to Pacific Place with a passenger in the rear seat.  He was travelling in the 2^nd lane following a motorcycle when he noticed that the traffic ahead seemed to be slowing down.  He noticed that the brake lights of the vehicles in front had their brake lights on.  So he started to brake.  Prior to that he had been travelling at about 70 km.p.h.  He said that as he was negotiating the bend he slowed his speed down to less than 70 km.p.h., namely, to about 60 to 65 km.p.h.  He saw that the motorcycle was about 4 cars’ length ahead of him.  

21.  It was agreed that the length of the taxi was about 15 feet.  4 cars’ length would mean that the distance between the taxi and the motorcycle was about 60 feet when the defendant started to brake.  The defendant then saw the motorcycle wobbling.  He also saw the brake lights of the motorcycle on but could not say whether they were on before or after the motorcycle wobbled.  He saw the motorcycle fall to his left and the motorcyclist fall towards the 1^st lane.  On seeing that he stepped on the brake harder.  He had kept his foot on the brake but stepped on it harder on seeing the motorcycle fall.  He looked at the rear view mirror on the outside of the driver’s seat as he wanted to swerve right to avoid hitting the motorcycle.  As there was traffic on his outer lane, the 3^rd lane, he steered the taxi a bit to the right but could not avoid colliding with the motorcycle which was lying on the ground and the taxi then came to a halt.  He said that the rubber strip at the left front bumper came into contact with the rear luggage box of the motorcycle.  He said that at that time the taxi was travelling at about 10 km.p.h.whilst it skidded.

22.  The defendant emphatically denied that his taxi hit the rear of the motorcycle whilst it was still upright with the plaintiff still on it.

23.  The defendant was present when the investigating police officers took measurements of the skid marks left by the taxi but he could not remember what he had been told were the measurements.  He said that it was roughly 10 odd to 20 feet long.

24.  The defendant said that he did not see a police officer stopping traffic along the Eastern Corridor but only saw him running over after the accident.  

25.  In cross-examination the defendant said that as he was approaching the bend before the collision with the fallen motorcycle he was travelling less than 70 km.p.h. as he had already slowed down to negotiate the bend.  He also slowed down when he saw the brake lights of the vehicles in front so he maintained that his speed at that time was less than 70 km.p.h.  He only saw the motorcycle for the first time when he came around the bend and at that time the brake lights of the motorcycle were on and the motorcycle was wobbling. After the motorcycle fell he stepped harder on the brake but was unable to avoid colliding with the rear luggage box of the motorcycle.  He saw the motorcycle for the first time only after he had negotiated the bend and it was already in the 2^nd lane at that time.

Findings

26.  The crucial issue in this case is whether the taxi hit the rear of the motorcycle when the plaintiff was still riding it causing it to fall or whether the plaintiff fell off the motorcycle before the taxi hit the motorcycle after it had fallen to the ground. 

27.  On this crucial issue, I have no hesitation in finding for the defendant.  I much prefer the evidence of the defendant and Mr. Lai to that of the plaintiff on this issue.  I believe the defendant and Mr. Lai and disbelieve the plaintiff.

28.  The defendant’s evidence that the taxi never hit the rear of the motorcycle when it was still upright with the plaintiff still on it is supported by the evidence of Mr. Lai.  Mr. Lai is an independent witness.

29.  The defendant’s case is also supported by the objective evidence of the damage to the taxi and the motorcycle.  As is shown in the photographs produced and the motor vehicle examiner’s reports in respect of the inspection of the motorcycle and the taxi, the only damage found in the motorcycle was that the off side of the rear luggage box was damaged and the near side of the front bumper rubber strip of the taxi was detached.  No other damage was found on the motorcycle and the taxi. 

30.  From the measurements of the distance between the floor and different parts of the taxi and the motorcycle which was adduced in evidence, it is plain that the damage to the rear luggage box of the motorcycle was caused by the taxi colliding with it after the motorcycle had fallen to the ground and was lying on its side.  That would be consistent with the damage to the front bumper rubber strip of the taxi.   

31.  I find that the taxi did not hit the rear of the motorcycle causing the plaintiff to fall off the motorcycle.  I find that the taxi only collided with the rear luggage box of the motorcycle after it had fallen to the ground and was lying on its side. 

32.  I find that the plaintiff was travelling at about the speed of about 50 km.p.h. as he came around the bend and that when he saw traffic being stopped in the 1^stlane along Eastern Corridor he moved to the 2^nd lane from the 1^st lane as Mr. Lai said.  I believe Mr. Lai and disbelieve the plaintiff.  It is not surprising that the defendant did not see the motorcycle move over from the 1^st lane to the 2^nd lane as Mr. Lai said.  The defendant  saw the motorcycle only after he had negotiated the bend.  I also find that in the 2^nd lane the plaintiff straightened the motorcycle and when he braked the motorcycle wobbled.  I find that he was travelling too fast in the wet conditions and that he was unable to control the motorcycle when he braked on seeing the slowing traffic.  I do not believe the plaintiff when he said that he braked gently.  In my view he probably braked hard.  I reject the evidence of the plaintiff that he was able to control the motorcycle when, according to him, it swayed.  I find that the plaintiff was unable to control the motorcycle after braking hard in the wet conditions causing it to wobble.  The motorcycle fell as a result of this with the plaintiff landing towards the 1^st lane where he was hit by the other vehicle.

33.  On the estimation of the length of the skid marks, I prefer the evidence of Mr. Lai to that of the defendant on this matter.  I find that the length of the skid marks left on the road by the taxi was about 15 to 20 metres.  This was the result of hard braking by the defendant.  I find that although the defendant was driving the taxi at about 60 to 65 km.p.h. at the time that he came out of the bend, in my view, he was travelling too fast in the wet conditions that he found himself in on that morning. He was unable to stop his taxi in time as he collided with the rear luggage box of the motorcycle after it had fallen to the ground and was lying on its side.  He was, in my view, travelling too fast and too close to the motorcycle in the circumstances.  However, the defendant did not cause the plaintiff to fall off the motorcycle and to sustain his personal injuries.  I have no hesitation in finding that the taxi did not hit the rear of the motorcycle whilst it was still upright with the plaintiff still on it and that the defendant did not cause the plaintiff to fall off his motorcycle and to sustain his personal injuries. 

34.  In my judgment, the plaintiff has failed to establish negligence on the part of the defendant resulting in the injuries he sustained.  On the issue of liability I find for the defendant.

Quantum

35.  In case this matter goes elsewhere and different views prevail, I go on to consider the question of quantum.

36.  The plaintiff was 33 years old at the time of the accident and is now 37 years old.  He was sent to Pamela Youde Nethersole Eastern Hospital for medical treatment on 12 June 2000.  He was diagnosed to be suffering from tenderness over the left side of his abdomen and left chest.  There were multiple superficial skin abrasions over his left hand, left knee and both shins.  X-ray and CT scan showed that there was a transverse fracture of his right acetabulum with an associated fracture of the left pubic rami.  Open reduction and internal fixation of his right acetabular fracture was performed on 24 June 2000.  He was discharged on 8 July 2000. He started walking exercises after 8 weeks’ rest.

37.  After discharge from hospital, the plaintiff attended outpatient physiotherapy. In November 2000 he was able to switch to one stick for walking and by December 2000 he could discard the use of all walking aids.  He was given sick leave until 24 December 2000.

38.  His current complaints are that he cannot tolerate prolonged standing, walking or sitting.  He has to take a rest or change the posture after standing, walking or sitting for about 2 hours.  He is unable to ride a motorcycle as he feels pain in the pelvis and gets cramps in his hip.  He feels pain in his pelvis and hip when he carries weights of over 10 kgs or when he stands from a squatting position.

39.  Dr. Lee Po Chin expressed the view that there was no sign of post-traumatic arthritis during his clinical examination of the plaintiff.  The chance of the plaintiff developing degenerative arthritis was very low.

40.  The plaintiff is no longer able to play football or engage in war games which activities he enjoyed before the accident.  He has also reduced the frequency of sexual intercourse with his wife as he feels pain in his pelvis and hip.

41.  As regards his employment, the plaintiff is still employed by the same employer who employed him before the accident.  He can no longer ride a motorcycle and he has been given indoor duties.  He has been educated up to Form 3 level but received no vocational training.  Part of his indoor duties include managerial responsibilities. He has received a promotion in his job with salary increments.

42.  The following heads of damage are agreed :

Pre-trial loss of earnings

43.  This is agreed for the period from 12 June 2000 to 24 December 2000 at the rate of $10,863.45 per month amounting to the total sum of $70,194.60.

Medical expenses

44.  These are agreed in the sum of $2,708.

Travelling Expenses

45.  These are agreed in the sum of $1,608.70

Tonic food

46.  This is agreed in the sum of $5,000.

Damaged personal effects

47.  This is agreed in the sum of $1,900.

48.  The claims for future medical expenses and future loss of earnings were abandoned.

49.  The only items in dispute are the award for pain, suffering and loss of amenities (“PSLA”) and the loss of earning capacity.

PSLA

50.  I was referred to Choi Lai-Fong v. HungYiu-Wing (2000) HKLJ 324, Tsang Hing Yuen v. Nishimatsu Kumagai Joint Venture (a firm) & another [2000] 1 HKLRD 796, and Ku Chiu Chung v. Tang Tin Sung [2002] HKEC 1191.  Each case, of course, depends on its own facts. 

51.  It seems to me the injuries that the plaintiff sustained fall into the low range of the serious injury category.  I would award the sum of $400,000 for PSLA.

Loss of earning capacity

52.  The plaintiff has education level only up to Form 3 and has had no vocational training.  His employerseems pleased with his performance as he has been promoted with salary increments.  However, I accept that the plaintiff has not been able to cope well with his managerial duties as he said because of his education level and his personality.  He finds it difficult to give orders to his colleagues and he does not consider that his position in the company is permanently secure. 

53.  Dr. Lee expressed the view that the pain, residual weakness and tendency for easy muscle cramping will place some restrictions on the plaintiff’s employability. He will have difficulty performing strenuous work and lifting heavy objects and walking long distances.  It would not be suitable for him to work as a courier as he did before the accident as this requires long walking and carrying heavy weights.  His employability is therefore restricted and he would have a disadvantage in the labour market. 

54.  The plaintiff is a young man of 37 years.  There is, in my view, a real risk that the plaintiff would lose his present employment during his working life.  In my view, the sum of $150,000 should be awarded for loss of earning capacity.

55.  The total award of damages that I would have awarded the plaintiff had he been able to establish liability on the part of the defendant is the sum of $534,364.48 arrived at as follows :

	$
Pre trial loss of earnings	70,194.60
Medical expenses	2,708.00
Travelling expenses	1,608.70
Tonic food	5,000.00
Damaged personal effects	1,900.00
PSLA	400,000.00
Loss of earning capacity	150,000.00
	631,411.30
Less Employees’ Compensation received	($97,046.82)
Total	$534,364.48

56.  Interest has also been agreed on special damages at 4% p.a. from date of accident to judgment and on PSLA at 2% p.a from date of writ to judgment. 

Conclusion

57.  In view of my findings on the issue of liability, the claim against the defendant is dismissed.  I also make an order nisi for costs of the action in favour of the defendant. The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.