FUNG BO HA v. TANG TIK CHUNG AND ANOTHER

HCPI 1368/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1368 OF 1999

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J U D G M E N T

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1. On the 14 November 1998 about half an hour after midnight the Plaintiff, who is the wife of the Third Party in this action, was standing on the pavement of Kam Sheung Road having recently got off a bus which then proceeded in the direction of Yuen Long. She was struck by the Defendants' van which knocked her into the gully or ditch then toppled on to her eventually finishing upside down. It is a miracle that she survived and suffered only relatively minor injuries though they are serious enough. In the course of the Defendants' vehicle's wayward path it collided with the rear of the Third Party's taxi which was wholly or partly on the driveway entrance to Lai Uk Tsuen. This collision almost certainly took place before the Plaintiff was struck. What caused the Defendants' vehicle to go out of control, leave the highway and end up in the position described?

LIABILITY

The Plaintiff's version of events.

2. She was travelling home on the 64K bus and received a call on her portable phone from her husband, a taxi-driver, telling her to get off the bus near Kam Sheung Garden. The call was about five minutes before she in fact reached that point.

3. After leaving the bus which stopped beyond the marked out stopping area and on the Yuen Long side of the driveway, she walked towards the Tai Po direction having seen her husband's taxi stationary in the driveway. As she was about to turn into the driveway to board the taxi on the nearside she saw the Defendants' white van coming towards her in a zig-zag fashion. It collided with the rear of the taxi and knocked her into the ditch. She is not entirely sure of that sequence but it is more likely that the van struck the taxi first, otherwise she would have been trapped between the van and the taxi. Her recollection was that the rear of the van was not projecting partly into the roadway. On photograph E she drew the line of the rear of the taxi as covering half the width of the pavement. She estimated that the van was about 7 or 8 vehicle lengths away when she saw it but given the darkness and suddenness of the van's appearance, I think her estimate should not be relied upon. She rejected the suggestion that the taxi was not already in position on the driveway and that it turned across the path of the white van.

4. She gave descriptions to the Police Officer when he took a statement from her on the 18 December 1998 a little over one month later. He incorporated those in a sketch plan which she agreed as correct. It is entirely consistent with her evidence in this case. Her statement to the Police is also consistent with that evidence. In it she stated that she alighted about 10 feet away from the bus stop. She may have underestimated that distance but she waited for the bus to move off before walking towards her husband's taxi. I accept that she is probably accurate as to where she says the bus stopped to allow her to alight. This means she had only a pace or two to walk to reach the rear of the taxi. If she is correct on her timing and sequence of events the bus can only have moved off a matter of seconds before the collision. This also means that the bus must have been visible to the driver of the white van, the first Defendant. It will be relevant to consider in due course what part, if any, the presence of that bus upon the road played in the collision.

The Third Party's version of events.

5. After delivering a passenger in the vicinity he said he turned into the driveway and then made a phone call to his wife asking where she was and then telling her to get off the bus at the stop near where he was parked.

6. He saw the bus arrive and his wife get off. His taxi remained in its stationary position throughout the six or seven minutes which he estimated elapsed from the time he drew onto the drive until she got off the bus. As he turned to open the nearside front passenger for her to get in, he saw the Defendants' van and within a second or two his taxi was struck and turned through 90 degrees. It is important and significant to note what he said in his statement to the Police made on the morning of the accident approximately two hours later. A very different picture merges from this. It gave the impression that he saw his wife waiting for him on the pavement and he turned into the driveway. He had seen no car coming in the opposite direction as he turned. Having completed the turn into the driveway he was stationary for about 20 seconds before he noticed the Defendants' vehicle coming towards him in a snaking or zig-zag movement (as I interpret the expression "in 'S' form") and colliding with his vehicle. With his help, the Police Officer prepared a sketch plan showing the position of his taxi and the Defendant's point of collision with it. It is in fact entirely consistent with his wife's sketch plan. The rear of his taxi is shown occupying half of the width of the pavement.

7. He explained the discrepancies between the Police statement and his evidence in this court as being occasioned by the Police Officer saying to him that he could "say what he liked", the implication being that the officer would write down what the officer wished to record regardless of what Mr Tong in fact said.

8. Ten days after his wife had made her statement to the Police, the Third Party made a second statement in which he wanted to correct some matters in his first statement. He now said that his wife had not yet arrived and he made a call to her on his mobile phone after he had completed the turn into the driveway. She then arrived about six minutes later.

9. On behalf of the Defendants much reliance was understandably placed upon the recorded question and answer following the first statement in which he was asked whether he had told an officer at the scene that the rear of his taxi was still on the roadway. His recorded answer was, initially, "No" but this was crossed out and "I am not answering the above question" was added. He also denied obstructing the Defendant's vehicle on the roadway.

10. I do not accept that the Police Officer in fact slanted what the Third Party said but I am far from satisfied that the Police Officer concerned adopted a careful and efficient approach to his interviewing. I am also satisfied that the Third Party was intensely concerned and anxious about the condition of his wife. It would have been better to have left the taking of any statement from him until later. Two hours after event was inappropriate and I am sure at that time he may have been confused about some matters. I believe the Third Party when he said that at that time he did not know whether his wife was still alive. He must have been shocked by what he saw and its aftermath. The Officer did not think it necessary to take a statement from the first Defendant, the van driver, until over 2-1/2 days later. I have concluded that the Police Officer concerned had made his mind up at a very early stage, probably whilst he was at the scene, that the driver of the turning vehicle, i.e. the Third Party, was to blame for the accident. This in turn led him to be less efficient and thorough in his investigation than he ought to have been. Whilst it is not unreasonable to regard the turning vehicle as a prima facie more likely to be responsible, an investigation should be conducted with an open mind. This was not the case. I note no questions were asked of the first Defendant about brake marks, whether he had seen the bus at any stage and why his vehicle took a left hand course. The officer had been careless about his recording of brake marks as I shall deal with later.

11. The Third Party was prosecuted for driving without due care and attention. The charge against him was dismissed. I am not at all surprised, the Magistrate having had the advantage of considering carefully the evidence of the first Defendant and the marks on the road.

The First Defendant's version of events.

12. He was a nineteen year old at the time and with limited driving experience, merely one year. He was driving a 2.2 litre engined van with four female passengers. He had been to a barbecue at Tai Mo Shan and was on his way to his home in Yuen Long.

13. He said his speed was '50' but did not know if that was miles per hour or kilometres per hour. The speed limit he believed to be '70' but again he did not know whether that was in miles or kilometres. The limit is in fact 50 kilometres per hour.

14. When near the junction with the driveway, and, of course, the bus stop bay he saw the taxi coming in the opposite direction. It was about 20 car lengths away (that would be about 80 metres distance). When it was only 2 or 3 car lengths away from him (8 to 12 metres) it turned across his path without signal. He braked and swerved to his right but went on to strike the rear nearside of the taxi, his van turning through 180 degrees and toppling over into the ditch. He had seen a pedestrian momentarily before the collision.

15. In his evidence in the magistrates court he said he was 10-taxi lengths (40 metres) away when he first saw it and about 4 or 5 lengths away (16 to 20 metres) when it turned across his path.

16. His statement to the Police records his saying that the taxi was only 25 metres away from him when he first saw it and about half that distance when it turned across his path. He added that the rear of the taxi projected some 2 feet into the road at the time of the collision. The sketch plan drawn by the officer and approved by the first Defendant postulated an entirely different set of circumstances from that advanced by the Third Party. It is also not consistent with the marks on the road. If one accepts for the moment the Police Officer's sketch plan and measurements, the Defendants' van came to a halt on its roof, facing the opposite direction having turned through 180 degrees, approximately 20 metres from the beginning of the tyre mark as recorded by the Police Officer. That was of course not a natural completion of braking. The van's momentum was arrested by its backward motion and falling into the ditch. Adding the thinking distance to the braking distance produces in this case at least 40 metres. That means the taxi, on his version, started to turn causing him to rake evasive action when he was at least 40 metres away. This indicates a speed comfortably in excess of 50 k.p.h. , the legal limit, and probably of the order of 70 - 80 k.p.h.

17. At one stage in his evidence he stated that the taxi was stationary in the driveway. He then corrected himself in answer to my questions by saying that it was not stationary and projected partly into the roadway.

18. I found him an unsatisfactory witness even making due allowance for his youth. At various stages of his evidence he appeared bored, impatient, inattentive and amused.

The Police evidence and the marks on the road.

19. From his sketch plan made at the scene the Police Officer prepared a scale plan. There are several salient features.

20. The Defendants' vehicle is shown upside down in the ditch facing the direction from which it had come. Its position is over 14 metres from the end of the tyre-mark recorded by the Police Officer. The Third Party's taxi had been turned through 90 degrees by the impact and now was facing Sheung Tsuen. It was blocking virtually the whole of the driveway, almost parallel to the roadway itself. It was 4.4 metres in from the road edge. This confirms the evidence that the taxi was off the road at the time of the collision.

21. On the road itself was marked a 6 metre long tyre-mark roughly parallel to the broken central white line. On the sketch plan itself this is shown as a series of broken tyre marks extending for 6 metres. They are shown as lying between the broken central white line and the broken painted edge of the bus stopping bay. They are positioned just on the first Defendant's nearside of the road as he travelled towards Yuen Long.

22. Commencing on the edge of the nearside of the roadway, Yuen Long bound, is a tyre-mark, of a scuff type, which continues across the nearside pavement for its width.

23. The officer says that he took some photographs at the scene but that they proved to be blank on being developed. The Third Party himself went back to the scene the following morning in daylight and took some photographs which are of importance and in one respect significant.

24. These show with some clarity the tyre scuff mark running along the pavement, indicating in my judgment the track of tyre moving sideways and abrading on the coarse concrete surface. It is not possible to say which of the van's tyres (other than a front tyre) left this mark though I suspect a close examination of the four tyres would have revealed this. The more significant tyre mark is that shown in photograph F. It commences just on the offside of the centre of the road (Yuen Long bound) crosses, gradually, the painted broken white line section which marks the middle of the road, then appears to run the length of it. It is not possible to determine with accuracy where it terminates. Its position vis-à-vis its distance from the driveway and the marked bus bay is almost identical to that marked by the Police Officer on the plan. The vital difference is of course that it shows the course of a tyre from a position first on the offside of the road to one just on the nearside of the road. No other marks comparable to those described or recorded by the Police Officer can be seen in the photographs. There is, however, another tyre-mark, shown in photograph F, running diagonally towards the pavement crossing the right hand stroke of the letter "U" (in Bus). I cannot make any positive finding with regard to that latter mark.

25. The Police Officer did not return to the scene the next day, an omission which surprises me, given that this was a night-time accident. His explanation for the absence on the photograph of the 6 metre mark he saw and recorded, is that rain and traffic would have washed it away. In fact the conditions were dry that night as all including himself, noted, and later that day, from the photographs, it is clear that conditions were also dry.

26. I have concluded that the Police Officer was less than careful and that the mark he saw earlier that same morning, in the dark, is the one shown on photograph F, and whilst he recorded parts of it, he missed the vital start of it. The night may have played tricks on his sight as well. Had he gone back in daylight he would have had a clearer picture. His reference to rain and traffic having washed away the marks he saw is an entirely unconvincing explanation for his failure to accord recognition to and the significance of these marks, the course of which shows that the vehicle causing it was at least partly on its offside of the road moving back to its nearside. In my view the form of it and the evidence of the course taken by the Defendants' vehicle establishes, on the balance of probabilities at least, that it was caused by that vehicle in a severe braking manoeuvre. It also means that the overall brake mark was probably longer than 6 metres.

27. The Police Officer was questioned as to his impartiality on the basis that he was well acquainted with the first Defendant who came from the same district in the New Territories. The officer conceded that he knew the first Defendant having seen him several times in the community, but not on any private occasions. He knew him by a 'nickname' only before the accident. I do not think that the Police Officer's link with the first Defendant was other than in the limited form he described and coincidental. The Officer's error lay in his lack of judgment, impartiality and thoroughness in reaching a decision precipitately. This, however, distorted the true picture of this accident.

How the accident happened and who was responsible.

28. The first Defendant, an inexperienced motorist, was driving the 2.2 litre engined van at excessive speed along this road towards Yuen Long. It was probably in excess of 70 k.p.h. He was over the centre of the road to an extent which cannot clearly be estimated. I consider he saw the bus ahead probably slowing down and was preparing to overtake it. Hence his position on the road. He was not sensibly able to overtake it because he became aware of the taxi coming in the opposite direction. I think this awareness was belated. The taxi turned into the driveway and was wholly in the driveway before any collision took place. The first Defendant braked late in the course of coming back to his nearside and lost control of his vehicle. That vehicle turned before, or at the moment its nearside struck the kerb, and it turned through 180 degrees. The force of its impact and momentum was so great that although it collided with only the taxi's nearside, it turned that vehicle through a 90 degrees arc. In its manoeuvres it left the tyre mark shown on the photograph F which the Police Officer wrongly or incompletely recorded.

29. If the taxi had been the only vehicle on the road ahead of the first Defendant his manoeuvre and course would have been, as he thought and described, an evasive action to the offside.

30. I also reject the Third Party's version that he had been stationary either 20 seconds or 5 or 6 minutes before the collision occurred according to his various versions.

31. I think the Plaintiff was indeed at the scene when he turned and his varied accounts have stemmed from an understandable desire to distance himself from any involvement in or responsibility for what happened to his wife as well as a wish to put his actions in a better light since he was to be prosecuted. He was less than honest in his evidence. Accordingly when he turned he ought to have seen the approach of the first Defendant, even though I think that the Defendant may have been far enough away at that stage to allow the taxi to turn normally without putting it in difficulty. But this was night-time, he had not seen the van approaching and had he done so he would have waited to let the van pass before turning. It is notoriously difficult to judge the speed of oncoming vehicles at night-time. He probably thought he had the cover of the bus, which had just pulled away, to enable him to turn safely. In normal circumstances, whatever they may be, the turning vehicle would have to bear at least the major responsibility for a collision between it and the vehicle continuing along the major road. There are, however, particular features in this case, implicit in my finding as to how the accident occurred, which have caused me to find the first Defendant the major fortfeasor. His excessive, even reckless speed; his misjudgment in relation to the taxi which caused him initially to think he could overtake the bus without any risk to or from other traffic on the road, and his loss of control of his vehicle, arising essentially from his speed and poor judgment which led him to career to the nearside with the consequences which we know followed.

32. Accordingly in my judgment the first Defendant was two-thirds to blame, and the Third Party one-third to blame.

33. There will be judgment for the Plaintiff against the first Defendant for damages and costs; there will be an order that the Third Party indemnify the first Defendant in respect of one third of the Plaintiff's damages and costs.

34. An argument was raised by Mr Wright on behalf of the second Defendant who was sued as owner of the van driven by the first Defendant, on the basis of vicarious liability. This was never a serious issue and is, at most, of academic interest. Both Defendants were represented by the same solicitors and counsel. The insurance company concerned is that which insured the second Defendant's vehicle. There was no suggestion that the first Defendant was not driving with the second Defendant's authority. As far as the second Defendant is concerned, there will be no order as to costs.

DAMAGES

Pain, suffering and loss of amenity -

35. I have read all the medical reports. This 45 year old lady sustained principally a comminuted fracture of the distal region of the right fibula and a fracture of the great tuberosity of the head of the right humerus. There was a deep laceration over the lateral aspect of the right ankle.

36. She also had multiple abrasions of the forehead, bruising and swelling of the right shoulder, multiple abrasions of the upper abdomen, right calf and knee.

37. The right ankle injury was complicated by wound infection and skin flap necrosis. She underwent at least six operations in respect of the injuries to the right leg and upper arm.

38. Although the right shoulder has healed reasonably well, she still has stiffness and wasting. She has been left with significant and permanent disability in her right leg. Arthritic change is already advanced. There is bony fusion of the posterior talocalcanean joint. There is also deformity of the distal right fibula consequent upon the healing of the fracture.

39. She walks with difficulty. Having seen her sitting and walking, I am satisfied that her complaints are entirely genuine. She has pain on standing up and numbness on sitting for any period of time. She is reliant upon a walking stick, still needs physiotherapy for three or four times each week, visits Shenzhen about twice a week for foot massage (it is cheaper there than in Hong Kong), has visited bonesetters and acupuncturists. At times she experiences difficulty in sleeping and occasionally her leg aches at night.

40. She has certainly not exaggerated her condition or her complaints. I think to some extent she has underplayed them. She is a personable and determined lady who is substantially handicapped. I have not dwelt upon her scarring but it is an added reminder of the accident which must have been an horrific experience. General damages will be $600,000.00.

Loss of earnings

41. I am satisfied that there is no reasonable prospect of her obtaining any employment in the future unless she is able to set up some business of her own. This would still require a great deal of mobility. She would be reliant upon a car to get about. Such a business would, of course, require a good deal of capital and her total supervision and management. Because of the obvious difficulties, I have to discount the prospect of her establishing such a business producing income.

42. What then should be the multiplicand to represent her loss? She had been engaged in the estate agency business for a number of years but had worked for periods with varying breaks.

43. The Ordinance which came into effect the year after the accident would have required her to meet a number of criteria to be able to continue as a licensed salesperson - either as existing practitioner or senior practitioner.

44. She had not before the accident taken any steps to prepare for acceptance under the new system but I have formed the view that she would have pursued a career in this field. At times she had worked freelance part-time, and earned $5,000.00 - $6,000.00 monthly. She has no tax records but there is evidence that for about 3-1/2 months before the accident, she was earning an average monthly income of almost $13,480.00. Looking at the variations in the periods of full time and part-time employment, it is extremely difficult to strike a 'true' average. I think that having made the decision to qualify in some category as a licensed agent, she would have succeeded in holding down a job on a more or less permanent basis. Allowing for the economic fluctuations which undoubtedly affect this business, I think a reasonable average income is $9,000.00.

45. For the pre-trial period (30 months) the figure would be $270,000.00. I will round it down to $250,000.00 to allow for a period for qualification when she might not be earning.

46. For the post-trial period a multiplier of 9 is agreed, which I consider is reasonable. The future loss of earnings is therefore $9,000.00 x 12 x 9 = $972,000.00. I think it is too uncertain to build in a percentage increase figure.

Loss of Mandatory Provident Fund

47. This is still a somewhat uncertain topic at present. 5% of her future loss would be $48,500.00. I round it down to $45,000.00.

Loss of earning capacity

48. This falls away as I have calculated her future loss on a full basis.

Miscellanous Special Damages
(Medical expenses, travelling expenses)

49. These pre-trial expenses have been agreed in the sum of $39,548.00 There is no pleaded claim for future expenses and Mr Wong Chi-kwong does not pursue such.

Summary

51. There will therefore be judgment for the Plaintiff for $1,906,548.00 with interest (to be calculated at the usual rates for the relevant periods on items 1, 2 and 5) and with costs to be taxed if not agreed.