DAVID MORTER v. HONG KONG TRAMWAYS LTD

HCPI 599/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 599 OF 2002

____________

____________

_______________

J U D G M E N T

_______________

1.  On 21 April 2001 the plaintiff, Mr Morter, then aged 56 years, fell and suffered a back injury whilst travelling on a tramcar operated by the defendant.  He blames it on the motorman, alleging that he drove the tram erratically, stopping and starting with jerks and sudden acceleration and deceleration.  One such manoeuvre caused him to stumble and fall as he was in the throes of leaving his seat to alight.

2.  He also finds fault with the tramcar’s layout.  He tried to stop himself from tumbling but there was no handrail or other support in his immediate vicinity.  He fell backwards, landing heavily down onto the seat and thence to the floor, taking the force of the fall on his buttocks.

3.  Since the accident he has been consistently treated, but has ever since suffered from pain and a lack of mobility.  He was a freelance languages teacher but the accident has brought that to a halt.  He worked out daily in a gym and was a regular hiker, but can no longer manage those activities either. 

4.  Medically it is said that he had been suffering from arachnoiditis and degenerative disc change, but that the accident may have accelerated and aggravated this pre-existing pathology. 

5.  This is his claim in damages for negligence.

Pre-Accident History

6.  Mr Morter was born in April 1945 in the UK.  Until 1973 he lived and worked in England as an electrician.  After a short stint in Japan he returned to England.

7.  In 1976 he was operated on as a result of a congenital back problem; a laminectomy was performed to relieve pain and lack of mobility caused by a herniated disc.  He says of the operation that it was a complete success, whilst leaving him with a degree of inflexibility in that part of the spine.

8.  In 1977 he returned to the East, spending time in Japan and Taiwan.  In Japan he received instruction on teaching English as a foreign language and that became his regular occupation. 

9.  In 1989 he came to Hong Kong.  Here he worked as a gym instructor for a few months, before reverting to teaching English to Japanese expatriates.  This was to be his sole source of income until the accident in April 2001.

10.  His students included businessmen, housewives and children.  Sometimes he was hired and paid by Japanese corporations by cheque and sometimes by the students themselves in cash.  The difficulty about this is that throughout the 10 or so years he was so occupied he did not keep full or proper records; in particular, an account of who hired him and when and how much he was paid.

11.  In the witness statement he adopted as his evidence he recorded that as at 2001 he was charging $240 per hour and that he worked 25 hours per week except in the Summer when, for 2 months, he worked for 15 hours per week.  He took 3 weeks off per year.  He claimed to be earning $30,000 per month on average, based on these estimates.  In the witness box he said that that was a constant for the 5 years prior to 2001.

12.  But the trouble is that there are no accounts, receipt stubs or other documents to verify this, and in fact based on Mr Morter’s own assessment the monthly average is but $22,700.  When tackled about the accuracy of his estimates he said his hourly rate was less, $220 per hour, and he took a total of 5 weeks leave each year, making his monthly average even less, say no more than $20,000 odd.

13.  Throughout, Mr Morter paid no tax.  He said that at both ends of the 1990’s he was told by officialdom that he was not earning enough to incur any tax, and thus filed no returns.  Beyond that, he has not demonstrated how it was that he would have incurred no tax.

14.  Mr Morter did run a savings account and produced this to show that he made regular deposits of cash and cheques.  But this was by no means clear-cut, for there were deposits and withdrawals made well in excess of the amounts one would expect for the income he said he was achieving.  And there were deposits made post the accident when he claims he was not working.  His explanations for these were variously that he lent money and was being repaid that money, or that it was being used to purchase bonds.  Most often, however, his response was that he could not recall details.  Of the money lent he did not give the source of this money or how he accumulated such funds.

15.  Up to the date of his accident Mr Morter regularly attended a gym, working out with weights and on the treadmill.  He also enjoyed hiking.  He described himself at that time as physically strong and very fit, weighing in at 84 kgs.

16.  Looking into the future he was planning to continue to teach English to Japanese into his 70’s, thus for 15 or so more years, and otherwise the physical activities he pursued for leisure.

17.  The accident changed all that; I come to those details next.

The Accident

18.  The tram in question was on a route from North Point westwards to Wan Chai and beyond.  It was on a Saturday morning at about 11:30 a.m. and thus was crowded. 

19.  As to the layout:  at the front right hand side is the motorman in his cab.  The exit is opposite him on the left.  Behind him is the staircase leading to the upper deck.  Facing it is a bench seat.  At the material time, Mr Morter found room at the very front of this bench seat and sat on it facing forwards.  He was a regular user of the tram service, and this was the seat he headed for if it was free, given its proximity to the exit.

20.  In his vicinity there was a vertical handrail just back from the exit door, and another no more than a meter to its right, to the left of and just behind the motorman’s seat.  There was also a handrail overhead, running down the body of tram, parallel to and above the bench seat Mr Morter was occupying.  Finally, there was a horizontal bar across the window between the door and the front of the bench, within his reach.  On his account, as he was sitting he held on to this rail for support.

21.  Mr Morter’s destination was the tram stop opposite the Regal Hotel in Causeway Bay.  A series of photographs produced allow me to set the scene.

22.  The tramlines running east and west are in a part of the road designated for tramcars only.  Approaching the stop in question the tram takes an easy right hand bend before arriving at an intersection controlled by traffic lights.  The lights permit vehicular traffic periodically to cross the tramlines.  A tram approaching thus from North Point travelling westwards will have its progress determined by a traffic light stationed at the front left hand corner of the intersection.  It will show red for stop or a yellow T for go. 

23.  The intersection comprises hatched yellow lines.  On the far side on the right there is another traffic light upon which the motorman will focus his attention as he proceeds into the intersection.  Its lights are synchronised to match those of the first traffic light.

24.  Immediately west of the intersection and just beyond the second traffic light there is a pedestrian crossing.  One can assume, and I assume, that this is light controlled also, to permit pedestrians to cross when the lights I have described are red for trams. 

25.  A few meters further west of this crossing is the stop at which Mr Morter intended to alight.

26.  And so to the accident.  I record verbatim from Mr Morter’s witness statement, as follows:

“	5.	During the journey the driver drove at a fast speed (for a tram) and in what I would describe as an erratic fashion, in that he stopped and started very quickly.  The journey was very ‘jerky’ and he did not drive smoothly.
	6.	When we came into Causeway Bay the tram stopped at the traffic lights by the Regal Hotel.  When the tram re-started, I started to stand to get off the tram at the next stop, which is nearby.  There were many people who were standing to get off at the same stop in front of me.  I was unable to hold onto the upright hand-rail next to the door because of the people in front of me also waiting to get off.
	7.	As the tram was going across the intersection it suddenly stopped at the far set of traffic lights which were in its favour.  I have no idea why this happened.  It then started up in a very quick fashion.  Everyone was thrown backwards and because of my position (I was in an approximately half-way standing position at the time) I was thrown back down onto the seat and then onto the floor.  I hit my elbow on the window sill and came down upon the seat, landing on my buttocks, with great force.  I am quite a big person.”

27.  Mr Morter said he got up and proceeded to disembark but before doing so spoke angrily to the motorman in English concerning his driving skills.  He got no reaction, but the motorman stared at him and would have known he was cross.

28.  Having got off the tram he sought out the tram inspector stationed at the stop and angrily complained that he had fallen in the tram because of the way it had been driven.  The tram was identified to be number 76.  The police were summonsed, and an ambulance called.  Mr Morter was taken by ambulance to Tang Shiu Kin Hospital.

29.  There was no other eye witness account of what happened.  No other passenger came forward to complain of the motorman’s erratic driving, or of having been injured, or inconvenienced, at the time, or otherwise to corroborate Mr Morter’s complaint. 

30.  It is standard procedure that if there is an incident, such as a passenger falling, the motorman must file a report of the incident.  The motorman of tram 76 at the time in question, called Law Hon Kwan, filed no such report.  In fact at the close of his shift he reported only that a windscreen blade needed replacing.

31.  Mr Law was called to give evidence.  He had made a witness statement in January 2003, and adopted that as an accurate account. 

32.  On the day in question he came on duty at 8 a.m.  His first job was to check the mechanics and electrics of the tramcar and he did so, finding them to be in a sound working condition.

33.  He said the journey from North Point to Whitty Street, during the course of which the tram passed by the Regal Hotel in Causeway Bay at about 11:30 a.m., was uneventful.  At that stop there was nothing out of the ordinary for him to record.  He was not aware of a passenger falling down, nor of having been confronted by an angry Westerner, berating him in English.  Passengers alighted and embarked as normal.

34.  Concerning the intersection which preceded that stop, he confirmed the two lights are synchronised, so that if he was obliged to stop at the red light prior to the intersection, as described by Mr Morter, then proceed when it turned to the yellow T, he would almost certainly be cleared to proceed through the intersection and over the pedestrian crossing without interruption, rather than be brought to a halt prior to the pedestrian crossing.  For it to be otherwise the sequence on ‘go’ would be far too short.  But he did concede that an errant pedestrian using the crossing against the lights or some other untoward traffic incident might necessitate an unscheduled and sudden stop, as described by Mr Morter.

35.  He also said that if brought to a halt at the intersection, the speed thereafter to the tram stop would not exceed 15 kph given the relative proximity to the stop. 

36.  He denied driving erratically during the morning in question.

37.  I heard also from a resident engineer of Hong Kong Tramways called Siu Kwok Ming.  He described his duties as undertaking inspections and repairs and carrying out related mechanical activity on his employer’s tramcars.  All of the tramcars are by rotation regularly subjected to a thorough inspection and repairs are undertaken as are warranted.  Tramcar 76 was last inspected on 12 April 2001, 9 days prior to the incident.  Minor repairs and adjustments were then carried out.

38.  He described the manner in which a tramcar of which number 76 is a typical example is driven, from a stationary position.  The speed from zero is controlled by the driver pulling back on a lever called the master control unit, through a series of notches from 1 to 8.  The higher the notch, the greater the speed.  But the system is computerised, so that even if the unit is pulled back quickly and forcefully, the acceleration will proceed in a controlled manner through the notches.  In other words, a high speed take off, possible in cars and other vehicles, is impossible to achieve, no matter how the tramcar is driven. 

39.  The same system is used in reverse to bring the tramcar to a gradual halt, evenly spread from its travelling speed down to a full stop.  However, there is a pneumatic brake and an electrical brake, either of which will allow the motorman to bring the tram to an emergency stop if that is warranted.

40.  Given that Mr Morter in his action made specific complaint of the tramcar having been suddenly started from stationary with a force that threw passengers backwards, tram 76 was tested in 2003; that is, taken four times from a standing start as quickly as possible through the notches to notch 8.  The result produced show that it took 8 seconds to reach a speed of 17 kph, by which time it had travelled 20 meters.  As any driver will know, this is acceleration of a most leisurely kind, from zero to a speed no faster than a steady jogging pace.

41.  Before leaving this topic it is as well for me to deal with the possibility of mistaken identity; this because Mr Morter was not able to identify Mr Law as the motorman he says was responsible for his fall, and Mr Law had no recollection of the incident.

42.  Is it possible that it all happened in another tramcar with another motorman?

43.  The answer is no it is not.  Mr Morter is bound by his statement of claim.  I reproduce paragraph 1:

“

1.

At the material time, the Plaintiff was a passenger travelling in a Tram No. 76 which belonged to the HongKong Tramways Limited, (“the Defendant).”

44.  The statement of claim was filed in July 2002.  As recently as September 2006 it was amended to its final form, but paragraph 1 remained unaltered.  To put the matter beyond doubt, Mr Morter’s then solicitors on the record wrote to those representing Hong Kong Tramways by letter of 6 June 2006 which included the following:

“Our client’s position remains that the negligent driving of the driver of Tram number 76 was responsible for the accident, along with the direct negligence of the Tram Company.  The driver has been identified as Law Hon Kwan and the allegations against him therefore remain as they were.”

45.  I come now to the history post the accident and the consequences thereof.

Post-Accident

46.  Taken to Tang Shiu Kin Hospital, Mr Morter was x-rayed.  No fracture or other displacement was detected.  He was given painkillers and discharged.  But 3 days later, with pain persisting, he returned to Tang Shiu Kin complaining of low back pain.  This was on 24 April.  A report of the admission reveals he was examined and x-rayed again.  There was evidence of a surgical scar and reduced lumbar lordosis, narrowed disc space at L4/5 and mid lumbar spondylosis.  It was said that conservative treatment reduced the symptoms.  Mr Morter was discharged the following day and put on a course of outpatient physiotherapy.

47.  On Mr Morter’s account the pain persisted.  He could not sit for more than a few minutes nor walk any distance and his sleep was frequently interrupted because of the pain.  He began taking sleeping pills, and was prescribed a variety of painkillers.  These have caused various side effects including making him drowsy, giving him short term memory loss and causing an ill temper.  He has been unable to return to teaching, because of the pain and lack of mobility and the side effects.  So he has had no income since the accident.  And he has not been able to undertake any gym work or hiking; his weight has ballooned to 112 kgs. 

48.  In September 2001 Mr Morter was given an MRI.  The report reveals:

“FINDINGS:

L4 laminectomy changes are present.  There are clumpings of bilateral S1 to S4 nerves.  These nerves show no major abnormal enhancement.  L4/5 & L5/S1 discs are narrowed, desiccated & anterior bulging.  Degenerative changes of adjacent endplates are present.  There is compression of thecal sac at L3/4 disc level by prolapsed disc & thickenings of ligamentum flavum.  Bilateral L4 nerves are abutted by the disc.  There is anterior indentation of thecal sac at L4/5 disc level by prolapsed disc.  L5 nerves are not compressed.  There is also mild prolapse of L5/S1 disc Thecal sac or spinal nerves are not compressed at this level.  Vertebral bodies contains no abnormal signal.  There is no abnormal enhancement found.

IMPRESSIONS:

1. Post-op arachnoiditis, involving bilateral sacral nerves.

2. L3/4, L4/5 & L5/S1 prolapsed discs.  Compression of thecal sac at L3/4 disc level.”

The laminectomy undertaken in England in the 1970’s was to L4 and L5 on the spinal column.

49.  With pain and immobility persisting, Mr Morter was admitted to the Duchess of Kent Children’s Hospital (DKCH) in June 2002.  An assessment was undertaken but interrupted by unrelated events as I shall come to.  He returned to DKCH in October 2003.  A report of the visit reveals he still complained of significant low back pain and pain in his right leg.  An x-ray of the lumbasocral spine showed degenerative changes at L4/5 and L5/S1.  He was treated with a course of physiotherapy but back and right leg pain persisted.  A nerve root block was done to right L4 and L5 nerve roots in November 2003.  This reduced much of the pain, but only for about 3 months.

50.  A CT was undertaken in June 2004.  It showed evidence of arachoniditis from L4 downwards; spinal stenosis at L3/4 due to interveterbral disc bulging, facet joints and ligamentum flavum hypertrophy, degenerative change with osteophytes from L4 to S1 and calcified left postereal lateral extruded disc at L5/S1 level.

51.  A report of July 2004 concluded:

“To conclude, Mr Morter suffers from lumbar spondylosis, spinal stenosis at L3/4 and arachoniditis from L4 downwards that causing his back and leg pain.  As surgical intervention is not going to help the archnoiditis, the success of surgical treatment is not high.  Out plan is to give him nerve root block to L4 and L5 nerve roots and give him a period of physiotherapy to see whether this can make him better.”

52.  There was a further report from DKCH of September 2004:

“So, Mr Morter has three problems, they are lumbar spine degeneration, spinal stenosis and arachnoiditis.  We told him that surgical intervention can only deal with the spinal stenosis and spinal instability problems but cannot help the arachnoiditis. As we are not sure how much of his symptom is contributed by arachnoiditis, we are not sure about success of the surgery.  We had give him nerve root block to right L4 and L5 in July 2004, but the response is poor.  He had tried Alternative medicine which include Acupunture and acupressure before, but poor response.  He did not respond to physiotherapy as well.”

53.  A further and final report was forthcoming from DKCH of January 2006:

“Mr Morter David suffers from asthma, sick sinus syndrome, lumbar spondylosis, spinal stenosis and arachnoiditis.  He has low back pain and leg pain having regular follow-up at our out-patient clinic.  He received right side L5 nerve root block on 11^th November 2004.  He had transient improvement of the leg pain after the procedure.  He was last seen our out-patient clinic on 26^th October 2005.  His condition was stable.  He still had low back pain and leg pain.  He could walk with elbow crutches.  As his symptoms are not likely to get improved with surgical intervention, we are not planning to operate on him.  His condition is currently under observation.”

54.  Mr Morter in a supplementary witness statement of February 2006 summarized his situation as follows:

“	4.	I have also received 3 nerve block treatments, the last being administered in approximately November 2004.  These consisted of an injection into the nerve root which, if successful, had the effect of blocking the pain from that nerve.  As with the pain killers however, they had no effect on the motor nerves so I still had to get about with crutches.  By nature they were only able to provide temporary relief.  The first and third ones lasted for about 3-4 months on a decreasing scale but the second only for a couple of days.  However even when they were largely effective, I found that if I had been (usually) sitting down for a time I would often get what I can only describe as an ‘electric shock’ type of pain in my back which would cause me to move involuntarily.  I believe this was because the instability in my spine causing it to ‘move’ and touch a nerve that was not blocked.  I have been told that I will not be given any more such injections because of the damage that this would do to the nerves.
	5.	I was referred for hydrotherapy but could not do this in the hospital pool because the chlorine in the water affected my skin condition.  I have however been able to go swimming in Kowloon Park Pool as no chlorine is used there.  I find that doing that this gives some relief although on a very temporary basis.
	6.	I developed what is known as ‘trigger finger’ in the middle finger of my left hand.  This meant I was unable to fully straighten the finger.  I was told this was due to my gripping the crutches.  I had one unsuccessful operation to try to correct this and a second one 3 days later that proved to be successful.
	7.	In addition to the matters mentioned above, my condition is now as follows:
		(a)	I have to use crutches to get about;
		(b)	I cannot negotiate stairs easily;
		(c)	I have great restrictions in my ability to bend and move my back;
		(d)	I cannot lift anything but the lightest weights;
		(e)	I cannot sit in the same position for more than about 10 minutes and have to change position;
		(f)	I have numbness in my lower limbs.  It is from the hip down in my right leg and in my left foot (the nerve block does not affect this);
		(g)	I have constant pain in my lower back;
		(h)	The pain radiates down my legs particularly into my right buttock and I compensate by trying to ‘lean’ onto my left buttock;
		(i)	I have developed a burning sensation in my legs due to the nerve scarring;
		(j)	My weight has increased from 84 kgs at the time of the accident to 112 kgs as I have not been able to exercise properly.”

55.  To complete the picture it is appropriate for me to mention that since the accident Mr Morter has been the unfortunate victim of another accident and further traumas and illnesses, not related to this accident.  Chronologically this is how it happened:

(a)     In April 2002, Mr Morter was assaulted and was hurt in the neck.  A radiograph revealed cervical spondylosis.  There was a resurgence of this injury in July 2002.

(b)    Following his admission to DKCH in June 2002 (see para. 49 above) Mr Morter displayed signs of sick sinus symptoms and bradycordia and he was transferred to Queen Mary Hospital.  It was about this time that he suffered and was treated for pneumonia, and asthma attacks.  Subsequently, in February 2003, he had a pacemaker implanted.

(d)    Meanwhile, in July 2002 there was a sudden onset of neck pain.

(e)     In January 2003, Mr Morter was the victim of another tram accident.  There was a collision.  He was thrown from his seat and injured, including a fractured right hip.  It is pertinent to note that Mr Morter filed proceedings in negligence.  This claim has since been settled.

56.  Finally, Mr Morter attested that as a direct result of the injury suffered on the tramcar in April 2001 and for no other reason he has been unable to work and thus earn any money at all.  For a while he relied on handouts from friends.  Then, starting from about 2 years ago, he has been receiving CSSA.

Pre-Trial Medical Examinations

57.  As is usual in such actions as this, there was a pre-trial direction that each side appoint an orthopaedic surgeon of choice who together would examine Mr Morter and jointly report on his condition.  Mr Morter appointed Dr Chun Siu Yeung and Hong Kong Tramways Dr Lau Hoi Kuen.  They saw him together on 7 March 2003.  Their joint report was presented on 28 March 2003.

58.  Subsequently, Mr Morter was given leave to engage another orthopaedic surgeon called Dr J D Hooley.  He and Dr Lau saw Mr Morter on 1 August 2003.  This resulted in another joint report, dated 9 January 2004.  But it was further directed that both reports should be made available to the trial judge.  I come to these reports next.

The Joint Reports

59.  First, that of Drs Lau and Chun. 

60.  Having interviewed Mr Morter and noted the extent of his ailments, as described, and examined his records as available at that date, he was x-rayed again.  The x-ray revealed inter alia:  facet joint degeneration at L3-4, L4-5 and L5-S1 levels; small bone spurs at L3, L4 and L5 vertebrae; marked narrowing and degeneration of L4-5 disc.

61.  Both doctors opined that the degeneration and post-operative scarring of the nerve roots (the arachnoiditis) as seen on the MR1 of 14 August 2001 was a late complication of the laminectomy undertaken some 28 years ago in England.

62.  Taking the medical records and tests undertaken on the one hand and Mr Morter’s stated condition on the other, they formed the view that the pathology did not match the stated symptoms; thus, Mr Morter was exaggerating his disability; attempting for some reason or another to convey to his examiners that he was more seriously disabled than he was.  Dr Lau stated he believed the motive was to enhance the compensation.  Dr Chun gave no opinion. 

63.  Both opined:

“… that the accident of 21 April 2001 probably aggravated his arachnoiditis and degenerative lumbar spine, which are progressive in nature.  It is assessed that this injury had caused 3% impairment of the whole person.  However, it is considered that even without the accident of 21 April 2001, the symptoms of arachnoiditis and degeneration will progress and the end result would be the same.”

64.  Both thought that he was up to teaching students as before, but provided they came to his home.

65.  Secondly, of Drs Lau and Hooley.  As before he was examined and asked about his symptoms.  The doctors had before them his x-rays and MRI report.

66.  Both doctors opined that Mr Morter’s responses were at time exaggerated and inappropriate.  Mr Lau repeated his earlier view that there was the ulterior motive of compensation.  Both agreed that by virtue of the pre-existing pathology (arachnoiditis and degenerative disc change) it was possible that Mr Morter sustained an aggravation of the symptoms. 

67.  Lumbar disc problems particularly following surgery will deteriorate over time, leading to increased discomfort and stiffness over many years.  Dr Hooley was of the view that the pain may increase with the possible need for spinal fusion.  Dr Lau said that even without the events of 21 April 2001 there would have been progression of the arachnoiditis and disc degeneration leading to the same end result.

68.  Dr Hooley did not think that in his present condition Mr Morter could resume teaching, even at home.

The Burden of Proof

69.  There are two matters of fact for Mr Morter to establish:  the first, that he was hurt and disabled as a result of negligence by Hong Kong Tramways; thus that the company is liable; and the second, that he suffered loss quantified in damages.

70.  First the issue of liability.

Liability

71.  On a balance of probabilities it is necessary for Mr Morter to establish that he suffered an injury because of negligence on the part of Hong Kong Tramways.  A number of grounds were pleaded; but he has run his case and adduced evidence to support two specific grounds.  The first is that the motorman Mr Law drove his tramcar in a negligent manner for which Hong Kong Tramways as his employer must accept responsibility and liability; secondly, that there were insufficient or inadequate handrails installed in the tramcar, so that he as a passenger about to manoeuvre through the tramcar was put at unacceptable risk.

72.  In assessing these claims I begin with the general observation that a ride on a Hong Kong tramcar is not luxurious.  On the contrary, it is basic.  The journey is interrupted by frequent stops at lights and tram stops.  There is a steady flow of passengers, getting on and getting off.  At most times of the day there is inadequate seating so that many have to stand in the aisles.  The ride on rails is not a soft one; nor are the seats for those who have them, for they are unpadded.  There is no air-conditioning, at least no perception of any. 

73.  It is not a means of travel for everyone.  There are other alternatives, probably more comfortable.  They will also cost more. 

74.  But that does not mean that proper standards in the duty of care can be compromised.  Each passenger who pays his fare is entitled to expect to be taken safely to his destination.  However, in the course of his journey, he is obliged to look after his own safety as well; in particular, when he is manoeuvring through the tram when it is in motion.

75.  The motorman in driving his passengers for hire must exhibit a proper level of skill to protect their safety as well as to get them to where they want to go.  If Mr Law’s driving was as described by Mr Morter, then it would almost certainly not have been to the required level of competency.

76.  Generally, Mr Morter described his driving as erratic, stopping and starting very quickly, driving jerkily. 

77.  But the particular manoeuvre which was, literally, to cause his downfall, was when Mr Law caused the tramcar to accelerate suddenly and unexpectedly from a stationary position.  As he put it “Everyone was thrown backwards”, by which he meant those who were standing and preparing to alight.  And it caused him to be thrown back down onto the seat he had just risen from, thence to the floor. 

78.  But here is the oddity.  In what he describes to be quite extreme conditions, no one else complained; no one came forward to corroborate, although a Westerner who describes himself as quite a big person was thrown to the floor at their feet.  The only other witness of fact was Mr Law, occupying the driver’s cab immediately alongside the mayhem.  And he has no recollection of anything untoward and filed no report of anything untoward. 

79.  But the more compelling account was from Mr Siu, given in a straightforward manner and with clarity:  it is quite impossible to speed off from scratch; the tramcars are so designed to prohibit that.  Thus the errant driving that Mr Morter complains of could not have occurred.

80.  Did Mr Morter fall and suffer an injury?

81.  Yes, I find he did.  To suggest otherwise would invite the proposition that it was a premeditated scam to get a lot of money out of a deep pocket.  And that would have meant deliberately giving up work, deserting the gym and no more hikes, and putting on 28 kgs, in order to come to court to garner some money all these years later.

82.  Mr Morter did fall and did hurt himself.  His anger afterwards was real enough.  But I do have my doubts as to how it happened and the extent of it. 

83.  There was no acceleration of an extreme sort.  What perhaps did occur was that there was a lurch, a fairly typical tram-like lurch, which unhappily coincided with his being off balance when at the point of leaving his seat.  That perforce rammed him back into his seat before he could take a proper grip on the horizontal rail by the window and before he was high enough off the seat to grasp the overhead rail.  As a big man he came down with some force and was hurt.

84.  But I cannot find that he bounced to the floor.  The seat itself would have been a barrier to prevent that, without I suggest a violent lateral lurch.  Not only does he not describe there was one, but further, that a tram gently emerging from stationary would not be capable of that.

85.  In short, I believe Mr Morter did fall and hurt himself, but it was through no fault of Mr Law.

86.  What about the safety features of the tramcar?  Were there adequate rails properly located that could have saved Mr Morter?

87.  I have described what they were and where they were, relative to Mr Morter’s position. 

88.  Mr Morter said he was holding onto one of them at the material time; that is the one on the window.  That was support of a kind, but perhaps in the unexpected circumstances not quite sufficient.  Had fate allowed him a second or so longer, he would have made it to the overhead rail without trouble.  And the vertical rails near the exist would, perhaps have come into play after that.

89.  I believe there could not be an improved layout.  The rails were sufficient in number and strategically located for maximum effect.  Mr Morter’s accident could not be blamed upon there being an inadequacy of anything to hang on to.  There is no negligence on this issue either.

90.  It follows that Mr Morter has failed to prove negligence by Hong Kong Tramways, and failed thus to establish liability.

91.  That is the end of his claim.  But in case I am found to have erred on this finding, and that after all Hong Kong Tramways was liable wholly or partially, I come now to deal with the second matter; that is, the issue of quantum of the claim.

Quantum

Plain Suffering and Loss of Amenities

92.  Under this head Mr Morter claims $620,000.  The counter proposition from Hong Kong Tramways is but $50,000.

93.  A compelling feature of this case is that the orthopaedic surgeons, three in all, who were called upon to give expert opinion, said without any doubt there was a pre-existing degenerative back condition.  The arachnoiditis was a complication of the laminectomy carried out years ago.

94.  Even without the accident the result would likely have been the same; the accident served to accelerate the degeneration.

95.  Mr Morter takes issue with this diagnosis but it is apparent from the x-ray and MRI reports that this degeneration has been apparent; I accept it to be so.

96.  Naturally the accident having been an accelerant rather than a cause the award must reflect that, though above the level proposed by the defence.

97.  Under this head I would have awarded $150,000.

Loss of Earnings

98.  This is a most difficult award for me, given the paucity of hard detail. 

99.  A self-employed claimant who has paid no tax and kept the barest of records can expect little sympathy.  And in this case, Mr Morter’s arithmetic based on his own estimates was wildly out.

100.  What seems apparent is that he was at the time in question paying rent of $11,000 per month and otherwise supporting himself without running into debt.  Of course he was not paying any tax when he should have been.  In the circumstances, and doing the best I can, I find he was earning in the region of $16,000 per month, net of taxation.

101.  Although there is some doubt about whether he earned any income or was or is capable of doing so, post-accident, I am prepared to find that he did not and is now not capable.

102.  It was said of him that but for the accident he would have been capable of working to 70.  But the degenerative process speaks against that; I rule he would in any event have become incapable by the date of trial.  Thus the award for loss of income would have been up to the date of trial as follows:

                   $16,000 x 67 = $1,072,000

Medical and Travel Expenses

103.  There were a paucity of receipts produced; not all were related to the injury.  And no expenses would have been incurred from the time Mr Morter went on CSSA.

104.  Under this head I would have allowed $6,000.

105.  No further award is warranted.

106.  There would have been interest on the general damages at 2% per annum from the date of the writ to this date, and on the special damages at ½ the judgment rate from the date of the accident to the date of judgment.

The Result

107.  The claim is dismissed.  Costs, nisi, are to the defendant.