CHAN YIK KWAN v. YUEN CHAK MAN AND ANOTHER

CACV 12/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 12 OF 2000

(ON APPEAL FROM HCPI 781/1998)

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J U D G M E N T

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Hon Wong JA: (giving the first judgment at the invitation of Godfrey V-P) :

1. On 6 October, 1999, Deputy Judge Gill of the Court of First Instance dismissed the plaintiff's claim for damages which the plaintiff alleged to have been occasioned by the negligent driving of the lst defendant. The plaintiff now appeals.

2. The case appears to be a simple one from perusing the statement of claim. The facts relied upon are pleaded in paragraph 3 that :

"At about 10 a.m. on 19 August 1995, while the plaintiff was on duty at the said carpark, the 1st defendant attempted to reverse his van EK 955 into the said carpark but without a valid parking label. A dispute then erupted between the 1st defendant and the plaintiff. In the course of the said argument, the 1st defendant with full knowledge of the fact that the plaintiff was behind the said EK 955, proceeded to reverse his van the said EK 955 and collided with the plaintiff."

Paragraph 4 says that the accident was solely caused by the negligence of the 1st defendant and sets out the particulars. Paragraph 6 alleges that the plaintiff suffered severe injuries, loss and damages by reason of the collision and particularises the injuries and damages.

3. The plaintiff was at the material time aged 58 and employed as a security guard at the carpark of the Government Post Office in Nathan Road. The plaintiff, the defendant and Mr. Lung, the Post Office supervisor gave evidence at the trial. In addition, each side called a doctor to give medical evidence as to whether the stroke suffered by the plaintiff was caused by the negligent driving of the 1st defendant. The facts as found by the judge were these.

4. On 19 August 1995, the plaintiff was on duty as an attendant at the carpark which was used by vehicles operating out of the Kowloon Post Office. At 10 a.m. the lst defendant drove the van EK955 into the carpark, expecting to be allowed to park there because he was there to carry out certain maintenance work in the Post Office. He had no parking permit and the plaintiff told him to leave. The lst defendant refused and a heated argument developed between the two. They were aggressive and the language used was coarse. Both admitted that they were angry. The 1st defendant then attempted to park despite the plaintiff's objection and his van reversed into the plaintiff in the course of so doing. According to the plaintiff, the impact was trivial. He was not hurt. He was not knocked down. The lst defendant climbed down from his van and the argument continued in the same way as before.

5. Mr. Lung, the supervisor, heard the dispute and came to the scene to mediate. The time was about 10:05 a.m. He gave the 1st defendant permission to park. He noticed that the plaintiff was agitated and he tried to calm him down. He walked the plaintiff back to the guard room. The plaintiff did not say that he had been hit. He did not complain of any injury or physical discomfort. No one told him that there had been a collision. He went back to his office. Ten minutes or so later be returned to the carpark to see if things were well. The van was still there but there was no sign of the driver. The plaintiff was in the guard room rubbing some ointment on his arm. He did not ask him what he was doing or whether he was alright. The plaintiff did not say anything to him. He then went back to his office, thinking that everything was well. It was some twenty five minutes after the dispute had ended that he came to hear that the plaintiff was in great physical discomfort and had to be taken to hospital. For the first time, he came to learn that the plaintiff claimed that he had been struck by the van.

6. The plaintiff's account about the 1st defendant reversing his van and what happened afterwards was this. He went to stand at a position behind the rear offside corner of the van to get out of the way and watch the lst defendant depart. He thought he was leaving because the 1st defendant told him so. But the van reversed and struck him in the region of the right upper chest. The blow was firm though it did not particularly hurt and did not knock him down. After he was struck he felt a numbness on his right arm. He took himself to the guard room where the numbness persisted. He applied some ointment but the condition got worse. He was taken to hospital.

7. The judge found that the lst defendant had driven backwards in a negligent manner and in so doing his van collided with the plaintiff. But the judge also found that the plaintiff had not discharged the burden, which was on the plaintiff, of proving, on a balance of probabilities, that the stroke was caused or contributed to by the negligent act of the lst defendant. He dismissed the plaintiff's claim.

8. The issue in this appeal is causation and that is whether the stroke suffered by the plaintiff was caused or contributed to by the 1st defendant's act and not the act itself because the judge had found against the defendants on this issue. To decide the question of causation, it is necessary to examine the medical evidence together with the evidence of the plaintiff and Mr. Lung. The evidence of the 1st defendant provides no help in this regard because he denied colliding with the plaintiff and the judge had found that he was driving negligently.

9. The main ground of appeal is that the judge had erred in finding that the 1st defendant's conduct of reversing his van to strike the plaintiff in his upper right chest did not cause the stroke suffered by the plaintiff. It was submitted on behalf of the plaintiff that the judge should have found that the impact was the cause or a contributory factor to the stroke suffered by the plaintiff. It was further submitted that the numbness was the immediate result of that impact. This submission takes into account only the evidence of the plaintiff but completely ignores the evidence of Mr. Lung, an independent witness, whose evidence on this aspect must have been preferred by the judge that there was nothing wrong when Mr. Lung walked the plaintiff back to the guard room.

10. For the defendants, it was argued that it was equally probable that the stroke was the result of the heated argument and there was a time gap between the heated argument and the plaintiff began to feel numbness on his right arm.

11. It is necessary now to look at the medical evidence given by the doctors. The judge formed the view that the opinions and findings of the doctors, whilst expressed differently, were close to being the same. He dealt with their evidence at p 37 of the transcript :

"Common ground was that on the day in question Chan (the plaintiff) suffered an intracerebral haemorrhage resulting in right hemiparesis. Prior to then Chan suffered from hypertension which was controlled by medication. But this made him susceptible to a cerebral vascular accident, that is, predisposed him to an intracerebral haemorrhage. For a person already having that predisposition a haemorrhage could result from a sudden rise in blood pressure, and any trauma causing fear, pain, anger, excitement might be enough to trigger that.

Both doctors said that once the rupture had been suffered the symptoms of that would quickly become apparent to the victim. Chan having stated that the numbness became noticeable shortly after the impact that would have been the first of such symptoms, and supported the proposition that the rupture occurred prior to the onset of that. But there can be a time gap between the rupture and a conscious awareness of it and the length of that can vary. Dr. Lau said it depended on the individual. Dr. Au said it was the degree of severity of the stroke which would determine how quickly it manifested itself. The more serious the stroke the more speedily would the victim be aware of and be affected by it. Chan's stroke was by it's outcome a relatively minor one, giving rise to the prospect that the haemorrhage took place a period of time, exact length unknown, prior to the onset of the numbness."

12. It seems to me that the judge summarised the medical evidence fairly and accurately which fully reflects the evidence given by the doctors at the trial. There is no misdirection or misinterpretation of the evidence by the judge as contended by counsel for the plaintiff. The judge then concluded at p.41 H - M :

"I am satisfied on these facts that the surge in Chan's blood pressure which then brought on the intraerebral haemorrhage was caused by the excitement, anger, stress and rage stemming from Chan's altercation with Yuen (1st defendant). The collision was an unfortunate and unnecessary episode of that altercation. But given the timing and the minor nature of it compared with the vigour and duration of what was a vehement and angry exchange, there is no way it can be singled out as the sole, separate cause, or as a materially contributory one."

13. I agree. Given the state of the evidence that was before him, the judge was justified to the conclusion that he reached. The medical evidence is inconclusive. It is not enough for the plaintiff to prove that it was possible that the stroke was the result of the impact. There must be a causal connection between the stroke and the impact. He has to satisfy the judge on a balance of probabilities, and that is it was more probable than not, that the stroke was caused or contributed to by the impact.

14. The plaintiff has simply failed to prove his case to the requisite standard.

15. I would dismiss the appeal.

Hon Rogers JA :

16. I agree.

Hon Godfrey V-P :

17. It was for the plaintiff here to satisfy the judge that it was more likely than not that the injury of which the plaintiff complained (the stroke which he suffered) was the result of the wrongful conduct of the 1st defendant (i.e., the blow on the chest). To do that, he needed to establish a link between the wrongdoing and the relevant damage; and in this sort of case "it cannot be stressed too forcefully that the burden of proving the required causal link between wrongdoing and damage rests on the plaintiff" : see Clark & Lindsell on Torts (17th edition) at para. 2-03.

18. The judge held that the plaintiff in the instant case had failed to discharge that burden. I am not persuaded that the judge was wrong to do so.

19. Accordingly, I too would dismiss the appeal. The court being unanimous, the appeal will therefore be dismissed. As to costs, we will order, subject to the provisions of Order 42 rule 5B(6) of the Rules of the High Court, that the costs of the defendants of this appeal are to be taxed (if not agreed) and paid by the plaintiff. The plaintiff being legally aided, there will be a separate taxation of the plaintiff's costs of the appeal for legal aid purposes.