HO YEE MUI v. LIU HON LOONG AND OTHERS

HCPI 649/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 649 OF 1999

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J U D G M E N T

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1. On the 8 June 1997 this lady, then almost 45 years of age, was travelling as a passenger on a bus owned by the 2nd Defendant company and driven by its employee the first Defendant. It was on Route 67X travelling along Castle Peak Road in the direction of Fu Tei. The road is dual carriageway on this section approaching the junction with Tseng Choi Street.

2. At or near that junction which is controlled by traffic lights, the driver of the bus braked, and the Plaintiff was thrown forwards from her seat and injured. She had been sitting on a bench seat facing another bench seat so arranged that in this section of seating, passengers would be facing each other. There was no barrier or pole to hold onto nor any form of restraint to prevent the Plaintiff being pitched forward. The seats were not even contoured to provide any kind of firm base against which a body could be braced so as to resist any forward momentum. The photographs of the interior of the bus concerned show seating of the more basic type. It leaves much to be desired in the form of safe seating for passengers, particularly those who are not so young and quick in their reactions.

3. Both Defendants concede that the Plaintiff is entitled to succeed on liability against one or other or both of them.

4. That the bus braked sharply is not in dispute. The driver, Mr Liu Hon Loong, said that the taxi preceding him, driven by the third Defendant, had braked sharply despite the lights being green to permit main road traffic to proceed. In other words there was no apparent reason for the third Defendant to brake sharply. This action caused him "to slow down in accordance with his action", stopping, he said, about one metre behind the taxi. It was this that precipitated the Plaintiff forward.

5. The bus driver concluded that the taxi driver had been misled or confused by the layout of the traffic lights. It is true that the battery of lights on both sides of the junction controlling different lanes of traffic for straight ahead, and right and left turns, is confusing for anyone not wholly familiar with it. He regarded that set of lights as being somewhat unusual. The bus driver thought that the taxi driver fell within that category of motorists. The first Defendant (the bus driver) being familiar with that junction - he passes it several times a day - quite often noticed other motorists stop although the lights were showing green to proceed, with other vehicles sometimes proceeding. Sometimes traffic proceeded even though the lights were in fact red against proceeding across the junction. This knowledge and awareness should of course alert him to the possibility that traffic proceeding in front of him might well slow down or stop because it had misread the lights. He should therefore keep his distance and drive at a speed which would allow him to slow down or pull up in good time without occasioning difficulties for his passengers. The indications are that on this occasion he failed to do so.

6. His version of how he and the taxi proceeded towards the junction is as follows. The taxi was approximately 15 metres ahead of him. When he was about 30 metres away from the lights they changed to amber and then green. At that stage the taxi must have been about 12-15 metres away. They were travelling at about the same speed. The taxi stopped abruptly near the white line. It then proceeded across the junction after a short while. The bus had meanwhile come to a halt.

7. In cross-examination by Mr Patrick Lim for the third Defendant, Mr Liu Hon Loong, said that the taxi was 30 metres ahead of him at the lights when they started to change - that he himself was 50 to 60 metres from the junction. This of course indicated that there was plenty of time for the bus to slow down gradually, or be prepared to do so in the event of any slowing of traffic in front. A little later he altered the distance between his vehicle and the taxi back to about 15 metres, but this was a readjustment which I found unconvincing. It seemed to indicate a belated realisation that his estimates a little earlier had provided a state of affairs which suggested that he had not taken sufficient care or kept a proper lookout in the light of his knowledge of this junction, its peculiarity (as he saw it), and the reasonable care with which any motorist should approach a traffic light controlled junction, particularly when travelling behind other traffic. Mr Liu put his speed at 30 k.p.h. At that speed he should have had no difficulty whatever had he been keeping a proper lookout. I doubt very much whether his speed was as low as that.

8. The taxi driver, Mr Lee Yiu Wing, was certainly an experienced driver having been licensed since 1962. That of course is no guarantee of perfection but it is some indicator of experience at least. He is a robust individual of some confidence. His recollection is that he stopped at the traffic lights and when the lights changed he proceeded across the junction. Ahead of him beyond the junction and marked only by studs, on the roadway was a pedestrian crossing. He saw a young boy step out from the pavement as if to use the crossing. The photographs show the gap in the barrier of steel fencing which permits pedestrians access to the crossing. The crossing is not otherwise marked, a risky omission in highway marking. He slowed down on seeing this but another boy pulled the younger boy back and he proceeded. His recollection was that he did not stop but simply decelerated with some braking. He was not aware of traffic behind him being put in any difficulty. He proceeded in due course, his fare disembarked and he returned along the same dual carriageway on the other side. He stopped at the same junction in compliance with the traffic lights. At that stage the bus-driver came over to him and accused him of slowing down, stopping and thereby being responsible for the passenger being injured. The taxi driver, in robust reaction, indicated that he had no responsibility, did not have to provide any explanation, and, having taken the registration number of the bus, told the bus driver to report the matter to the police. In fact the police never contacted the taxi-driver after the incident although the bus driver said he gave the registration number of the taxi to the police.

9. The taxi driver was questioned by Mr Ronald Tang in particular about the increasing detail which the former gave about the person who caused him to decelerate. His original statement to his insurance company in November 1998 some 17 months after the incident, which appeared to be the first occasion on which he was asked for any explanation, this being as a consequence of an approach by the Legal Aid Department on behalf of the Plaintiff, simply referred to a person "stepping onto the roadside" and later stepping "back to the pavement." His proof of evidence prepared for these proceedings is dated October 1999. In that he states that he had stopped at the traffic lights when red was showing, drove on when the lights changed and then "stepped on the brake lightly" when "a pedestrian suddenly stepped out of the kerb." A little later "the said pedestrian stepped back onto the pavement."

10. His supplemental statement of May 2000 which resulted from an inquiry into detail concerning the pedestrian who stepped onto the crossing, he identified the pedestrian as approximately 5 years of age who was pulled back by another child of about 10 years of age. Understandably Mr Tang advances this belated detail as a factor which calls the credibility of the taxi-driver into question.

11. Although I appreciate the force of his argument I do not think that overcomes the fact that the taxi driver's reaction was a reasonable one in the circumstances whatever details he now gives of the identity of the pedestrian. I have concluded that I believe the taxi driver's version of events. I make no specific finding as to the identity of the pedestrian. I find nothing inconsistent in his versions. I am not prepared to hold that the detail he later gives about the pedestrian is an embellishment which calls into question his truthfulness as to the event generally. It does not affect the overall situation with which he was confronted. Someone or something caused him to decelerate and brake, and I accept his description. Whether that person or pedestrian was one person, or a younger child pulled back by an older child, does not in my view matter. He may well have transposed the descriptions of the pedestrian or pedestrians with another or others in an identical or very similar situation. He was not required to make any statement until nearly 11/2 years after the incident.

12. I am satisfied that the bus driver was either driving too close to the taxi driver or was not sufficiently alert to what going on ahead of him. As a consequence he was caught unawares. Had he been driving with that necessary and appropriate degree of care and awareness he would have slowed down or pulled up without any risk to his passengers. He was therefore negligent. The taxi driver was not negligent. This incident took place somewhere into the junction concerned; it did not occur in the circumstances described by the bus driver.

13. I should also say that I find the form of seating then used in that configuration afforded no protection to the Plaintiff. It was clearly foreseeable that, in the event of abrupt braking, which I am satisfied occurred on this occasion, passengers would be thrown forward without any form of restraint, with an obvious risk of injury. That in itself was negligence on the part of the second Defendant as pleaded in paragraphs 4 and 7(vi). There should have been some bar, barrier or other accessible or fixed form of restraint to enable passengers to avoid being thrown forwards and thereby to risk of injury.

14. There will therefore be judgment for the Plaintiff against the first and second Defendants and judgment for the third Defendant against the first and second Defendants with costs, a form of judgment which in the light of my findings on liability is agreed by the parties.

QUANTUM

Special damages

15. These have been agreed during the course of the trial in the sum of $50,000.

Pain and suffering and loss of amenity

16. Although her direct injuries were relatively minor - principally a bruise to her head and a fracture of her left big toe - she was undoubtedly shaken up with consequential persisting back, neck and ankle pain. A report dated 2 and 9 April 1997, about two months before the accident, records her attending Prince of Wales Hospital for right tennis elbow and wrist pain. Her complaint then included low back pain. Her treatment consisted of ultrasound and ice therapy.

17. There is a series of reports from the hospital's physiotherapy department which, though not in chronological order in the bundle, deals with a range of complaints after the accident. The second in time is dated November and December 1997. It related to osteoarthritis of the knee. Which knee is unclear. There was no obvious swelling or raised temperature. The recommendation was that she be discharged with home care.

18. In March/May of 1998, having completed ten sessions of treatment relating to neck pain, there was no neurological deficit. The doctor raised the matter of "psychological element" needing to be ruled out. Again discharge with home care was suggested.

19. The fourth report of December 1999 covering treatment since May of that year recorded neck, back and ankle pain. One entry seems to encapsulate the picture to be derived from the note, most of which is far from clear - "multiple joint pain with slow progress." The medical officer's decision was "for short course of physiotherapy then discharge."

20. Finally a report of February 2000 shows roughly the same picture. She was discharged with the advice "self hydrotherapy."

21. The complaints of neck and back pain post-date the accident apart from the reference to low back pain in April 1997 but it is increasingly clear that there was a psychosomatic element involved.

22. Two reports signed by a Dr C M Leung dated September and November 1998 referred to a diagnosis of dysthymia with multiple historical problems as well as multiple physical problems since 1993. He recorded that she did not "make special reference" to the 1997 traffic accident during psychiatric examination. It is not clear quite what that remark means and it is necessary to go to the psychiatric department records which start with the clinical notes of an interview on the 6 January 1998. They were probably taken by an assistant or student. Dr Leung's notes do not start until after the history has been taken.

23. That history includes a number of aspects of her earlier life e.g. unhappy childhood, with references to her being a girl with "no schooling" and her parents always quarrelling. Her first marriage at a young age, broke down. Later she met another man but left him.

24. She was depressed with loss of appetite, sleep disturbance, and lack of energy. She was worried about her health and a number of aspects is identified. It highlighted loss of memory six months earlier which timing would of course fit in with the accident. There is reference to suicide, no hallucination and delirium but the last word is not wholly clear.

25. On these notes Dr Leung made his diagnosis of dysthymia. It is true the notes do not specifically refer to the accident. If she was asked about past and recent past events it is inconceivable that she would not have mentioned it. If she was not asked that too is inexplicable for her medical notes, which must have been available to the psychiatric department on referral, contained reference to her admission following the accident. On the 28 April 1998 there is an entry by Dr Leung which includes "multiple somatic complaints [which she] attributes to car accident June 1997 ... persistent [?] pain". This is followed by an unclear reference to the patient being "anxious all along(?)" - ... by car accident ... had complained of pain at Tuen Mun Hospital ... living alone". This latter reference appears to be information provided by a son. Some medication is prescribed but that too is intelligible only to the writer. There is a final note of June 1998 by the same writer which records "complaining of bone pain secondary to car accident - orthopaedics people abandon her."

26. The notes of mid 1999 are clearer and more comprehensive. She had defaulted attendance following some treatment by Dr Leung and her records were re-activated in May 1999. Again they are out of sequence but the proper order appears to be Pp. 112, 114, 107, 113 & 108. This was an extremely careful and comprehensive record which appears to have been taken by someone of not a little experience and understanding.

27. There are a number of highly material entries which give a much clearer picture of this lady's position. Some of them of course emanate from the Plaintiff herself but it is a coherent picture.

"In 1993→1995 patient's low back pain disappeared and [she] could go back to her food stall (own business)".

"8.6.1997 patient had car accident and injury to neck, back, right upper extremities and head. No loss of consciousness except dizziness"

"She has had poor concentration, forgetful, irritability easily, depressed mood with cry[ing], fleeting suicidal ideation. Patient has flashback of re-experience of car accident from very frequently to occasionally now. Patient is afraid of sitting the same place of previous accident in every bus in HK".

"She has had low back pain and long-term physiotherapy in orthopaedic OPD of LKS."

Considerable detail is taken of her family and personal history as related by her. The record of her pre-morbid personality includes "hardworking, not anxiety prone, not pessimistic thinking, confidence, solved problems by self mostly."

Then follow several entries -

"Past medical H[istory] - low back pain.

Past psy[chiatric] H[istory] - Dysthymia - 6.1.98 (referring to diagnosis of Dr Leung) 2 times suicidal attempt	↗ cut wrist
	↘ overdose.

Depressive mood - appropriate affect.

Fleeting suicidal ideation.

Preoccupied in bodily illness. Back pain.

Flash back of re-experience of car accident.

Denied psychotic symptoms."

28. These pre-morbid findings are essentially those of the clinician, being his findings on what he observes and what he accepts as consistent with his objective assessment. These findings are similar to many clinical psychiatric records and observations in relation to vulnerable, perhaps fragile, personalities, who have been subjected to sudden traumatic experiences where consequential injuries have been relatively minor and seemingly out of proportion to the psychosomatic pre-occupation with them. They illustrate that an obsessive pre-occupation with aches and pain and the vagaries of life has developed as a consequence of what may be perceived as a life-threatening experience. Pre-existing physical and mental problems which have been essentially under control take on an intolerable aspect. It is clear that prior to the accident there was no recourse to psychiatric treatment and little recourse to treatment for physical problems.

29. The notes go on to record:

"Last 2 years ago(?), after getting car accident, her depressive mood became worsen[ed]."

30. They also refer to her feeling depressed in 1992 when she regarded her friends as leaving her. The diagnosis of dysthymia sets out two precipitating factors - the car accident and her conflict with her son - with a perpetuating condition because the two conflicts were unresolved.

31. There is a further diagnosis of Post-Traumatic Stress Disorder expressed as follows:

"She remains to have PTSD with underlying Dysthymia. Now she has had Depressive episode with agitation and suicidal ideation for these 1-2 years."

I find these five pages of notes significantly more helpful than those which preceded Dr Leung's diagnosis. The resulting picture is a lady with an unhappy family background, personal history and conflicts in relationships which have caused her from time to time to feel depressed. Only after the accident of June 1997 is her state so prejudiced as to require psychiatric treatment with a double diagnosis - Dysthymia and Post-Traumatic Stress Disorder.

32. I now turn to the reports of the consultant psychiatrists who have examined her for the purposes of this litigation.

33. Dr Benjamin Lai examined her on behalf of her solicitors (the Legal Aid Department) in February and March 1999, and in January 2000. In his first report he concluded that she was suffering from a depressive illness and post-concussional syndrome. Dr Yu Yuk Ling the neurologist also diagnosed the latter condition. I find Dr Lai's conclusions as to the causation of her psychiatric state convincing and his comments on Dr Leung's report entirely apposite. In fairness to Dr Leung it has to be stated that his initial diagnosis was based on notes which were less than comprehensive and he may not have seen the fuller picture.

34. His later report confirms the diagnosis with some improvement in her psychiatric condition. Her condition is now in the mild to moderate range. He feels that further improvement may be limited. Much of Dr Lai's last report is taken up with comments on Dr Chan's findings. He expresses disagreement with him on several major issues.

35. In a final report he considers the hospital psychiatric notes. I am bound to say that I find his analysis convincing. Ultimately the difference between Dr Chan Chee Hung and Dr Lai is when the psychiatric illness started. Dr Chan says it predated the accident in June 1997 - Dr Lai puts it as the consequence of the accident.

36. Before I turn to Dr Chan's reports, it is important to note that Dr Lai's analysis as presented in paragraph 16 on page 5 of his report of 27 June 2000 is consistent with the most detailed analysis and diagnosis following her return to the psychiatric department of the Prince of Wales Hospital in May 1999.

37. The first of Dr Chan's reports, in November 1999 followed an examination in late October 1999. He did not accept that she was suffering from a post-concussional syndrome. He regards her as manipulative and inconsistent. Dr Lai makes a careful analysis of Dr Chan's comments. I find Dr Lai's approach more convincing and realistic in the light of the Plaintiff's history. In sum I prefer Dr Lai's conclusion that her psychiatric illness resulted from the accident although clearly she had a vulnerable personality with episodes of depression and unhappiness which predisposed her to adverse development consequent upon a precipitating event.

38. Having said that the impression I gained from her evidence is that there is a significant degree of recovery. She is not a confused, disorientated witness unable to cope with the demands of an unfamiliar, demanding environment. There are uncertainties but some of her answers indicate an ability to adjust her story to meet the circumstances most favourable to her. I do not attribute this to a manipulative personality but to one who has known for some time that the basis of her claim in damages has resulted in substantial questioning of its merits. It is not unusual in my experience for a claimant who suffers or has suffered from genuine psychiatric illness to seek to put himself or herself in the best possible light.

39. Both consultant psychiatrists put the degree of her illness as mild to moderate. In my view she has undoubtedly suffered adversity before the accident. I think she is suspicious of all who seek to put her illness in the right context. That is human nature. But that recognition on her part indicates that her illness is not so deepseated and insuperable as might be considered. She has recovered significantly and has a degree of practical capability. Before long she will be capable of some remunerative employment.

40. In my view general damages under this head should be no more than $250,000.

Loss of future earnings/earning capacity

41. I find this a very difficult head of damage to assess. I accept that before 1993 she ran some form of business as is evidenced by her bank accounts and her consistency of evidence on this aspect. I also accept that between 1993 and 1995 she ran some food stall on a construction site. The evidence she gives of her turnover and profits is not supported by any business documentation or bank records. In fact her bank books for that period record no business activity. She explains this by saying that she had no time to do any banking and all aspects of business were conducted on a cash basis. In normal circumstances this is entirely acceptable but the figures she suggests are so high that I would have expected some bank support for the receipts and outgoings. There is none.

42. Her personal involvement in the construction site business terminated sometime in 1995. She wanted to spend more time with her son but at some stage started to assist her sister in continuing the business that the latter had taken over. She produced photographs to illustrate the nature and situation of this business on the construction site. When asked how much she was paid for her assistance she said no payment was received. I found this surprising given that it was a family affair, that when she was running it, she paid her sister and her older son as well as other helpers. When confronted with this apparent anomaly she then said that the reason she return to the site was to look after the dogs. Her 'volte face' struck me as a switch in her story because of the unlikely nature of her comment about unremunerated assistance. It was a very swift change. It was unconvincing. This has relevance to her claim in respect of future loss of earnings particularly in the light of her contention that she was about to have an interview for a job when the accident occurred.

43. I do accept that she would in the future have sought some employment with serious intent. What she would have earned is open to conjecture - Miss Christina Lee, on the Plaintiff's behalf, contends that the proper measure of her earnings would be the statistical record of earnings for a cook. She then discounts this to some extent.

44. If I felt convinced by her estimate of her earnings on a construction site, I would have been prepared to accept this as a yardstick. However I remain very much in the dark as to the appropriate earnings for this Plaintiff. I am also uncertain as to when she would have started such work, for how long she would have sustained it and what other factors, given her psychological vulnerability, would have intervened to make its duration uncertain. In the light of all these factors I have decided that the proper approach to this question of loss of earnings is to assess it on the basis of the loss of an opportunity. There are too many unknown factors to proceed on any other basis.

45. It is reasonable to assume that whatever job she took on would have produced more than the welfare payment she currently receives which is in excess of $6,000 per month. Once her son had passed through his problematic phase she would probably have tried to obtain more long term employment. If I were to take a monthly payment of $9,000 producing $108,000 per annum as a guide I think the figure to represent future loss, on a loss of opportunity basis, should be no more than $300,000.

46. Accordingly the heads of damage are:

Special Damages	50,000
Pain and Suffering	250,000
Future Loss of Earnings	300,000

47. I make no allowance for future private psychiatric treatment or future medical treatment. I think she is in need of some as a consequence of her accident and she may require future treatment for conditions which may develop inevitably as a result of her pre-accident condition. She has used government hospitals hitherto when she has found it necessary and it is reasonable for her to continue to do so.

48. There will be judgment for the Plaintiff against the 1st and 2nd Defendants for $600,000 with interest at the appropriate rates (to be calculated in accordance with the usual principles) and costs.