NG SHING YAN VINCENT v. POON KIN PONG

HCPI 83 / 2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 83 OF 2004

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J U D G M E N T

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A.  Introduction

1.  On 25 January 2002, the Plaintiff (at that time aged 9) was knocked down by a 4-wheel drive SUV driven by the Defendant when the Plaintiff was crossing Kai Yip Road after school.  As a result of the accident, the Plaintiff’s left foot was trapped by the right front wheel of the Defendant’s car. 

2.  The Plaintiff (now aged 16) claims that as a result of the accident, he is now suffering from residual psychotic and left leg problems. 

3.  This is the trial of Defendant’s claim against the Defendant for damages in the sum of HK$1.2m to HK$1.4m in negligence in causing his injuries. 

4.  In gist, the Plaintiff claims that the accident was caused by the Defendant driving in excessive speed and/or in failing to have a proper lookout on the traffic conditions on the road and to stop the Defendant’s car in time.

5.  The Defendant denies liability and quantum.  In essence, the Defendant says he was driving slowly on the road, but the Plaintiff suddenly ran out to the road from the pedestrian pavement, when the car was close to his position.  Although the Defendant already braked the car immediately when he saw the Plaintiff running out, as the distance was so close, the car still just knocked the Plaintiff down, and trapped the Plaintiff’s left foot under the wheel. 

6.  In light of the above, the principal issues for trial are as follows:

(1)  How did the accident occur:  in particular whether the Plaintiff ran out onto the road suddenly without having a proper lookout of oncoming traffic, or whether the Defendant was driving the car too fast and/or failed to have a proper lookout of the traffic conditions so as to stop in time to avoid hitting the Plaintiff.

(2)  Whether the accident was caused by the Defendant’s negligence.

(3)  If the answer to (2) is affirmative, whether the Plaintiff was also contributorily negligent in causing the accident.

(4)  The quantum of damages.

B.  Background

7.  Unless otherwise stated, the following are the uncontroversial background facts elicited at the trial.

8.  Kai Yip Road is a one-way traffic road of about 6 metres wide with a section running within the Kai Yip Estate.   On both sides of Kai Yip Road are pedestrian pavements, but there is no designated place for pedestrian crossing.

9.  On the date of the accident, at around just past 5 pm, the Defendant was driving his car along Kai Yip Road through Kai Yip Estate towards Kwun Tong Road.  There was also a car parked on the right side of the road towards that direction when the Defendant’s car was travelling along Kai Yip Road.

10.  Situated on the left side of the subject section of Kai Yip Road towards the direction of Kwun Tong Road are a few public residential blocks. One of them is known as Kai Ning House, while another one is known as Kai Cheung House.   On the right side of the road opposite Kai Ning House is, amongst others, a public market.

11.  When the Defendant’s car was travelling along that section of Kai Yip Road, it knocked the Plaintiff down when the Plaintiff was crossing the road.At that time, the Plaintiff had just finished attending school and on his way home.  He intended to cross Kai Yip Road to go to the hawkers near Kai Cheung House on the opposite side to buy some snack food.

12.  After being knocked down, the Plaintiff’s left foot was trapped underneath the front right wheel of the Defendant’s car after it had stopped.   

13.  Later, the police and ambulance came.  The Plaintiff after being helped released from the wheel of the Defendant’s car, was sent to the A&E department of United Christian Hospital (“UCH”) for treatments. 

14.  There were no skid marks left behind by the Defendant’s car after the accident.  It is common ground that the Defendant’s car was not travelling at any speed in excess of the speed limit of the road.

15.  After investigations, no one was prosecuted by the police in relation to this accident.

C.  The issues

C1.  How did the accident occur

C1.1  The Plaintiff’s case and evidence in support

16.  The Plaintiff gave evidence at trial.   He has also called one Mr Chui Kwok Kuen to give evidence in support of his case.

17.  The Plaintiff’s case and relevant evidence can be summarized as follows.

(1)  After leaving school, he walked on the pedestrian pavement on the right side of Kai Yip Road. At around the location of the market, he stopped on the edge of the pavement to look at the traffic on his left before crossing the road.   There were no others but only him waiting there to cross the road.

(2)  At that time, he felt hungry and was thinking about crossing the road to the opposite side to buy something to eat.

(3)  Upon seeing that there was no vehicle coming to his direction on the road, he started to cross it.

(4)  Just when he proceeded for about one step or two onto the road, the Defendant’s car suddenly came at a relatively high speed, and he was hit by it.

(5)  He was only walking onto the road normally without any running or dashing. 

18.  Mr Chui is a driver by profession.  He said he contacted the Plaintiff’s father on about 10 March 2002 after he saw a notice posted at the footbridge in the estate when he walked past it.  The notice was posted up by the Plaintiff’s father seeking any witnesses to the accident. 

19.  Mr Chiu told the Plaintiff’s father that he saw how the accident occurred. When requested by the Plaintiff’s father, Mr Chiu was willing to become a witness for the Plaintiff.  He said although he suggested to the Plaintiff’s father of offering himself to the police to give information, the Plaintiff father told him not to do so.  He went along with the idea thinking that it would probably be less troublesome by not going to the police.

20.  His evidence in relation to how the accident occurred is in summary as follows.

21.  He was on the pavement on the right side of Kai Yip Road waiting to cross it.  Next to him was a crowd of school children also waiting to cross the road.  He believed the Plaintiff was within this crowd but at that time he did not notice him in particular.

22.  Upon seeing the Defendant’s car coming along Kai Yip Road on his left at relatively high speed, he did not step out to cross the road.  He estimated the speed to be about 20 to 30 km/hour.  Then, he saw the Defendant’s car knocked down the Plaintiff.

C1.2  The Defendant’s case and evidence in support

23.  The Defendant gave evidence himself.  He has also called one Madam Lo Oi Kam to give evidence.  Madam Lo is a teacher by profession.  At the time around the accident, Madam Lo was at Kai Yip Estate going to pick up her daughter from the nursery school at the ground floor of Kai Ning House.

24.  The Defendant’s relevant evidence is in gist as follows.

25.  On the date of the accident, he was driving the car along Kai Yip Road at a speed of about 12 to 13 km/hour.  When his car was about the length of 1 private vehicle from the Plaintiff, the Plaintiff suddenly dashed out from the pedestrian pavement onto Kai Yip Road.   On seeing the Plaintiff running out suddenly at an angle to the right front of his car, he immediately applied the brake to stop the car, but it still hit the Plaintiff on the off-side front by the time it came to a halt. 

26.  When the car stopped still, its right front wheel trapped the Plaintiff’s left foot.

27.  It is the Defendant’s oral evidence that he did not expect the Plaintiff to come out to the Road.  The Plaintiff was then running along the pavement faster than his car.

28.  It is Madam Lo’s evidence that:

(1)  She was taken to the estate to go to pick up her daughter by his husband’s car.  After her husband had parked on the car the on the right side of Kai Yip Road, she alighted and walked to the left pedestrian pavement of the road, intending to go to the nursery school at Kai Ning House.

(2)  After crossing Kai Yip Road and on the left pavement, she turned back to have a look at her husband’s car.  At this time, she saw the Defendant’s car travelling slowly along Kai Yip Road. When she saw it, the Defendant’s car was about 30 to 40 feet away from where she was standing.

(3)  At the same time, she also saw the Plaintiff running along the opposite pavement (i.e., the pavement on the right side of Kai Yip Road) in a joyful manner. 

(4)  She then turned back and walked towards the Kai Ning House.  After about 4 to 5 steps, she heard a sound of collision. 

(5)  She turned back and saw that an accident had occurred with the Defendant’s car.  She however did not go forward to take a look.

(6)  Later, after picking up her daughter and returning to her husband’s car, they could not leave Kai Yip Road, as the stationery Defendant’s car was blocking the road and the police were investigating the accident.

(7)  She then offered herself to the police as a witness and told them what she had seen.  She also later gave a police statement.

(8)  She confirmed at trial that she did not actually see how the collision occurred.

C1.3  Discussion

29.  I find the Plaintiff an unreliable witness.  My reasons are as follows.

30.  The Plaintiff changed an essential part of his evidence to suit his case as he went along:

(1)  In examination-in-chief, the Plaintiff confirmed that when he looked over his left to check the traffic before crossing the road, there was at a distance a private car parked along the right side of the road^[1].  However, that parked car did not block his view for checking the traffic.

(2)  In cross-examination, it was pointed out to him that in his police statement dated 7 March 2002, he said the private car in fact blocked his line of vision and thus it was only when it almost hit him that he saw the Defendant’s car.

(3)  When presented with this, the Plaintiff then changed his evidence and said what he meant in his oral evidence was that the parked private car only blocked partially but not fully his view of any oncoming traffic, and he could still clearly see whether there was any car coming to his direction before he crossed the road.

(4)  I am not convinced by the explanation.  His evidence-in-chief was clear and unequivocal that his vision was not blocked at all by the parked car on the road.  The Plaintiff was only changing his evidence when he realized that it had been shown to be inconsistent with what he said previously (and much closer to the time of the accident) to the police. 

(5)  Although in his evidence he sought to challenge the correctness of the police statement on the apparent ground of bias, I am not satisfied that this was established.  I would accept the evidence set out in the police statement instead of his oral evidence at trial in case of any conflict.

31.  Secondly, the Plaintiff also changed another essential part of his evidence as he went along, which was inherently incredible and contradicted by his own witness Mr Chui:

(1)  In examination-in-chief, the Plaintiff said there were no other pedestrians around him when he looked out for the traffic on his left before crossing the road.

(2)  When it was pointed out to him in cross-examination that he in fact stated in his witness statement made in 2004 that he was leaving school with his classmates, he initially responded by saying that the statement was incorrect and insisting that he was alone.

(3)  But when he was pressed further that he just confirmed in court in his examination-in-chief that the contents of the witness statement were correct, he changed his evidence and said although he left school with other classmates, when he came to the point to cross the road, there were no one around him.

(4)  The Plaintiff emphasized that when he was waiting to cross the road, there were no one around or near him, including any other school children around him.

(5)  This was however flatly contradicted by Mr Chui’s evidence, who said Mr Chiu himself was there with a crowd of school children (including the Plaintiff) waiting on the pavement to cross the road.

(6)  I accept this part of Mr Chui’s evidence:

(a)  It was the Plaintiff who called Mr Chiu to give evidence on the basis that he witnessed how the accident occurred.  Mr Chiu stated in his witness statement (which was thus known to the Plaintiff) that he was there waiting to cross the road when he witnessed the accident.

(b)  It was inherently more believable in light of the fact that it was just after school time, and there were many school children leaving school at the same time with the Plaintiff.

32.  In my view, the Plaintiff’s denial of there being other children or anyone on the pavement waiting to cross the road was an attempt to embellish his evidence to rebut the Defendant’s case that he was the only one who attempted to cross the road, when everyone else were waiting on the pavement knowing that there was an oncoming traffic.

33.  Finally, I also find it to be inherently less credible that the Plaintiff had in fact looked out for any oncoming traffic before he crossed the road and could not see the Defendant’s car coming:    

(1)  That section of Kai Yip Road is a straight road, if the Plaintiff was correct to say that he had looked to his left to check the traffic condition, and that his line of vision was not blocked, it is difficult to believe inherently that he could not have seen the Defendant’s car coming (even if it were travelling at say 20 to 30 km/hour as the Plaintiff’s case suggests) well before he started to cross the road. 

(2)  The fact that neither Mr Chiu nor any other waiting pedestrians started to cross the road at the time when the Plaintiff did sits inherently more credible with that case that, had he (like the other pedestrians and Mr Chiu) checked his left for the traffic, he should have seen the Defendant’s car coming and waited for it to pass first before crossing the road.

34.  For the above reasons, I find the Plaintiff an unreliable witness on how the accident occurred, and reject his evidence that (a) he had checked that there was no oncoming traffic before he crossed the road, and (b) the Defendant’s car suddenly appeared only after he was already crossing the road.

35.  Insofar as Mr Chiu is concerned, I also reject as unreliable his evidence that the Defendant’s car was travelling at a relatively high speed of 20 to 30 km/hour before the accident for the following reasons:

(1)  When answering questions from the Court, Mr Chiu initially said in his oral evidence that the first time he saw the Defendant’s car, it had already hit the Plaintiff and trapped him under the wheel.  The car had already stopped.  He then said in his experience as a driver, he believed the car must have been coming fast as otherwise it should have been able to stop in time. 

(2)  However, later in re-examination, he changed his evidence and said when he looked to the left waiting to cross the road, he first saw the Defendant’s car about at 30 to 40 feet away coming to him very fast, and then about 1 to 2 seconds thereafter, it hit the Plaintiff and trapped him under the wheel.  He therefore actually saw that the Defendant’s car was travelling at a relatively high speed.

(3)  How he first saw the Defendant’s car coming is in my view the most essential part of Mr Chiu’s evidence.   The fact that he changed this part of the evidence in a fundamental way renders in my judgment unreliable his evidence that the Defendant’s car was travelling very fast along Kai Yip Road before it hit the Plaintiff.

(4)  I find it more likely than not that Mr Chiu did not actually see how the Defendant’s car was coming before it hit the Plaintiff.  It was only Mr Chiu’s own speculation that the car must have travelled at high speed before hitting the Plaintiff. A speculation which I could not accept as evidence nor do I think that it could be made with sound basis, as he did not know whether the Plaintiff did or did not suddenly dash out of the pavement, making it impracticable even for a slow moving car to stop in time to avoid hitting him.

(5)  Moreover, Mr Chiu initially said under cross-examination that he could not recall seeing any cars parked on the road on that day when he looked to his left to check out the traffic.  However, when it was pointed out to him that he had stated in his witness statement that there were 1 or 2 cars parked along the road, he changed his evidence and said there were cars parked there, but they did not block his view.   This shows that Mr Chiu was an unreliable witness as he was either not concerned about or at least careless on the correctness of his evidence.  

36.  Insofar as necessary, I also do not accept Mr Chiu as a truly independent witness as the Plaintiff’s counsel suggests:

(1)  The fact that he acceded to the Plaintiff’s father’s request of not going to the police to give evidence to assist the investigation as to how the accident occurred appears to me to be suspicious and suggests that he tends to take side with the Plaintiff.   This is particularly so as it was his evidence that it was him who first suggested to the Plaintiff’s father that he should go to the police. 

(2)  Moreover, his evidence as to how he came to know about the notice allegedly put up by the Plaintiff’s father was also unreliable: 

(a)  He said he read the notice about 3 to 4 weeks after the accident (which was on 25 January 2002).  That would have taken it to about 25 or so of February when he should have seen the notice.  However, it is his evidence in the witness statement that he only contacted the Plaintiff’s father by phone on about 10 March 2002.  

(b)  He could not give any satisfactory explanation as to why it had taken him 2 weeks or so before he decided to call the Plaintiff’s father after seeing the notice. I do not accept his explanation that he had to wait until it was a Sunday or his holiday before he would call:  it is beyond me as to why he could only wait until he was on holiday before he could call.  In any event, there must have been more than one Sunday between the time he saw the notice and 10 March, and he could not provide any good reasons why he had only waited until then to call.

(c)  Further, in re-examination, he first said it was a Sunday or holiday when he walked the footbridge in the estate to meet his friend that he found out the notice.  However, when asked by the Court then why he did not immediately call the Plaintiff’s father after seeing the notice on that day as he was already on a holiday, he tried initially to evade the question and then changed his evidence and said he was now rather confused and it might not be a holiday. 

(3)  For these reasons, I have doubts as to how Mr Chiu was located to become a witness for the Plaintiff, and on balance, I do not accept that he was truly an independent witness as suggested by the Plaintiff.

37.  On the other hand, I find the Defendant and Madam Lo both to be reliable witnesses.  They were consistent in their evidence and were not shaken in any material way under cross-examination.  I also find Madam Lo an independent witness.

38.  For these reasons, I accept and prefer their evidence to that of the Plaintiff and Mr Chiu whenever it is in conflict.

39.  Moreover, I find the fact that all the other pedestrians on the pavement (including Mr Chiu) did not cross the road except the Plaintiff more consistent with the following:

(1)  The pedestrians should have seen the Defendant’s car travelling along Kai Yip Road towards their direction.

(2)  At this juncture, it was the Plaintiff who suddenly dashed out of the pedestrian pavement into the road.

C1.4  Findings

40.  In light of my above assessment of the evidence, under this issue, I find the following facts as to how the accident occurred:

(1)  Before the accident, the Plaintiff was running along the pedestrian pavement and intended to cross Kai Yip Road to the opposite side to buy some food, as he was feeling hungry. 

(2)  At that time, there was a crowd of pedestrians waiting on the pavement to cross Kai Yip Road.   The pedestrians included other school kids.

(3)  On the left of the crowd, the Defendant’s car was then travelling along Kai Yip Road towards the Kwun Tong Road at a speed of 12 to 13 km/hour.

(4)  Madam Lo’s husband’s car was at that time parked on the right side of Kai Yip Road, which blocked the Plaintiff’s line of vision when and if he looked to his left before crossing the road. 

(5)  The Plaintiff suddenly dashed out of the pavement crossing Kai Yip Road, without paying any or adequate attention to the Defendant’s car travelling along the road coming to his direction.  

(6)  When the Plaintiff ran onto the road, the Defendant’s car was already very close to him, about the length of one private vehicle.

(7)  Upon seeing the Plaintiff suddenly dashing out of the pedestrian’s pavement so close to his car, the Defendant immediately braked the car to try to stop it.

(8)  Notwithstanding this, as the Plaintiff was so close to the Defendant’s car when he dashed out, the car still hit him by the time it stopped, and trapped the Plaintiff’s left foot underneath its right front wheel.

C2.  Was the Defendant negligent in causing the accident

41.  Given my above findings as to how the accident occurred, I find that the accident was not caused by the Defendant’s negligence. 

42.  In my judgment, as the Plaintiff dashed out from the pavement so suddenly without paying any or adequate attention to the oncoming Defendant’s car, and when the Defendant’s car was so close to him:

(1)  No reasonable driver in the position of the Defendant would have been able to stop the car in time to avoid the accident even though he had braked the car immediately (as the Defendant did). 

(2)  The Defendant had maintained reasonable lookout for the traffic conditions and no reasonable driver in his position would have been able to anticipate that the Plaintiff would have dashed out so suddenly and close to the car. 

(3)  No reasonable driver in the position of the Defendant would have been able to avoid the accident by swerving the car to the left.

C3.  Was the Plaintiff contributorily negligent in causing the accident

43.  If I had found that the Defendant was negligent in causing the accident, given my above findings as to how the accident occurred, I would have also found that the accident was caused by the Plaintiff’s contributory negligence.  In my view, even having regard to the tender age of the Plaintiff at the time of the accident (aged 9), I would have found that it was negligent on his part in failing to keep a proper lookout for the traffic condition on the road before running into it.  The fact that the other school children waited on the pavement without crossing the road supports this conclusion.

44.  In my judgment, I would have apportioned 50% contributory negligence on the part of the Plaintiff in causing the accident if the Defendant was found liable.

C4.  Quantum

45.  Had I found the Defendant liable to the Plaintiff, I would have dealt with the questions of quantum as follows.

C4.1  PSLA

C4.1.1  The Plaintiff’s complaints

46.  The Plaintiff claims an award of HK$700,000.00 under this head. 

47.  The Plaintiff suffered open fracture tibia and fibula of his left leg and abrasion of the left foot as a result of the injury.  An open operation was done on 26 January 2002 with debridement, close reduction and external fixation of the fracture.

48.  He was discharged from hospital on 1 March 2002.  At the time of discharge, he had to walk with the aid of a pair of crutches.  He then continued to have follow-up treatments with physiotherapy and occupational therapy.  The external fixation was removed on 3 May 2002, and he could walk unaided by July 2002.

49.  The injury has left a scar on his left leg.

50.  The Plaintiff was also diagnosed to have been suffering from the psychological conditions known as Post-traumatic Stress Disorder (“PTSD”) and Social Phobia. 

51.  In the Revised Statement of Damages, it is pleaded that the Plaintiff is still suffering from the following disabilities as a result of the injuries:

(1)  He feels pain over his left leg, which becomes worse on walking. The pain sometimes disturbs his sleep.

(2)  He is unable to walk for a long time because of pain and discomfort over the left leg.

(3)  He walks with a slight limping gait.

(4)  He could not squat fully on his left side.

(5)  He dares not to try running and exercising.

(6)  He has reduced his peer activities, such as participating in physical training lessons at school and playing sports, and has given up extra curricular activities and school picnics.

(7)  He experiences fear about the image of cars and cannot cross roads on his own.

(8)  He avoids the scene of accident.

(9)  He finds the scars on his left leg ugly and refuses to wear shorts.  He also feels inferior despite his good school results.  A few close classmates is said to have distanced from him.  He believes this was due to his unsightly scars.

(10)  Some classmates have called him a cripple, who also bullied him from time to time.

(11)  He feels less capable of concentrating on his study.

C4.1.2  Discussion

52.  There is no dispute on the medical conditions suffered by the Plaintiff immediately after the accident.  I find them as proved.

53.  However, in my view, the Plaintiff has exaggerated his present remaining physical disabilities.  My reasons are as follows:

(1)  In the joint orthopaedic report dated 7 December 2007, the physical examination revealed that the Plaintiff walked and stood normally, he could support himself on any one leg and walk on his toes and heels.  The Plaintiff also squatted and stood up from squatting normally although complaining about some leg tiredness.  These are quite different from the complaints set out in paragraphs 51(1), (2) and (4) above.  In relation to these complaints, it is also important to note that they have not been stated in the Plaintiff’s witness statement nor adduced in his oral evidence. 

(2)  The surveillance video of the Plaintiff shows that although he walked with a slight limp, he was fully independent and without any apparent difficulties in negotiating around in the streets and transportation going to and off from school.  He also had no difficulty in participating as a long jump linesman in his school sports day, where it was shown that he needed to walk around the pitch and squat down to take measurements.

(3)  In light of this lack of direct evidence from the Plaintiff, the surveillance video, and that there is no reason I should not accept the joint medical report’s findings, I therefore find that the Plaintiff has failed to prove those set out at paragraphs 51(1), (2) and (4) above as present disabilities.

54.  Notwithstanding the above, I accept Dr Lam’s^[2] opinion that the Plaintiff is still presented with ankle valgus deformity which is permanent in nature.  As a result of this, the Plaintiff is prone to have easy tiredness and residual pain of his left leg with prolonged walking or exercise, which would also affect some of his sporting activities.   Dr Lam’s view is supported by objective radiographic examinations, and the fact that the Plaintiff did walk with a limp in the surveillance video.I therefore reject Dr Cheng’s^[3] opinion that the Plaintiff has recovered fully without any degree of present physical impairment.

55.  Thus, in relation to his present physical conditions, I find as proved that the Plaintiff is still suffering from walking with a limp which is likely to be permanent, he is prone to have tiredness and some pain on prolonged walking or exercise, and he is likely to be slightly affected in participating in sporting activities.  I also therefore find as proved that he has now participated less in any such leisure or sporting activities, when he used to be doing them more regularly before the accident.^[4] 

56.  I also find that the Plaintiff has exaggerated his psychiatric problems:

(1)  The joint psychiatric experts both agreed that the Plaintiff was suffering from PTSD and Social Phobia.  The two experts differed on the extent of the severity of these symptoms:

(a)  The Plaintiff’s expert Dr Yu was of the opinion that, although over the years after the accident the Plaintiff’s PTSD conditions had improved and were now only presented with mild residual symptoms, the Social Phobia symptoms had developed more significantly and intense because of the scar on his leg and the previous experience of being bullied.The Plaintiff was thus fearful of social activities, and tended to avoid them or show anxious or distressed participations.  These according to Dr Yu would significantly reduce the Plaintiff’s ability to participate in normal social activities.

(b)  The Defendant’s expert Dr Chung however was of the view that both of the Plaintiff’s PTSD and Social Phobia symptoms were of a mild degree and residual nature only.   Dr Chung cited in his support (i) the less and less mental problems recorded in the medical notes of the UCH psychiatric unit over the past few years, and (ii) the fact that the Plaintiff had been achieving very good academic results, which show that his mental conditions should not have exerted much adverse effect on his study.

(2)  On balance, I prefer Dr Chung’s assessment on the degree of severity of the Plaintiff’s psychiatric conditions to that of Dr Yu.  I come to this conclusion as the surveillance video shows that the Plaintiff had manifested no difficulty or any observed anxiety in taking public transportation or crossing the road.  He was also shown to be mixing well with the other students at the sports day, where he chatted with the others apparently happily.  

57.  In the premises, I find that the Plaintiff is now suffering from a mild degree of PTSD and Social Phobia which do not have any significant adverse effect on his daily life or social activities.  His conditions are likely to continue to improve in the next few years with continued psychiatric and psychological treatments as suggested by Dr Chung.

C4.1.3  Conclusion

58.  Given my above findings of the Plaintiff’s physical and mental disabilities caused by the accident, in my judgment, an award of HK$500,000.00 under PSLA would have been appropriate if I had found the Defendant liable for the accident. Cf: Chan Yiu Ping v Mok Yuk Kwong (unrep., HCPI 92/1998, 3 July 2000, Suffiad J), pp 17-18.

C4.2  Loss of earning capacity

59.  The Plaintiff seeks an award of HK$350,000.00 to HK$400,000.00 under this head. 

60.  Given my above findings on the Plaintiff’s residual and permanent disabilities of his limping gait and tiredness and pain in prolonged walking, I accept that the Plaintiff would suffer some mild degree of disadvantage in the job market.

61.  I however do not accept the submissions of the Plaintiff’s counsel Mr Chik that the Plaintiff’s choice of career is limited to deskwork simply because of these disabilities.

62.  In my view, there should be available to him a wide range of career choice notwithstanding this mild form of disabilities.

63.  I would have assessed an award of HK$200,000.00 to be an appropriate sum of damages under this head.

C4.3  Special damages

C4.3.1  Future medical expenses

64.  The Plaintiff seeks an award of HK$294,000.00 as the future medical expenses to be incurred to continue psychotherapy for his mental problems in the private sector as recommended by Dr Yu.

65.  The Defendant’s expert Dr Chung recommended that the Plaintiff could continue psychotherapy at the public sector at the cost of HK$100 to HK$200 per session, once a month for another year. 

66.  It is common ground that the Plaintiff’s psychiatric conditions have been improving upon his receiving of treatments at UCH’s psychiatric unit. There also appears to be no significant difference between the nature of the treatments recommended by Dr Yu and that offered by UCH’s psychiatric unit.  As such, I accept Dr Chung’s opinion that the Plaintiff could continue his psychotherapy in the public sector instead of the private sector, at a frequency of once a month for one year.

67.  I therefore would have awarded the Plaintiff damages in the sum of HK$2,400.00 as future medical expenses under this head.

C4.3.2  Medical expenses

68.  This is now agreed at HK$4,491 by the parties.  I would have so ordered had I found the Defendant liable.

C4.3.3  Travelling expenses

69.  This is now agreed at HK$3,000 by the parties.  I would have so ordered had I found the Defendant liable.

C4.3.4  Tonic food

70.  A sum of HK$10,000 is claimed under this head.  The Defendant contends however that HK$3,000 is more reasonable.

71.  Although no receipts are produced in support of the cost of tonic food, given the Plaintiff’s injury and the duration of his rehabilitation, I am prepared to award HK$10,000.00 under this head as being a reasonable sum to have been incurred to purchase tonic food.

C4.4  Summary

72.  For the above reasons, the total damages I would have awarded for the Plaintiff are as follows:

PSLA	HK$500,000.00
Loss of earning capacity	HK$200,000.00
Future medical expenses	HK$   2,400.00
Medical expenses	HK$   4,491.00
Travelling expenses	HK$   3,000.00
Tonic food	HK$  10,000.00
	HK$719,891.00

73.  However, the damages are subject to the 50% contributory negligence I would have also found against the Plaintiff.

D.  Conclusion

74.  The Plaintiff has failed to prove liability against the Defendant.  I therefore dismiss the Plaintiff’s claim.

75.  I further make an order nisi that costs of the action be to the Defendant to be taxed if not agreed.  Unless any of the parties applies by Summons to vary it, the order nisi would be made absolute 14 days from today.

[1]  It is now common ground that this parked car was the car of Madam Lo’s husband.

[2]  The orthopaedic expert engaged by the Plaintiff.

[3]  The orthopaedic expert engaged by the Defendant.

[4]  This part of the evidence was not challenged in trial.