LAW YIM CHOW v. CHEE CHI WAI AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

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JUDGMENT

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Introduction

1. This is a claim for damages for personal injuries. The accident which gave rise to the injuries occurred on 25th January 1994. The only pleaded cause of action is negligence. The principal issue is one of causation: were the Plaintiff's injuries caused by the 1st Defendant's negligence? Although liability is in dispute, quantum has been agreed in the sum of $1,557,000.00 inclusive of interest up to the date of judgment.

The Plaintiff's case

2. The Plaintiff was 61 years old on the date of the accident. That morning, he was standing at a bus stop in Kwong Wah Street waiting for a public light bus. He was heading for Mongkok station, where he was intending to catch a train for China. He had some bags with him, together with a walking stick, which he had been using to carry the bags on his shoulder.

3. After he had been waiting at the bus stop for about 10-15 minutes, he became aware of a light goods van reversing towards him. It was only about two feet away from him when he became aware of it. It was travelling quite fast. The Plaintiff stepped back, but was unable to avoid being hit by it. It hit him on his left thigh. He fell to the ground, and knocked on the van with his stick to make it stop. As it was, the van came to a stop almost at once, as if the driver of the van had been aware that he had hit someone.

4. The Plaintiff was very angry. He managed to clamber to his feet by climbing up against the van using his hands and his stick, and he hit the window of the sliding door on the driver's side of the van with his stick breaking the window. The driver (who it is common ground was the 1st Defendant) then got out of the van and pushed the Plaintiff. The Plaintiff again fell to the ground. An ambulance was summoned, and the Plaintiff was taken to hospital.

The Plaintiff's injuries

5. The Plaintiff was found to have sustained a fracture to his left thigh. The principal question in this case is whether he sustained that injury when he was hit by the van, or when the 1st Defendant subsequently pushed him to the ground. If it occurred when he was hit by the van in circumstances amounting to the tort of negligence, his claim will be covered, so I have been told, by the 2nd Defendant's policy of insurance. However, if the injury occurred when he was pushed down by the 1st Defendant, i.e. in circumstances not amounting to negligence, but in circumstances which may have amounted to the tort of trespass to the person, the Plaintiff's claim will, so I have been told, not be covered by the 2nd Defendant's policy of insurance.

6. On this issue of fact, the Plaintiff's evidence was that he felt great pain in his thigh some time before the 1st Defendant pushed him to the ground. When he first fell to the ground, he fell onto his stomach with both his hands in front of him. When he was subsequently pushed by the 1st Defendant, his right leg landed on the ground first, and he then slumped to the ground.

The Defendants' case

7. The Defendants admit that the 1st Defendant was driving the van in the course of his employment by the 2nd Defendant, and it is therefore common ground that the 2nd Defendant is vicariously liable for such negligence as is proved against the 1st Defendant. The 1st Defendant's evidence was that he had been loading goods onto his van, but was aware that it was obstructing the entrance to a car park. He had to reverse the van to give access to it. He got into the van, and was followed in by a colleague. The goods which had been loaded onto the van prevented the 1st Defendant from seeing anything out of his rear mirror, and so he could only rely on his wing mirrors. In addition, he asked his colleague if there was anything behind. His colleague said that there was not, though the 1st Defendant did not think of checking whether what his colleague had said was accurate or not. Indeed, the 1st Defendant admits that he then began to reverse the van, travelling at a speed of 5-10 km.p.h. at a time when there was a blind spot at the rear of the van.

8. He does not know whether he hit the Plaintiff. He had no idea at the time that he might have done. What he heard was his van being hit three or four times by a hard object. He stopped at once, having travelled only a metre or so. When he got out of the van, he saw the Plaintiff coming towards him from behind the van. After the Plaintiff had walked for a couple of steps, the Plaintiff smashed the window with his stick. The 1st Defendant asked the Plaintiff what the matter was, and the Plaintiff complained that the 1st Defendant had bumped into him. The Plaintiff did not say that he had been injured. The quarrel went on for 1-1 ½ minutes. Eventually, the Plaintiff raised his stick as if he was going to attack the 1st Defendant. The 1st Defendant pushed him away, and the Plaintiff fell to the ground. The Plaintiff cried out that he had a pain in his leg, and that was the first time that he had complained of pain.

Previous statements

9. Both the Plaintiff and the 1st Defendant are said to have made previous statements inconsistent with their evidence in court. In a witness statement given to the police a couple of hours after the accident, the Plaintiff is recorded as saying :

"Then the driver pushed me and I fell onto the carriageway which occasioned an injury to my left leg."

The Plaintiff denies having told the police that. I find that the Plaintiff did not tell the police that. The Plaintiff had already told the police that the van had hit his left thigh causing him to fall to the ground, and I think it more likely than not that when the Plaintiff told the police that his left leg was injured, he was referring to the time when he was knocked down by the van rather than when he was pushed down by the 1st Defendant. The Plaintiff gave evidence before me in such a way as to suggest that the police officer who took the statement from him might well have misunderstood what the Plaintiff was saying.

10. The 1st Defendant was subsequently charged with careless driving. He pleaded guilty, and the brief facts which he admitted in court contained the following sentences:

"In the course of reversing, [the 1st] Defendant did not clearly check the clearance condition behind his LGV and had hit [the Plaintiff] while reversing. As a result, [the Plaintiff] sustained injuries on his left leg."

The 1st Defendant claims that he did not pay much attention to the language of the brief facts, but I cannot accept that. The magistrate's note of what the 1st Defendant said is :

"Facts read and admitted except victim was standing on the road not pavement".

That suggests that the 1st Defendant was at pains to correct anything in the brief facts which was wrong. He did not dispute (a) that he had hit the Plaintiff when reversing the van, and (b) that it was as a result of that that the Plaintiff's injuries were caused. However, I am not inclined to hold these admissions against the 1st Defendant. He may well not have been aware of what the consequences of reversing his van actually had been, and he may have admitted these facts simply because he had no reason to doubt their accuracy.

11. Finally, both the 1st Defendant and the Plaintiff faced further proceedings as a result of the incident. The 1st Defendant was charged with malicious wounding, and the Plaintiff was charged with criminal damage. Those charges were not proceeded with, as both the 1st Defendant and the Plaintiff agreed to be bound over to be of good behaviour and to keep the peace for 12 months. However, it is said that they both agreed the summary of facts which were read to the court, and which included the following sentence:

"[The 1st Defendant] alighted from his vehicle and pushed [the Plaintiff] onto the ground, resulting in injury to his left fibula bone."

Although the Plaintiff accepts that he agreed the accuracy of this summary in court, I do not think that he appreciated its significance. Having seen him give evidence and having listened to his answers, I doubt very much that he would have realised that, by agreeing the accuracy of the summary of facts, he was accepting that it was the push to the ground by the 1st Defendant which caused his injury.

The medical evidence

12. Two orthopaedic surgeons who examined the Plaintiff gave evidence. I do not think that their evidence assists me in the questions which I have to decide. I regard both of them as agreeing (a) that the injuries which the Plaintiff sustained were equally consistent with the Plaintiff being hit by the van as the Plaintiff being pushed to the ground, and (b) that even if the Plaintiff had sustained the fracture to his thigh when he was hit by the van, it would still have been possible for him, despite his pain, to clamber to his feet with the help of the van and his walking stick to hit the window of the van.

Findings

13. I have no doubt that the 1st Defendant was negligent when he reversed the van down the road. He had no means of knowing whether what his colleague had told him was correct or not, and since there was on his own admission an obvious blind spot at the rear, he should not have reversed his van without asking his colleague to get out of the van and guide him. Although Mr. Kam Cheung for the Defendants did not formally admit that the 1st Defendant had been negligent, he realistically accepted the difficulties he faced on the issue.

14. I equally have no doubt that when the 1st Defendant reversed the van, he hit the Plaintiff and caused the Plaintiff to fall. The 1st Defendant does not say that the van did not hit the Plaintiff. He does not know whether the van hit the Plaintiff or not. Having seen and heard the Plaintiff, I have no doubt that the Plaintiff's evidence on this topic is correct, and I accept it.

15. The more difficult question, as I have said, is what caused the fracture to the Plaintiff's thigh. For the reasons I have given, I do not regard the previous inconsistent statements of the Plaintiff or the 1st Defendant, or the medical evidence, as supporting or damaging their respective cases in any fundamental way. Nor is the 1st Defendant's conviction for careless driving relevant to this issue: that conviction, if relevant at all, is relevant only to whether the 1st Defendant was careless when he reversed his van down the road without properly checking whether the road was clear. However, having seen and heard the Plaintiff give evidence, I am satisfied about two matters. First, I am satisfied that the Plaintiff was in considerable pain as soon as he fell to the ground as a result of being hit by the van. Secondly, I am satisfied that the Plaintiff was only able to get back on his feet with considerable difficulty. Those two facts point overwhelmingly to the Plaintiff having sustained the serious injury which he was subsequently diagnosed as having sustained when he was knocked down by the van. It follows that I am satisfied that, on the balance of probabilities, the Plaintiff's injuries were caused by the negligence of the 1st Defendant in reversing the van when it was unsafe to do so.

Conclusion

16. For these reasons, there must be judgment for the Plaintiff against both Defendants in the agreed sum of $1,557,000.00, with interest thereon at the judgment rate from today until payment of the judgment debt.