CHUNG WING YAN v. CHEUNG TAK FAI ALEX

HCPI 660/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.660 OF 2004

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J U D G M E N T

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1. On 6 August 2001, the plaintiff, Ms Chung was riding pillion on the defendant, Mr Cheung’s Vespa motor scooter, on the Tolo Highway from Tai Po towards Shatin.  Mr Cheung lost control.  The riders fell off and were injured.  

2. Ms Chung now claims damages for her personal injuries.  She pleads negligence.  Mr Cheung’s case is that the accident was wholly caused by an unknown vehicle which cut in front of him, so causing him to swerve and lose control in the agony of the moment. 

Liability

3. On the evidence now before me there is no dispute that the scooter was going along in the 4^th or fast lane of a dual carriageway, at about 60 kph in an 80 kph speed limit zone.  It was not overtaking any other vehicle.  The road was straight.  The time was about midday and the weather was fine.  The traffic was quite heavy but flowing smoothly.  Just before the accident, an unidentified red car moved from the 3^rd to the 4th lane, ahead of the scooter, which swerved right and lost control.

The Issue

4. A plaintiff has to prove negligence.  Where, as here, a plaintiff relies on res ipsa loquitur, he must show a prima facie case of negligence.  If he can do so, the defendant will be found negligent unless he produces evidence capable of rebutting the prima facie case.  Once he produces such evidence his driving has then to be judged in the light of the emergency in which he is placed by the driver of the car that cut in.  See Ng Chun-pui & Ors v. Lee Chuen Tat & Anor [1988] 2 HKLR 425.

5. It is obvious that if a vehicle goes out of control on a straight road, that gives rise to a prima facie case of negligence on the part of its driver; and it is for him to produce evidence capable of rebutting it.  Such evidence may be evidence of an emergency caused by another vehicle cutting in ahead. 

6. Here there is no dispute that the red car came into the 4^th lane ahead of the scooter.  If it did so in a normal, careful manner, Mr Chung could easily have avoided it by braking or even just decelerating a little.  This sort of thing happens all the time in Hong Kong traffic.  If he then went out of control in such a normal situation there is a prima facie case of negligence against him; res ipsa loquitur applies; and it is up to him to explain why he lost control. 

7. If however the red car cut in suddenly, close in front of Mr Chung, he was put into a dangerous situation to which he had to react.  Unless he reacted in a way which did not show the alertness, skill and judgment which would reasonably be expected of him he cannot be found liable for negligence. 

8. The factual issue for decision is, then, whether the red car changed lanes normally, at a sufficient distance in front of the scooter so as to cause no hazard or whether it cut in suddenly ahead of him, so as to cause him to lose control.  It is for Ms Chung to prove the former; if she can, it will be for Mr Cheung to show that he was not negligent.

Evidence

9. Ms Chung says that she felt the scooter going too fast so she told Mr Cheung to slow down and go into an inner lane, but he did not.  Shortly after that, she saw a red car, on the 3^rd lane with its right indicator signalling, and going a little faster than the scooter.  It cut into the 4^th lane about five metres ahead of the scooter.  Mr Cheung then swerved right and crossed the white surface line, about a metre from the concrete barrier between the carriageways.  She heard a sound “pak-pak” as if two pieces of stone had struck the underside of the scooter, but did not feel any bump beneath her.  The scooter travelled a further 10 metres and then suddenly Mr Cheung turned and got hold of her waist and jumped off the scooter so that they both fell on the ground. 

10. Mr Cheung says in his statement that he was travelling at about 60 kph, in the 4^th lane, in an 80 kph limit.  There was one car about 20-30 metres ahead.  Just before the accident he noticed a red private car in the 3^rd lane about two to three metres ahead of him, at his left front.  This red private car suddenly accelerated and cut into the 4^th lane ahead of him.  Out of natural reaction he swerved right and braked to dodge this car, and so lost control so that the scooter and its riders fell over on the left side, while the red car drove forward and disappeared.

11. Ms Chung’s oral evidence does not agree with her pleaded case, the witness statement which she adopted as evidence, or the statement she gave to the police after the accident. 

12. Her pleaded case is that Mr Cheung lost control of his scooter when negotiating a right bend.  In fact she had told her medical expert this.  But the road was straight.  In her statement there is no mention of any bend in the road.  Ms Cheung says simply that “immediately prior to the point of time of the accident the Defendant lost control” and there is no mention of other traffic. 

13. After the accident she told the investigating police officer that she saw an unidentified private car cut into the 4^th lane, whereupon Mr Cheung immediately braked and swerved right to dodge it, and she felt the scooter lose balance and thus fell on the ground.  Ten days later, she gave a statement to the police in which she said that a red car suddenly cut in ahead from the 3^rd to the 4^th lane, and after that she saw her vehicle swerve right to dodge it and then her vehicle lost control.

14. Although Ms Chung had seen her Statement of Claim she could not explain why it was pleaded that the scooter lost control on a bend, or why she had not asked her solicitor to correct it.

15. There was nothing in the earlier statements about the speed of the scooter, or of asking Mr Cheung to change lanes.  Cross-examined on why she had brought this up, Ms Chung said that she did not realise it was important until a friend had told her.

16. Ms Chung’s statements to the police paint a picture of the red car suddenly cutting in.  This is at odds with the oral evidence which describes a safe manoeuvre; the red car was indicating and it moved in about five metres ahead. 

17. Mr Cheung adopted his statement as evidence-in-chief.  Under cross-examination, he agreed that Ms Chung had asked him to slow down, though not to change lanes.  He could not remember if he was overtaking any other vehicle.  He said that he had seen the red car in his mirror and had then seen it come past.  He saw it two to three metres ahead, wholly in the left lane.  It accelerated and cut in.  He swerved but did not brake.  The scooter ran in the area between the white surface line and the carriageway divider.  He felt bumps.  He felt he had lost control.  He tried to grab Ms Cheung — he did not know why he did so — and to jump off. 

18. Asked if he had seen the red car’s indicator light, at first Mr Cheung said that he had, and then that he had not. 

19. In a statement to police on 16 August 2001, Mr Cheung said much the same as he said later in his witness statement.  In answer to questions by the officer, he had said that he first saw the red car in the 3^rd lane two to three metres ahead, and that when it cut in it was four to five metres ahead.   

Evaluation

20. Driving in the 4^th lane when not overtaking is contrary to the Road Users’ Code.  The scooter should not have been in the 4^th lane, since it was not overtaking any other vehicle at the time.  Failure to observe a provision of the Code may be relied on as tending to establish or negative civil liability.  Such driving may be negligent.  I was referred to the case of Wu Yuk Ling v. Leung Man Lai, HCPI No.1314 of 1998 in which I expressed this view but negligence always depends on the factual situation and that case does not assist here.  If such driving is negligent, then the question of causation will necessarily arise.  Driving in the 4^th lane when not overtaking will not of itself cause an accident and has nothing to do with whether or not a driver loses control at a normal speed. 

21. Ms Chung’s case, as it now stands, is that the red car did nothing out of the ordinary; therefore it is for Mr Cheung to explain his loss of control.  That is not what she told the police; she told them that the red car cut in suddenly and caused Mr Cheung to swerve.  She has changed her story; whereas Mr Cheung has been consistent.  He has said all along that the red car changed lane suddenly and caused him to swerve. 

22. It is true that there is some uncertainty in what Mr Cheung told the police as to how far ahead the red car was when it cut in, but estimates of distance are often inaccurate especially when something happens suddenly.  It is also true that he hesitated on the question of whether the red car was indicating; but if it cut in suddenly, the indication would not have made any real difference.  In any event, apart from these two matters he has been consistent, which Ms Chung has not.

23. In view of the relative consistency of the witnesses, I prefer the evidence of Mr Cheung.  I find that the red car suddenly cut in, put Mr Chung in a hazardous situation, and caused him to swerve.  I cannot say that what he did, when put into that situation, did not show reasonable alertness, skill and judgment.  It is true that he agrees that he turned, grabbed Ms Chung and tried to jump off with her; he cannot say why he did that.  It is a strange action, but he took it in the agony of the moment.  By that time the scooter was out of control and would have toppled over, and the two of them would have fallen to the ground in any event. 

24. I conclude that the accident was caused by the actions of the driver of the red car and Mr Cheung did not cause or contribute to it.

Quantum

25. That should be an end of the matter but in case of need I will deal with quantum fairly briefly. 

26. Ms Chung was born on 4 July 1978.  She was 23 at the time of the accident and is 27 at the date of the trial.

27. Ms Chung fell on the road surface.  She says she lost consciousness.  She was admitted to the A&E Department, Prince of Wales Hospital, on the same day with erythema of the left forehead, abrasions on the left hand, left elbow, left and right shoulder and left and right loin, and a bruise over the left knee.  X-rays of the skull, pelvis and left knee showed no fractures.  She was treated and discharged. 

28. The plaintiff says that apart from amenorrhoea which lasted for three months post-accident, she also continued to have and still has persistent back pain and resulting psychological disturbance.  As a result she had to give up her pre-accident occupation as a swimming tutor.  She studied for a Diploma in Accounting, but failed the examinations, primarily because she had to take sick leave during her course.  She can now only work as a general office clerk. 

29. Ms Chung’s expert, Dr Ho Ho Pak Henry, first saw her on 6 July 2004.  He diagnosed a back sprain.  He says she suffers residual pain, stiffness and weakness over the lumbar spine.  Her condition is static and no further treatment is expected.  He assesses a 3% whole person impairment.  He says she is not recommended to resume work as a swimming tutor but is suitable for sedentary work such as office assistant, cashier or saleslady.  A total of nine months’ sick leave would have been appropriate for her condition. 

30. The defendant’s expert, Dr David Cheng, saw Ms Chung on 22 February 2005.  He says that the probable diagnosis is multiple abrasions and contusions.  His view is that she has subjective complaints of residual aches and pains, but there is no bony injury and no neurological complication.  Her physical examination was unremarkable.  She did not need further treatment.  There was no permanent physical impairment, but because of the residual aches and pains he would suggest 1-2% whole person impairment.  She should be fully capable of returning to her pre-accident occupation.  Sick leave of two to three months post-accident would have been appropriate. 

31. Ms Chung was subjected to video surveillance between 16 November and 24 November 2005.  Dr Cheng says that he cannot detect any signs of pain in her movements seen on tape.  This is contrary to her complaints to him of pain over her body, notably the spine, leg and shoulder region, of a rating of seven on a scale of one to ten.

32. Dr Ho was asked for further comments, having seen the tape and read Dr Cheng’s report.  He said that he did not recommend Ms Chung to resume work as a swimming tutor because she had not tried swimming after the injury, and because, while swimming is acceptable as an exercise after back injury, if she has to do it when her back is symptomatic, this will put a lot of strain on her back and may even be detrimental to her health. 

33. The above expert evidence is all in the form of reports.  No oral evidence of experts was heard.

34. After the accident Ms Chung went to private doctors who treated her and gave her sick leave certificates mainly for abrasions.  There is no mention of back pain.  Her explanation is that the doctors asked her what was her worst complaint; she told them and they recorded it.  But she had back pain throughout.

35. Then on 6 September she saw a Dr Chow who gave her a certificate for “infective wound and low back pain”.  He treated her during September and referred her to the North District Hospital where she went on 4 October 2001.  According to a report from the chief of the Orthopaedics Department, she had a normal gait, tenderness at L4/5 level, a straight leg raising test of 80/80.  Neurology and x-rays were normal. 

36. Ms Chung was referred for physiotherapy for her low back pain and she received that treatment between 23 October and 27 November 2001.  In the final assessments, there was apparently 90% subjective improvement.  She was recommended to do home back strengthening exercises and breast-stroke swimming, and discharged. 

37. However she continued to complain of lower back pain.  She was sent for an MRI scan of the thoracic and lumbar spine on 16 January 2003 but that was normal.  She was referred to the pain clinic in February 2004.

38. Now, she says, she still has back pain on change of weather, prolonged walking or swimming for over an hour, exertion or carrying weights of over five kg.  She anticipates pain when carrying a handbag and would rather use a backpack.  She loses sleep because of the pain.  She has pain over both shoulder-blades, the whole spine and legs, pins an needles in the wrist and shoulders, stiffness of the back and limbs and on and off swelling of the legs.  She has a phobia of being a pillion passenger on a motorcycle.  She is depressed and anxious all the time.  She has frequent flashbacks and insomnia.  She has become introverted and seldom goes out except to work and school because of the back pain.  She cannot do heavy household work and has given up her former activities of jogging, cycling, gymnastics and shopping. 

39. As to employment she says that she tried to resume work in September 2002 but found that she could not teach swimming for long hours, so she tried working as a life guard at a swimming pool.  She had to give this up after two months because of the back pain.  She tried this work again in May 2003 but again had to give up after three months because of the back pain.  Since then she managed some part-time swimming tutor work and some periods of casual lifeguard work. 

40. For whatever reason, Ms Chung’s medical records show no back pain at all for a month after the accident.  It seems doubtful that if she really had a sprained back, which caused such pain, it would not have been one of her major complaints in that month, and one about which she would have told the treating doctor, so that the symptom was recorded and treated.

41. Then we have the physiotherapy notes.  These show a steady improvement up to discharge in November when she had 90% subjective recovery.

42. Significantly, in the period from October to December 2001 the hospital medical notes show that there was not much problem with the straight leg raising tests.  For instance, Ms Chung showed 80/80 on 27 November 2001.  However, when she saw Dr Ho and Dr Cheng she showed 50 degrees on each side with positive hamstring tension, which could suggest some holding back. 

43. I have myself viewed the tape, which shows Ms Chung standing around chatting with friends for long periods, and walking for long periods with a heavy bag over her shoulder.  To a lay observer there seems to be nothing at all wrong with her.  What is visible is certainly not consistent with the complaint recorded by Dr Cheng, and appearing in her Revised Statement of Damages, that she can only lift a weight of five kg. 

44. The picture shown by the medical records is that before October 2001 Ms Chung was not complaining of back pain.  It came on in October but by the end of November 2001, Ms Chung had achieved almost a full recovery.  Then she got subjectively worse.  She cannot explain this.  Nor can the experts.  They both say that there is nothing orthopaedically or neurologically wrong with her. 

45. In his second report, when he deals with his view that she should not continue to work as a swimming tutor, Dr Ho does not give any very convincing reason for this.  Overall I have a strong impression that Ms Chung is exaggerating her symptoms.  I do not think she is a credible witness.  In the light of this I prefer the evidence of Dr Cheng, where there is a conflict between the two experts. 

46. I am not satisfied that there is continuing disability such as would keep Ms Chung from working as a swimming tutor.  I am not satisfied that she should have had more than nine months off work as a result of the accident, at the outside. 

         PSLA

47. Mr Ramanathan for the defendant suggests that (if liability were proved) the award for PSLA is worth about $100,000.00.  He refers to the case of Yip Piu v. Chung Kam Fei Catherine & Anor, HCPI No.1168 of 1999, as an example.  I agree with this estimate and on a finding of liability would have made such an award.

         Pre-trial loss

48. If liability were proved this should be nine months’ loss of earnings, i.e. $108,000.00.

         Post-trial loss and loss of earning capacity

49. On my finding, Ms Chung could have resumed work as a swimming tutor so there is no loss under these heads.

         Loss of mandatory provident fund

50. If liability were proved the award would be 5% of $108,000.00, i.e. $4,500.00.

         Special damages

51. Special damages of $15,266 are accepted but the claims for $1,479.50 for acupuncture treatment at the Shenzhen Hospital and Chinese bonesetter treatment costing $15,666.00 are not.

52. The bonesetter treatment was undertaken in 2003.  Accepting that Ms Chung was able to return to work after nine months and would only have residual aches and pains, I cannot see that this long and expensive course of treatment is to be seen as necessary.  The same applies to the acupuncture treatment which was undertaken in October 2004.  These would be disallowed, and if liability were proved an award of $15,226 would be made. 

Conclusion

53. Liability is not proved, so the plaintiff’s claim is dismissed with costs (nisi) to the defendant, to be taxed if not agreed.