WU HO YAN v. CHAN LAI YUNG YVONNE

DCPI 1861/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1861 OF 2011

------------------------

BETWEEN

------------------------

-------------------------

J U D G M E N T

--------------------------

Introduction

1.  This is the plaintiff’s claim for damages for personal injuries she suffered as a result of a traffic accident which she says was caused by the negligence of the defendant. 

The issue

2.  The issues in this case are:

(i) whether the defendant was negligent in causing the accident; and

(ii) the amount of damages for pain, suffering and loss of amenities (“PSLA”).

Subject to the question of liability, the parties have agreed on the amount of loss of earning ($567) and the special damages for medical expenses, travelling expenses and tonic food ($9,000 altogether). 

The plaintiff’s case on liability

3.  The accident occurred at 14:41 hours on 10 April 2009 at a roundabout of Kam Tin Bypass, Yuen Long, New Territories, Hong Kong.  It involved two vehicles, namely, the motorcycle driven by the plaintiff’s boyfriend Mr Kwan with the plaintiff sitting on its pillion and the private car driven by the defendant.

4.  There is no dispute that at the material time, the road was dry and its condition was normal.  There was nothing nearby which would have blocked the sight of the drivers.  There is also no dispute that at the time there were only the motorcycle and the defendant’s car in the roundabout.

5.  The plaintiff adopted her witness statement and her police witness statement as her evidence in chief and she also gave oral evidence in court.  The roundabout in question had two lanes.  It is the plaintiff’s case that at the time the motorcycle was travelling in the outer lane (the outer circle of the roundabout).  When she first became aware of the defendant’s car, it was about 20 inches behind her on her right.  She said that the defendant’s car was travelling in the inner lane (the inner circle of the roundabout) trying to cut into the outer lane.  She said that 10 odd seconds later, she felt that something was “stuck” in the rear wheel of the motorcycle.  She said that the motorcycle then wobbled or moved side to side for a few seconds before she was eventually thrown onto and rolled on the ground.  She sustained injuries as a result.  Police were called.

6.  The plaintiff said also that immediately before the incident, the motorcycle was not travelling very fast.  She did not know the speed of the defendant’s vehicle but it was not as fast as the motorcycle.  The plaintiff said that she was familiar with that part of the road as she lived in the area and had to pass through it every time she returned home.  

7.  In cross-examination, she was referred to her statement given to the Police in which she said that she saw the defendant’s car approaching from the inner lane on right hand side and then she felt that the motorcycle was bumped from behind. When asked why she did not mention any bumping in her oral evidence-in-chief, the plaintiff confirmed that she felt at the time that the motorcycle had been bumped before it wobbled and moved side to side.

No case submission

8.  Mr Wong for the defendant made a no-case submission after the close of the plaintiff’s case.  Mr Wong submitted that the plaintiff had failed to adduce sufficient evidence to support a case to answer that the defendant was guilty of negligence.  There was not any evidence of collision in her evidence in chief.  Besides, there was no mention of the motorcycle having wobbled or moved side to side in her police statement.  Furthermore, he criticized the plaintiff for failing to call Kwan to give evidence for her.  He also submitted that the police photos did not show any scratch marks on the motorcycle.  Mr Wong referred to the judgment of the Court of Appeal in Li Sau Keung v Maxcredit Engineering Limited & Another, CACV 16/2003, at paragraph 29 and submitted that an adverse inference should be drawn against the plaintiff. Lastly, Mr Wong submitted that there was no corroboration for the plaintiff’s evidence.

9.  Ms Lee, counsel for the plaintiff, replied by submitting that the question was a matter of sufficiency of evidence.  There was only the plaintiff’s evidence to be considered.  Ms Lee submitted that there was no legal requirement for the plaintiff’s evidence to be corroborated. 

10.  Having considered the submissions, I ruled that there was a case to answer.  I took into account the fact that there were only the motorcycle and the defendant’s car in the roundabout at the time.  There is no dispute that the defendant was the driver of the private car.  I took into account the plaintiff’s evidence that the defendant’s car had all along been behind the motorcycle and that the two vehicles were very close to each other immediately before the accident.  I also took into account the plaintiff’s statement that the motorcycle was bumped from behind.  I found that there was sufficient evidence in the plaintiff’s case to support a case to answer. 

11.  Furthermore, in my view the case of Li Sau Keung relied upon by Mr Wong is of no assistance to the defence.  It does not support the proposition that a plaintiff has to call all relevant witnesses or else an adverse inference would be drawn against him. 

12.  After the ruling of a case to answer, Mr Wong informed the Court that the defendant would not give evidence.  Mr Wong agreed that the statement of the defendant should be removed from the trial bundle and not to be considered by the Court.  As a result, there was no evidence from the defence.

Finding on liability

13.  I have the benefit of written closing submissions from both parties. Mr Wong also adopted his oral submission at half-time as his submission on liability. 

14.  In the absence of any evidence from the defence, I find that the plaintiff had been consistent throughout that the motorcycle was travelling in the outer lane and the defendant’s private car was approaching from behind trying to cut into the outer lane when it was very close to the motorcycle.  Although the plaintiff did not expressly mention any collision in her oral evidence in chief, she did mention that she felt something was “stuck” in the rear wheel of the motorcycle.  She later clarified in cross-examination that the motorcycle was bumped from behind.  It is telling that it was not put to the plaintiff in cross-examination that the two vehicles had not collided.  In fact, the police photographs show that there were obvious scratch marks on the left front of the defendant’s private car which was consistent with the plaintiff’s version.  On the other hand, the fact that there were no photographs showing any obvious scratch marks on the motorcycle does not cause me to doubt the plaintiff’s evidence.  As submitted by Ms Lee, it depends on which part of the motorcycle was hit.  Besides, the collision needed not be hard to cause the motorcycle to wobble.

15.  In the absence any evidence from the defendant, I find on balance of probabilities that:

(i) immediately before the accident, the plaintiff’s motorcycle was travelling in the outer lane of the roundabout and the defendant’s private car was travelling in the inner lane;

(ii) the defendant’s private car was trying to cut into the outer lane when its left front was only about 20 inches from the rear wheel of the motorcycle;

(iii) there was then a collision between the left front of the defendant’s private car and the rear part of the motorcycle, causing the latter to wobble or to move side to side; and

(iv) as a result, the plaintiff was thrown onto the ground and sustained injuries.

16.  Based on the above, I find further on balance of probabilities that the collision was caused by the defendant’s failure to keep a safe distance from the motorcycle and to exercise proper care when cutting lanes.  I find that the defendant was negligent in her driving and that negligence caused the collision and the resultant injuries to the plaintiff.

DAMAGES

The plaintiff’s complaint

17.  The plaintiff said that she still feels hip pain after standing for 10 to 15 minutes.  She described the pain as like being jabbed by 20 needles. 

Medical evidence

18.  The plaintiff did not call or adduce any expert medical evidence on her behalf.  She relied only on the medical reports from the hospitals.

19.  After the accident, the plaintiff was admitted to Pok Oi Hospital for treatment.  She complained of back pain and right foot pain.  There was no loss of consciousness.  Medical examination revealed the following: stable vital signs; superficial abrasions over elbows, right buttock, chin and both legs; tenderness over the sacrum; swelling and tenderness over the right medial foot; no gross motor deficit; and no abdominal, loin, chest wall, pelvic, or scalp tenderness.  There was no bone fracture.  She was discharged on the same day.

20.  In June 2009, because of the plaintiff’s complaints of persistent right foot pain, she was referred by a private medical practitioner to the Department of Orthopaedics & Traumatology of the Prince of Wales Hospital.  Physical examination showed diffuse tenderness over posterior aspect of buttock area.  She had mild pain during end range of flexion and external rotation of right hip.  She could walk unaided for 20 to 30 minutes.  The provisional diagnosis was right foot chronic regional pain syndrome.  In July 2009, she could walk unaided for 30 to 40 minutes and work.  In November 2009, Magnetic Resonance Imaging (MRI) was performed on both hips of the plaintiff.  It showed that there was small amount of marrow edema at the right sacroiliac joint which was compatible with osteitis condensa ilii, though early inflammatory sacroiliitis was difficult to be completely excluded.

21.  Also in June 2009, the plaintiff was referred to the Department of Anaesthesiology & Operating Services of Alice Ho Miu Ling Nethersole Hospital for pain management.  There, physical examination suggested that the plaintiff had sacroiliac joint pain and allodynia over right foot dorsum.  Besides, right foot dorsum neuropathic pain and right sacroiliac joint pain was diagnosed.  After some time, her walking tolerance had improved and she was able to cope with work.  In view of her stable pain condition, she was later discharged from the pain clinic to out-patient department for further management. 

22.  Besides, the plaintiff received physiotherapy treatment from the Prince of Wales Hospital for 4 months between June and November 2009.  The treatment was stopped as the progress became static. 

23.  The plaintiff is still being followed up by the Department of Orthopaedics & Traumatology of the Prince of Wales Hospital for her complaint of persistent pain over bilateral sacroiliac joint.  Another MRI is arranged on 26 July 2013 to rule out spinal pathology. 

PSLA

24.  I take into account the age of the plaintiff, who was aged 28 years at the time of the accident and is now aged 32.  I also take into the medical evidence and the total length of sick leave recommended by the doctors (a total of 47 days scattered between 10 April 2009 and 21 March 2011).  However, I remind myself the judgment of the Court of Appeal in Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210, where it was held that :-

“Sick leave certificates are no more than a piece of evidence that has to be evaluated in light of all the available evidence including medical evidence before the court.”

I also take into account her persistent complains about right hip and right foot pain.  I remind myself that whilst there is no evidence that the plaintiff is exaggerating her pain, the feeling of pain can be very subjective.  I note that there is not much evidence from the plaintiff as to whether she has suffered any significant loss of amenities in her daily life, though I have not forgotten the very brief description she gave in her witness statement about her hip pain and work adjustment shortly after the accident.  Although she complains that she has difficulties coping with household chores, that complaint is not supported by medical evidence.  In fact, there is no expert medical evidence as to how the injuries would bear on her daily activities and what her prognosis is.  Based on the available medical evidence, it appears that the injuries suffered by the plaintiff are of a relative minor nature.  The plaintiff is no longer seeking any compensation for cosmetic injuries.

25.  Both parties referred me to cases which they submitted were comparables.  I remind myself that previous decisions of the Courts may be useful as references, especially when the nature and degree of the injuries reported were similar to those in the present case.  However, each case depends on its own facts and therefore the amounts of compensation awarded in other cases may not be appropriate in the present case.  

26.  Ms Lee referred me to the following cases: FungTak Yau v Chow Wah Tim, trading as Chung Wah Transportation Company & Anor, HCPI 973/2006; Chung Wing Yan v Cheung Tak Fai Alex, HCPI 660/2004; Chau Chi Wah v Wong Kwok Ming, DCPI 1059/2007; and Lau Chi Keung v Wong Wai Kei & Anor, DCPI 1846/2008.  Ms Lee submitted that $120,000 would be an appropriate amount for the claim under this head.

27.  On the other hand, Mr Wong referred me to the cases of Singh Jagdeep v VSC Engineering Products Company Limited, DCPI 391/2005 and Lai Ka Yin v Chan Yiu Kei, DCPI 453/2008.  Mr Wong submitted that the damages for PSLA should be around $35,000. 

28.  In my judgment, recognizing that none of the various cases cited by the parties in respect of PSLA involve identical injuries to those sustained by the plaintiff, I would regard the case of Fung Tak Yau, supra, as providing a useful guide in the present case.  In that case, Fung suffered injury from an accident in work happened in June 2004 and was diagnosed as having a contusion and there was tenderness over the dorsum of his right foot.  An X-ray showed no fracture of the foot.  It was found that he had mild residual pain on very prolonged walking or very heavy and frequent lifting.  However, subject to this mild residual pain, his injuries had healed by the end of October 2004.  Although the court found that the defendant company was not negligent, the court went on to consider the quantum of damages for the sake of completeness.  Recorder J Fok, SC (as he then was) assessed the damages for PSLA at $80,000.

29.  In my assessment, the injuries suffered by the plaintiff are comparable but also a bit more serious than those in Fung Tak Yau’s case.  Taking into account inflation, the appropriate award for PSLA in the present case is $105,000.

Conclusion

30.  The plaintiff is entitled to the following damages from the defendant:

PSLA	$105,000
Pre-trial loss of earnings	$567 (agreed)
Special damages (including medical expenses, travelling expenses & tonic food)	$9,000 (agreed)
Total:	$114,567

 31.  I also award interest at 2% per annum on PSLA from the date of the writ to the date of judgment and thereafter at judgment rate.  As for pre-trial loss of earnings and special damages, interest is awarded at half judgment rate from the date of accident to the date of judgment and thereafter at judgment rate.

[Submission on costs]

Costs order

32.  I have just been informed by the parties that there had been sanctioned offers and sanctioned payments from the parties before trial.  The plaintiff had made a last offer to accept a sum of $90,000, whilst the defendant had paid a total of $85,000 into court.  I am satisfied that there had been genuine efforts from the parties to reach an agreement.  The difference between the sums offered by the parties was small.  Having heard submissions from the parties, I decline to order costs on indemnity basis.  I order that the defendant pay the plaintiff costs including counsel certificate, to be taxed on party to party basis, if not agreed.  The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.