LEUNG MEI MEI v. KO CHI HUNG AND ANOTHER

HCPI 290/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 290 OF 1998

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J U D G M E N T

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On 7th April 1995 at about 1.30 a.m. the Plaintiff suffered an accident whilst riding as a pillion passenger on a motorcycle bearing registration mark EE3147 ("the motorcycle") driven by the Second Defendant. The motorcycle was owned by the First Defendant who gave the Second Defendant permission to use it at the material time.

2. The drift of the Second Defendant's evidence of how the accident happened pretty much accords with the pleaded case of the Defendants:-

"The 2nd Defendant avers that at the material times, he was travelling along the outer lane of Canal Road Flyover heading towards the Aberdeen Tunnel and a bus of the City Bus Limited registration number unknown ("the bus") was travelling behind him along the inner lane of the same carriageway. The bus came up from behind the 2nd Defendant and pulled over abruptly from its path onto the path of the 2nd Defendant without warnings or other signals given beforehand. The 2nd Defendant immediately swerved to his right to overtake the bus in order to avoid a collision with the bus and in so doing, the Plaintiff hit the central divider of the road on her right knee."

3. The Plaintiff's case differs from that of the Defendants in one important aspect only. The Plaintiff stated that there was no bus overtaking and cutting into the path of the motorcycle. The Plaintiff added that the Second Defendant later asked her to tell the police there was a bus. She agreed to do so but did not in fact mention in her written police statement about any bus.

4. Arguably, there are five points that may cast the Plaintiff's credibility in doubt. First, in the Plaintiff's own written witness statement and Statement of Claim, the motorcycle swerved to the kerbside on the offside of the road whereas her evidence in court goes to the central divider. It is beyond dispute that this is a clerical error. All parties agree that the motorcycle swerved towards the central divider. Secondly, the Plaintiff's written witness statement says that immediately after impact she felt great pain, could not speak and could only hold on to the Second Defendant to avoid falling off the motorcycle. But in court and in her witness statement, she said that soon after the accident, still inside Aberdeen Tunnel, she told the Second Defendant she had been hurt. Thus there is an inconsistency. But this inconsistency is more apparent than real. The Second Defendant admitted under cross-examination that the Plaintiff did tell him when the motorcycle was still travelling inside Aberdeen Tunnel; although his version is that by the time she told him this, he was already near the Aberdeen end of the tunnel.

5. Thirdly, the Plaintiff stated that there was no bus when apparently her field of vision must be restricted by the helmet she was wearing. If indeed there was a bus but she could not possibly have noticed it due to physical restrictions and yet she maintained that there was no bus, the court must of course seriously consider whether she deliberately lied. However, this is not the case here. According to the Plaintiff, immediately before the accident, she was looking forward over the Second Defendant's shoulder from behind. The Second Defendant cannot possibly and did not contradict such evidence. It is also the evidence of the Second Defendant that immediately before he swerved to the right, the position of the motorcycle was by the right side of the bus at about the mid point of the length of bus. Even with the helmet on, if a bus reached the position as described by the Second Defendant, the Plaintiff could not have failed to notice it. It follows that one cannot dismiss the Plaintiff's evidence as inherently incredible.

6. Fourthly, it is said that the Second Defendant could not have asked the Plaintiff to tell the police a false story about the cause of the accident because they had no opportunity to speak in private at either Tang Shiu Kin Hospital or Queen Mary Hospital. Now, the Plaintiff did not say that the Second Defendant spoke to her on this matter at Tang Shiu Kin Hospital. It was at Queen Mary Hospital that this conversation took place. The Second Defendant said that he was taken to Queen Mary Hospital by the police. A policeman and the Plaintiff's boyfriend were present when he saw her there. The circumstances under which the Second Defendant saw the Plaintiff at Queen Mary Hospital were not put to the Plaintiff when she was giving evidence. Counsel for the Plaintiff had to put her case that the policeman and the boyfriend had left by cross-examination. It has been pointed out that the Plaintiff's own witness statement says that the Second Defendant asked her to back him up on the bus story before the police arrived when in fact it was the police who brought the Second Defendant to see the Plaintiff at Queen Mary Hospital. Again, the Plaintiff was not cross-examined on this. She was not given the opportunity to explain this discrepancy. I had no chance to observe her reaction. There may be a perfectly good explanation for the discrepancy. I hate to say this again. I suspect the problem may be due to misunderstanding on the part of solicitors who took the statement. They pleaded in the Statement of Claim that the motorcycle rode along the kerbside on the offside of Canal Road Flyover. This cannot be accurate. Solicitors did not bother to find out what was on the offside of the flyover; they assumed that there was also a kerb. Back to the incident at Queen Mary Hospital, it may be that the Plaintiff told her solicitors that the policeman was not there and they thought he had not arrived when in fact he had left. It may also be a simple lapse of memory about a minor detail on the part of the Plaintiff. I don't know what to think but, as I have said, the Plaintiff was not properly tackled on this point when she was under cross-examination. It is not fair to take this as a discrepancy. Moreover, there is no reason for the Plaintiff to manufacture a story like this. She stated in her statement to the police that she had no complaint against anyone. So at the time of giving her statement to the police when she fully realized the serious injuries she had suffered, she had not yet raised an accusing finger. She is not the sort of person to bear grudges. She was the injured passenger. Anyone with basic common sense knows that she does not need to make up such a detracting story against the Second Defendant to enhance the chances of her claim.

7. Fifthly, the Plaintiff said in evidence that during the months of February to May 1999, she had physiotherapy of two sessions a week. However, on checking the payment receipts for the treatment, it appears that she had only one session a week. She was further questioned on this. Her explanation is that some of the sessions were cancelled because the therapist was on leave or on course. It has not been suggested that the Plaintiff exaggerated the number of physiotherapy sessions in recent months to cheat on medical expenses. Rather the attack is that the exaggeration was allegedly done to justify her inability to work. I should think the Plaintiff's explanation is acceptable. Even if the attack, which is in effect an attack on her lack of motivation to work, is valid, I think one still should analyse the evidence concerning the cause of the accident with a detached objective view.

8. In general, the Plaintiff did well as a witness. She told the court what she knew and what she was not sure of. She responded to cross-examination on minor details in a number of areas convincingly and unhesitantly. Taking all factors and circumstances into consideration, I found the Plaintiff a reliable witness.

9. The Second Defendant stated in evidence that he first saw through the refraction mirror a bus coming from behind. He then changed to say that when he first saw the bus the first half of the bus had already gone past his motorcycle. If the second version is correct, he was obviously not paying enough attention to traffic conditions. When he realized as he first saw the bus that it was cutting into his path and about to press against his motorcycle, he swerved to the right and accelerated to avoid being squashed. Obviously, in swerving to the right, he got too close to the central divider. He managed to avoid himself coming into contact with the central divider but obviously he gave no thought to the danger to the pillion passenger behind him.

10. The Second Defendant stated that he had to accelerate to get out of danger. He said he did consider braking but thought that if he braked suddenly the motorcycle would roll and there would be greater danger. It is his case that the motorcycle was travelling at 60-70 k.p.h. The speed limit for that stretch of the road was 70 k.p.h. The bus he said was threatening him was travelling 20 k.p.h. faster than his motorcycle. So the bus was already speeding. In those circumstances, an obvious option apart from braking the motorcycle, was to reduce speed. Reducing the speed of a motorcycle travelling at a high speed of 60-70 k.p.h. does not require braking. All that the Second Defendant had to do was to turn anticlockwise the accelerator on the handle bar to lower the supply of fuel. When the bus was already half way past the motorcycle and travelling at 80-100 k.p.h., if the motorcycle reduced speed from 60-70 k.p.h. to, say, 30-40 k.p.h., I should think the bus would have cleared the motorcycle without any mishap. The Second Defendant gave no thought to deceleration, in contrast to braking. This is another instance of negligence.

11. The Second Defendant stated that after the Plaintiff told him inside Aberdeen Tunnel that she had been hurt, he continued to the toll booth. At the toll booth, he stopped. He paid the toll. He also took a look at the Plaintiff and saw that she was bleeding. Instead of immediately telling the toll booth staff to get help, the Second Defendant said he needed to take a better look and so he drove off from the toll booth to a side road further on. There, he stopped again and took, according to him, a better look. It was then he realized that the Plaintiff had been seriously injured. Because he was anxious to get the Plaintiff to hospital, he re-started with the injured Plaintiff still as pillion passenger on what turned out to be a trip around half of the Hong Kong Island. Eventually, he reached Central. It was in Central that the Second Defendant transferred the Plaintiff to a taxi which took her to Tang Shiu Kin Hospital.

12. The Second Defendant's account reveals a catalogue of mindlessness. As I have mentioned, the Second Defendant did not ascertain the injuries of Plaintiff when he had already stopped at the toll booth. He did not ask for help from the toll booth staff there and then. When he stopped for the second time, realized the seriousness of the Plaintiff's injuries, he was still not far from the toll booth, the Second Defendant could have turned back to the toll booth and asked for help to call an ambulance. But he did not. He decided to re-start. There was an obvious danger for the seriously injured Plaintiff to continue riding as a pillion passenger. The Second Defendant had no idea where he could find a hospital. He went looking. Why did he not ask the toll booth staff or any other motorist? Instead he drove on blindly, oblivious to the pain and suffering of the Plaintiff at his back. The Second Defendant drove all the way from Aberdeen to Central. If he took Pokfulam Road, which is the main road to go from Aberdeen to Central round the western end of Hong Kong Island, he should have no difficulty seeing Queen Mary Hospital. If he took Nam Fung Road and then Stubbs Road, which is the route cutting through the centre of Hong Kong Island, he would see Tang Shiu Kin Hospital right at the bottom of Stubbs Road. There was no way for the Second Defendant to take any other route that would bring the Plaintiff eventually to Tang Shiu Kin Hospital shortly after 3 a.m. Whether the Second Defendant took Pokfulam Road or Stubbs Road, he was not looking as he drove to look for hospital. He did not see the obvious landmark hospitals.

13. Mr. Barretto for the Defendants urged the court to believe the Second Defendant's account. Counsel further submitted that the actions of the Second Defendant in accelerating to avoid the threatening bus and in driving to find a hospital were just errors of judgment. Let me put it this away, in so far as the Second Defendant sought to explain his actions as not negligence, he has instead demonstrated, as I have reasoned, without a doubt that he was negligent throughout at all stages. An error of judgment occurs when a person having taken into account all the obvious reasonable options available decides to follow one option which happens to be the wrong one. In this case, if the Second Defendant's account is to be believed, he simply did not take into account all the obvious reasonable options available at different stages, he just did what he did. There was no exercise of judgment at all.

14. Mr. Barretto reminded the court that the Plaintiff has not pleaded an alternative case. The Plaintiff's case being premised only on there being no bus, the court should not find negligence on the basis of there being a bus. I entirely agree. The observations I have made on the negligence and/or lack of judgment on the part of the Second Defendant assumed that the Second Defendant's account is believed. If my observations are correct, the Second Defendant behaved like an incredible fool. Incredible is the catchword. The "justification" for each step he took from moments before the accident to the moment he reached Central is hardly convincing. No reasonable motorist would have behaved in the manner he did. The Second Defendant said, and his counsel repeated it by submission, that in behaving the way he did after the accident the Second Defendant was motivated by the anxieties of a friend. I do not think his performance is consistent with that of a friend. A friend would not have risked an aimless ride for a badly hurt friend on motorcycle. His account appeared to me to be an ill-constructed cover up story. As we all know, lies have a high tendency to expose themselves when they defy common sense.

15. I do not believe there was a bus that cut into the path of the motorcycle. The Second Defendant simply failed to control the motorcycle properly. He swerved to the right causing injuries to the Plaintiff. After the Plaintiff told him inside the tunnel she had been hurt, the Second Defendant panicked. He switched to defensive or evasion mode. His anxieties were not really motivated by care for the well-being of the Plaintiff. He was more worried about the consequences that would befall on himself. The only reasonable explanation for the Second Defendant driving off to a big detour to look for hospital is that he was frantically trying to work out a cover up story for the accident. His mind was wandering as he drove and naturally he did not see the hospitals. This tallies with the Plaintiff's evidence that the Second Defendant subsequently asked her to back up his story about the bus.

16. Mr. Barretto did say that had the Second Defendant wanted to shift the blame to a phantom, he could have made up a story about an untraceable white van. Well, even though I have been on the bench for some time, it has never ceased to amaze me the kind of imaginative lies people utter.

17. The Statement of Claim pleads, inter alia, the following particulars of negligence:-

(d) failing to exercise or maintain any or any proper of effective control of the motorcycle;

(e) failing to stop, to slow down, to swerve or in any other way so as to manage or control the motorcycle as to avoid the accident;

I find that the Plaintiff has at least made good these particulars.

18. The Plaintiff also relies on the doctrine of res ipsa loquitur. Mr. Barretto contended that the doctrine does not apply because there was no res. According to counsel, the speed was not excessive and the swerve was not violent. Even if the court finds that there was no reason to swerve, it does not mean negligence. I was a little taken aback by such submission from counsel of considerable repute. Of course there is the res. The res is the bringing of the Plaintiff's knee into harmful contact with the central divider when the motorcycle was in motion. Considering the foot-print or width of the motorcycle, it was quite extraordinary for such thing to happen. In the absence of acceptable explanation from the Second Defendant, the Second Defendant must be deemed negligent on the doctrine of res ipsa loquitur.

19. In conclusion, on the facts I have found, the Defendants are held one hundred per cent liable jointly and severally.

QUANTUM

Special Damages

20. The Defendants concede $49,038 for all special damages to cover medical expenses, travelling expenses, tonic food, damaged personal effects and therapeutic aids. The Plaintiff claims a total of $60,538. The difference between the two figures is due to one item of travelling expenses for the Plaintiff's parents who visited her three times to bring three meals from home each day whilst she was in hospital. Those expenses, according to the Plaintiff, amount to $21,500 whereas the Defendants say the visits were far too frequent so $10,000 only should be allowed.

21. The Plaintiff has already voluntarily reduced the claim for tonic food expenses from $31,400 to $10,000. I find the claim for the parents' travelling expenses justified. Hence, I would award $60,538 for special damages.

Pre-trial Loss of Earnings

22. The Defendants concede that the Plaintiff's earnings immediately before the accident was $8,547 per month. According to government statistics and confirmation from the Plaintiff's previous employer, the average annual increase in earnings for the Plaintiff would be 5-8% from the time of the accident to trial. Counsel for the Plaintiff therefore suggested a middle rate of 6.5% annual increase. Counsel for the Defendants contended that 5% would be enough. There is no particular reason to adopt the lowest or highest rate. Obviously 6.5% is the rate to adopt.

23. The medical expert for the Defendants advised that the Plaintiff should be able to return to normal employment a couple of months after completing daily full time physiotherapy. That means the Plaintiff should be able to resume full pre-accident earnings after July 1997. The medical expert for the Plaintiff suggested that the earliest the Plaintiff should be able to return to normal work was in about July 1998 because before then she had to continue to attend physiotherapy sessions three times a week in the afternoon. It appears to me that both doctors failed to take into account the fact that towards the end of 1998, the Plaintiff was prescribed further physiotherapy sessions, two times a week in the afternoon, until now. The last course of treatment is, the doctors agreed, desirable preparation for further surgical treatment for the Plaintiff.

24. I am also mindful of the fact the few employers are keen to take on staff who have an on-going medical problem and who will certainly need hospitalization for a few months in the near future. The Plaintiff said under the oath that she had been to a few job interviews without result. I believe this is probably due to the reasons I have given. The Defendants pointed out the Plaintiff rejected at least one invitation to job interview. The Plaintiff explained how she was approached at home by a young woman who was a total stranger. This unsolicited caller was rather invasive. She called repeatedly and offered to introduce the Plaintiff to jobs of whatever nature that would suit her. Since this sounded too good to be true, the Plaintiff eventually decided not to have any more to do with her. I think the unsolicited caller may well be a kind of private detective hired to test the Plaintiff. There was no genuine offer of work. The Plaintiff was wise to reject the gestures.

25. Taking all factors and circumstances into consideration, I hold that the total period of pre-trial loss of earnings should, as calculated by counsel for the Plaintiff, be $(8,547 + 10,995) ÷ 2 × 50 months = $488,550.

Future Medical Expenses

26. Despite massive details gone into on the Plaintiff's present medical conditions and the sort of remedial surgery she would need to reduce current agonizing symptoms and to improve mobility, medical experts on both sides agreed that the Plaintiff would need at least one lateral sublaxation correction operation. The Plaintiff's own expert estimated the cost of such operation by private medicine will be at least $45,000. The Defendants' expert put the cost at $60,000 - $80,000. But it is contended by Mr. Barretto that the Plaintiff may well stay with the public medical service which will cost little more than nothing. The suggestion of arthrodesis surgery by the Plaintiff's expert, I find, is speculative and not justified. Medical experts for both sides agreed that provision for physiotherapy treatment at $10,500 is reasonable.

27. I see no reason why the Plaintiff should not have a choice of doctor. Moreover, it is not practicable to build in provision for complications arising from sublaxation correction surgery. Hence a slightly more generous allowance for the basic surgery should be made. I would award $60,000 + $10,500 = $70,500 for total costs of future remedial medical treatment.

Loss of Future Earnings

28. The Defendants say that the Plaintiff was only a clerk in a shipping company and she had not been with that company for long. The Plaintiff says that she was a shipping clerk and that before the immediate pre-accident employment she had been working in the same capacity for 18 months in another company. In any event, it is appropriate to use the figure of mean pre-trial earning of $(8,547 + 10,995) ÷ 2 = $9,771 per month. Medical opinion is divided as to long term loss of earnings despite corrective surgery. The Plaintiff's expert says the loss is 20% of general earning capacity. The Defendants' expert suggests up to 10%. I am not wiser. I use 15%.

29. At the time of the accident, the Plaintiff was aged 18. Mr. Li for the Plaintiff cites a number of comparable Hong Kong cases which all point to a multiplier of 15. I do not think there is serious dispute over the multiplier to be used. Accordingly, future loss of earnings should be $9,771 × 15% ×12 × 15 = $263,817.

Loss of Earnings for Future Remedial Surgery

30. Clearly the amount for this item should be the notional post trial monthly earnings multiplied by the number of months required for hospitalization and physiotherapy treatment. Medical experts from both sides point to a period without earnings of at least four months. Thus the award for this item should be $9,771 × 4 = $39,084.

Loss of Earning Capacity

31. The difference between the parties on this item is not great. The Plaintiff's figure is $200,000 whilst the Defendants put it at $150,000. There is no magic formula for fixing loss of earning capacity. In view of the narrow gap between the parties, I would award $200,000 as claimed by the Plaintiff.

PSLA

32. Both parties later agree that the Plaintiff's injuries fall within the category of "serious injury". So the starting point is $450,000. The Plaintiff says she used to play squash and badminton. Medical opinion from both sides agree that the Plaintiff, even after remedial surgery, will not be able to do rigorous sports. At best, she will be able to swim and jog. Running and jumping will be out of the question. The Plaintiff will not be able to lift heavy weight nor will she be able to squat. Moreover, she has a rather marked and long scar on the right leg which will stay. The Plaintiff is young. She will have many years to endure these problems. I think it is reasonable to award her $600,000 for this item as suggested by her counsel.

Award

33. In the premises, there is judgment for Plaintiff for the sums indicated together with interest at 2% per annum on general damages calculated from the date of the issue of the writ to the date of judgment and interest at 5.97% per annum on special damages calculated from the date of the accident to the date of judgment. The Defendants must pay the Plaintiff's costs of this action to be taxed if not agreed. The Plaintiff's own costs are to be taxed in accordance with Legal Aid Regulations.