Tsang Chiu Yip v. Ho Kwok Leung
Read the full judgment text of HCPI 305/2013 on BabelCite. This High Court CFI judgment was delivered on 29 February 2016.
1. The plaintiff (“ P ”) was employed by Swire Beverages Limited trading as Swire Coca Cola HK (“ Swire ”) as a temporary helper (fleet and distribution department). The defendant (“ D ”) drove an urban taxi bearing registration mark KD3315 (“ Taxi ”). He had 21 years’ driving experience, and 1 previous conviction of careless driving.
Cites 12 cases
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HCPI 305/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 305 OF 2013 ________________________ BETWEEN
_______________ J U D G M E N T I. INTRODUCTION 1.The plaintiff (“P”) was employed by Swire Beverages Limited trading as Swire Coca Cola HK (“Swire”) as a temporary helper (fleet and distribution department). The defendant (“D”) drove an urban taxi bearing registration mark KD3315 (“Taxi”). He had 21 years’ driving experience, and 1 previous conviction of careless driving. 2.There was no dispute that:
3.The Recording and police photographs (“Photographs”) showed the pavement was reasonably broad at the Right Corner (despite the presence of the planter box),[2] alongside eastbound CGRd 2nd Lane from the Right Corner to just before the Taxi Stand,[3] and at the Taxi Stand.[4] Indeed, the bottom landing of a staircase (“Landing”)[5] that abutted the pavement near the Fire Hydrant also provided room for pedestrian traffic.[6] I disagree the pavement outside City Garden Hotel and/or up to the Right Corner was narrow. The Recording showed no pedestrian traffic at the Right Corner. II. PARTIES’ RESPECTIVE CASE (a) P’s case 4.P claimed D so negligently drove/controlled the Taxi when proceeding from PSt 2nd Lane to eastbound CGRd 2nd Lane that he caused the Collision, and P thereby suffered injury, loss and damage. P complained that D failed to keep proper lookout for his presence, observe traffic condition, obey traffic signs and/or road markings, maintain safe distance, warn him of the Taxi’s movement and/or take appropriate avoidance action, which negligence was borne out by the Conviction and D’s failure to observe the Hong Kong Road Users’ Code (“Code”). (b) D’s case 5.D denied liability. He claimed to have reduced speed to 10kph when he approached the Junction, and to have checked both directions of CGRd were clear of traffic upon reaching the Give-way Lines before nosing into the Junction, but P emerged suddenly from eastbound CGRd 2nd Lane and despite having sighted the Taxi hastily turned right into eastbound CGRd 2nd Lane against the Traffic Flow and pushed the Handcart into the Taxi. D immediately stopped the Taxi when he heard the sound of impact, and later saw a dark scratch line on the Taxi’s nearside rear door which evidenced a collision with the Cylinder(s) on the Handcart. 6.D averred the Conviction was irrelevant, and P was contributorily negligent in (a) pushing the Handcart in an unsafe manner from eastbound CGRd 2nd Lane towards the Junction/PSt against the Traffic Flow, (b) failing to use the pavement when pushing the small Handcart, (c) failing to keep proper lookout for traffic at the Junction/PSt and/or to heed the Taxi’s presence/movement to avoid collision, (d) failing to give way to the Taxi when the Cylinders (not strapped/secured in any way) protruded beyond the edge of the Handcart and would hit the Taxi’s nearside body if P continued to push the Handcart/Cylinders forward into the Junction/PSt, and (e) failing to observe the Code or to take reasonable care for his own safety. III. INTERLOCUTORY APPLICATIONS 7.On the 1st day of trial in the present action (“Trial”), D applied for (which P opposed) leave to (a) file his 2nd supplemental witness statement dated 13 June 2015 (“D’s 3rd Statement”) (“Statement Summons”), and (b) further amend his Amended Defence (“Amendment Summons”). After hearing Mr Shum, counsel for D, and Ms Lau, counsel for P, I granted inter alia the following order (“Order”):
I have reserved my reasons for the Order which I now give. 8.D’s Police Statement and D’s 1st witness statement asserted D drove the Taxi along PSt 2nd Lane at/about 40kph, and reduced speed to 10kph when the Taxi was about half car-length from the Junction. But D’s 3rd Statement asserted D drove at 40kph on Electric Road, North Point but he reduced speed to 10kph after he turned into PSt, and the pavement alongside eastbound CGRd where the Accident happened was quite broad with few pedestrians. D proposed to re-amend his pleadings as follows: “[D] was driving the Taxi along the 2nd left lane of northbound Power Street, North Point, at the speed of about 40 km/h”. 9.The proposed change as to the speed of the Taxi amounted to an application for withdrawal of admission of fact. On such application, the burden was on D to give an explanation. The court had a discretion to allow such withdrawal, and such withdrawal would be allowed if upon a balancing exercise it was just to do so in all the circumstances or, to put it in another way, unless prejudice to P, established on evidence, made such course unjust.[7] Mr Shum submitted D discovered the error upon further review of the Recording, but P would not be prejudiced because the Recording was there for all to see, and P could cross-examine D and make submissions on the Recording. Ms Lau argued it was too late and there was no good reason for the delay.[8] 10.The Recording was played at Trial. The Taxi was shown to be in PSt 2nd Lane with roadworks taking up about ⅔ of PSt 1st Lane (“Roadworks”). Where the Roadworks ended, there was a stationary white-coloured closed truck (“White Truck”) on PSt 1st Lane before the Give-way Lines. On PSt 2nd Lane, a red-coloured closed truck (“Red Truck”) was seen turning right into eastbound CGRd 2nd Lane. Behind it were 2 private cars (“1st Car and 2nd Car”) followed by a motorcycle (“Motorcycle”) and then by the Taxi. There was a stationary van on CGRd 1st Lane directly opposite the mouth of PSt (“Van”). When the footage started, the Motorcycle’s brake lights were on,[9] and there were no pedestrians on the pavement at the Right Corner. As the footage continued, the brake lights of the 1st Car directly in front of the Motorcycle also came on, the 2nd Car in front of the 1st Car turned left into westbound CGRd 2nd Lane, the 1st Car edged closer to the middle broken white line, and almost at the mouth of PSt the Motorcycle also edged closer to PSt 1st Lane. After the Collision, V3 showed both the 1st Car and Motorcycle had turned left into westbound CGRd 2nd Lane whilst the White Truck remained stationary before the Give-way Lines on PSt 1st Lane. 11.Mr Shum submitted (a) since the Motorcycle (and later the 1st Car) had their brake lights on but the Taxi maintained the same distance behind the Motorcycle, the Taxi could not have been travelling at 40kph and must have reduced speed after it turned from Electric Road into PSt, and (b) the Recording showed the width of and the state of pedestrian traffic on the pavement alongside PSt 2nd Lane up to the Right Corner. On the other hand, Ms Lau was worried the Trial would be delayed if P needed to supplement his witness evidence to deal with new matters. She also suggested D could not give evidence on the Taxi’s speed or pavement width, and doubted how the Taxi slowing down but still colliding with P would assist in determining whether or not D was driving carelessly or in disproving the Conviction. 12.In my view, the proposed change would not have delayed the Trial. First, P and D being the only 2 factual witnesses would give evidence at trial, and P could amplify in reply in his evidence-in-chief. Secondly, I do not see why D could not give evidence on the Taxi’s speed (when he had years of professional driving experience and feel for the speed of a moving vehicle) or on pavement width and pedestrian traffic (when the Recording was there for all to see and D himself was present at the scene when he alighted after the Collision). I reject Ms Lau’s permeating theme at the Trial that because D claimed to have only seen/felt a flash went by before the Collision (and not specifically P with the Handcart/Cylinders) D could not assert any positive case. Such approach ignored other available evidence (including evidence from P) which D could rely on for such plea. Thirdly, the Taxi’s speed at the material time must be a relevant factor for determining whether D’s driving was reasonable, competent and prudent, and (as explained below) the Conviction would not extinguish the relevance of such evidence. 13.Although D could have reviewed the Recording again at an earlier time, he had demonstrated arguable basis for the proposed changes on the objective evidence of the Recording, and there was no prejudice to P since he could give evidence to refute any matter raised by the proposed changes, and he had the further protection afforded by paragraph 7(b)-(c) above. For the above reasons, I granted the Order. IV. WITNESSES 14.In assessing the credibility of factual witnesses, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the chronology of events, the documentary evidence and the inferences based on inherent probabilities and/or undisputed facts. 15.I find P to be an unsatisfactory witness, which view coincided with that of the magistrate in the CD Case (“Magistrate”). P was a reluctant witness who was argumentative, uncooperative and evasive, and he was not prepared to be forthcoming even about his own injuries/disabilities. He was not above making up his case when he was unable to offer an explanation and when inaccuracies in what he was saying were exposed, and I find his explanations on various important matters unconvincing. There were inherent inconsistencies within his own evidence, and in various instances his evidence was in conflict with and indeed belied by the documents. He was also prone to unreliable exaggeration, especially as to the extent/severity of his injuries. On balance, I find D to be comparatively more forthcoming, but he also attempted to embellish some aspects of his evidence which I do not accept, eg whether and if so when he sighted P before the Collision. 16.The 3 joint orthopaedic expert reports dated 4 March 2013, 31 March 2013 and 23 August 2014 (“1st, 2nd and 3rd Reports”, collectively “Reports”) by the parties’ experts Dr Lau Chi Yuen (for P, “Dr Lau”) and Dr Lee Po Chin (for D, “Dr Lee”) (collectively, “Experts”) were adduced at trial without calling the makers. V. LIABILITY (a) Conviction and legal principles 17.Although P pleaded and relied on the Conviction to evidence D’s negligence,[10] the proviso “unless the contrary is proved” in section 62(2)(a) of the Evidence Ordinance Cap 8 (“EO”) gave clear mandate to D to attack the Conviction provided there was good reason for doing so, and D bore the burden of proving to the civil standard the Conviction was erroneous and he was not negligent.[11] 18.In Stupple v Royal Insurance Co Ltd,[12] Lord Denning said at pp 72-73 that “the weight to be given to a previous conviction is essentially for the judge at the civil trial. Just as he has to evaluate the oral evidence of a witness, so he should evaluate the probative force of a conviction.”[13] Mr Shum urged me to rely on Buckley LJ’s judgment which suggested that beyond shifting the burden of proof the evidence of conviction would carry no weight.[14] But as explained by the Court of Appeal in China Everbright – IHD Pacific Limited v Ch’ng Poh,[15] in the context of Stupple Buckley LJ’s observations were hypothetical because at the end of his judgment he said:[16]
The Court of Appeal went on to say at paragraph 40 that in light of section 62 of the EO, “it is idle to suggest that evidence of a conviction can be given but that it is to be given no weight. …… The weight to be given depends upon the particular facts of the case and the issues involved. ……”[17] I respectfully agree with such approach. (b) Code and legal principles 19.The Code does not have the force of law, and failure on the part of any person to observe any provisions of the Code may in, say, civil proceedings be relied upon as tending to establish or to negative any liability which is in question in those proceedings.[18] (c) Conviction 20.In the CD Case, D did not give evidence. The Magistrate considered the Recording and D’s Police Statement, and found P pushed the Handcart/Cylinders on the carriageway near the pavement kerb as he turned left from CGRd into PSt, and as he did so D felt a flash of human figure went by but he did not see the Handcart/Cylinders. Since D failed to keep a proper lookout for the presence of P with the Handcart/Cylinders on the roadway to his right front, the Magistrate convicted him of careless driving. Mr Shum suggested the verdict was erroneous, but Ms Lau argued it persuasively supported P’s contentions. (d) Background facts 21.In the afternoon on 6 May 2010, P delivered some Cylinders to City Garden Hotel and collected empty CO2 Cylinder(s) for return to Swire, and was pushing the metal Handcart laden with 3 Cylinders (not strapped/ secured in any way) to the next delivery destination at Island Pacific Hotel near Oil Street.[19] The Handcart with floorboard and narrow back frame (with handlebar) had to be tilted backwards on 2 wheels in order to propel it forward, and the 3 Cylinders protruded outside the edge of the floorboard. (e) Delivery of Cylinders 22.P gave evidence in the CD Case that upon leaving City Garden Hotel he pushed the Handcart/Cylinders onto the carriageway of eastbound CGRd 2nd Lane because the pavement surface was uneven and there were many pedestrians. P said at Trial “喺酒店[City Garden Hotel]門口出一刻係多人”. But the Photographs did not show any unevenness of the pavement surface alongside the Taxi Stand outside City Garden Hotel. Secondly, apart from a bare assertion that there were many pedestrians, P gave no particulars of the number of pedestrians, whether they were standing there or walking past, etc. The paucity of particulars and D’s overall unreliability belied such assertion, especially given my finding that the width of that stretch of pavement was reasonably broad. Thirdly, the Recording showed that from the time the Taxi turned into PSt the pavement at the Right Corner (including where the planter box was located) was devoid of pedestrians, so even if there were pedestrians outside City Garden Hotel, he could have waited for them to pass by and then proceeded on the pavement towards the Right Corner. Fourthly, even if P went onto the carriageway due to the presence of pedestrians outside the hotel, he could have returned to the pavement before the Junction Railing on eastbound CGRd 2nd Lane because by then (a) the Landing gave wider space for pedestrian traffic, and (b) it would have been even more obvious then there were no pedestrians at the Right Corner. I reject P’s assertions as to why he went onto the carriageway. 23.There is, of course, no absolute prohibition against a pedestrian walking upon the carriageway, but as McMullin J explained in Lam Shui-tsin v James Tong, “…… [in] every case the act falls to be judged by reference to the practical necessities of the situation at large which must, however, be read in the light of the general principle that, for their mutual security (and other things being equal) the pedestrian should keep to the pavement and the motorist to the carriageway”.[20] 24.In my view, there was no good reason for P to push the Handcart/Cylinders on the carriageway. P initially thought he could walk straight ahead along CGRd 2nd Lane and across the mouth of PSt to reach Island Pacific Hotel. But the possible convenience of pushing the Handcart/ Cylinders along the level carriageway en route rather than up and down the pavement kerb when crossing PSt was not good justification for avoiding the pavement, especially when P knew the Cylinders were not strapped/secured and he was walking against the Traffic Flow. I find on balance that given the Handcart’s size/manoeuvrability (and despite the Cylinders’ length), it was reasonably suitable for use then on the pavement from outside City Garden Hotel to the Right Corner. Chapter 2 of the Code provides as follows:
25.In my view, P’s travel on the carriageway was more culpable since he failed to return to the pavement before the Junction Railing. Such railing was obviously there to separate pavement from carriageway, and to prevent pedestrians encroaching upon the carriageway. In Lam Shui-tsin, Huggins J said “…… [a] motorist approaching railings so placed is entitled to assume that no pedestrian will likely appear outside the railings – although, of course, he will not be entitled to disregard an errant pedestrian who to his knowledge has gone outside: ……”[21] McMullin J also said at pp 368-369:[22]
Whilst I accept the question of negligence and/or contributory negligence must be determined in light of the factual situation in toto prevailing at the time,[23] the possibility of contributory negligence is patent when a pedestrian stands outside guard-rails near a corner and the motorist’s opportunity of observing him is lessened by the existence of the corner.[24] I find that in going onto and/or continuing on the carriageway as he did without good reason, P failed to take reasonable care for his own safety. (f) Going to Island Pacific Hotel 26.It was evident from P’s Police Statement and P’s evidence in the CD Case that he initially thought he could walk along the carriageway of eastbound/westbound CGRd 2nd Lane to reach Island Pacific Hotel, but when he was close to the Junction he realised westbound CGRd 2nd Lane was probably a dead end, so he decided to turn left into PSt. I note that when P first appeared in the Recording (15:39:06-07) he was pushing the Handcart/ Cylinders outside the Yellow Line and not close to the pavement kerb, which accorded with his initial intention of walking straight ahead. I find on balance P made an abrupt decision at the Right Corner to turn left into PSt, so 15:39:08 showed him moving closer to the Yellow Line and pavement kerb as he rounded the Right Corner. I disagree P all along tried to stay as close to the pavement kerb as possible and/or moved carefully/slowly along eastbound CGRd 2nd Lane. The latter assertion was exploded by the Recording that showed P pushing the Handcart/Cylinders at a brisk pace. (g) Taxi entering PSt 27.Speedometer D turned from Electric Road into PSt. He claimed he was travelling at 30-40kph on Electric Road because as a professional driver he had a feel for vehicle speed and he had glanced at the speedometer. He further claimed it was his practice to glance at the speedometer every 3-4 minutes and when nosing into road junctions. There was no record of such practice in D’s Police Statement and/or in D’s witness statements (the last of which was made 10 days before Trial). On balance I reject D’s explanation that he told the police but not his solicitors of such practice, and it was such normal driver behaviour that it went without saying. If D had such practice, there was no plausible reason why the police officer (if told) would have omitted it and/or why D himself did not include it in D’s Police Statement and his witness statements when he knew his manner of driving was plainly in issue. I find on balance (a) D did not have such practice, (b) he did not glance at the speedometer when he turned into PSt 2nd Lane and later when he turned into eastbound CGRd 2nd Lane, and (c) he relied on his feel for speed as an experienced professional driver. 28.Speed D’s Police Statement and 1st witness statement stated the Taxi travelled at 40kph along PSt 2nd Lane and slowed to 10kph when it was about half car-length from the Junction, but D corrected himself in D’s 3rd Statement to say he travelled at about 40kph along Electric Road and reduced speed to 10kph after turning into PSt. Ms Lau challenged D’s veracity over such last-minute assertion, which she suggested was D’s poor attempt to present himself as a perfect driver. 29.But the Recording showed the speed of the Taxi could not have been 40kph after it turned into PSt. The Roadworks on PSt 1st Lane squeezed all vehicular traffic onto PSt 2nd Lane, and the Red Truck, 2nd Car, 1st Car, Motorcycle and Taxi travelled in train on the short PSt that spanned only 2 lamp-posts. The Motorcycle and later the 1st Car had their brake lights on, which indicated they were slowing down, and since the Taxi maintained similar distance behind the Motorcycle it too must have slowed down. I accept on balance D reduced speed from about 40kph to about 20kph when he moved into PSt, and further reduced its speed to 10kph near the mouth of PSt. I see nothing sinister in D not mentioning specifically about reducing speed from 40kph to 20kph and then to 10kph. After all, one must bring the speed down past 20kph to 10kph, and PSt was such a short street there was no chance to be fast. I reject P’s claim that the Taxi travelled at a high speed. 30.But where on PSt did D decelerate to 10kph? In D’s Police Statement, D said he did so when the Taxi was about half car-length from the Junction. But on balance I prefer D’s evidence at Trial that (a) the Taxi was still travelling at 20kph when it was parallel to the end of the Roadworks,[25] and (b) he reduced speed to 10kph when the Motorcycle and 1st Car in front of the Taxi had their brake lights on as they neared the mouth of PSt.[26] I find the speed of the Taxi to be reasonable for the then road condition. (h) Another taxi? 31.P’s Police Statement made 9 days after the Accident stated “[P]見有一部的士[“Other Taxi”]停車在[PSt 1st Lane]同[PSt 2nd Lane]中間近[CGRd]準備駛入[CGRd]。同時有另一部的士(後知KD3315[ie the Taxi])沿[PSt 2nd Lane]南向北行”. P plainly referred to 2 taxis as confirmed by the sketch annexed thereto (“P’s Sketch”). The real-time Recording did not show the existence of the Other Taxi, and yet P gave incredible explanations at Trial, which I reject and which spoke ill of his overall credibility. 32.First, P tried to explain away P’s Police Statement by saying if the police officer asked him questions in a certain way, he would give answers but he would not know how the police officer wrote the statement. In my view, such hypothetical surmise would not assist. P also gave confusing explanation as to whether it was the Taxi or some other taxi/car that straddled PSt 1st and 2nd Lanes. Secondly, P said he mistook the Red Truck as the Other Taxi, but since he confessed he could not see the Taxi on PSt when the Red Truck turned right into eastbound CGRd, it did not sit well with P’s Police Statement that stated P “同時” saw the Other Taxi and Taxi, and “當時[Taxi]……在停在[PSt 1st and 2nd Lanes]的士右邊駛過然後右轉入[CGRd]”. Thirdly, P even claimed such statement in P’s Police Statement in fact referred to the Taxi (not 2 taxis) except he erred in stating the Taxi had stopped (when the Recording showed it did not). I reject P’s assertions, and agree with Mr Shum that P made up the Other Taxi to insinuate that the Taxi drove close to him when it turned right from PSt to CGRd. 33.Nevertheless, it was relevant to note P admitted he was on eastbound CGRd 2nd Lane outside the Junction Railing when he first saw the Red Truck that passed close to him, and he knew it would be dangerous for him if the driver did not see him. In my view, P’s interaction with the Red Truck should have heightened his vigilance for right-turning vehicles from PSt 2nd Lane, which made his failure to move slowly and/or to give away to the Taxi rounding the Right Corner all the more culpable. (i) P 34.D claimed (a) P suddenly walked onto the carriageway against the Traffic Flow and hastily pushed the Handcart/Cylinders into the narrow space between the Taxi’s nearside body and pavement kerb until the Collision occurred, and (b) by the time he saw P it was too late to take avoidance action, but he immediately stopped the Taxi when he heard the sound of impact. 35.P’s Police Statement stated he first saw the Taxi when it was about 1m away, and he stopped close to the pavement kerb at the Right Corner to let it pass. In the CD Case, P reiterated the Taxi was 1m away (but said it was an approximation) when he was at “轉彎嗰一刻” and the Taxi “……未超越[P]架喇……[Taxi]未喺[P]身邊行過”. Such assertions suggested P knew/expected the Taxi would continue forward to turn right into eastbound CGRd 2nd Lane (rather than stop and give way for him to go past the Taxi). After all, he knew vehicles on PSt 2nd Lane (including the Taxi) would turn right into eastbound CGRd 2nd Lane as it was a T-junction and he had seen the Red Truck made such right turn. 36.However, I find on balance P saw the Taxi when it was more than 1m away. When P first appeared in the Recording at 15:39:06, he and the Handcart/Cylinders were on the carriageway of CGRd 2nd Lane outside the Give-way and/or Yellow Lines more than 1m away from the Taxi with nothing to obstruct his view of the mouth of PSt 2nd Lane, and he would have been paying attention to the traffic on PSt irrespective whether he was to cross PSt or to turn left to PSt 2nd Lane. He would not have kept a proper/safe lookout if he saw the Taxi when it was only 1m away from him. 37.More importantly, the real-time Recording showed P did not stop until he went past the front part of the Taxi and the Collision occurred as he disappeared from the footage. In the CD Case, P alleged as he disappeared from the footage “……就喺嗰個位停囉”, which differed from P’s Police Statement and his other evidence in the CD Case that the Taxi moved forward to hit him where he stopped to let it pass. At Trial, P claimed (a) at first (15:39:06-07) he pushed the Handcart/Cylinders on the carriageway of eastbound CGRd 2nd Lane outside the Yellow Line, (b) when he first saw the Taxi he had yet to reach the Give-way Lines but was closer the Right Corner than where he was when he saw the Red Truck, and (c) he stood still for a moment before moving a little sideways closer to the Yellow Line (15:39:08) for his own safety as the Taxi made the right turn. But when pressed on why he did not offer such explanation when questioned by the Magistrate in the CD Case, P gave the feeble explanation he had not thought of it then. 38.On balance I reject P’s poor explanations, and find he did not stop. I further find (a) P initially pushed the Handcart/Cylinders outside the Give-way and Yellow Lines with a view to go straight across the mouth of PSt, but on reaching the Right Corner he made an abrupt decision to turn left to PSt 2nd Lane, (b) P actually saw the Taxi which he knew would turn right into eastbound CGRd 2nd Lane and which explained why he pulled closer to the Yellow Line as he rounded the Right Corner, (c) P assumed there was enough room for him and the Handcart/Cylinders to go past so he continued forward at a brisk pace into the space between the Taxi’s nearside body and pavement kerb, but (d) he forgot or underestimated the protrusion of the Cylinders and his closeness to the Taxi. In my view, P (well knowing he was encroaching on the carriageway) failed to keep a proper/safe lookout for the Taxi’s presence/movement to avoid collision, failed to push the Handcart/ Cylinders slowly and carefully to avoid oncoming traffic (especially when he was going against the Traffic Flow) and/or failed to stop and give way to the right-turning Taxi travelling with the Traffic Flow. (j) Taxi 39.In P’s Police Statement and CD Case, P said the Taxi did not slow down or stop at the Give-way Lines as it turned right into eastbound CGRd 2nd Lane, and the Taxi’s nearside body was about 2in away from the Cylinders on the Handcart.[27] 40.Motorcycle D’s Police Statement and D’s 1st witness statement stated the Motorcycle stopped at the Give-way Lines before turning left into westbound CGRd 2nd Lane, but D conceded at Trial the Motorcycle slowed down to 10kph (but did not stop) at the mouth of PSt before it turned left. 41.Speed D’s 1st witness statement stated the speed of the Taxi was about 10kph as it nosed into the Junction. At Trial D said he feathered the footbrake to reduce speed to 5kph (or below) which almost brought the Taxi to a stop, and he maintained such speed as he turned right into eastbound CGRd 2nd Lane. D claimed to have previous experience of pedestrians walking out or pushing handcarts/wheelchairs onto the roadway at road junctions, so he would reduce speed so as to stop in time and avoid collision with such pedestrians. But D’s witness statements never mentioned such further reduction in speed, and I reject D’s poor explanation that he was cross-examined about it only at Trial. I find on balance D did not reduce speed to 5kph. The Recording (15:39:05) showed the 1st Car’s brake lights came off as it picked up speed to turn left into westbound CGRd 2nd Lane, and when the Motorcycle reached the Give-way Lines its brake lights also came off as it made the left turn. With the traffic clearing up in front, I find the Taxi nosed towards the Junction at 10kph without further deceleration. 42.Looking at both directions D said that at mouth of PSt he looked left,[28] right and left again before turning right into eastbound CGRd 2nd Lane. D’s Police Statement stated that exercise took 3 seconds, and he saw 30m to the left, half a car-length (about 7-8m) to the right (due to the presence of the Railing), and then 15m to the left again. But at Trial D said it took 1½ seconds, and at “讓路口前” he could only see up to 12ft on both sides. For such significant discrepancies, D blamed the unclear questions put to him by the police officer who took D’s Police Statement, and he further suggested a person outside a vehicle could see much further than a driver, and 7-8m and 15m in D’s Police Statement were only approximations. But such explanations, which I consider unreliable, were not materially relevant since P and his Handcart/Cylinders were not in the far distance but almost upon the Give-way Lines at the Right Corner when P first appeared in the Recording at 15:39:06. From that point onwards, bearing in mind the gentle curve of the Right Corner, the planter box with tall shrub or even the Junction Railing would not have posed any visual obstruction for D. 43.Mr Shum submitted the Conviction was erroneous despite absence of any appeal because: (a) there was no reason for D to expect a pedestrian to take the dangerous path taken by P especially when there was no pedestrian on the pavement to the right of the Taxi, (b) the presence of the large stationary White Truck on PSt 1st Lane just before the Give-way Lines meant “[D] was unable to see the traffic condition to the left hand side of the Junction until the front part of [the Taxi] had gone past it”, (c) the Motorcycle travelling in the middle of PSt and the stationary Van on CGRd 1st Lane opposite the mouth of PSt posed far more obvious/real danger to D so he ought to have kept an eye on them, (d) the Taxi was not travelling at an excessive speed and it would be a counsel of perfection to require D to keep his speed so slow that he would always be able to stop in time to avoid any collision, and (e) since the Collision occurred in/about 3 seconds after P suddenly emerged from eastbound CGRd 2nd Lane D only saw P at the last moment and could hardly have swerved/stopped to avoid the Collision. 44.As a starting point, I accept the Recording showed that before P/Handcart emerged from eastbound CGRd 2nd Lane at 15:39:06 D could not have been aware of his presence on the carriageway, but the Recording also showed the Taxi did not stop or slow down as it nosed towards/into the Junction. The essential question was whether D saw P in time to give way[29] or take avoidance action, and whether he was negligent if he did not. 45.I note the statement of PC10188 (who was first to arrive at the scene) recorded D told him (but at Trial D denied he so told the police officer) “當時[D]停於近[lamp-post 44591]，打算由[PSt]右轉到[CGRd]，而當時[D]望完左邊之路面情況，便右轉到[CGRd]，當轉入[CGRd]時，便撞到[P]之手推車導致該手推車及貨物撞向[P]處”, which seemed to suggest D did not look to his right and did not see P until it was too late to give way or take avoidance action. 46.D’s case as essentially summarised in D’s Police Statement was that as he looked left, right and then left again he did not see any vehicle, pedestrian or object,
47.On balance I find that after turning into PSt D confirmed the destination (which required a right turn into eastbound CGRd 2nd Lane) with the passenger (15:39:05). At that time, the 1st Car turned left into westbound CGRd 2nd Lane, the Motorcycle was at the triangular give-way road marking, and the Taxi was behind it on PSt 2nd Lane. At/about 15:39:06, the Motorcycle was in the middle of PSt before the Give-way Lines with the White Truck to its left whilst the Taxi continued forward on PSt 2nd Lane. At that point, given the presence of the White Truck to the left front and the Motorcycle in front of the Taxi, D could/would not have been looking at the traffic on CGRd to his left. Indeed, Mr Shum accepted D was unable to do so until the front part of the Taxi had gone past the White Truck, which in my view meant the head of the Taxi had to reach or even cross the Give-way Lines. I find this also meant D could/would not have been able to look at CGRd to his left even at 15:39:07 when the front of the Taxi had not yet reached the Give-way Lines.[30] On balance I reject D’s evidence that he started to look left after 15:39:06 and before 15:39:07, and find that even up to 15:39:07 D was still looking ahead. 48.Since (a) D was looking ahead and not to his left at 15:39:06-07, (b) D admitted he was able to see what was shown in V1 of the Recording (being the view ahead) from his vantage in the driver seat inside the Taxi, and (c) PSt 2nd Lane widened towards the right at its mouth to produce a gentle curve at the Right Corner (which would allow wider peripheral vision to the right at least as shown in V1), D should have been able to heed the presence of the White Truck, Motorcycle, Van and also P who first appeared at 15:39:06 and who continued to push the Handcart/Cylinders closer to the Right Corner at 15:39:07, especially when P was not close to the pavement kerb but outside the Give-way/Yellow Lines which should enhance his visibility. In my view, a reasonable, competent and prudent driver in D’s position should have seen P pushing the Handcart westerly at the right front. 49.The above analysis/findings immediately cast doubt on whether D did look left, right and then left as he claimed. As Mr Shum accepted, the front part of the Taxi had to nose past the White Truck before D could begin to see to the left, and I have found this meant the head of the Taxi would have to reach or even cross the Give-way Lines. I have also found the Taxi did not stop or slow down as it continued to move forward. These findings did not sit well with D’s case that “在讓路口前[D]先望左邊(西面) ……之後[D]就望右(即東面)……之後[D]再望左邊(即西面)……所以[D]就輕輕比油駛出讓路口……” (my emphasis). In my view, D could not have spent 3 seconds or even 1½ seconds to complete the exercise of looking left, right and then left again before the Taxi reached the Give-way Lines when he would not have been able to see CGRd to his left. This really exploded D’s claim that he did not see any traffic (vehicular/pedestrian) on CGRd for both directions until about 15:39:08 when he spied a dark flash of a human figure about 6ft away edging close to the Taxi (that was making the right turn) and going past its nearside body. 50.I find on balance D did not look left, right and left again as he claimed, and instead (a) D actually saw P/Handcart to his right front as he looked ahead whilst nosing the Taxi towards the Junction, (b) D did not stop but continued forward to check CGRd to his left which he found was clear of oncoming traffic, (c) D continued forward to make the right turn into CGRd 2nd Lane, (d) D did not make a tight right turn but started to pull out to give wider berth at the Right Corner, (e) D did so because he assumed (i) P would stop to let the Taxi go past him or (ii) there was enough room for P/Handcart and the Taxi to pass each other, (f) as D started to pull out P did not stop but briskly pushed the Handcart/Cylinders into the space between the Taxi and the pavement kerb up to the level of the driver’s door without mishap, (g) but the rear part of the Taxi was still 2-3ft away from the pavement kerb, which was too narrow for P and the Handcart/ Cylinders to get through, and (h) the Collision occurred with the protruding Cylinders scraping the lower part of the nearside rear door of the Taxi leaving a dark scratch line when the Taxi and P/Handcart turned simultaneously at the Right Corner. D failed to notice or properly notice the bulk of the Cylinders on the Handcart, to ensure safe distance between P/Handcart with load and the Taxi, and/or to stop or give away to P/Handcart even though he was an errant pedestrian. 51.I reject D’s claim it was his usual practice of giving wide berth when turning at road junctions, and find he did so here because he saw P coming towards the Right Corner. This also explained why D never thought of stopping and allowing P/Handcart to pass first. I disagree with Mr Shum’s suggestion that it was because D only saw a dark flash. I also disagree D did not have much room to manoeuvre since (a) the White Truck on PSt 1st Lane was not close to the middle broken white line, (b) PSt 2nd Lane widened to the right at its mouth, and (c) there was no stationary vehicle in front of the Van as the Taxi went past its head to turn right. 52.Likewise, as I have found, P thought he had enough room when he pulled a bit closer to the pavement kerb at the Right Corner as he pushed the Handcart/Cylinders forward without stopping. Unfortunately, P forgot or underestimated the length/bulk of the Cylinders that protruded from the edge of the Handcart, and failed to give way to the Taxi or allow sufficient distance for the Handcart/Cylinders and Taxi to pass each other safely. 53.In my view, such findings were supported by a voice saying “yearh” immediately after the Collision, and D himself saying “都唔夠過你又……” at 15:39:16. D’s immediate reaction suggested he knew the presence of P who was trying to go past the Taxi’s nearside body but it turned out there was insufficient room. But I accept the speed of Taxi was not high, and D was able to bring the Taxi to a stop soon after the impact. 54.I find on balance the impact caused the Handcart to swing around and its handlebar to hit D’s abdomen whereupon the Cylinders fell to the ground and D fell on his buttocks.[31] But the force of the impact was not severe since the speed of the Taxi was modest and (as P admitted) the Handcart remained upright. I further accept P then got up, and D (when he alighted) saw him standing at the rear of the Taxi pressing his back. D gave a chair for P to sit down, and then made a report to the police. (k) Summary 55.In my view, both P and D were to blame for the Accident since both failed to keep a proper lookout and/or a safe distance, and failed to stop and/or give way to each other, and each of them failed to ensure safety for himself and the other road-user in using the carriageway. 56.I find P/Handcart were there at the Right Corner long enough for D to see them in time to take avoiding action, either to give way by braking/stopping or to swerve further out to give them an even wider berth. A reasonable, competent and prudent driver should be wary and observant of pedestrian traffic (including the presence of errant pedestrians). I also bear in mind PSt was the minor give-way.[32] I am satisfied the way D drove fell below the standard of a reasonable, competent and prudent driver, and his negligence (as supported by the Conviction) was a contributing cause of the Accident. In coming to such conclusion I have borne in mind Mr Shum’s reminder that the court should refrain from evaluating the standard of care owed by a driver by reference to fine considerations elicited in the leisure of the courtroom or with liberal use of hindsight.[33] I have carefully considered the facts of this case,[34] and find it unnecessary to consider Ms Lau’s reliance on HKSAR v Cheung Kwok Leung,[35] and Mr Shum’s reliance on Ng Ching Hung by his father and next friend Ng Tin Tsam v Lau Shun Hing.[36] 57.But P also was not looking after his own safety when he saw the Taxi on PSt 2nd Lane knowing it would turn right towards him. The fact P made an abrupt turn to PSt without stopping and pushed the Handcart/ Cylinders forward to squeeze through the space between the Taxi’s nearside body and pavement kerb was ill-considered, especially when he went against the Traffic Flow, walked on the carriageway outside the Junction Railing, and pushed the Handcart with an unsecured load. Unlike D, he must have been familiar with the size/length of the Cylinders and their protrusion from the edge of the Handcart, which would add to the risk/danger of his situation on the roadway, and yet P did not stop to give way to the Taxi. In my view, P’s conscious but abrupt decision to turn left into PSt 2nd Lane and then to move briskly forward without stopping to pass the moving Taxi when there was insufficient room to do so necessarily led to a finding that P too was negligent, which negligence also contributed to the Accident and his injuries. 58.Ms Lau referred to Lee Hau-man v Hon Ping-wan,[37] Tremayne v Hill[38] and Chun Sung Yong v Au Au Sze Hung Christopher & anor[39] to suggest P should at most be 15%-20% liable, but these cases turned on different factual scenarios. I bear in mind Pankhurst v White & anor[40] in which Wilkie J reminded there were 2 aspects to apportioning responsibility between claimant and defendant: the respective causative potency of what they had done and their respective blameworthiness. “Furthermore, the courts have consistently imposed upon drivers a high burden to reflect the fact that the car was potentially a dangerous weapon.” On the present facts as found, I am of the view P was guilty of contributory negligence to a significant degree. I find P and D were 30% and 70% respectively to blame for the Accident. VI. QUANTUM (a) Personal history 59.P was 27 at the time of the Accident and 32 at Trial. He was educated to Secondary 3. P was right-handed, and claimed to be in good health, a social drinker and fond of football/hiking before the Accident. He was a member of the football team of the fleet and distribution department at Swire. P married in July 2010. (b) Work history 60.Before working for Swire, P worked in 3 different positions in commercial kitchens:
P agreed that by the time he joined the Mongkok restaurant after working as kitchen apprentice for a year, he understood more about commercial kitchen work. His duties as “打何” (which job I find on balance to be that of a junior cook/chef) included selecting/preparing ingredients for dishes to be cooked by the cook/chef at the stoves. On balance I do not believe P’s disclaimer of knowledge about (a) division of labour in a commercial kitchen, (b) whether or not “廚房幫工” was more senior than kitchen apprentice, and (c) whether or not the next step for promotion for “打何” would be cook/chef. Given P’s experience he should have some idea of these matters, and I believe he had more experience in and knowledge of commercial kitchen work than he would have let this court believe. 61.P was employed by Swire in October 2006. He worked from 8am-5pm and (according to Form 2 dated 20 May 2010) on average 24 days/ month. A delivery truck that could hold up to 200 odd 5gals syrup Cylinders operated with 4-5 delivery workers who would by handcart and on foot unload/deliver the Cylinders to customers and collect/load empty Cylinders for return to Swire. P had to physically lift/carry 1-2 full/empty Cylinders a time for delivery/collection to/from customers if there were no escalators, and he had to transport Cylinders up/down slopes for deliveries to Central every Wednesday. The weight of different sizes of syrup/CO2 Cylinders is set out in footnote 19 above. 62.Counsel agreed P’s average monthly earnings at the time of the Accident were $12,053.10 ($5,324.00 basic pay and $5,158.20 commission),[41] which did not make sense since $5,324.00 and $5,158.20 arithmetically added up to $10,482.20 and not $12,053.10. I believe counsel’s error came from misreading Form 2 that stated (a) P’s earnings for April 2010 (month preceding the Accident) were $10,482.20 ($5,324.00 basic pay and $5,182.00 other items), but (b) P’s average monthly earnings for April 2009 to April 2010 (12 months preceding the Accident) were $12,053.10. The breakdown for the sum of $12,053.10 was shown in P’s List of Earnings for the 24 months Prior to the Accident (May 2008 to April 2010) that Swire produced in the EC Action (“24-Months’ List”):
Since D accepted $12,053.10 to be P’s average monthly earnings at the time of the Accident, I proceed on the basis that P’s then average monthly basic pay was $5,690.83 and his average monthly commission was $6,362.30, which was 11% more than his monthly basic pay (ie [($6,362.30 - $5,690.83) ÷ $5,690.83] x 100%). (c) Initial observations 63.First, P was defensively wary over the medical notes/records/ reports (“Medical Documents”) kept by hospitals/clinics, TRM (HK) Ltd (“TRM”) and Dr Baldwin Chan (“Dr Chan”),[42] eg P declined to say whether the painful area over right low back (that would expand/contract) would spread to his left back as he had not seen the Medical Documents. P’s constant theme was he would report to the doctor/nurse about which parts of his body were painful during the consultation and/or (if he remembered) when he was at home, but he would not know whether/how they would record his complaints (eg left leg numbness). But P was seen by many different doctors/nurses at the accident and emergency department (“AED”) and department of orthopaedics and traumatology (“DOT”) of Princess Margaret Hospital (“PMH”) and Yan Chai Hospital (“YCH”), and I am unconvinced some/ most of them made inaccurate records of P’s reported complaints. I find on balance the Medical Documents (particularly the contemporaneous notes/ records) were accurate and reject any contention otherwise. 64.Secondly, P was given sick leave at most medical consultations, and accumulated about 676 days of sick leave from the date of the Accident to 9 April 2014. The Medical Documents recorded P requested sick leave on quite a few occasions, and some AED attendance records showed grant of sick leave without treatment/medication. P suggested the AED/DOT doctors were unable to offer treatment plan apart from advising him to rest/swim and/or to take analgesics (which would not be prescribed if P still had stock of such pills that he took as needed). This, in my view, suggested either no therapeutic treatment was required or P did not have to take analgesics as frequently as the doctors envisaged. 65.I do not think Ms Lau’s reminder that sometimes P’s sick leave periods might overlap a day or so and/or he might miss a day or so after expiry of a sick leave period before seeking medical consultation (and extension of sick leave) would affect the overall tenor of P’s treatment/rehabilitation discussed below. Suffice to state here I prefer Dr Lee’s opinion that sick leave up to 26 April 2011 (ie date of Medical Assessment Board (“MAB”)) should be adequate for P’s injuries. I refer to Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd[43] in which Le Pichon JA said medical certificates were no more than a piece of evidence to be evaluated in the light of all available evidence including medical evidence, and the judge could not be bound by the mere issue of medical certificates since the issuance of such certificates would be primarily because of subjective symptoms reported to the doctors by the plaintiff. (d) Injuries, treatment and return to work 66.On balance I find P suffered soft tissue injuries to his left wrist, right ankle and right low back/waist as a result of the Accident, but P’s subsequent complaints as to other parts of his body were unrelated to the Accident. 67.P complained of dizziness/pain when he was taken to AED of Pamela Youde Nethersole Eastern Hospital. Physical examination elicited local tenderness over left wrist, right ankle and low back. He was admitted to the emergency medicine ward and received inpatient physiotherapy, and was discharged on 7 May 2010 with 7 days’ sick leave. P claimed to use a walking stick upon discharge, but was weaned off walking aid after 1-2 months. 68.On 12 May 2010, P attended North Kwai Chung General Outpatient Clinic for persistent pain over low back, right ankle and lower lateral aspect of right shin, but “had no more pain for left wrist”. He was prescribed physiotherapy/medication and given 3 days’ sick leave. I agree with Dr Lee that P’s minor left wrist injury did not require subsequent treatment, and the symptoms rapidly/mostly subsided. 69.On 14 May 2010, P (walking with aid) attended PMH’s AED for persistent back and right ankle pain. There was tenderness over right paraspinal muscle, 5/5 power of lower limbs, 30º forward flexion, and tenderness over right lateral malleolus with no swelling. The diagnosis was sprained back and right ankle injury. P was given intramuscular analgesics and 10 days’ sick leave. He re-attended PMH’s AED multiple times up to July 2011, and once on 5 January 2012 for persistent back pain with sick leave given each time. P also attended general out-patient clinic (“GOPC”) for treatment for a few months. 70.P attended 2 courses of outpatient physiotherapy at PMH for low back pain. He had 11 sessions between 24 May and 21 July 2010. On those 2 dates, right/left straight leg raising (“SLR”) was 60º/70º and 70º/70º respectively. 71.P attended PMH’s AED on 20 June 2010 complaining of persistent back and right leg pain. There were right lateral malleolus and right paraspinal (lumbar region) tenderness. P walked unaided with limping and lower limbs power was full with 20% improvement upon physiotherapy 3 times/week. But I agree with Dr Lee that P’s reference to right wrist injury was unrelated to the Accident. Dr Lau suggested it was not uncommon to notice symptoms some time after an accident (particularly if such symptoms were relatively less severe than others). I am not persuaded such general observation was applicable since P promptly noticed left wrist pain (which symptom should be more severe), but it quickly subsided in a few days. 72.According to TRM’s initial evaluation report dated 24 June 2010, P complained of tenderness over back and right ankle (no swelling), increased pain upon walking, and right lower limb numbness/weakness. He could walk unaided with limping gait. Right ankle dorsiflexion/ plantarflexion were -10º/normal and back flexion/extension were 50º/25° (normal 80º/30º). P claimed he could sit/walk for 30 minutes (but avoided stair-walking) and could perform semi-squat. TRM considered P suffered simple sprain of back and right ankle with no suspected neurology, and P could resume duty after adequate rehabilitation. 73.TRM arranged P to be reviewed by Dr Chan on 28 June 2010. Dr Chan noted P complained of residual intermittent right-sided low back pain that increased with squatting/bending, and residual intermittent pain/ swelling of right ankle with radiation of pain to right calf that increased with walking/squatting. Physical examination showed P walked with antalgic gait, mild swelling with diffuse tenderness over anterior aspect of right ankle (but movement was full with subjective pain and power was 5/5 with cogwheeling). Lumbar spine flexion/extension were reduced, and SLR was 80º bilaterally with back pain. Lower limb neurology was intact, but Waddell’s signs were positive in 3 out of 5. P was recommended to have physiotherapy and analgesics, and on 28 June and 12 July 2010 Dr Chan granted P sick leave from 28 June to 25 July 2010. 74.I accept that by late June 2010 P still had genuine underlying pathology that resulted in right low back and right ankle pain, but P was weaned off walking aid and there was improvement with physiotherapy. The new complaints of right leg numbness/weakness and radiation of pain to right calf accompanied by positive Waddell’s signs and cogwheeling suggested symptom magnification that did not sit well with Dr Chan’s finding that lower limb neurology was intact and TRM’s findings that no muscle weakness was noted over myotome L2-S2 region and SLR was full on both limbs. 75.P doubted TRM’s finding that he could perform semi-squat, but declined to say whether his pain was severe (as it was a matter for the doctors) or was more severe than what he felt at Trial (as he had no useful yardstick for comparison). All P would say was that his condition was better at Trial than in June 2010. I find such reticence unreliable since P must have first-hand knowledge of his own pain/discomfort. In my view, P was actually better than he presented to TRM and Dr Chan in late June 2010. 76.P consulted bonesetter a few times in May/June 2010. TRM arranged him to have private physiotherapy at Prime Rehabilitation Services (“PRS”) starting on 5 July 2010. When P was reviewed by Dr Chan on 12 July 2010, Dr Chan advised continuation with physiotherapy/analgesics and MRI to be done if there was no improvement. 77.According to PRS’ progress report dated 23 August 2010, P complained of pain at lower back, right ankle and left knee, and intensive pain when bending trunk. He walked with limping gait and was unable to squat. According to PRS’ physiotherapy report/record dated 21 July 2014, the findings on 5 July 2010 were:
On palpation, there was “tenderness++” upon light touch over right lower back/buttock region and over “right ATFL [anterior talofibular ligament]”. Right/left SLR were 70º/60º. 78.I find there was no satisfactory explanation for left knee pain and better SLR performance on the injured side, and I reject P’s suggestion at Trial that his right leg might not be so painful that day but his left leg was sometimes numb/painful/weak. On balance I prefer the observation in PRS’ physiotherapy progress report TRM received on 9 July 2010 that P showed exaggeration, and his condition might not be totally explained by objective findings. P’s complaint of a bad experience with the physiotherapist at PRS’ Tsuen Wan clinic could not explain his complaints on the uninjured left side. 79.On 12 July 2010, P consulted Dr Chan who granted 14 days’ sick leave to expire on 25 July 2010 with no further follow up. P attended PMH’s AED on 26 July 2010 complaining of back and right foot pain (but no swelling), and was given 7 days’ sick leave without treatment/medication. I note further improvement with P walking unaided for about 30 minutes with no limping, and sitting for about an hour with some back pain/stiffness. 80.On 2 August 2010, P attended PMH’s AED complaining of persistent back pain and on-and-off right thigh numbness. He was on physiotherapy, and could walk unaided with full lower limbs power. He was given 7 days’ sick leave with no medication/treatment. On 9 August 2010, P attended PMH’s AED complaining of pain due to back injury and requested sick leave. On 16 August 2010, P attended PMH’s AED for old back injury which was still painful, and at his request7 days’ sick leave was given with no medication/treatment. 81.According to PRS’ physiotherapy progress report dated 23 August 2010, P had 8 sessions of physiotherapy from 5 July to 20 August 2010. He was discharged as there was no significant subjective improvement and objective findings were the same as before. But P still complained of intense low back pain with painful facial expression during assessment/exercises, which PRS commented might “not be able to be totally explained by the objective findings”. 82.On 30 August 2010, P told Dr Chan his low back pain was partially decreased. CT scan lumbar spine done in Mainland China showed “PID [prolapsed intervertebral disc]”. Dr Chan suggested MRI to rule out underlying pathology. On 30 August and 11 September 2010, Dr Chan granted P sick leave from 30 August to 26 September 2010. MRI done on 3 September 2010 showed changes of spondylosis with degeneration and posterior prolapse of L4/5 and L5/S1 discs, posterior annular tear at L4/5 disc, minimal posterior bulging at L1/2, L2/3, L3/4 discs, mild anterior disc bulging with adjacent marginal spurs at multiple lower thoracic and lumbar discs and mild degeneration of the lower thoracic facet joints. No nerve impingement was noted. 83.On 11 September 2010, Dr Chan reviewed the MRI and considered P fit for MAB given his static progress. Sick leave was granted to 26 September 2010 with no further follow up. Dr Chan urged P to consider (but P refused) work trial. P explained at Trial that he could not return to his pre-Accident work that required lifting heavy objects. 84.I agree with Dr Lee in the 3rd Report that the essential symptoms were still back and right ankle pain. But in June/August 2010 P complained of right leg (thigh/calf) numbness, which was intermittent but so severe at times he could not sleep. P claimed his right leg numbness would wax and wane, but it persisted even up to Trial, and in the 2 months before Trial he had about 10 episodes of right thigh/calf numbness. P said he would always tell the doctors/nurses about pain, but at times he might have omitted to mention numbness since (a) it was not easy to distinguish between the two and (b) he might have been distracted by dialogue with medical personnel. 85.But the MRI showed no nerve root compression, so I agree with Dr Lee that whilst degenerative changes shown in the MRI probably existed before the Accident, they might or might not be symptomatic and P’s complaint of right leg numbness could not be accounted for. P later also complained of radiating pain from his right back/buttock to right calf, which did not sit well with the objective findings by Dr Chan in his report dated 13 September 2010 and by PMH’s DOT on 22 September 2010 (see paragraph below) and by the MRI that confirmed no radiating pain and no nerve root impingement. This conclusion is corroborated by the observation of PRS’ physiotherapist that P’s complaint of intense pain with facial grimaces might not be “totally explained by the objective findings” In my view, P exaggerated his symptoms (including complaint of left leg pain/numbness which I have rejected as unrelated to the Accident). Indeed, Dr Lee in the 3rd Report suggested P’s condition might have reached a stabilised stage around the time of Dr Chan’s report dated 11 September 2010. 86.P first attended PMH’s DOT on 22 September 2010 with swelling over lateral aspect of right ankle and back pain. Examination revealed mild tenderness over lumbrosacral junction, slight decrease of sensation over right sole, and grade 4/5 power over right big toe dorsiflexion/ plantarflexion. P was referred to physiotherapy and work rehabilitation. But in my view, there were further signs of improvement with no rest pain or radiation of pain, SLR test full, jerks normal, no swelling/tenderness over right ankle, and right ankle active range of movement full. P followed up with PMH’s DOT 4 times between 3 November 2010 and 10 March 2011. 87.Physiotherapy at PMH started on 13 October 2010, and P attended 8 sessions by 9 December 2010. On 10 December 2010, PMH’s occupational therapist compiled an OT Rehabilitation Outcome Report that noted the “Very Heavy” physical demand for P’s pre-injury job, and concluded P’s major work limitations were pain on exertion, limited work tolerance in various postures, decrease in trunk flexibility, and decrease in pulling/pushing/lifting/carrying abilities, so work capacity and job demands did not match with significant degree of limitation. The occupational therapist recommended reconditioning training at 2 sessions/week. 88.On 15 December 2010, PMH’s DOT reviewed the MRI and referred P to MAB. P attended follow up with PMH’s DOT, and was suggested continuing with physiotherapy and occupational therapy. P told TRM he had no confidence in resuming duty then, but he planned to do so after completion of rehabilitation and MAB. 89.On 4 January 2011, PMH’s occupational therapist compiled a 2nd OT report with the same conclusion, and discussed job plan with P. P was suggested “…… to change job with lesser physical demand upon assessment results”, and another course of training to maximise work capacity and to monitor progress was proposed. 90.But in my view, there was little to explain the significant increase in pain at rest from 2/10 to 8/10 (VAS pain scale) between the 1st and 2nd OT Reports, and the complaint of “bilateral hand & right lower limb numbness”. I have explained why lower limb numbness could not be objectively explained, and right hand numbness was inexplicable as right arm/wrist/hand were uninjured. Whilst I accept there was still some right low back and right ankle pain, P exaggerated his overall injuries/disabilities. 91.On 7 March 2011, PMH’s occupational therapist compiled a 3rd OT Report that also recommended P to change to a job with lesser physical demand, but P claimed Swire would consider light duty and change job nature for him so he planned to have work trial with light duty before consideration of job change. On 10 March 2011, the doctor of “ORTH Team 2 GENERAL” at PMH’s DOT specialist out-patient clinic (“SOPC”) discharged P from occupational therapy, and granted sick leave until 26 April 2011 (date of MAB). P attended PMH’s AED 7 times between 10 March and 5 June 2011 and did not ask for earlier follow up with PMH’s DOT because the DOT doctors always asked whether he suffered injury on duty and/or had insurance cover but failed to cure him of his condition. 92.On 26 April 2011, P attended MAB assessment. According to the Certificate of Assessment (Form 7) dated 9 May 2011, his loss of earning capacity permanently caused by the injury was 6%. But P did not return to work, and Swire confirmed there was no alternative arrangement for light duty work trial. In fact, for delivery workers returning work after recovery from injuries, it was Swire’s general policy that they would not be assigned any delivery duty until they passed the manual handling course organised the Occupational and Safety Health Council, and (when necessary) Swire might engage TRM to give professional advice on recovery status/capability of any such worker before re-assigning him to commence delivery work. P did not explain why he did not avail himself of such alternative arrangement or assistance by Swire when he told the occupational therapist he would arrange light duty work trial with Swire. 93.Instead, on the same day of the MAB at 10:08am, P attended PMH’s AED complaining of back injury, but “disappeared” when called at 10:45am, 11:20am and 1:00pm. He was eventually seen by the AED doctor at 5:41pm. The AED notes recorded P attended MAB and “SL due today requests SL extension”, and he was given sick leave until 2 May 2011 without treatment/medication. I find on balance P registered with AED in the morning and “disappeared” for MAB before returning to the AED in the afternoon for obtaining extension of sick leave. 94.On 3 May 2011, P attended PMH’s AED complaining of back pain from old injury with decreased range of movement, but could walk unaided. It was recorded “SL due → requests SL extension”, and P was given sick leave from 3 to 9 May 2011 with no treatment/medication. On 10 May 2011, P attended PMH’s AED complaining of similar low back pain with radiation to right lower leg with no other neurology. He was given 7 days’ sick leave without treatment/medication. On 17 May 2011, P attended PMH’s AED complaining of persistent back pain but could walk. “LBP static and radiating to RLL”. He claimed the pain affected his sleep the night before, and he was put on stretcher. P was given sick leave from 17 to 23 May 2011. On 24 May 2011, P attended PMH’s AED complaining of pain from old back injury. He walked with stick but had no lower limb neurology. He complained of residual back pain and tight right back muscle but no radiation. He was given sick leave from 24 to 30 May 2011. On 31 May 2011, P attended PMH’s AED complaining of back pain and limb numbness. He could walk unaided, forward flexion was ~60º, SLR was 80º bilaterally and lower limbs power was full (5/5). He was given 5 days’ sick leave. On 5 June 2011, P attended PMH’s AED for back and right ankle injury. He was given 5 days’ sick leave with no prescription of treatment/ medication. 95.I find on balance that by this stage P’s primary purpose for attending AED was to seek back-to-back grant/extension of sick leave. I accept (as Dr Lee opined) P still had some mild residual right back and right ankle pain, but his condition was static with no verifiable radiculopathy and/or nerve root compression. In my view, whilst there might be occasional flare up of backache upon exertion (but during that period P was resting at home and not working), P plainly exaggerated his disabilities with his complaints of right leg numbness, regression to walking with a stick, and gross back pain and right leg radiating pain such as to cause severe sleep disturbance, all of which did not sit well with the objective findings, eg walking unaided, full lower limbs power, no lower limb neurology and SLR 80º bilaterally. The absence of medication/treatment also suggested sick leave was not therapeutically required. 96.At about this time, P decided to attend YCH’s AED which was closer to his then home in Kwai Chung. On 10 June 2011, P attended YCH’s AED complaining of persistent low back pain, but physical examination of his back and lower limbs was unremarkable. He was treated and discharged with sick leave from 10 to 16 June 2011. He attended YCH’s AED 5 times between 18 June and 14 July for similar problem and extension of sick leave. He attended YCH’s AED 48 times from 1 August 2011 to 9 April 2012 for similar complaint, and on 16 November 2012 for right foot pain. In my view, these attendances were essentially for grant/extension of sick leave rather than for therapeutic treatment. Although I accept P still had some intermittent symptoms of residual right low back and right ankle pain, it was more or less static and would not benefit from further active treatment. 97.On 20-22 June 2011, P was admitted to PMH’s medical ward after his family found him confused, and he was reported to have abnormal behaviour in recent few months with “self-mudding” (self-muttering) and waking up at night due to back pain. He was seen by psychiatrist and the diagnosis was alcohol intoxication. I find on balance P’s alcohol intoxication was unrelated to the Accident, but as seen in paragraphs 116 and 130(c) below this was a recurrent problem and might have impact on his future work. 98.In my view, P’s consultation on 7 July 2011 clearly showed he attended AED for sick leave. On that day, he attended follow up with PMH’s DOT complaining of similar residual low back pain, but was able to walk unaided. He had no concrete job planning and was prescribed follow up in 6 months without sick leave. So on the same day, P attended PMH’s AED at 12:14pm complaining of right buttock pain radiating to right leg. The AED doctor noted down P had “already [been] seen by orthopaedics request SL”, and he granted P sick leave from 7 to 13 July 2011 (disposal time 3:40pm). I find on balance P attended AED to obtain extension of sick leave. If P intended to seek therapeutic treatment, he would have asked the specialist orthopaedic doctor at SOPC instead of registering and waiting for another 3 hours to see the AED doctor. Indeed, he told TRM on 15 July 2011 he was still consulting AED for sick leave as PMH’s DOT stopped his sick leave after MAB on 26 April 2011. 99.P told TRM he would attend the Labour Department on 10 August 2011 to arrange for review MAB. But shortly before that on 18 July 2011, he was admitted to YCH’s DOT for recently increased back pain. He was treated conservatively and discharged with medication on the following day and given 14 days’ sick leave with follow up at PMH. I could not discern any reason for such severe flare up of painful symptoms, but note with interest that no active treatment was prescribed except analgesics as needed. 100.P’s hospitalisation led to a referral for physiotherapy. He attended physiotherapy at YCH on 26 July 2011 complaining of back pain referring down from lateral aspect of right lower limb to ankle, but on that day there was not much back pain. Trunk flexion/extension range was ⅓/½ of normal. Left/right SLR test yielded 30º/10º. Interestingly, P seemed to have recovered from the severe flare up of back pain a week ago, but he complained of radiating pain down right leg (when there was none in the aftermath of the Accident and when Dr Lee opined there was no verifiable radiculopathy). There was also no explanation for the severe deterioration in SLR and trunk movement as compared with earlier findings. P offered no explanation for his default in physiotherapy after 6 sessions by 19 September 2011 (30% overall subjective improvement), which also cast doubt on his alleged severe flare up of pain in mid-July 2011. 101.On 11 August 2011, P attended YCH’s AED complaining of low back pain (but no numbness) with increase the night before and radiation to right ankle. The AED notes recorded P suffered injury on duty for “搬汽水”, but had “back sprain when lifting good yesterday”. He was given sick leave for 4 days for “back sprain”. On 15 August 2011, P attended YCH’s AED complaining of low back pain with radiation to right leg. The AED notes recorded “back injury 1 year ago …… another sprain 1/52 ago”. He was given sick leave for 5 days for “back sprain”. On 20 August 2011, P complained of “® side back pain ↑ after squatting to lift something 2/52 ago” with radiation to right lower limb etc. 102.P denied any back sprain injury/incident by lifting goods or something on/about 10 August 2011 nor any knowledge as to what the AED notes recorded. Whilst I accept P was not at work in August 2011, the AED notes did not say the back sprain incident in early August 2011 was an injury on duty. In my view, the coincidence of 3 different doctors at 3 different consultations all erroneously recorded 2 distinct old and recent back sprain incidents is far-fetched. I find on balance P sprained and injured his back on/about 10 August 2011 by squatting to lift “good”/“something” that was unrelated to the Accident, and I agree with Dr Lee this new injury contributed to the status of P’s low back when he was examined by the Experts on 5 October 2012 and would also explain his sick leave after August 2011. 103.On 18 October 2011, P attended MAB review. According to the Certificate of Review of Assessment (Form 9) issued on 1 November 2011, the loss of earning capacity under Form 7 was affirmed. P was on sick leave from 11 October 2011 to 9 March 2012, but he returned to work for Swire for 1 day on 14 November 2011 as spare staff, ie employee with no designated route/work assigned to him but ready to substitute normal route helper in case of insufficient manpower, eg annual leave or sick leave. 104.On 13 December 2011, YCH’s AED referred P for physiotherapy for neck and low back pain. When physiotherapy started on 16 January 2012, his trunk flexion/extension and left/right side flexion mobility was about ½ and ⅔ of normal range respectively. P defaulted treatment after 3 visits. On his last visit on 20 February 2012, he reported similar back condition as the initial assessment. P did not explain why he defaulted physiotherapy again. 105.P resigned from Swire due to ill-health, and his last working day was 9 March 2012. P claimed his physical condition/disabilities did not meet his job demands of a delivery worker for Swire. Since 20 March 2012 P worked as sales assistant (初級店務助理) for Wellcome Supermarket at $32/hour for 60 hours/week, and his duties included moving/sorting goods and carrying/handling heavy loads of groceries/goods which aggravated his back and right ankle pain. P claimed he could not meet the job demands, and had to take frequent sick leave, eg 26-27 March and 9 April 2012. On 26 March 2012, P attended YCH’s AED complaining of low back and left upper back pain for 2 weeks. On 9 April 2012, P attended YCH’s AED complaining of left lower rib pain while taking deep breath or upon body movement for 2-3 days. P claimed he resigned in May 2012 since he failed meet the requisite work hours. P’s total earnings from 20 March to 31 May 2012 were $4,093. 106.I note P raised some new complaints, eg neck, upper back and lower rib pain, which did not feature in the early stages of his rehabilitation. Not only were they unrelated to the Accident (as Dr Lee opined), they lent weight to my finding that P suffered another incident of back sprain that might have been aggravated by his work at Wellcome Supermarket. 107.P worked as warehouse security officer or watchman for 合億環保貿易公司 from June 2012 until 27 November 2013, and his duties included some patrolling, escorting clients, reporting to the boss about clients’ questions and handling delivery work on the boss’ instructions, but without any heavy lifting. He did morning/night shift duty for 6 days/week for monthly income of $8,500 that increased to $9,000 (since July 2013 according to the agreed schedule of earnings or since July 2012 according to P’s affirmation dated 8 July 2013). His total earnings were $155,500. 108.The Experts examined P on 5 October 2012. They noted P complained of back pain[44] with intermittent right leg numbness[45] and right ankle pain,[46] but left wrist pain had mostly subsided. P further reported right hand numbness[47] about 6 months after the Accident, and his back and right ankle pain rendered it difficult for him to resume the work that involved heavy weight lifting and squatting. The Experts found P could walk unaided in normal gait but complained of mild discomfort when asked to walk and when standing on single leg. He could walk on tiptoes/heels but reported some right-sided pain. He squatted at half of full range. On palpation, there was mild tenderness around right lumbar paraspinal muscle with no tenderness at midline and left side and no muscle spasm. Trunk flexion/ extension and side bending to left/right were 70° (hand touching mid-shin) (70° normal), 10° (30° normal), 20° (40° normal) and 20° (40° normal) respectively with pain at end of range motion. Supine right/left SLR was 70°/80° respectively. There was mild weakness of right big toe dorsiflexion/ plantarflexion, but ankle strength, lower limbs sensation and knee/ankle jerks were normal. Waddell’s test was negative. There was abnormal swelling/deformity with localised tenderness at anterolateral aspect of right ankle, and ankle dorsiflexion/plantarflexion were 0°/40° respectively. Left wrist was unremarkable, and no tenderness was elicited at the cervical spine. But, as Dr Lee explained, P’s low back status was coloured by P’s back sprain in August 2011, and I am not persuaded right hand numbness was related to the Accident. 109.On 16 November 2012, P attended YCH’s AED complaining of on-and-off right foot pain and sprain injury 2 years ago. He could walk unaided, but there was numbness. P claimed the doctor had told him numbness was a natural consequence of his injuries caused by the Accident, but I reject such allegation since the MRI (as known to the doctors) confirmed there was no nerve cord impingement, and I accept Dr Lee’s opinion that such numbness could not be accounted for. 110.P attended YCH’s AED on 4 September 2013 complaining of left upper back pain and back pain for 3 days. Physical findings revealed mild tenderness over back of neck. X-ray of cervical spine showed reduced cervical lordosis. He was discharged with medication. As explained above, I find on balance P’s neck and upper back condition was unrelated to the Accident. 111.As explained above, P worked as watchman for 合億環保貿易公司from June 2012 until 27 November 2013. P recalled that during this period he was granted sick leave from 16-17 November 2012 and 5-10 September, 8-10 October and 15-18 November 2013, but there was no record of any sick leave between 18 November 2012 and 5 September 2013. P had no recollection of having sought medical treatment between 16 November 2012 and 4 September 2013 (ie almost 10 months), and he claimed he did not require much follow up and/or sick leave as he would take occasional home rest and painkillers for back pain. But I find it strange that P had to regularly attend AED/DOT when he could rest at home whilst unemployed but could make do without medical consultation for almost 10 months whilst working at合億環保貿易公司. In my view, this served only to underline the reality that P attended AED primarily for sick leave when he was unemployed. P also did not explain why he ceased to work for合億環保貿易公司when he could manage the work with little need for sick leave. 112.On 8 October 2013, YCH’s AED prescribed analgesics for low back and bilateral shoulder pain, and referred P for physiotherapy. When physiotherapy started on 17 April 2014, P complained of back and bilateral feet pain but not shoulder pain. His trunk flexion/extension mobility was about ⅔/½ of normal range, and SLR of both legs was 70º. By 3 June 2014, P still complained of persistent back pain, but his trunk flexion/extension mobility was about ⅔ of normal range. Again, I find P’s bilateral shoulder and left foot pain was unrelated to the Accident. In my view, it was likely the further back sprain in August 2011 contributed to the need for physiotherapy during this period. 113.But despite these unrelated complaints, when P attended PMH’s DOT SOPC on 10 October 2013 he could walk unaided, and although he had residual low back pain and was on “prn” analgesics, there was no radiation of pain, no lower limb numbness/weakness and no sphincter disturbance. For neck and back, there was no tenderness over spine. SLR was full with no neurological deficit. P was referred to GOPC and his case was closed. 114.The improvement in P’s condition was borne out by the surveillance recording made on 10-11 October 2013 by Verity Consulting Ltd (“Verity”). On 10 October 2013, P was observed to (a) walk with a loose and easy gait whilst looking at or listening to mobile telephone, (b) weave his way easily through crowded pavements, (c) walk up a flight of stairs without holding onto the banister with mobile telephone in one hand and plastic bottle in the other (15:12:54), (d) walk easily up 2 steps on the pavement (16:29:51), (e) board/alight PLB without difficulty (18:04:26), and (f) walk easily up/down a slope in slippers without holding onto handrail (19:59:36 and 20:39:50). On 11 October 2013, P was observed to (i) walk easily up/down a slope and a downslope pavement in slippers (9:58:21, 9:58:27 and 10:58:01), (ii) walk easily up/down flight of stairs looking at his mobile telephone and without holding onto the banisters (9:59:00 and 10:46:18), (iii) stand with weight on right leg at an ATM machine (10:05:38), (iv) make 2 abrupt turns on the pavement (10:09:44), (v) carried groceries comfortably in right and left hands (10:42:09 and 10:56:36), and (vi) bouncing a cabbage with his right hand (10:50:43). Throughout the recording, P did not display any facial expression of pain/discomfort. 115.I disagree the recording showed P walked with an awkward gait. In my view, it was abundantly apparent from the recording P moved easily and freely without pain/discomfort, and apart from P’s ability to carry heavy objects (which I will discuss below) P was significantly better than his presentation to the treatment doctors and to the court at Trial when he (a) brought along a walking stick, (b) stood up intermittently in the course of giving evidence allegedly to relieve his back pain/discomfort and (c) took medication for pain relief. I have no doubt P exaggerated his symptoms, and I find his standing/walking/sitting tolerance to be better than he alleged. 116.P attended YCH’s AED again on 15 November 2013 complaining of low back pain for a few days radiating to right leg. He also complained of numbness over both arms. There was tenderness over lumbar spine region on examination, and he was given analgesia. P registered with YCH’s AED on 6 January 2014 but left without being seen by doctor. P attended YCH’s AED on 19 January 2014 when he was found drunk on the street by the police, but regained alertness during stay at YCH’s AED and was discharged on the same day. P attended YCH’s AED on 25 January 2014 complaining of back pain. There was tenderness over lumbar spine region, and he was given analgesia and referred for physiotherapy on 26 January 2014. P attended YCH’s AED on 10 March 2014 complaining of back pain with tenderness over lumbar spine region, and he was given analgesia. 117.On 1-9 April 2014, P worked for Green River Restaurant as “工場廚房” for monthly wages of $13,000. His duties included assisting the master to make sauces at the central processing food factory for use at restaurant outlets. The master taught him the requisite ingredients for making different sauces, and he would prepare the ingredients to cook the sauces by machine each morning. He was required to go into the freezer room at times. His total earnings for the relevant period were $3,207. But apart from a bare assertion that he did not meet the job demands, P did not explain why he ceased employment after 9 days when there was no suggestion he had to carry heavy loads. Interestingly, on the very day he ceased to work for Green River Restaurant (ie 9 April 2014), he attended YCH’s AED complaining of retrosternal pain, but chest was clear and various tests/examinations were unremarkable, and he was discharged with medication. There was no mention of back/ankle pain. 118.By a referral letter of 8 May 2014, YCH’s AED referred P to PMH’s DOT SOPC for special consideration for follow up and investigation in respect of “PID with back pain”. P had another MRI done recently in Mainland China (ie 26 January 2014) showing decrease disc space L4/5 and L5/S1 and “PID” L4/5 and L5/S1. The diagnosis was chronic back pain. 119.I find on balance the complaints of bilateral arm numbness and retrosternal pain were unrelated to the Accident. Although there were referrals for physiotherapy and orthopaedic SPOC, I am not persuaded they reflected any serious orthopaedic sequelae from the Accident. It must not be forgotten there was another back sprain incident in August 2011 which had effect on the status of P’s back condition, but in any event the objective findings in the referral letter of 8 May 2014 (eg nearly full SLR on both sides and no definite neurological defect) spoke of stable back condition. Significantly, it seemed P had not addressed his drinking problem as he was found drunk on the street by the police. I will return to this below. 120.From 12 January to 4 February 2015, P worked for Kam Ming E P Engineering as technician at $550/day, and his total earnings for the period were $14,000. On 3 May 2015, he worked for Saint Honore CS Ltd and earned $240. There were no explanations as to why he ceased to work for these employers. (e) Pain, suffering and loss of amenities (“PSLA”) 121.Ms Lau submitted P’s injuries were below the range of “Serious Injury” defined in Lee Ting Lam v Leung Kam Ming[48] as reset by the Court of Appeal in Lawati Bhawani Bikram v Ting Kau Contractors JV,[49] and suggested $450,000 would be an appropriate award. 122.P claimed he still had significant right back/ankle pain and poor sleep as a result, and he sometimes had to use hot pads to relieve waist/ ankle pain (which occurred more often and more severely in cold weather). P further claimed he could not walk/stand for over 1½ hours otherwise there would be right leg weakness (酸軟), ie he would feel the pull of tendon at back of his thigh/calf near ankle, and even numbness/pain. He could not sit for more than 3 hours otherwise his waist would feel weak (酸軟), and there would be gradual numbness/pain in lower right leg, then he would have to stand and stretch to alleviate the symptoms as he did at Trial. But, as I have found, P’s complaint of right leg radiating pain and numbness were not verifiable and/or accounted for given the absence of nerve root impingement, and his medical history showed he was better at the earlier stage of rehabilitation. 123.P claimed he would use handrails (if available) for descending staircases as (a) his right ankle was not flexible, (b) he had aching/prickling sensation in his right leg, and (c) his right leg/foot had to support his body weight as he stepped down the staircase, and since such activity would put pressure on his right ankle/sole, he would try to avoid stair-walking. P further claimed his back/leg pain often caused him to limp after walking a while or after exercising at physiotherapy sessions. But such allegations were exploded by Verity’s recording that demonstrated P walked and negotiated staircases with ease and confidence, and without any painful facial expression. 124.Dr Lau opined the MRI did not reveal significant degenerative changes, but Dr Lee noted there were degenerative changes at L4/5 and L5/S1 with disc prolapsed and mild degeneration at multiple levels. I accept these degenerative changes were likely to be present before the Accident although they might not have been symptomatic, so I agree such pre-existing condition would not have material impact on P’s condition.[50] 125.The Experts agreed no surgery was indicated with no active treatment by the time of the 1st Report as P’s condition had become static with no effect on his activities of daily living. Dr Lau opined P would suffer residual back pain, right leg numbness and right ankle pain, and might experience occasional flare up of back symptoms and right leg numbness, particularly after heavy weight lifting. Dr Lau assessed P’s whole person impairment to be 8%, and suggested a need for intermittent courses of physiotherapy for pain relief and back-conditioning training. But subject to the caveat that P’s back sprain injury in August 2011 contributed to the status of P’s back condition on 5 October 2012, I prefer Dr Lee’s opinion that P’s back condition had become stable and residual back pain should be mild, especially with no muscle spasm, good trunk movements and no verifiable radiculopathy. There was no compression of nerves that could account for P’s complaint of right leg pain/numbness, and the left wrist injury had resolved without further treatment. I also accept Dr Lee’s opinion that (a) there might be occasional backache or discomfort associated with heavy lifting, which should subside upon cessation of the movement, (b) no further treatment for back and right ankle was required (but P would benefit from back/abdominal exercise and had to exercise care when lifting weights), and (c) P’s whole person impairment was 4%. 126.I have reviewed the cases cited by Ms Lau[51] and Mr Shum.[52] Taking into account P’s good rehabilitation, his mild residual condition, his exaggeration of symptoms/disabilities and his treatment history as analysed above, but accepting there might be occasional back/ankle discomfort/pain when lifting and/or manhandling heavy objects/loads (which would subside on cessation of movement), and P probably lost interest in his football hobby after the Accident, I find the appropriate award for PSLA was $370,000.00. (f) P’s notional earnings in pre-Accident work 127.Ms Lau calculated P’s notional monthly earnings based on:
128.Total basic pay and commission for the period from April 2011 to March 2012 under Earning Histories A and B were $78,518.00/ $109,812.20 and $75,986.98/$111,026.20 respectively. According to the Wage Letter, the annual increment for basic pay negotiated between the Union and Swire for 2010, 2011, 2012, 2013, 2014 and 2015 was 2.2%, 4%, 5%, 5%, 4.7% and 4.1% respectively, and the average rate was 4.17%. According to the Commission Letter, Swire agreed to adjust the unit commission for “新制員工” by $0.1/gal as from 1 January 2013, and the unit commission was further adjusted to $0.42/gal for McDonalds and $0.51 or $0.61 for other outlets as from 1 January 2014, so the average unit commission as from 1 January 2014 for all delivery workers (permanent or temporary) was $0.52/gal, but each worker’s monthly commission was calculated by applying $0.52/gal to “車號送貨量”, and “[P]相關負責的貨車送貨量如下”:
129.Ms Lau suggested P’s notional monthly earnings as a temporary delivery worker for Swire after the Accident should be calculated as follows:
Legend:
130.In my view, Ms Lau’s calculations suffered from a number of fallacies:
131.In all the circumstances, I agree with Mr Shum it would be unsafe to rely on Ms Lau’s calculations of P’s notional monthly earnings. I further agree with Mr Shum that the more appropriate course would be to turn to P’s own pre-Accident earnings for guidance. The 24-Months’ List showed P’s earnings pattern was different from that of his colleagues in the Earnings Histories. As explained in paragraph 62 above, based on the 12-month period prior to the Accident, P’s average monthly commission of $6,362.30 was 11% more than his average monthly basic pay of $5,690.83. However, the average monthly commission of $9,201.60 as shown in the Earnings Histories was about 43% more than the average monthly basic pay of $6,436.96 (ie [($9,201.60 - $6,436.96) ÷ $6,436.96)] x 100%). This is another reason why the Earnings Histories would not provide good basis for calculating the notional monthly earnings. 132.But adopting the rates of increment for basic pay in the Wage Letter, a broad-brush assessment of P’s notional earnings in his pre-Accident work would be as follows:
(g) Pre-trial loss of earnings and MPF contributions 133.Dr Lau opined the sick leave given to P was reasonable, and P would be affected by back pain, right leg numbness and right ankle pain, so he would be able to resume his pre-Accident job with lower efficiency, ie he would have difficulty in carrying weight of more than 15kgs, and would need co-workers to help with heavy workload. But Dr Lee opined the sick leave endorsed by Form 7 up to 26 April 2011 should be adequate as P’s injuries would normally take about 9-12 months for recovery, and P should be able to return to his pre-Accident work with slight impairment in work efficiency because of theoretical difficulty in lifting weight heavier than 22-25kgs. 134.I have carefully considered the treatment/expert medical evidence. Given my finding that P suffered another back sprain in August 2011, I accept Dr Lee’s opinion that the new injury would contribute to the status of P’s low back and his sick leave after August 2011. I agree with Dr Lee that appropriate sick leave for injuries/disabilities as a result of the Accident would be up to 26 April 2011 because by that time P had made substantial recovery and his condition had become static. No active treatment was required by that time, so sick leave had no therapeutic purpose. But in my view, that did not mean P could immediately return to his pre-Accident work. 135.I have found P had exaggerated his symptoms/disabilities, he could negotiate stairs with ease, and he had better standing/sitting/walking tolerance than he would have let this court believe. I accept Dr Lee’s view that P’s residual condition was generally mild with occasional pain/ discomfort. But in considering whether he could return to his pre-Accident work on full-time (not work-trial) basis, the crucial concern was P’s ability to lift and carry heavy weights. As explained in footnote 19 above, the weight of full 5gals and 3gals syrup Cylinders was 28kgs and 18kgs, and that of 13.5lbs, 20lbs and 22 lbs CO2 Cylinders was 14.57kgs, 20.47kgs and 23.78kgs respectively. The weight of some Cylinders when full would pose difficulty for P even on the basis of Dr Lee’s opinion. Whilst the Experts might focus on medical fitness for pre-Accident work with lowered/impaired efficiency, the factual/practical reality was that P’s pre-Accident job required him to manhandle heavy Cylinders on a daily basis, sometimes taking the stairs or going up/down slopes. Each delivery worker on the team had to pull his own weight to complete the delivery/collection of the Cylinders otherwise it would affect the whole team, and it appeared unlikely that in making individual delivery on foot by handcart assistance could be expected from co-workers who had to make their own deliveries. In my view, quite irrespective of the further back sprain in August 2011 and P’s symptom magnification, P would not be able to return to his pre-Accident work, which view accorded with that of PMH’s occupational therapists. 136.Nevertheless, P should be able to return to some form of alternative employment some time after 26 April 2011. P should be allowed a few months after the MAB on 26 April 2011 to condition himself and to look for alternative employment, so I find on balance he should be able to return to work by 15 November 2011, which was consistent with the time P attempted to return to work for Swire for 1 day as spare staff. 137.In my view, the key matter is to identify what alternative employment would be suitable for P since P should mitigate loss by returning to such employment. On balance, I agree with Mr Shum P could have returned to work as “打何” or similar kitchen work as junior cook/chef or as kitchen worker as employed by Green River Restaurant. P had relevant experience, and there was no suggestion such job would require constant heavy lifting work. Given P’s condition was better than he alleged, I find such work to be suitable alternative post-Accident employment for him. There was also nothing in the medical evidence to indicate P was physically unfit to work as a junior cook/chef. 138.The Government statistics published in March 2011, March 2012 and March 2013 showed the average monthly earnings of a junior cook in a Chinese restaurant were $10,057.00, $12,298.00, and $13,017.00 respectively. This was corroborated by the fact Green River Restaurant employed P in April 2014 as a kitchen worker at the monthly salary of $13,000. But I do not accept Mr Shum’s submission that P could have graduated to become a cook and earn $15,846/month (according to the Government statistics published in March 2014). There was no evidence before me as to how long it would take or whether P had the aptitude to become a cook/chef in light of the scope of duties of a cook/chef in a Chinese commercial kitchen (which apart from actual cooking were unknown on the evidence before me). 139.In the circumstances, P’s pre-trial loss of earnings and loss of MPF contributions would be $291,809.05 with breakdown as follows:
(h) Post-trial loss of earnings and MPF contributions 140.P was 32 years old at Trial. Ms Lau calculated future loss of earnings on the basis that P would retire when he was 60 years old. On such basis, the appropriate multiplier should be 19.94[54] rather than 22.16[55] as Ms Lau suggested. Mr Shum submitted P should not suffer any post-trial loss of earnings and MPF contributions since P could learn to become a cook. But as explained above, I am not satisfied there was sufficient evidence for me to come to such conclusion. Thus, P’s post-trial loss of earnings would be ($15,006.07 - $13,017.00) x 12 months x 19.94 x 1.05 = $499,741.90. (i) Loss of earning capacity 141.P will be less competitive than comparable workers who are able-bodied as he will have difficulty in lifting heavy weights should he be thrown into the labour market, and he would probably need a longer period of time before he can find himself suitable employment in the open market. But bearing in mind he was fit for alternative work as a junior cook/chef with earnings reasonably comparable to that of P’s pre-Accident employment and I have found him fit for such work, I do not think the risk would be a substantial one. That being the case, I award $50,000.00 (over 3 months’ notional earnings) for impairment of P’s earning capacity. (j) Special damages 142.According to the agreed schedule of medical expenses, total medical expenses from the date of the Accident to 9 April 2014 were $7,295.00, so despite P’s claim for a sum of $8,897.00, I am only prepared to award $7,295.00. Travel expenses and tonic food expenses were agreed at $3,000.00 and $3,000.00 respectively. There was no claim for future medical expenses. (k) Summary 143.I summarise the above awards as follows:
VII. CONCLUSION 144.I therefore grant judgment in favour of P against D in the sum of $501,398.63. Interest is payable on the award for PSLA at 2%pa from the date of the Writ of Summons to the date of judgment herein, and on special damages from the date of the Accident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment. There is no reason why costs should not follow event. I grant a costs order nisi that D do pay P costs of the action (including all costs reserved, if any) to be taxed on District Court scale if not agreed, and P’s own costs be taxed in accordance with Legal Aid Regulations.
Ms Lorinda Lau, instructed by Au Yeung, Cheng, Ho & Tin, assigned by Director of Legal Aid, for the plaintiff Mr Edward Shum, instructed by Lau, Chan & Ko, for the defendant [1] V1 and V2 (zoomed and blurred) showed the front view of the Taxi, V3 showed the rear view of the Taxi, and V4 was not available [2] see V1 at 15:39:01, and 1st and 2nd Photographs on p 1290, 3rd Photograph on p 1291, and 2nd Photograph on p 1293 of the trial bundle [3] see 2nd Photograph on p 1292 and 2nd Photograph on p 1293 of the trial bundle [4] see 2nd Photograph on p 1292 and 2nd Photograph on p 1293 of the trial bundle [5] leading to what appeared from the Recording to be a footbridge [6] see 1st Photograph on p 1293 of the trial bundle [7] see Hong Kong Civil Procedure 2016 Vol 1 para 13A/2/3 at pp 250-251 [8] see DBS Bank (Hong Kong) Ltd v Sit Pan Jit HCA382/2009 (unreported, 6 February 2014), Nam Ching Wun and Tsun Un Pawnshop HCA2151/2008 (unreported, 7 October 2014) and VSC Building Products Co Ltd v Kono Insurance Ltd HCA947/2005, A Cheung J (as he then was) (unreported, 9 September 2009) [9] this was evident from V2 although the footage was blurred [10] see section 62 of the Evidence Ordinance Cap 8 and Order 18 rule 7A of the Rules of the High Court [11] see McCauley v Vine [1999] 1 WLR 1977, 1981 and Lau Ka Po (a minor) by his mother and next friend Wong Siu Mui v Man Cheuk Ming & anor HCPI584/1996, Cheung J (as he then was) (unreported, 10 March 1997) para 9 (see also section 62(2)(b) of the EO) [12] [1971] 1 QB 50, a case that considered section 11 of the Civil Evidence Act (which was the equivalent of section 62 of the EO) [13] as approved in Lau Ka Po [14] at pp 75-76 (see Cross and Tapper on Evidence 12th ed p 111) [15] CACV513/2001 (unreported, 19 February 2002) para 39 (not cited by Ms Lau and Mr Shum) [16] at pp 76-77 [17] see also Tamang, Tikaram v Tong Kee Company Limited & ors HCPI19/2013, DHCJ Paul Lam SC (unreported, 1 April 2015) para 17 and Lee Hau-man v Hon Ping-wan [1980] HKLR 209, 214 [18] see section 109(5) of the Road Traffic Ordinance Cap 374 and Lam Shui-tsin v James Tong [1974] HKLR 357, 365-366 [19] ie one 5gals syrup Cylinder, one 13.5lbs CO2 Cylinder and one 20lbs CO2 Cylinder (and the weight of a 5gals syrup Cylinder was 28kgs/4.8kgs (full/empty), that of a 3 gals syrup Cylinder was 18kgs/3.64kgs (full/empty), that of a 13.5lbs CO2 Cylinder was 14.57kgs/8.45kgs (full/empty), that of a 20lbs CO2 Cylinder was 20.47kgs/ 11.40kgs (full/empty), and that of a 22lbs CO2 Cylinder was 23.78kgs/13.08kgs (full/empty)) [20] [1974] HKLR 357, 364-365 [21] at pp 360-361 [22] see also Lee Hau-man at pp 215-216 [23] see Lau Hau-man at p 216 [24] see Lam Shui-tsin at pp 368-369 per McMullin J [25] ie the position where the Motorcycle was depicted at 15:39:01 (see extracted still picture at p 1294 of the trial bundle) [26] see the Recording at 15:39:03 (ie the Taxi had not reached the give-way road-markings and was more than half car-length behind the Give-way Lines) [27] P clarified at Trial that it was after 15:39:08 (ie probably when he disappeared from the footage) that the Taxi was 2in away from the Handcart/Cylinders [28] there was no oncoming vehicular traffic from D’s right side, but there was eastbound traffic on CGRd 1st Lane to his left [29] D said if he had seen P he would have stopped to let P pass first [30] see p 1295-1 of the trial bundle [31] see medical report by Dr Baldwin Chan dated 13 September 2010 [32] Chapter 5 of the Code reminds “[the] upright [Give-Way] sign and the triangle on the road are not used at junctions with relatively little traffic”, urges drivers to “[continuously] try to anticipate the situation on the road ahead and leave yourself room to work in – room to recognise a developing situation and room to act”, and highlights the duty of drivers to “[give] way to pedestrians crossing the road into which you are turning …… when approaching a major road give way to pedestrians crossing or waiting to cross” [33] see Ahanonu v South East London & Kent Bus Company Ltd [2008] EWCA Civ 274 (23 January 2008) para 23 [34] see Quamali v Holt & anor [2008] EWCA Civ 1625 (1 December 2008) para 20 [35] [2014] 3 HKLRD 712 that concerned a momentary lapse of attention on the part of the driver [36] CACV182/1990 (unreported, 27 March 1991) that concerned a different factual scenario where the plaintiff ran out from the head of the maxicab (that masked the plaintiff until it was too late) that had stopped to set down and pick up passengers [37] [1980] HKLR 209 [38] [1987] RTR 131 [39] [1991] 1 HKC 556 [40] [2006] EWHC 2093 (QB) (27 June 2006) para 21 [41] Ms Lau conceded P would only take into account basic pay and commission for calculating P’s loss of earnings and would ignore other components such as statutory leave, regular and daily on routing allowances and SH lump sum [42] TRM and Dr Chan were engaged by Swire to manage/facilitate P’s rehabilitation [43] [2008] 5 HKLRD 210, 214-216 [44] aggravated on bending forward, squatting, carrying weight of 15kgs, prolonged sitting of more than 1½ hours with occasion night-time pain [45] several episodes each month with no particular precipitating factor and each episode lasting for about 10 minutes [46] mainly mechanical in nature and aggravated by prolonged walking of more than 1½-2 hours and carrying weight [47] more obvious after prolonged computer usage and at night time, but could be relieved by some stretching movement of forearm/wrist [48] [1980] HKLR 657 [49] CACV 3/2002 (unreported, 25 September 2002) [50] see Chan Kam Hoi v Dragages et Trauvaux Publics [1998] 4 HKC 523, 527 and 529 as explained in Yu Wai Kan v Law Cho TaiHCPI62/2010 (unreported, 11 May 2011) para 71 [51] see San To Po Yuk v Wing Kwok Painting Co Ltd [2004] 2 HKLRD 169, Lee Yu Hey v Yue His Carl DCPI546/2011, DDJ Clement Lee (unreported, 31 October 2012), Fong Kit Man v Ng Tsz Keung WP Company Limited & anor HCPI539/2005, Suffiad J (unreported, 3 April 2009), Lam Chun Oi v Asat Limited HCPI115/2008, Master de Souza (unreported, 29 October 2009) and Yan Kwok Yue and Dong Shu Kei Beau HCPI923/2000, DHCJ Longley (unreported, 22 January 2002) [52] see Li King Wing v Hong Kong Air Cargo Terminals Limited HCPI1038/1999, Beeson J (unreported, 16 March 2001), Choi Ying Chi v Loyal Engineering Limited HCPI53/1996, Suffiad J (unreported, 25 September 2007) and Razaq-Akhtar v Wang Hoi Transportation Limited HCPI303/2007, Master Lung (as he then was) (unreported, 24 October 2008) [53] notional monthly basic pay x 1.11 [54] see Table 7 of the Personal Injury Tables Hong Kong 2013 (being multipliers for loss of earnings to pension age 60 (males)) and Chan Pak Ting v Chan Chi Kuen & ors (No 2) [2013] 2 HKLRD 1 [55] see Table 9 of the Personal Injury Tables Hong Kong 2013 (being multipliers for loss of earnings to pension age 65 (males)) | 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Cases cited in this judgment
Further hearings and rulings under HCPI 305/2013