Wong Ka Lai v. Lau Wai Lam and Another
Read the full judgment text of DCPI 1218/2016 on BabelCite. This District Court judgment was delivered on 17 April 2019.
1. These two personal injuries actions arise out of the same motor vehicle accident that occurred on 30 January 2014 (the “Accident”). By the Order of Master S H Lee dated 21 May 2018, these two actions were ordered to be tried together, but the trial for DCPI 2598/2016 will be on liability only.
Cited by 3 cases · Cites 14 cases
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DCPI 1218/2016 & DCPI 2598/2016 (Heard Together) [2019] HKDC 445 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 1218 OF 2016 ---------------------------
--------------------------- IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 2598 OF 2016 ---------------------------
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-------------------------- JUDGMENT -------------------------- INTRODUCTION 1.These two personal injuries actions arise out of the same motor vehicle accident that occurred on 30 January 2014 (the “Accident”). By the Order of Master S H Lee dated 21 May 2018, these two actions were ordered to be tried together, but the trial for DCPI 2598/2016 will be on liability only. 2.The plaintiff in DCPI 1218/2016 (“P”) was born on 26 November 1980. At the time of the Accident, she was 33 years old. The Accident happened on 30 January 2014 at about 11:40 pm at an Eastbound lane at the Island Eastern Corridor. 3.At the time of the Accident:-
4.The MC and the LGV collided near lamppost 48389 at the Island Eastern Corridor. (A) P and D1’s case 5.It is P’s and D1’s case that before the Accident occurred, the MC was travelling along the right-most Eastbound lane at the Island Eastern Corridor (the “Fast Lane”), and the LGV was travelling along the 2nd lane from the right (the “Slow Lane”), ie the lane to the left of the Fast Lane. 6.When the MC approached near lamppost 48389, the LGV approached from the Slow Lane and cut into the Fast Lane. 7.D1 braked the MC immediately. At this point, there is a slight difference between P’s evidence and D1’s evidence. P’s evidence is that after the MC braked, it wobbled and as a result, P fell to the ground and became unconscious. According to P’s oral evidence, she fell to the ground before any collision. However, according to D1’s evidence, he tried to brake the MC but could not prevent the MC from colliding with the right rear side of the LGV as it cut into the Fast Lane. The MC was then hooked onto the LGV, at which point P fell from the MC to the ground. As for him, D1’s evidence is that he and the MC was dragged by the LGV for about 5 seconds before they fell to the ground. 8.According to D1, the LGV continued to travel for some distance after the collision before stopping. (B) D2’s case 9.D2’s case is that before the Accident, he drove the LGV from Chai Wan to Central. At all times on the Island Eastern Corridor, he was travelling along the Fast Lane. At the time of the Accident he looked around and to the front and back of the LGV and did not see any vehicles. D2 then heard a “bang” noise, and he slowed down the LGV and turned on the hazard warning lights, until it came to a complete halt. 10.D2 does not dispute that the MC collided with the LGV, and that the right rear side of the LGV was damaged. But D2’s case is that he did not cut any lanes in the manner as described by P. He said that if he indeed cut from the Slow Lane to the Fast Lane, the right middle part, instead of the right rear part, of the LGV would be damaged. (C) The claims 11.P claims that both D1 and D2 were negligent in driving and handling their respective vehicles, and commenced DCPI 1218/2016 to claim compensation for personal injuries. Both D1 and D2 deny that they were negligent. 12.D1 then commenced DCPI 2598/2016 against D2 for driving the LGV negligently, claiming damages for personal injuries. D2 denies that he was negligent. (D) Issues for trial 13.In view of the above factual background, I will determine the following issues in this judgment:-
14.Since DCPI 2598/2016 is a split trial, if I enter judgment against D2 in DCPI 2598/2016, I will direct the quantum of damages to be assessed. LIABILITY: WERE D1/D2 NEGLIGENT? 15.The parties’ respective cases have already been briefly outlined above. 16.To recall, P and D1’s case is that the MC was driving along the Fast Lane, while the LGV was driving along to Slow Lane. At the time of the Accident the LGV was cutting from the Slow Lane into the Fast Lane. The implication of these alleged facts is that the LGV suddenly cut into the Fast Lane without realizing that the MC was there. As the LGV cut into the Fast Lane suddenly, there was not enough time or distance for the MC to brake in order to avoid a collision. This indeed is D1’s complaint against D2. 17.On the other hand, D2’s case is that at all times, he was driving the LGV along the Fast Lane until he heard the MC collided with the rear part of the LGV. The implication of these alleged facts is that D1 was driving the MC too fast, approached the LGV at the Fast Lane from behind, and collided with the rear part of the LGV. (A) Did the LGV cut from the Slow Lane to the Fast Lane? 18.It is not disputed that after the Accident, the position of the LGV was at the Fast Lane. Its right-rear part was damaged, including the right taillights. 19.Therefore, the LGV was either travelling along the Fast Lane at all material times (as D2 contends), or it did cut from the Slow Lane to the Fast Lane some time before and during the Accident (as P and D1 contend). I will first resolve this factual dispute, as my findings in this regard have important implications on the issue of liability. 20.P stated in her Witness Statement that at the time of the Accident, the MC was travelling along the Fast Lane. When the MC approached near lamppost 48389, she noticed the LGV travelling along the Slow Lane, on her left. The LGV then started to cut from the Slow Lane to the Left Lane. 21.During D1’s cross-examination, P confirmed again that she was sure that the MC was all along travelling on the Fast Lane, and when she first saw the LGV, it was travelling along the Slow Lane. D2 did not put to her during cross-examination that the LGV was not travelling on the Slow Lane at the time of the Accident. Instead, the cross-examination focused on whether D1 was driving the MC too fast. 22.As for D1’s oral evidence given during cross-examination by D2, he said that he was driving the MC at a speed of 70 km/h at the time of the Accident. Again, it was not put to him by D2 that the LGV was not travelling on the Slow Lane at the time of the Accident. The focus of the cross-examination was again on whether D1 was driving considerably faster than the speed limit. Given P’s case as stated above, P understandably did not challenge the fact that the LGV was travelling along the Slow Lane when her counsel cross-examined D1. 23.Both P’s and D1’s evidence that the LGV was travelling along the Slow Lane while the MC was travelling along the Fast Lane shortly before and/or at the time of the Accident was unshaken. Moreover, on this issue, P is a relatively neutral party. P sues both D1 and D2 for negligence, and has no reason to give evidence in favour of one defendant over the other. 24.Turing to D2’s evidence, he stated in his witness statement that he was all along travelling along the Fast Lane. He explained that he chose to drive on the Fast Lane as he could arrive at his destination sooner and directly, and he could see the bend in the front and the road condition clearly. At the material time, he did look around the surroundings and the traffic condition in his front and back, but did not see any vehicles, until he heard a “bang”, ie when the MC collided with the rear of his LGV. 25.I find that there are a number of unsatisfactory aspects regarding D2’s evidence:-
26.For the reasons stated above, on this factual issue, I prefer the evidence of P and D1 over that of D2. I find that shortly before the Accident, the LGV was travelling along the Slow Lane, and the MC was travelling along the Fast Lane. I also find that at the time of the Accident, the LGV was cutting from the Slow Lane to the Fast Lane. (B) Were D1 and/or D2 negligent in driving their respective vehicles? 27.Having made the findings above, I proceed to consider the central issue of the trial – whether D1 and/or D2 were negligent in driving their respective vehicles when the Accident happened. 28.The natural starting point is to consider P’s evidence. Unfortunately, her evidence does not shed light on what happened when the two vehicles collided. In P’s Witness Statement, she said that as the LGV cut from the Slow Lane to the Fast Lane, D1 braked the MC, as a result of which P fell off the MC. During cross-examination, P further said that the braking of the MC caused it to wobble, and caused her to fell off the MC onto the ground. P said that this happened before the collision. After she fell onto the ground, she lost consciousness. When she woke up, she found herself having abrasions over all four limbs. Furthermore, P could not recall the speed of the MC before she fell onto the ground. 29.In short, P was unable to inform the court what happened at the moment when the two vehicles collided. 30.That leaves D1’s evidence against D2’s. 31.Given the findings made in paragraph 26 above, I reject D2’s case that the MC approached from behind in the Fast Lane and collided with the LGV because the MC was being driven too fast. 32.That leaves the question of whether I should accept D1’s case. I already made a factual finding above that the LGV was cutting from the Slow Lane to the Fast Lane at the time of the Accident. D1’s case, as stated in paragraph 16 above, is that the LGV cut towards the Fast Lane suddenly without realizing the position of the MC. As a result, the MC could not brake fast enough to avoid colliding with the rear part of the LGV. P’s case is that both D1 and D2 were at fault. In relation to D2, P’s complaint is largely similar to D1’s case. In relation D1, P’s main complaint is that D1 failed to manage or control the MC properly so as to avoid abrupt changes of the traffic condition (namely, the sudden change of lane of the LGV). 33.Both P and D2 asserted in submissions that (i) there was not enough time or distance for the MC to brake to avoid a collision, and (ii) the braking caused the wobbling of the MC which was forceful enough to cause P to fell off the MC shows that MC was travelling too fast. However, I do not think that (i) and/or (ii) above were necessary the result of the MC travelling too fast. Whether or not the MC could brake in time to avoid a collision depends on the relative position of the LGV and the MC as the LGV cut into the Fast Lane and travelled towards the MC. If the LGV cut into the Fast Lane suddenly at a position very close to the MC, it may well be that even if the MC was not travelling fast, it would be forced to brake abruptly, and even then the collision might not be avoided. 34.It was also argued that if the collision occurred at the time when the LGV was cutting to the Fast Lane, it would be the right middle part of the LGV, rather than the right rear part of the LGV that would collide with the front of the MC. Again, I do not accept that this is necessarily the case. It is not improbable that after the MC braked and slowed down, it collided with the rear part of the LGV (rather than the middle part) as the LGV cut into the Fast Lane from the Slow Lane. 35.To resolve this factual issue, I find it useful to go back to P’s evidence of what happened before she fell off the MC onto the ground. To recall, her evidence, as stated in her Witness Statement, is that when the MC was near lamppost 48389, she saw the LGV on her left appearing on the left lane on her front left, and cutting into the 1st right lane. During cross-examination by D1, she said that when she first saw the LGV, it appeared within her natural line of sight, and popped up from her left-hand side. Then, the LGV approached the lane where she was in, ie the Fast Lane. 36.As I said in paragraph 23 above, on the issue of whether D1 and/or D2 should be responsible for the Accident, there was no motive or incentive for P not to tell the truth or to give evidence in favour of one defendant over another. In fact, it would do P’s case no good if P gave evidence in favour of one defendant over another, as this might possibly risk P’s case being dismissed as against one defendant. I therefore accept P’s account of the incident set out in paragraph 35 above. 37.On the basis of P’s evidence summarized above, I find that there was a moment when the LGV’s position was to the immediate front-left of the MC on the road, with the LGV on the Slow Lane and the MC on the Fast Lane. I find that at this particular moment, the LGV was very close to and at the front-left of the MC, as P’s “natural line of sight” as a pillion passenger (as opposed to the driver) of the MC, was likely to be close to her vicinity. Her forward eye-sight would be at least partially blocked by the driver. It was after this moment that the LGV started to cut from the Slow Lane to the Fast Lane. The collision ensued. 38.If this is what happened, I find that what is more likely to have happened is that the LGV cut from the Slow Lane to the Fast Lane without realizing that the MC was on the Fast Lane at a position immediately to the LGV’s back-right side. If the driver of the LGV realized that the MC was immediately to the LGV’s back-right side, he would not have cut to the Fast Lane at that moment, but would either overtake the MC or slow down the LGV before cutting to the Fast Lane, so as to avoid colliding with the MC. 39.D1’s evidence is consistent with P’s evidence ins this regard. During cross-examination by P, his evidence is that when he first saw the LGV, it was travelling far ahead of him on the Slow Lane. As the MC was travelling faster than the LGV along the Fast Lane, the MC caught up with the LGV. When asked specifically about how far the LGV’s taillight was from the MC when the LGV started to cut into the Fast Lane, D1 answered that the distance was very close, less than 1m, and the LGV was right in front of the MC. I accept D1’s evidence on this issue as it is consistent with P’s evidence. 40.Although as mentioned above, there is a slight difference between the evidence of P and D1 regarding when P fell from the MC onto the ground (P’s evidence is that she fell off the MC before the collision, while D1’s evidence is that P fell off the MC after the collision), I do not think that this difference in evidence deters me from accepting P’s and D1’s evidence regarding the position of the LGV relative to the MC right before the LGV cut from the Slow Lane to the Fast Lane. After all, after the LGV started to cut lanes, the collision and the Accident that ensued took place in a matter of seconds. D1 was looking forwards and no doubt his attention was fully diverted to trying to avoid colliding with the LGV. Therefore, it is not surprising that P’s and D1’s account of what happened during the collision might be slightly different. What is important, however, is the position of the LGV and the MC before the LGV started to cut lanes (and before the collision). In this regard, I have no reason to doubt the reliability of P’s and D1’s recollection of the facts. 41.As for D2’s evidence, I do not find it useful in resolving this issue, as he maintained that the MC approached the LGV from behind and collided with the LGV. I have already rejected his case above. 42.I acknowledge that there is a possibility, as P suggested, that as the LGV cut from the Slow Lane to the Fast Lane, the MC approached too fast from behind in the Fast Lane, could not brake in time, and collided with the LGV. P argues that in this scenario, both D1 and D2 would be at fault, as D2 would have underestimated the speed at which the MC approached the LGV from behind, and D1 would have driven the MC too fast. 43.However, it is to be noted that the MC collided with the rear left part of the LGV at the Fast Lane (there was no evidence that the MC has ever entered the Slow Lane). If the MC travelled too fast from behind and collided with the rear right part of the LGV at the Fast Lane, there would not be a moment when the LGV’s position was to the immediate front-left of the MC on the road, with the LGV on the Slow Lane and the MC on the Fast Lane (as a found at paragraph 37 above). The MC approaching fast from behind would have rammed right into the rear part of the LGV on the Fast Lane. The scenario suggested in paragraph 42 above does not sit well with my finding in paragraph 37 above. It also does not sit well with my finding that the LGV started to cut from the Slow Lane to the Fast Lane after the LGV appeared at the immediate front-left of the MC on the road. 44.For the reasons above, I conclude that D2 was negligent at the time of the Accident in driving the LGV, as he cut from the Slow Lane to the Fast Lane without realizing the existence and position of the MC on the Fast Lane, and failed to stop entering the Fast Lane to avoid the MC colliding with the LGV. 45.As for D1, given the analysis in paragraph 43 above, there is no evidence that he has driven the MC negligently. As I found above, the LGV was at a position to the immediate front-left of the MC at the time when the LGV started to cut from the Slow Lane to the Fast Lane. Given that the LGV was very close to the MC when the LGV started to cut lanes, I find that the LGV’s movement was too sudden, and its position too close, for D1 to manoeuvre the MC in a way to prevent a collision. In other words, I find that it is the negligence of D2 in handling the LGV that caused the Accident. 46.P raised further arguments to persuade the court that D1’s driving of the MC was also negligent:-
47.P has referred to a number of authorities, and seeks to demonstrate that for these “lane cutting cases”, the driver of the vehicle on both lanes were found to be liable. As a matter of principle, I do not think it is useful to refer to these cases, as each case depends on its own facts. This can be illustrated from the cases cited by P:-
48.For the reasons aforesaid, I find that D2 was negligent in driving the LGV, but no negligence on the part of D1. As such, under DCPI 1218/2016, only D1, but not D2, is liable to compensate P’s loss and damage. As for DCPI 2598/2016, D2 is liable to compensate D1’s loss and damage. 49.I will now proceed to assess the quantum of damages suffered by P. As mentioned above, there are two issues, namely causation of quantification, and I can deal with them together below. QUANTUM OF DAMAGES SUFFERED BY P 50.After the Accident, P was taken by ambulance to the Accident and Emergency Department of the Pamela Youde Nethersole Eastern Hospital (“PYEH”) for treatment. She was noted to suffer from short term memory loss, headache, neck pain and pain at four limbs. She had to be resuscitated by the Trauma Team and was admitted to the Surgical Ward for treatment. The Surgical Unit’s report states that P had multiple abrasions over four limbs. Plain CT scans of the brain, cervical spine and contrast CT scans of thorax, abdomen and pelvis showed no intracranial, thoracic or intraabdominal injury. P was also assessed by the Ear, Nose and Throat surgeon, but no intervention was necessary. P remained clinically stable and was referred to the Government Outpatient Clinic (“GOC”) for wound dressing. P was hospitalised for 1 day in the PYEH. 51.Medical records for the period between the date of the Accident and 18 November 2014 in relation to P’s medical consultations and treatments were produced to the court. 52.P was jointly examined on 15 June 2017 by Dr Ko Put Shui Peter (“P’s Expert”) and Dr Baldwin Chan (“Ds’ Expert”). The doctors set out their findings and opinion in the joint medical report dated 28 August 2017 (the “Joint Medical Report”). (A) P’s previous and subsequent injuries 53.It is not disputed that before the Accident, on 7 May 2013, P suffered from another accident (the “2013 Accident”) while she as a back-seat passenger of a motorbike. A taxi hit the motorbike from behind and she fell onto the ground. 54.Unfortunately, after the Accident, on 2 January 2015, P suffered from another accident (the “2015 Accident”). This time, she was the driver of a motor cycle. A private car reversed and hit her at the front of her motor cycle. 55.When cross-examined by D2, P gave evidence that she had yet another accident in July 2017. This time, she was driving a motorbike and she accidentally slipped and fell onto the ground. 56.P suffered injuries as a result of all the aforesaid accidents. Obviously, there is a real issue of causation – what injuries P has suffered, and is still suffering, as a result of the Accident? I shall deal with this issue in the later part of this judgment. (B) The Joint Medical Report 57.During the joint medical examination, P complained of the following which she claimed started after the Accident:-
58.During general examination, the doctors found that P was able to sit for 40-50 minutes and get up from the chair normally. She was able to walk with a normal gait without any walking aids. Single leg standing, tiptoe standing/walking, heel standing/walking were all found to be stable. P was also able to do a full squat, and get up without any support. Her range of neck motion for lateral flexion for either side was 25 degrees, and for rotation for either side was 45 degrees. 59.On examination of P’s neck, she was found to have mild tenderness at the lower half of her midline cervical spine, right and left upper shoulder and trapezius diffuse tenderness, but not tenderness over the left and right para-cervical area. There was no muscle spasm and no tightness. Glenohumeral joint and shoulder for both sides were found to be normal and have similar range. There was no complaint of pain on shoulder movement. 60.On the examination of upper limbs, P complained of mild tenderness at the dorsal ulnar and volar ulnar at the left wrist. Otherwise there was no tenderness. There were also some scars indicating healed injuries. There was no muscle asymmetry and no muscle wasting. 61.On the examination of the back, there was diffuse low back pain in the lower lumbar and para lower lumbar region. Extension and right/left lateral flexion of the back was found to be limited by lower back pain. There was no muscle spasm, tightness, scar, deformity and swelling. 62.On the examination of the lower limbs, there were scars which showed healed injuries. There was mild tenderness on the left knee scar. There was also mild tenderness at the left knee lateral joint-line, left hip, and left posterior buttock area. In addition, P complained of left hip pain on external rotation and abduction of the thigh. 63.Radiological examination of the cervical spine, lumbar spine, pelvis and hips showed no significant adverse findings. 64.Unfortunately, there was little that the experts can agree to, namely the diagnoses for the Accident, including increase in neck pain, 4 limbs pain, low back pain, mood problem (due to relationship with boyfriend) and multiple bodily region contusion/sprain injury (including right heel, left ankle, left wrist, left shoulder and left knee). 65.The experts, however, differed on a number of issues, which mainly relate to causation. P’s counsel has helpfully summarised the difference in the opinion of the experts, which I set out below.
(C) What injuries to P did the Accident cause? 66.It is clear (and there is no dispute) that as a result of the Accident, P suffered from multiple abrasion over her four limbs, as recorded in the report from the Surgical Unit of PYEH dated 10 August 2015 [D/176]. This was likely caused by her falling off the MC onto the ground as a result of the Accident. 67.The same report issued by the PYEH also states that there was no intracranial, thoracic or intraabdominal injury. 68.A major issue between the parties is whether P suffered neck injury as a result of the Accident. There is no dispute that before the Accident, the 2013 Accident also caused P injury in the neck. The issue is whether the Accident caused additional injuries to the neck. In this regard, I cannot accept Ds’ Expert’s view that there is no evidence to suggest that P’s neck pain increased after the Accident:-
69.D1 took issue with the medical report issued by the Anne Black GPOC [C/173], which states that P attended that clinic on a number of occasions both before and after the Accident. Presumably, the visits before the Accident were for the 2013 Accident, and the two visits after the Accident were for the Accident. This report states that P had symptoms including neck pain. Since this report does not state whether P complained of neck pain before, or after, of both before and after, the Accident, I do not find it useful in determining whether the Accident caused P neck injury. 70.However, given the evidence set out in paragraph 68 above, I find that P suffered from neck pain after the Accident. Given the circumstances of the Accident, especially the way in which P fell from the MC to the ground, I find that more likely than not, the Accident caused additional injuries to P’s neck (even if P also suffered from neck injury from the 2013 Accident). I respectfully differ from Ds’ Expert who ruled out the possibility of additional injury to the neck resulting from the Accident. 71.I can deal with the issues of whether the Accident caused P back/hip and/or wrist pain quickly. In the medical records/reports set out above, only some but not all mentioned P’s complain of “back pain” and “hand pain”. It seems that the main complaint by P was neck pain rather than the other aforementioned areas. Considering the circumstances of the Accident, I find that P suffered from only mild back and hand pain as a result of the Accident. Indeed, during cross-examination by D1, P said that her injuries at the limbs and back were mild. 72.To conclude, I find that the Accident caused P the following:-
73.D1 however submits that any injuries caused by the Accident to P were not very serious. Apart from the fact that there were no signs of internal or structural injuries upon the CT scans performed by PYEH on the night of the Accident, D1 relied on the medical reports/records, which show that P has defaulted her orthopaedic and physiotherapy treatment for a number of times. This was not disputed by P during cross-examination. Her explanation was that she did not trust the doctors treating her, and sometimes if she did not feel well, she would not go to the treatment. I am unable to accept P’s explanation. I agree with D1’s submission that this suggests that by March/April (when P started to default treatment appointments), P was of the view that her injuries arising from the Accident was not serious enough to warrant continued medical treatment. 74.I am also mindful of the fact that P did resume driving motorcycles again before the 2015 Accident (P cannot recall exactly when). As D1’s counsel suggested, in order to safely control a motorcycle, one needs to have agile hand and wrist movements, as well as good neck and back motion in order to keep a proper lookout and good balance. If P was confident enough to drive a motorcycle again, by then, any pain resulting from the Accident would have largely subsided. 75.In short, I find that by late June 2014 (ie at the expiry of P’s sick leave period) at the latest, P’s abrasion/contusion injuries have healed, and her bodily pain had largely subsided. Any residual pain that P still complained of after June 2014 is likely of a mild and minor degree only. (D) Pain, Suffering and Loss of Amenities (“PSLA”) 76.In her Closing Submissions, P submitted that an award of HK$200,000 should be made under this head of damages. The following authorities were cited:-
77.On the other hand, D1 submits that PSLA should not be more than HK$50,000. As for D2, in his Opening Submissions, he cited the following authorities in support of its contention that a sum of HK$90,000–120,000 should be awarded for PSLA.
78.As a general point, my view is that the cases cited by P tend to involve more serious injuries than P. For example:-
79.On the other hand, I do find that the authorities cited by D2 involve injuries which are less serious than those suffered by P.
80.In the present case, P fell from the MC travelling at a speed onto the ground. She suffered abrasion/contusion injuries over all 4 limbs, as well as injuries to the neck, and mild injuries to the hand and back. It should also be remembered that she was required to be resuscitated. On the other hand, I have also found that after June 2014, her bodily pain should have largely subsided, as she no longer required (and has in fact defaulted) orthopaedic and physiotherapy treatment, and was able to drive motorcycles again. 81.Taking into account the circumstances of the present case, and accounting for inflation of prices, I am of the view that an appropriate amount of damages for PSLA is HK$150,000. (E) Pre-trial loss of earnings 82.There is no disagreement between P’s Exert and Ds’ Expert [D/204] that the period of sick leave granted is appropriate and reasonable and should be adopted. I adopt the experts’ opinion. There were 89 days of sick leave. 83.However, what is at issue is the pre-trial income of P during the sick-leave period. It is not in dispute that for a period of 6 months prior to the Accident, P was unemployed. According to the IRD records [F/291], P’s previous job before the Accident was with Apex Wealth Limited, from 11 January 2013 to 31 May 2013. 84.It is incumbent upon P to prove that but for the Accident, she would have earned income during the sick leave period from the date of the Accident to June 2014. I agree with D1’s submission that there is a gap in her employment. At the time of the Accident, P had been unemployed for about half a year. I cannot assume that more likely than not, from 31 January to 27 June 2014 (ie the sick leave period), P would earn an income that is equivalent to what she had earned 6 months ago at her previous job at Apex Wealth Limited. 85.In oral evidence, P alleged that about a month before the Accident, she had succeeded in getting a job offer, and that her supposedly new job was due to commence shortly after the date of the Accident. I have difficulty in accepting P’s evidence. Even though it was argued on P’s behalf that she did say during the joint medical examination (on 15 June 2017) that “she already had been employed by a company with a job of salesperson but had not started working yet” [D/183], P was unable to explain why the same was not stated in the Revised Statement of Damages dated 22 January 2018. By this time, P had had full opportunity to supplement her case to plead such a material fact, but she did not. Instead, she pleaded at [A/74] that “she did try to apply for jobs and attend interviews before the captioned accident on 30th January 2014”. In my view, if P did really succeed in securing a job offer, there is no reason why she only pleaded that she applied for jobs and attended interviews, but did not plead a successful job offer, in the Revised Statement of Damages. 86.In any event, even if I accept that there was such a job offer, I agree with D1’s submissions that P failed to adduce evidence on the income of her new job. P had not even stated what her supposed salary would be when she gave oral evidence. In this regard, and noting the Court of Appeal’s decision in Yuen Macie v Yeung Ying Kit (unreported, 14 March 2018) at §44-45, there is no evidence before me to form the basis of any findings regarding the income that P would have earned but for the Accident. 87.As for the pre-trial loss of earnings claimed for the period between 27 June 2014 (ie the end of the sick leave period) and 31 December 2014 (the day before the 2015 Accident), I am also unable to award any damages:-
88.To conclude, no sums under this head of damages will be awarded. (F) Loss of Earning Capacity 89.The parties do not differ on the well-established legal principles laid down in the Hong Kong Court of Appeal decision of Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306 at 311-312 (citing Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132) that to make an award on loss of earning capacity, the Court has to be satisfied that:-
90.I have already made factual findings above on P’s injuries suffered as a result of the Accident, especially the fact that any residual bodily pain is likely to be minor and mild only. My findings are consistent with the view of both P’s Expert and Ds’ Expert stated in §11.4 of the Joint Medical Report [D/203-204]. 91.Given my findings above, I do not accept P’s evidence that she switched jobs in the period from July 2014 to December 2015 because her injuries rendered her unable to cope with the job responsibilities. I accept D1’s argument that P had a tendency to switch jobs out of her own volition rather than due to her injuries. My finding is fortified by the reason given by P during cross-examination for leaving employment with Grove Company Limited. P said that it was because the working time was too long, and it was too early for her such that sometimes she would feel pain and tired, and when she overslept she could not go to work. It seems to me from this answer that the true reason that P left the employment is that she was not happy with the long and early working hours of the job, rather than the injuries that she suffered as a result of the Accident. 92.As such, I do not agree with P’s Expert’s view in the Joint Medical Report on the % of whole body impairment and % loss of earning capacity. 93.Given the above findings, I am not persuaded that P can pass even the first hurdle of the test laid down in Moeliker v A Reyrolle & Co Ltd. (G) Special damages 94.P claims medical expenses of HK$1,994. Supporting documents were provided. None of the defendants took issue with them. I will allow this head of damage. 95.As for the claim for tonic food (HK$5,000) and travelling expenses (HK$5,000), it is trite that such claims have to be supported by evidence. P, however, were not able to provide any supporting documents. Taking a broad-brush approach, I will allow a nominal amount of HK$1,000 for each of these items. (H) Summary of assessment of damages 96.In summary, I award the following sums to P:-
97.I also award interest on the amount of awarded PSLA at 2% from the date of the Writ (ie 13 June 2016) to the date of this judgment; and on the amount of the awarded special damages at half judgment rate from the date of the Accident (ie 30 January 2014) to the date of this judgment. COSTS 98.In DCPI 1218/2016, I enter judgment in favour of P, but concluded that P’s case is only successful against D2 but not D1. P should be awarded the costs of this action. 99.Issues arise as between the costs of D1 and D2. Since D1 is not found to be negligent, should D1 nonetheless be responsible for payment of P’s costs (jointly and severally with D2)? Further, should D2 also pay for D1’s costs of defending the action? 100.Since D1 succeeds in defending DCPI 1218/2016, he should not be ordered to pay P’s costs. A fair costs order is that P’s costs of this action be paid by D2 only. 101.As for D1’s costs of defending DCPI 1218/2016, the question is whether a Sanderson costs order should be made. The relevant principles are set out by Bharwaney J in Fung Chun Man v Hospital Authority [2012] 1 HKC 531 at §5-6:-
102.In the present case, P was a pillion passenger of the MC. She was not driving the MC. She did not have control of the MC nor the LGV. Given how the Accident happened in the present case, I accept that P was faced with a real uncertainty whether it was D1, or D2, or both D1 and D2 that was/were negligent and that caused her personal injuries. All three possibilities were equally plausible, requiring the court’s determination after hearing oral evidence from all parties. This is especially so when throughout the proceedings, both D1 and D2’s position was that there were not negligent, and that the other defendant was totally responsible for the Accident. 103.In the circumstances, I am of the view that it is not unreasonable for P to join D1 as a defendant and proceed against him in DCPI 1218/2016. As such, I consider it fair that a Sanderson order be made, requiring D2 (but not P) to pay D1’s costs of defending DCPI 1218/2016. 104.As for the costs in DCPI 2598/2016, costs should follow the event, ie D2 shall pay the costs of D1. CONCLUSION 105.I make the following orders in DCPI 1218/2016:-
106.I make the following orders in DCPI 2598/2016:-
107.The above costs orders nisi shall become absolute in 14 days unless before then, any parties apply to the Court to vary them. 108.Lastly, I thank counsel for all parties for their helpful assistance to the court.
DCPI 1218/2016 Mr Felix Ng & Mr Edward Cheung, instructed by Chan & Chan, for the Mr Ashok Sakhrani, instructed by Munros, assigned by the Director of Mr John Wright, instructed by Yip & Partners, for the 2nd defendant DCPI 2598/2016 Mr Ashok Sakhrani, instructed by Munros, assigned by the Director of Mr John Wright, instructed by Yip & Partners, for the defendant |
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