Lai Chi Wai v. Tong Hung Kwok and Another
Read the full judgment text of HCPI 1235/2014 on BabelCite. This High Court CFI judgment was delivered on 23 April 2020.
1. This is another sad case of a young man cut down in his prime as a result of injury suffered in a road traffic accident. On 9 December 2011 at about 10:25 pm, the plaintiff, who was then almost 29 years of age [1] , was involved in a traffic accident on a section of the expressway on Tuen Mun Road which made him paraplegic. All paraplegic persons suffer very substantial loss of amenities from being deprived of the ability to walk and to run. What makes this case particularly distressing is t
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HCPI 1235/2014 [2020] HKCFI 628 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 1235 OF 2014 _____________________________
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Damages for Pain, Suffering and Loss of Amenities (“PSLA”) Agreed Pre-trial Period and Multipliers Claims which are almost agreed Cost of alternative accommodation Other disputed claims for lesser amounts 1.This is another sad case of a young man cut down in his prime as a result of injury suffered in a road traffic accident. On 9 December 2011 at about 10:25 pm, the plaintiff, who was then almost 29 years of age[1], was involved in a traffic accident on a section of the expressway on Tuen Mun Road which made him paraplegic. All paraplegic persons suffer very substantial loss of amenities from being deprived of the ability to walk and to run. What makes this case particularly distressing is the fact that, prior to the accident, the plaintiff was a world champion rock climber who can no longer pursue and enjoy his sport. 2.The plaintiff brings this action against the 1st and 2nd defendants who have denied liability. Although the defendants had served notices of indemnity and contribution on each other, I was informed before the commencement of the trial[2] that the contribution proceedings between them had been compromised and that there was no need for the court to make any determination in relation to them. 3.In the course of the trial lasting some 5 days, I heard evidence from the plaintiff and his witnesses, Mr Chau Kwok Wai (“Chau”), his wife, Madam Li Mei Lam (“Li”), Mr Cheung Kei Shun (“Cheung”) and Dr Paul Aarne Koljonen (“Dr Koljonen”). The 1st defendant also gave evidence but did not call any witnesses. The 2nd defendant did not give evidence and did not call any witnesses. Accordingly, his witness statements are not in evidence before me[3]. At a directions hearing on 16 May 2019, the Government Motor Vehicle Examiner, Mr Yeung Wai Ching (“Yeung”), who had carried out the examination of the 1st defendant’s vehicle after the accident, answered to a subpoena duces tecum requiring him to produce relevant papers in his possession. 4.The Trial Bundle comprised of 10 bundles marked “A” to “I”[4]. In addition, there is a bundle of the transcript of the proceedings marked “T”. 5.It was common ground that, at the time of the accident, the plaintiff was riding a motorcycle bearing registration number PT5625, the 1st defendant was driving a private car bearing registration number CR692, and the 2nd defendant was also driving private car bearing registration number KM3750. They were all travelling in the direction of Tuen Mun on the Siu Lam section of Tuen Mun Road near chainage marker 57.9. This section of the expressway had 3 lanes for vehicles who were heading towards Tuen Mun. The 1st lane of the expressway was the lane adjacent to the left-hand edge of the road and has been referred to as the slow lane. The 2nd lane of the expressway was the middle lane. The 3rd lane was the lane adjacent to the central reservation of the expressway and has been referred to as the fast lane. 6.At the time of the accident, the weather was fine and the road surface was dry and in good repair. The expressway was well illuminated. The roadside lighting is clearly depicted in the photographs taken by the police[5]. The speed limit over this section of road was 80 kilometres per hour (“kph”). 7.It was the plaintiff’s pleaded case that his motorcycle was travelling in the 2nd lane at about 60 to 70 kph. Upon reaching the Siu Lam section, there was a rising slope and then a stretch of downward slope. On the downward slope, the plaintiff saw a slow traffic queue and he reduced speed. Suddenly, and without warning, his motorcycle was struck from behind by the 1st defendant’s car. As a result of this collision, plaintiff fell onto the 3rd lane and was hit by the 2nd defendant’s car.[6] 8.The plaintiff also pleaded that:[7]
It is implicit from these averments that the plaintiff’s motorcycle was struck when it was in the 3rd lane and that “after the accident, the 1st defendant swerved into the 2nd lane”. 9.It was the 1st defendant’s pleaded case that[8],
10.The sketch plan[9] drawn by the police depicts this section of the expressway[10]. The 1st defendant’s vehicle is depicted as having stopped in the 2nd lane after the accident. The 2nd defendant’s vehicle is depicted as having stopped, after the accident, partly on the 3rd lane and partly on the roadside between the 3rd lane and the central reservation. Where the 2nd defendant’s vehicle came to a stop is also shown on the police photograph[11]. After the accident, the plaintiff’s motorcycle was moved from the expressway and left on the traffic layby reserved for police vehicles on the left side of the slow lane. The sketch and the police photographs show the plaintiff’s motorcycle lying on its left side on the traffic layby[12]. As the plaintiff’s motorcycle was moved after the accident, it is not possible to determine, from the police photographs and the sketch plan, where it had come to a stop after the accident. The maker of the sketch and the person who took the police photographs, Law Sek Wa, had arrived at the location of the accident at about 11:01 pm. In his police statement dated 9 March 2012, he stated that there were no brake marks or vehicle fragments on the road[13]. 11.In his police statement[14], PC3798 Lo Chun Man recorded that he reached the scene of the accident at 10.40 pm. The road surface was dry and it was not raining. The 1st defendant told him that he had been driving on the 3rd lane. When the motorcycle cut from the 2nd lane to the 3rd lane, the front of his car collided with the rear of the motorcycle and the motorcycle lost balance and toppled onto the 3rd lane. The 1st defendant turned left to avoid and stopped on the 2nd lane. 12.PC3798 also recorded in his police statement that he performed a breath test on the 1st defendant at 11:08 pm at the scene of the accident, about half an hour after the accident, that gave a result of “28 degrees”, i.e. 0.28 mg of alcohol per litre of breath. Since that was above the prescribed statutory limit of 0.22 mg of alcohol per litre of breath, he arrested the 1st defendant on suspicion of driving while above the limit. A further “approved” test at 1:00 am the following day at the police station, administered some 2 and a half hours later, gave a result of “17 degrees”, i.e. 0.17 mg of alcohol per litre of breach, which was below the prescribed statutory limit. As the initial test was not an approved test, the 1st defendant was not charged with drink driving. 13.A police constable attached to the Marine Police, PC3175, Ng Chi Shing, also gave a statement to the police on 26 March 2012[15]. He stated that, at about 10:20 pm on 9 December 2011, he was riding his motorcycle from his home to work as he was on night shift. At about 10:35 pm, he reached the location of the accident and saw a person wearing a motorcyclist helmet lying on the 2nd lane. He learned from people present that the injured person had been knocked down in a traffic accident. The injured person was still breathing. As he suspected that he had suffered a fracture, he did not move him but placed a jacket on him to keep him warm. As the traffic was blocked, he and another passerby pushed the motorcycle involved in the accident, which was about 20 metres away, from the 1st lane to the shoulder by the side of the road to relieve the traffic congestion so that the ambulance could reach the location of the accident. He reported what he had done to the police when they arrived at the scene and he left his personal particulars with them. He also drew a sketch to show the location of the accident and the various vehicles involved[16]. The sketch shows the location of the motorcycle on the 1st lane. An arrow is drawn beside it pointing towards the shoulder of the road and where the motorcycle was moved to. The plaintiff is shown on the sketch lying on the 2nd lane some 20 metres behind the motorcycle. The 1st defendant’s motor vehicle is depicted as having stopped on the 2nd lane about 8 metres behind the plaintiff. The sketch also shows the location of the 2nd defendant’s motor vehicle stopped on the 3rd lane, not at an angle but parallel to the side of the road. The rear of that vehicle was some 5 metres in front of where the plaintiff lay on the 2nd lane. 14.Chau, who gave evidence at trial, also made a statement to the police on 3 February 2012[17]. In it, he stated that on the day of the accident, the weather was fine, the road was dry and intact. The speed limit was 80 kph. There was illumination by street lamps. The view was clear. There was average traffic volume. He was driving a private car from Tsuen Wan to go home in Tin Shui Wai. Before he reached the location of the accident his vehicle was on the 3rd lane at a speed of about 80 kph. The traffic was smooth. There were no vehicles in front of his vehicle. There were vehicles on the left 1st and 2nd lanes. Suddenly, he saw a private car (later known to be the 2nd defendant’s vehicle) coming up very close to his vehicle at high speed. He cut into the 2nd lane so as to let that vehicle go past. He continued to travel along the 2nd lane for some distance and came to the location of the accident. He saw that, on the 2nd lane, the rear brake lamps of a private car (later known to be the 1st defendant’s vehicle) were on and that white smoke was being emitted from it. That vehicle was about 40 to 50 metres away. So he reduced his speed and drove slowly forward for about 10 metres. He stopped his vehicle and turned on the hazard lights. He saw the driver of the vehicle in front of him get off from the driver’s seat, go forward along the right side, look ahead for a while, bend down, and then walk back to his vehicle. Seeing that it was safe to proceed, he[18] slowly cut into the 3rd lane and drove past that vehicle when he saw that there was a person lying on the road, on his right side, in front of that vehicle with his head towards that vehicle. After he drove past, he also saw, on the right side, the 2nd defendant’s vehicle stopped on the right shoulder at an angle. Finally, he saw a motorcycle toppled on the 1st lane near the shoulder of the road. Later he contacted the police to assist in the investigation. 15.The Motor Vehicle Examination (“MVE”) report[19] on the 1st defendant’s vehicle identified the following mechanical defects:
Additionally, the motor vehicle examiner’s draft inspection form[20] noted that:
The MVE report also identified the following damage defects:
16.Although there was some confusion initially as to whether or not the 1st defendant’s vehicle’s headlamps were functioning normally in dipped mode, Yeung, the motor vehicle examiner, confirmed on 16 May 2019 that they were functioning normally in dipped mode. He pointed out that his draft inspection form[23] in respect of his examination of this vehicle had a box at the bottom of the form that he had filled in to indicate the defective lighting he found on the 1st defendant’s vehicle: the box was marked with crosses only against “Reverse” and “HighBeam”, and not against “DipBeam”. 17.The 1st defendant was charged with, and pleaded guilty to, 4 offences for breach of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap. 374, in respect of the defects found by the motor vehicle examiner. 18.The 1st defendant made 3 police statements. He made 2 statements on 18 January 2012 and a third statement on 29 February 2012. In the 1st statement[24], he stated, after he was cautioned that he was not obliged to say anything, that before he reached the location of the accident, his vehicle was on the 3rd lane going downslope at a speed of about 80 kph. There was no other vehicle in front of him. He saw a motorcycle on the 2nd lane about 20 metres from his vehicle. When he reached the location of the accident, the motorcycle suddenly cut from the 2nd lane to the 3rd lane in front of his vehicle, only about 3 metres away. He immediately braked his vehicle abruptly. However, the middle front of his vehicle collided with the rear wheel of the motorcycle. He then saw the rider lose control of the motorcycle which fell to the left while the rider fell to the right. As he was afraid he might bump into him, he immediately steered to the left. When he did so he saw the motorcycle still swaying on the 2nd lane. He immediately braked his vehicle abruptly and white smoke emitted from his vehicle. The motorcycle fell on its side on the 1st lane. After he stopped his vehicle completely, he heard a “pak” sound from the right side. It was the sound of colliding with something. Then he saw the rider of the motorcycle roll to the left and stop on the 2nd lane 2 to 3 metres in front of his vehicle. At the same time, the white smoke had dispersed and he saw on the 3rd lane, about 10 to 11 metres ahead, a private car stopped at an angle on the right side. He got off his vehicle and saw that the rider of the motorcycle had not moved. Some persons pushed the motorcycle from the 1st lane to the shoulder of the road on the left to allow traffic to pass the accident scene on the 1st lane. Not long afterwards, traffic police arrived to investigate and the driver of the motorcycle was taken to hospital by ambulance. 19.In answer to the questions posed by the officer taking the statement, the 1st defendant said that he did not know why the motorcycle suddenly cut from the 2nd to the 3rd lane in front of his vehicle. When asked what steps he took to avoid the collision, he answered that as it happened all of a sudden, he could only step on the brake immediately. However, the middle front part of his vehicle had already collided with the rear wheel of the motorcycle. When asked whether he saw the indicator light on the motorcycle flashing, he answered that he did not pay attention. When asked whether he struck the rider of the motorcycle, he answered that he did not do so. He saw the rider fall to the right side of the road and, fearing that he might hit him, he immediately cut into the left 2nd lane. He did not see the private car strike the injured because smoke emitted from his vehicle had blocked his view. 20.His 2nd statement[25] was taken in respect of the defects found on the 1st defendants vehicle. He admitted that the DVD unit had been installed by him. However, he did not know that the vehicle suddenly become defective. 21.His 3rd statement[26] was in the form of a deposition taken from the 1st defendant who was going to be called as a witness at the 2nd defendant’s trial for careless driving. Its contents are similar to the contents of his 1st statement but with 2 differences. Although he did not know why the rider of the motorcycle suddenly cut into the 3rd lane in front of his vehicle, he saw that a light goods van in front of the motorcycle on the 2nd lane was moving slowly. He also stated that, because of his abrupt braking, the wheels of his vehicle locked and caused white smoke to be emitted. 22.The MVE report[27] on the plaintiff’s motorcycle identified the following damage defects:
23.A motor vehicle examination was not carried out on the 2nd defendant’s car. The 2nd defendant had been charged with careless driving in connection with the accident but was acquitted after trial[28]. 24.The 2nd defendant made 2 police statements. In the 1st statement dated 7 January 2012[29], he stated, after he was cautioned that he was not obliged to say anything, that he drove along the 3rd lane and that the traffic was smooth. There were vehicles in front of him and on the left lanes. He saw the vehicle driven by the 1st defendant coming up behind him on the 3rd lane. That vehicle cut into the 2nd lane and overtook his vehicle before returning to the 3rd lane in front of him. He continued on the 3rd lane about 2 to 3 vehicle lengths, about 15 to 20 metres, behind the 1st defendant’s vehicle. When the road travelled downslope, the 1st defendant’s vehicle cut from the 3rd to the 2nd lane. After the 2 to 3 seconds, when he was 30 to 40 metres behind the 1st defendant’s vehicle, suddenly, white smoke emitted from the front of that vehicle. He immediately reduced speed and, as he saw that there was nothing special and no other vehicle on the lane in front of him, he drove slowly and overtook the 1st defendant’s vehicle which had come to a stop on the 2nd lane. When he did so, white smoke was blown to the front of his vehicle and he could not see ahead. He further reduced speed and continued to move forwards. Then there was a “bang” sound and he felt that the left front part of his vehicle had hit something. So he immediately turned to the right and stopped. He looked around and saw the 1st defendant’s vehicle had stopped behind him about 2 vehicles’ length or about 5 to 10 metres away. He looked at his left rear view mirror and saw a person lie in front of the 1st defendant’s vehicle. He went to that person and saw him lying motionless about 4 to 5 metres in front of the 1st defendant’s vehicle. He called the police. He also saw a motorcycle had toppled on the 1st lane in front of his vehicle. As all 3 lanes were blocked, some drivers pushed the motorcycle to the shoulder on the left of the 1st lane. He also returned to his car and drove it forward to the right side and stopped, so that vehicles could use the 3rd lane. Not long afterwards traffic police, firemen and ambulancemen arrived. 25.On being questioned by the officer taking the statement, the 2nd defendant stated that, at the time, the traffic was smooth, the road surface was dry and intact. The weather was fine and there was illumination by street lamps. He said he did not know why the 1st defendant’s vehicle suddenly cut from the 3rd lane to the 2nd lane. He only saw the motorcycle after the accident had occurred. He did not know why white smoke was emitted from the front of the 1st defendant’s vehicle but he saw that vehicle had braked very abruptly. The left lower corner of his vehicle was damaged. Before the accident, his vehicle had also had a traffic accident, during which the part near the lower left corner was hit. The officer also put the following questions which the 2nd defendant answered as follows:
26.The 2nd defendant’s 2nd police statement dated 18 January 2012 is identical in all material respects to his 1st statement. In the 2nd statement, it was recorded clearly that the speed he had been travelling at was about 80 kph at the point in time when the road went downslope and when CR692 had cut from the 3rd to the 2nd lane. He also stated that he returned to his vehicle to drive it more to the right side, and stopped there, so that vehicles could get through on the 3rd lane.[30] 27.The plaintiff suffered retrograde amnesia as a result of the accident. According to his witness statement dated 21 July 2016[31], his last memory prior to regaining consciousness after the accident was that he was riding his motorcycle on the 2nd lane at around 60 to 70 kph. He was riding downslope and he saw vehicles lining up ahead whereupon he slowed down. He could not remember how the accident happened afterwards. His account in his statement to the Police dated 8 February 2012[32] was in the same terms In the latter statement, he said there were vehicles on the 1st lane but he was not sure whether there was any vehicle on the 3rd lane. His evidence before the magistrate at the 2nd defendant’s trial for careless driving was the same[33]. Apart from confirming that the engine of the motorcycle he was riding at the time of the accident had a cylinder capacity of 153c.c.[34], the plaintiff did not give any further oral evidence concerning the circumstances of the accident[35]. 28.The plaintiff called a witness, Chau. The contents of his police statement is set out in §14 above. He made 2 witness statements which he adopted as his evidence[36]. The 1st witness statement is identical in all material respects to his police statement. In his 2nd witness statement[37], he clarified that, after he cut into the 2nd lane in order to let 2nd defendant’s vehicle pass him, he drove for about 1 to 2 minutes before reaching the scene of the accident. Under cross-examination, Chau accepted that the date of his police statement on 3 February 2012 was the 1st occasion after the accident when he had his account recorded[38]. Some of the information in his police statement had been provided by the police, such as the time and exact location of the accident. He did roughly remember the time because he had left at 10 o’clock[39]. He knew the speed limit on that stretch of road was 80 kph as he travelled through that section every day[40]. As the vehicle behind got closer to him, he paid attention to his own speed by looking at this speedometer to try to check whether he was moving too slowly[41]. Although he saw white smoke emitted from the 1st defendant’s vehicle some 40 to 50 m away, that white smoke did not obstruct his view of the road beyond the white smoke[42]. He thought that the white smoke was created from the tyres skidding because he saw the braking light and the white smoke at the same time[43]. 29.The 1st defendant gave evidence and adopted his witness statement dated 22 March 2016 as his evidence in chief[44]. He had 26 years of driving experience[45]. At about 10:25 pm on 9 December 2011, he was driving his car in the direction of Tuen Mun along the Siu Lam Section of Tuen Mun Road in the 3rd lane at a speed of about 80 kmph. The road in front was clear. The weather was fine, the road surface was dry and the expressway was sufficiently illuminated. The 2nd defendant’s car was behind his vehicle in the 3rd lane. He saw the plaintiff on his motorcycle on the 2nd lane travelling at a speed of about 50 kph about 20 metres in front of his vehicle. A light goods vehicle was driving slowly in front of the plaintiff’s motorcycle. All of a sudden, the plaintiff cut into the 3rd lane in front of his vehicle when the distance between the 2 vehicles was less than 3 metres. He immediately pressed hard on the brake pedal but the front of his car still came into contact with the rear of the plaintiff’s motorcycle. The plaintiff lost control of the motorcycle and fell to the right onto the 3rd lane while his motorcycle fell to the left and skidded across the 2nd lane. He cut into the 2nd lane in order to avoid colliding with the plaintiff. In the course of this manoeuvre, white smoke was emitted from the engine compartment of his car. When his car came to a stop on the 2nd lane, he saw that the plaintiff’s motorcycle had already slid across to the 1st lane near the shoulder of the road. He heard a “bang” (“pak”) sound as if something was being hit. He saw that the plaintiff was tossed to the left. The plaintiff ended up on the 2nd lane 2 to 3 metres in front of his vehicle. He also saw the 2nd defendant’s car stationary on the 3rd lane some 10 to 11 metres ahead of his vehicle. 30.It was the 1st defendants evidence that the front headlamps of his car were turned on and worked normally in dipped mode at the time of the accident. His car’s headlamps were defective only in that their main (full) beam was inoperative[46]. 31.Under cross-examination by counsel for the 2nd defendant, the 1st defendant was asked about the statement he had made to PC 3798 at the scene of the accident at about 10.40 pm. PC 3798 had recorded that the 1st defendant had told him that, after his car collided with the motorcycle, it had toppled onto the 3rd lane[47]. It was suggested to the 1st defendant that this is what occurred, as his recollection of what had happened was the best at that time[48]. In response, the 1st defendant said this was incorrect and that the motorcycle toppled over towards to the 2nd lane while the motorcyclist fell onto the 3rd lane[49]. 32.Under cross-examination by counsel for the plaintiff, the 1st defendant admitted that he had previously been convicted of a drink driving offence for which he was disqualified for one year up to 2009[50]. He also admitted that he had been drinking in Tsuen Wan for about half an hour after he had finished work[51]. He did not agree that he had been travelling in excess of 80 kph, but he agreed that he had overtaken a vehicle, very shortly before the accident, by leaving the 3rd lane, moving into the 2nd lane, and then returning to the 3rd lane. He did not agree that the vehicle he had overtaken was travelling in excess of 80 kph[52]. He agreed that the motorcyclist fell down on the 3rd lane[53]. 33.The following exchange is worth noting[54]:
34.The 1st defendant was referred to his evidence before the magistrates’ court when, in answer to the question put to him: “how far was it from the front of your vehicle when it cut the lane”, his answer was “within 20 metres”[57]. This answer was different from his current testimony that the motorcycle had pulled out in front of him less than 3 metres away. Later on in his testimony before the magistrate, he had explained that when he first saw the motorcycle it was about 20 metres in front and when it cut in it was 3 metres in front[58]. Certain parts of his recorded testimony before the magistrate[59], which I have set out a bit more fully below, was put to him[60]:
He disagreed with counsel’s suggestion that he was making things up as he went along. 35.He did not agree that the first time that he had really braked hard was after he had moved to the 2nd lane. The wheels of his vehicle had locked when it was on the 3rd lane. He agreed that, when he braked, the ABS system of his vehicle was not working and so the wheels locked[61]. His recorded testimony before the magistrate was put to him[62]:
Thereafter, the following exchange took place[63]:
His testimony, later on in the course of his cross examination, differed from his earlier testimony recorded above[64]:
36.The 1st defendant was also referred to the sketch of the scene of the accident which had been drawn, based on his description, by SPC3793 at the time he gave his statement on 29 February 2012[65], which contained the following statement:
The 1st defendant’s testimony continued as follows[66]:
The following exchange also occurred later on in the course of his cross-examination[67]:
37.In the course of his cross examination, the 1st defendant said that the position where his vehicle stopped was about 10 metres in front of the point of collision[68]. His testimony before the magistrate was that his vehicle stopped about 5 or 6 vehicle lengths from the point of collision[69]. According to the police sketch plan, his vehicle had a length of 4.6 metres[70]. 5 to 6 vehicle lengths would be about 25 metres. It was suggested to him that his current and previous testimony was erroneous as, according to the Road Users’ Code, if he had been travelling at 80 kph, and had been alert and paying attention, he would have needed a stopping distance of 60 metres. The 1st defendant was also referred to a sketch drawn by police constable PC3175, Ng ChiShing, who had arrived at the scene of the accident[71] which showed that the plaintiff was lying on the road on the 2nd lane at distance of about 8 metres from the front of the 1st defendants vehicle[72]. 38.In re-examination, the 1st defendant said he had been drinking beer with food in the company of three tofour others in Tsuen Wan for about 30 minutes before the accident[73]. 39.In answer to questions from the court, the 1st defendant was referred to and asked to clarify his statements, in his 1st and 3rd police statements, in which he had said that he saw the rider lose control of the motorcycle which fell to the left, while the rider fell to the right; that, as he was afraid he might bump into him, he immediately steered to the left; that when he did so he saw the motorcycle still swaying on the 2nd lane; and that it had toppled on the left on the 1st lane[74]. The 1st defendant explained that the motorcycle was sliding along on its side on the road surface and came to a halt on its side on the 1st lane[75]. He also confirmed that the “pak” sound he heard was the sound of a vehicle hitting something[76]. 40.I find that the accident took place at about 10:25 pm on 9 December 2011 on the Siu Lam section of Tuen Mun Road near chainage marker 57.9, which had 3 lanes for traffic heading towards Tuen Mun. This section of the expressway was straight. At the time of the accident, the weather was fine, the road surface was dry and in good repair and the expressway was well illuminated. 41.I am prepared to place weight on the hearsay statement made by PC3175, Ng ChiShing, on 26 March 2012[77]. As a trained police officer, he would have been careful to make a note of the approximate distances separating the plaintiff and the various vehicles on the road before he helped to move the motorcycle from the 1st lane to the adjacent layby. I am prepared to place weight on and to rely on the sketch that he had drawn of the scene shortly after the accident and before any vehicles were moved in order to relieve traffic congestion on the 1st and 3rd lanes[78]. 42.I accept the evidence of Chau in its entirety. I would praise him for his sense of public spirit. Instead of minding their own business, persons who witness traffic accidents ought to come forward and make a statement of what they have seen, just like Chau did in this case. The time and trouble he has taken to give evidence, which has been of great assistance to the proper administration of justice, is very much appreciated. He was an honest and credible witness and I was impressed by the testimony he gave, particularly by his evidence that he had looked at his own vehicle’s speedometer to ensure that he was not moving too slowly as he saw the vehicle travelling behind him get closer to him. I find that, sometime before the accident occurred, Chau was driving on the 3rd lane when the 2nd defendant’s vehicle drove up very close to his vehicle at high speed on the 3rd lane. Chau drove onto the 2nd lane so as to let the 2nd defendant’s vehicle drive past him. Chau continued to travel along the 2nd lane for about 1 to 2 minutes and came to the location of the accident where he saw that the rear brake lamps of the 1st defendant’s vehicle, about 40 to 50 metres ahead of him on the 2nd lane, were lit and that white smoke was being emitted from that vehicle. Although he saw white smoke emitted from the 1st defendant’s vehicle some 40 to 50 metres away, that white smoke did not obstruct his view of the road beyond the white smoke. Chau stopped and put on his vehicle’s hazard lights. When it was safe to proceed he slowly drove onto the 3rd lane. He saw the plaintiff lying on his right side on the road in front of the 1st defendant’s vehicle. He also saw, on the right side, the 2nd defendant’s vehicle stopped on the right shoulder at an angle. 43.The plaintiff gave credible and truthful evidence. I find that his last memory, prior to regaining consciousness after the accident, was that he was riding his motorcycle on the 2nd lane at around 60 to 70 kph. He was riding downslope and he saw vehicles lining up ahead whereupon he slowed down. He could not remember how the accident happened afterwards. Although the plaintiff’s statement of claim is supported by a statement of truth signed by the plaintiff[79], I do not place any weight on the averments contained in the plaintiff’s statement of claim that have set out in §8 above, as he had no knowledge of these matters. 44.1st defendant was a most unimpressive witness. However, he consistently maintained that the headlamps of his vehicle were functioning properly in dipped mode and were lit at the time of the accident. The controversy about whether or not his headlamps were functioning properly in dipped mode fell away when Yeung, the motor vehicle examiner, confirmed on 16 May 2019 that they were functioning normally in dipped mode and that only the high beam was not functioning. I find that the headlamps of the 1st defendant’s vehicle were lit and functioning properly in dipped mode at the time of the accident. Even so, I note that the 1st defendant was convicted on his plea of guilty of 4 offences in respect of the defects found on his motor vehicle. I disbelieve his evidence that he was unaware of these defects before the accident occurred. 45.I find that the 1st defendant was driving, at the material time of the accident, under the influence of drink. He had been drinking with his friends in Tsuen Wan before driving home in his vehicle that night. He was breathalysed at the scene of the accident about 30 minutes after the collision. The reading was 28, which exceeded the permitted limit of 22. The amount of alcohol in his body at the time of the accident would have been higher than 28. His ability to react appropriately when driving would have been affected by the amount of alcohol in his body at the time of the accident. 46.I accept the evidence of Chau and find that the 2nd defendant drove in excess of 80 kph on the fast lane, 1 to 2 minutes before the time of the accident. I find that the 2nd defendant continued to drive in excess of 80 kph on the 3rd lane after Chau moved to the 2nd lane to let him pass. The 1st defendant admitted that he had been driving on the 3rd lane and that he had overtaken a vehicle, very shortly before the accident, by leaving the 3rd lane, moving into the 2nd lane, and then returning to the 3rd lane. I find that the vehicle that the 1st defendant had overtaken was the 2nd defendant’s vehicle and that, at the time of the overtaking manoeuvre, the 1st defendant was driving in excess of 80 kph and that he continued to drive in excess of 80 kph when he returned to the 3rd lane. 47.I have carefully considered the submissions of counsel for the plaintiff that the collision between the 1st defendant’s vehicle and the plaintiff’s motorcycle occurred on the 2nd lane and not the 3rd lane. I am unable to accept those submissions. Although the 1st defendant’s evidence was unreliable in so many respects, as was brought out in the course of his cross-examination which I have referred to above, I find that he was truthful when he consistently maintained that the plaintiff was riding his motorcycle on the 2nd lane at about 50 kph and that the plaintiff cut into the 3rd lane in front of his vehicle. However, I disbelieve the evidence that the 1st defendant gave regarding the distance separating the motorcycle and his vehicle at the time he first saw the motorcycle in the 2nd lane, and when it cut in front of him in the 3rd lane. The downslope stretch of road in question was straight and well illuminated. The 1st defendant had a clear view of the road ahead of him. I find that the 1st defendant failed to keep a proper lookout and that, when he belatedly became aware that the plaintiff’s motorcycle had crossed onto the 3rd lane, his reaction was impaired because he was under the influence of alcohol. Although he braked, he did not swerve to avoid the motorcycle. 48.I find that the 1st defendant gave truthful evidence in the magistrates’ court, as set out below, when he confessed that he had reacted a bit slowly:
I find that when the 1st defendant realised that the motorcycle had crossed into the 3rd lane, he did not brake hard enough to lock his wheels. I find that, after the collision with the motorcycle on the 3rd lane, the plaintiff fell off his motorcycle and fell on the 3rd lane, while the motorcycle toppled over on its offside and skidded towards the 2nd lane. I find that the 1st defendant cut into the 2nd lane in order to avoid colliding with the motorcyclist. He also braked hard to avoid colliding with the motorcycle on the 2nd lane. At this time, the front wheels of his vehicle locked momentarily and emitted white smoke. However, no skid marks were left on the road. I find that the white smoke that was emitted on the 2nd lane would not obstruct the view of the road ahead on the 3rd lane. I find that smoke was not emitted from the engine compartment of the 1st defendant’s vehicle. The motor vehicle examiner had conducted a road test of the vehicle and did not report any defect in the engine[80]. 49.I find that the motorcycle continued to slide along, on its offside, on the road surface and came to a halt on the 1st lane. I accept the 1st defendant’s evidence that, when his vehicle had come to a halt in the 2nd lane, he heard a “pak” sound and that it was the sound of a vehicle hitting something. 50.The 1st defendant’s vehicle’s front bumpers were scratched and front registrationplate was bent as a result of the collision. The motorcycle sustained damage to its rear wheel mudguard and registration mark plate. The other damage to the motorcycle was sustained after it toppled over after the collision. I infer, from the fact that the collision with the motorcycle was relatively minor, that, if the 1st defendant had not been under the influence of alcohol, had been driving within the speed limit, had kept a proper lookout, and had taken appropriate avoiding action, the collision could have been prevented. 51.I find the 1st defendant liable in negligence to the plaintiff for the injury loss and damage that he has suffered as a result of the accident. 52.I also find the 2nd defendant liable in negligence to the plaintiff for the injury loss and damage that he has suffered as a result of the accident. 53.The 2nd defendant has elected not to give evidence. I have already found that the 2nd defendant continued to drive in excess of 80 kph on the 3rd lane after Chau moved to the 2nd lane to let him pass and that, thereafter, he was overtaken by the 1st defendant’s vehicle, very shortly before the accident, which overtook his vehicle on the 2nd lane, and then returned to the 3rd lane. I find that, after he was overtaken, the 2nd defendant continued to drive in excess of 80 kph on the 3rd lane behind the 1st defendant’s vehicle. 54.I rely on the admissions made by the 2nd defendant in his 1st statement to the police that the left corner of his vehicle was damaged and as set out below:
55.Although the 2nd defendant slowed down, he continued to drive forward on the 3rd lane notwithstanding the evasive action taken by, and the abrupt braking of, the 1st defendant’s vehicle. I find that the left front part of the 2nd defendant’s vehicle struck the plaintiff who was lying on the 3rd lane and who was propelled onto the 2nd lane after he was struck by the 2nd defendant’s vehicle. The 2nd defendant admitted that the 3rd lane that he was driving on was “clear without anything”. I have already found that the smoke emitted from the front of the 1st defendant’s vehicle did not obstruct the view of the 3rd lane for vehicles on that lane. If he had kept a proper lookout, he would have seen the plaintiff lying on the 3rd lane and he could have taken appropriate evasive action to avoid striking him. I find the 2nd defendant liable in negligence for failing to do so. 56.I find that the plaintiff, on seeing that the traffic ahead of him on the 2nd lane was slowing down, crossed into the third lane without keeping a proper lookout for oncoming traffic and without having due regard for oncoming traffic. A quick glance to his right would have enabled to notice the fast approach of the 1st defendant’s vehicle, whose headlights were on. Had he done so, he would not have cut into the 3rd lane. I find that the plaintiff’s negligence contributed to the accident. However, the majority of the responsibility for the collision lies with the 1st defendant. In my view, the division of responsibility is 75% on the part of the 1st defendant and 25% on the part of the plaintiff. 57.Although this was not raised on the pleadings or in submissions, I find that the subsequent negligence of the 2nd defendant was not a novus actus interveniens that broke the chain of causation of the plaintiff’s initial negligence. Accordingly, the liability of both the 1st and the 2nd defendants to pay damages to the plaintiff ought to be reduced by the percentage of the plaintiff’s contributory negligence. 58.The defendants have not asserted that this is a case of successive collisions causing different damage[81]. They have proceeded on the basis that the successive collisions have caused the same damage to the plaintiff and each defendant has sought, from the other defendant, indemnity and/or contribution as may be just and equitable having regard to the extent of the other defendant’s responsibility for the damage in question. They have done so, pursuant to sections 3(1) and 4(1) of the Civil Liability (Contribution) Ordinance, Cap.377, on the basis that the other defendant is liable in respect of the same damage[82]. These contribution proceedings between the 1st and the 2nd defendants have been compromised. I was informed that there was no need for the court to make any determination in relation to them. Accordingly, I refrain from apportioning liability as between the 1st and 2nd defendants. I shall enter judgment in favour of the plaintiff against the 1st and 2nd defendants in the amount of 75% of the damages suffered by the plaintiff, which I now proceed to assess. 59.The plaintiff was born on 25 December 1982. He was almost 29 years old on the day of the accident on 9 December 2011. He is now 37 years of age. The plaintiff was a born and determined athlete: his road to international championship in rock climbing began in 2000, in a tournament in Beijing, when he was 18. In the years that followed, he rose to become one of the top professional rock climbers in the world, winning numerous prizes and athletic recognitions. In 2006, he began his rock climbing coaching career: he taught in the higher educational institutes, in various government departments, he also taught on a private basis. His rock climbing career not only brought him success and satisfaction as a Hong Kong elite athlete but also financial income. Not only was he a world-class athlete in rock climbing, he also enjoyed scuba diving, snorkelling, fishing and camping. 60.The plaintiff married in 2009. Their son was born on 4 March 2012, 3 months after the accident. He and his wife used to be sports and outdoor enthusiasts. Their marriage plan was to have 2 children. As a direct consequence of the accident, not only was his athletic career abruptly ended, his marital life was also adversely affected. 61.I heard evidence relating to the quantum of his claims from the plaintiff[83], his wife, Li[84], Cheung[85], and Dr Koljonen[86]. 62.At the beginning of the trial, the expert evidence was limited to three fields: orthopaedic, urology and occupational therapy. The 2nd defendant has not instructed any expert to report on this case and has relied on the expert evidence adduced by the 1st defendant. The 2nd defendant has also adopted the 1st defendant’s submissions on quantum, and has added some further submissions on the claims for PSLA and loss of earnings, which I have noted. 63.The orthopaedic experts are Dr Wong Kwok Shing, Patrick, instructed by the plaintiff, and Dr Tsoi Chi Wah, Danny, instructed by the 1st defendant. Their joint orthopaedic report is dated 15 April 2016[87]. 64.The urological experts are Dr George Koo, instructed by the plaintiff, and Dr Richard Lo, instructed by the 1st defendant. They have prepared two joint urological expert reports and one joint letter, dated respectively 8 June 2016[88], 2 February 2017[89] and 10 July 2017[90]. 65.The occupational therapists are Dr Chow Chi Ping, Alex, instructed by the plaintiff, and Mrs Shelley M Chow, instructed by the 1st defendant. Their joint occupational therapy report is dated 16 August 2016[91]. 66.Orders were made for the joint reports of the above experts to be adduced in evidence without calling the makers. 67.In a joint letter from the orthopaedic experts dated 17 December 2018[92], they stated that they did not have the expertise to give an opinion on the impact of the plaintiff’s episode of suffering from deep vein thrombosis (“DVT”) on his life expectancy and they recommended that an opinion be sought on this from experts in internal medicine or cardiology. In accordance with their recommendation, an expert report was obtained from a cardiologist, Dr David Hu, dated 10 January 2019[93]. His opinion was that the one-off event of DVT experienced by the plaintiff would not shorten his life expectancy. 68.Subsequently, a single joint expert report on the provision of an exoskeleton for the plaintiff, dated 29 August 2019, was obtained from a UK-based physiotherapist, Mr Jonathan Graham[94]. 69.The plaintiff suffered a fracture of spine and multiple other injuries as a result of the accident. His injuries are catalogued in the joint orthopaedic report and included:
The joint experts agreed that these injuries were consistent with the mechanism of the accident described to them in the joint instruction letter and that there was no pre-existing lesion over the injured body parts[95]. 70.Treatments received and procedures performed included posterior spinal fusion with instrumentation, thoracolumbar, suture of right knee wound and chest drain insertion. Operation was performed for fixation of spine on 10 December 2011. The spine was stabilised but he remained paraplegic. Chest drain was removed on 14 December 2011. He was incontinent of faeces and urine. An indwelling Foley catheter was removed after one month and he was taught to self-catheterise. He used suppositories for bowel opening. He was discharged on 15 March 2012. Surgery was scheduled in July 2013 for removal of the fixation implant of the spine. He felt persistent pain and impingement around the implant. He was admitted from 23 to 30 July 2013 and surgery was performed on 26 July 2013 to remove the screw implants. The surgery wound healed well and there was no more impingement felt over the back[96]. 71.Video urodynamic study was done on 30 April 2012 and revealed urinary bladder detrusor overactivity. He had repeated febrile urinary tract infection needing accident and emergency attendance on 7 and 29 May 2015. 4.6 cm bladder stone was found. Cystolithotripsy was performed on 29 September 2015 under general anaesthesia. The procedure was uneventful and the stone was completely cleared[97]. 72.Muscle power of bilateral upper limbs was grade 5/5. Muscle power of bilateral lower limbs was grade 0/5. He got up from bed independently. He transferred himself from bed to wheelchair independently. He sat on his own without support. He manipulated the wheelchair on level ground independently. He could not stand or walk. He was fitted with bilateral ankle-foot orthosis and bilateral extension splints[98]. 73.The orthopaedic experts were of the opinion that the treatments received by the plaintiff were standard, adequate and appropriate[99]. 74.In their assessment of his condition in April 2016, the joint orthopaedic experts found him to be totally paraplegic with total loss of sensation from pelvis downwards. He used arm wheelchairs for ambulation, both manual and electric. He can manually control his wheelchair satisfactorily. He could transfer himself from the wheelchair to the examination couch. He carried self-catheterisation for urinary bladder management. He used suppositories for bowel regulation on alternate days. Sometimes, he had urinary leakage resulting in skin excoriation but no pressure sores recently. He had intermittent lower back pain and pelvis pain. The surgical wound over his back had healed up satisfactorily with good spine alignment. The lower paraspinal muscles were wasted, with flaccid muscle tone. Therefore, he had difficulty sitting stably without back support. Movement of the lower limb joints were preserved with only mild knee flexion contracture. There was no active movement and all reflexes were absent. The right scapula fracture had healed up in a satisfactory alignment. The thoracolumbar spine alignment was maintained after removal of the metal implants. There was residual mild anterior wedging deformity of the T12 vertebrae. He could manage self-care with household modification but he required others to help in many of the household chores. He has been impotent since the accident and he has been unable to resume playing sports or pursuing his hobbies[100]. 75.The orthopaedic experts agreed that the clinical and radiological findings were compatible with post-spinal injury with paraplegia status, without significant complication. The plaintiff will remain totally paraplegic for the rest of his life with permanent urinary and bowel incontinence and impotence. He will also have residual back pain from time to time requiring simple analgesics on a need-to basis. The prognosis for the other injuries was good. As a complete paraplegic he might develop chest, renal and skin complications that impact on his lifespan. The orthopaedic experts concluded, after referring to literature on the subject, that the plaintiff’s projected survival from April 2016 was 38.85 years as opposed to 48 years for the normal population. They assessed his permanent impairment of the whole person at 69%[101]. 76.They agreed that he was not capable of resuming rock-climbing as an athlete. Dr Wong was of the opinion that it would not be optimal or preferable for him to continue his rock-climbing coaching work. It would be more practical and manageable for him to take up clerical work. Dr Tsoi was of the opinion that whilst he was able to take up all kinds of sedentary work, he could give verbal instructions in rock-climbing coaching[102]. 77.According to the joint urological report, the plaintiff’s urologic disabilities caused by the accident included:
Both were permanent and irreversible[103]. 78.An indwelling Foley catheter was removed after one month and he was taught to self-catheterise. In April 2012, he was evaluated with video urodynamic studies and was found to have an overactive bladder, but also with impaired voiding. He was told to continue intermittent self-catheterisation and to take anti-muscarinics to reduce uncontrolled bladder contractions. He discontinued these medications because of undesired side effects. At night, he used diapers because of incontinence and, during the day, he used diapers to prevent soiling his trousers when incontinent. He had 5 urinary tract infections since the injury, each episode was associated with hematuria and treated successfully with oral antibiotics without the need for hospitalisation. There were no febrile urinary tract infections. He was unable to have natural erections after the injury. The treatment he received was appropriate[104]. 79.I will refer to the joint report of the occupational therapists when I deal with the disputed items of claim below. 80.In the second half of 2017, the plaintiff underwent surgery to both knees and his pelvis to release strain on the tissues to enable him to straighten his legs. Infections occurring after the surgery required excisional debridement operations on the left lateral knee sore on 23 October 2017 and 10 November 2017 to treat the sore[105]. He also started to suffer from pressure sores and ulceration on the left buttock since late 2017 leading to 8 procedures to address the pressure sore problem in 2018[106]. He also suffered from vascular blockage in his left leg which was diagnosed as DVT in June 2018. He was treated with anti-coagulants which was stopped by September 2018 as he no longer had swelling in his left leg[107]. 81.Despite such serious injuries, the plaintiff’s spirit remained indomitable. There was substantial press coverage of the plaintiff pulling himself up in his wheelchair, with the assistance of a hoisting device, and reaching the peak of Lion Rock on 9 December 2016, which was the fifth anniversary of his traffic accident. His feat was witnessed by some 40 friends, students and rock climbing coaches. His determination in achieving this feat, despite his paralysed condition, was described in the press coverage as “the spirit of Lion Rock”[108]. This feat was the inspiration behind a film that was made about the plaintiff called “Lion Rock”, which was recently released in Hong Kong[109]. As a world-class athlete, the plaintiff was and remains possessed of immense determination to overcome obstacles. Damages for Pain, Suffering and Loss of Amenities (“PSLA”) 82.I have considered the authorities on PSLA that I have been referred to by counsel. In my view, the closest comparable to the present case is Chan Yuet Lui Rebecca v The Ritz-Carlton Limited & Others HCPI 658/2000, 7 January 2002. In that case, the plaintiff, age 28 at the time of the accident, suffered head injury and was rendered paraplegic having also suffered a fracture dislocation of T8/9. She had to be confined to a wheelchair for the rest of her life. She lost, amongst others, all her social life and sporting activities, employment, marriage plan and child bearing opportunities. She was doubly incontinent and she required catheterisation. She also suffered sexual dysfunction. She had an adjustment disorder with mixed anxiety, depressive mood, and post-concussional disorder. The court considered the multiple injuries the plaintiff had suffered, the psychiatric issues, the lost marriage and prospects of a family, the risk of future neurological and urological complications, and her young age, and awarded damages for PSLA in the sum of $1.7 million. 83.In Ng Tat Kuen v. Tam Che Fu & Ors, HCPI 896/2013, 3 May 2019[110], I adjusted the award in Chan Yuet Lui Rebecca v The Ritz-Carlton Limited & Others for inflation, since that the date of that decision up to July 2017[111], and arrived at the amount of $2,250,000:
However, I consider the award in Chan Yuet Lui Rebecca v The Ritz-Carlton Limited & Others to be exceptionally high when compared with other awards at that time in cases in which the injuries were far more serious, and included quadrilplegia, as can be seen from the following table:
84.In my view, the proper award to make for PSLA in Chan Yuet Lui Rebecca v The Ritz-Carlton Limited & Others,based on the level of awards as at July 2017, is $2,000,000. 85.The plaintiff in the present case does not suffer from any psychiatric condition. I accept the plaintiff’s evidence that, but for the accident, he and his wife would have tried to have a larger family and that, because of the accident, he has been denied the joy of having a larger family[112]. The plaintiff has suffered a greater loss of amenity than that suffered by the plaintiff in Chan Yuet Lui Rebecca v The Ritz-Carlton Limited & Others: the plaintiff in this case was a world champion rock climber who can no longer pursue and enjoy his sport. I would be inclined to award damages for PSLA in the present case in the amount of $2,000,000. My actual award is dependent on whether or not I award damages for the cost of an exoskeleton and, in the event I did such make an award, whether or not I accept the submissions of counsel for the 2nd defendant that I ought to reduce the award of PSLA as the provision of an exoskeleton would restore, to some extent, the plaintiff’s mobility. Agreed Pre-trial Period and Multipliers 86.The parties have agreed to take the pre-trial period as a period of 85 months from the date of the accident on 9 December 2011 to the date of the commencement of trial on 10 January 2019, even though the trial was only concluded in September 2019 and closing submissions exchanged in October 2019. The delay in completing the trial was caused by the long period of time it took the parties to obtain expert evidence on the use and cost of an exoskeleton device[113]. I am prepared to award special damages, including pre-trial loss of earnings, pre-trial value of services and other pre-trial losses and expenses, on this basis even though the actual pre-trial period from the date of accident to the date of judgment is a period of 100 months. The shortfall in the award of special damages for the lesser period of 85 months is offset somewhat by the larger multipliers adopted for future loss which were agreed based on the plaintiff’s age of 36 in January 2019 rather than based on his actual age of 37 today. 87.The parties have agreed the multipliers for future loss of earnings to age of retirement and future whole life expenditure, and the method of assessing the future cost of replacements as follows:
88.I assess damages as per the following table which show the claims agreed by the parties[117]:
The amount of agreed damages is$5,255,042, plus interest. The schedule with the agreed amount of damages contained a typing error in item 56 above which produced a calculation error resulting in an erroneous lesser amount of agreed damages in the sum of $5,236,149. Claims which are almost agreed 89.The following table sets out claims in respect of which the parties are close to agreement. Having considered the evidence in support of these claims, I assess these items of claim in the amounts as shown on the 4th column of this table:
I assess these claims in the sum of $687,200 plus interest. 90.I have already dealt with claim for damages for PSLA. The other disputed items are the claims for:
91.This is a novel claim. Although such a claim was the subject of an award in a European jurisdiction, counsel have not been able to locate any award for such a device as in a common law jurisdiction. However, a settlement reached between the parties in the UK did include provision of an exoskeleton. According to Dr Koljonen, a powered robotic exoskeleton is a device comprising an external, powered, motorised orthosis that is placed over a person’s paralysed or weakened limbs for the purpose of facilitating standing, walking, climbing stairs, and performing activities of daily life[119]. The single joint expert, Mr Graham, defined an exoskeleton as an active mechanical device that is essentially anthropomorphic in nature, worn by an operator and fits closely to his or her body, and works in concert with the operator’s movements. An external power source assists the wearer to perform movements with weak or paralysed limbs to facilitate upper limb function or mobility[120]. 92.It is the plaintiff’s evidence, which I accept as truthful, that he tested the use of exoskeletons as a part-time staff of the pilot program of the University of Hong Kong. He expressed a wish to be provided with an exoskeleton so that he could stand up and walk again, and do more useful things himself, including simple housework and cooking, and so that daily life would be more convenient for him[121]. The use of an exoskeleton would reduce the risk of getting pressure sores; it would make his waist feel more comfortable and it could also train the muscles of his lower limbs. He used the exoskeleton at the MacLehose Medical Rehabilitation Centre (“MMRC”) once or twice a week. He would use it for more than one hour each time. He could walk the distance of five laps of the perimeter of a basketball court. He could walk on uneven ground. He was able to go outdoors to walk along the coastal area, and he was able to cross the road. When he was using the exoskeleton, he was very happy that he could be a normal person again. He could walk normally again and look at things at the normal eye level. He could talk to people normally and with confidence[122]. 93.As leave was granted to call Dr Koljonen only as a witness of fact, I place no weight on the opinions that he expressed in his evidence[123]. I accept Dr Koljonen’s factual evidence in its entirety. He is the associate consultant in the Department of Orthopaedics and Traumatology of Queen Mary Hospital and the doctor in charge of the pilot program for spinal cord injury rehabilitation at the Department of Orthopaedics and Traumatology at the University of Hong Kong. The latter department launched a pilot program in 2017 to examine the optimal treatment strategies for spinal cord rehabilitation, a major component of which involved the trial use of a powered robotic exoskeleton as a means of rehabilitation for spinal injured patients. Training sessions have been carried out at the MMRC at Sandy Bay, Pokfulam, under the supervision of certified physiotherapists. The purpose of the program was to examine the safety, efficacy, and applicability of this technology in the Hong Kong public hospital system. All training sessions were done using the Ekso GT exoskeleton. 94.The plaintiff had been hired as a part-time staff under the pilot program since May 2018. His chief duty was to coordinate the training programs for the pilot project, as well as participate in trials of the exoskeleton devices themselves, in order to provide the team with feedback on the optimal training regimens from a user’s perspective. His contract would have expired by November 2019. Due to the nature of the funding, there was no arrangement for a renewal of contract afterwards. Throughout his assessment he did not see any contraindication for the plaintiff to use an exoskeleton for exercise and locomotion on a regular basis. He had normal control of his upper limbs and he demonstrated proficiency in controlling the exoskeleton during his trial use of the device in an MMRC. 95.The expert report of Mr Graham, the single joint expert on exoskeletons, was adduced into evidence without the need to call him to give oral evidence[124]. He hails from England where he is a chartered and state registered physiotherapist with over 25 years of experience working with children, young adolescents and adults with complex neurological and orthopaedic impairments using manual therapy and rehabilitation technology including exoskeletons. Before preparing his report he had reviewed the documentation provided by the instructing solicitors, had visited the plaintiff at his home on 13 August 2019, met the plaintiff at Hong Kong Polytechnic University Department of Rehabilitation Sciences on 14 August 2019 where he was able to observe him mobilising with the Indego exoskeleton; and again at MMRC on 15 August 2019 where he observed him mobilising with the FREE Walk exoskeleton. He gave an exposition of the four exoskeleton devices commercially available in Hong Kong namely, REX, Ekso GT, Indego and FREE Walk. 96.In Mr Graham’s opinion, the health benefits of using an exoskeleton for a mobility impaired individual could include:
Exoskeletons were likely to also provide an improved sense of well-being for mobility impaired individuals. Restoring the capacity to walk had been identified as the highest priority objective for patients regardless of the lesion level, time since injury or age. Users often reported that they enjoy being at “eye-level” with others rather than at “waist level”. 97.He noted that the technology was continually advancing and that future models were likely to be faster, lighter, have longer battery life and be controlled via brain machine interface. They may be less expensive than current models. 98.He noted that the plaintiff had trialled three exoskeletons to date including Ekso GT (with 40 hours of training) and Indego (with 20 hours of training). He preferred Indego to Ekso GT as he could ambulate over-ground outside in the Indego and because it could be disassembled for transportation between his home and his intended destination. The plaintiff’s strongest motivation for using an exoskeleton for over-ground ambulation was because he could then feel like a normal person, standing and walking upright. He expressed a strong desire to ambulate outside with his family visiting parks and other places and he would also like to walk around his home. He had no problem with people looking at him in an exoskeleton. The ease of transportation and the ability to mobilise outside was the most important feature to him. If provided with one, he would use the device every day. 99.Mr Graham assessed the plaintiff’s ability to mobilise using the Indego and the FREE Walk. During the latter assessment, Dr Koljonen had informed him that the plaintiff had marked flexion contractions at both his knees which had limited his ability to engage in exoskeleton mobilisation. He underwent surgery 2 years ago which involved tendon releases for his hamstrings and release of his iliotibial band. The outcome was successful inthat the plaintiff had full passive range of knee extension. There was a resistance to stretch in the last few degrees of extension and the plaintiff required power-assisted knee extension in order to safely and effectively mobilise in an exoskeleton. The plaintiff explained to Mr Graham that he liked the FREE Walk for the feeling it gave of pushing him along when he was walking and that he felt more stable in the standing posture in the FREE Walk than in the Indego. However, he preferred the walking pattern of the Indego and the convenience offered by the ability of the Indigo to separate into pieces for transportation. 100.In Mr Graham’s opinion, both FREE Walk and Indego would provide very similar benefits to the plaintiff: both devices would enable the plaintiff to maintain his lower limb ranges of movement and avoid contractures; both devices would provide circulatory benefits and prevent the development of a second DVT; both devices offered advantages of reducing the risk of developing pressure sores from prolonged sitting; provide pain relieving benefits; both devices would delay the onset of pain over his thoracic spine, shoulders and joints of his upper limbs; both devices would assist in maintaining bone density, improved bladder function and improved sense of well-being. Finally, both devices were likely to offer employment benefits. 101.According to Mr Graham, the advantage of the Indego over the FREE Walk was that the modular design of the Indego would allow the plaintiff to independently transport the device from his home to his intended destination. It was also a far more practical device to transport by airplane than the FREE Walk. However, it was clear from the evidence that the FREE Walk was also portable, as confirmed by Dr Koljonen in the course of his cross-examination, and by the quotation for the FREE Walk which included a transportation case for the device. It was Dr Koljonen’s evidence that the transportation case was the size of a suitcase and could probably be checked in if it conformed with airline regulations[125]. It was also Mr Graham’s opinion that the FREE Walk provided more trunk support than the Indego, and was, therefore, more suitable than the Indego for individuals with high thoracic and cervical spine injuries[126]. 102.In Mr Graham’s opinion, the plaintiff had shown commitment to using the exoskeleton and, if provided with one, was likely to be a regular user of the device. He remained committed to his health and fitness and continued to engage in competitive sport. He was a highly functioning wheelchair user with a low paraplegia and no concurrent health issues. Current devices had a replacement cycle of 5 years. The plaintiff had a life expectancy of about 35 years. However, it was unlikely that he would use the device in the last 5 to 10 years of life. 103.I accept and rely on Mr Graham’s expert opinion to conclude that the plaintiff is a suitable candidate to be provided with an exoskeleton which will restore some measure of mobility to him as well as provide the many health benefits listed by Mr Graham. I find, if the plaintiff were provided with such a device, that he would use it very frequently for at least the next 25 years of his life. 104.The defendants contend that I should make a nil assessment under this head of claim as the technology was still under development, and because it was not reasonable to do so bearing in mind, amongst other factors, the disproportionate cost claimed for the exoskeleton device and the provision already made for a powered wheelchair with stand-up feature. 105.The purpose of providing aids and equipment is to place the plaintiff, as nearly as possible, in the same position he would have been if he had not been injured. The provision of an exoskeleton would enable him to regain a degree of mobility. I do not agree that the technology was still under development. Although the technology is continually advancing, the technology behind the exoskeleton has progressed well beyond the experimental stage and was sufficiently developed to enable 4 different devices to be commercially available in Hong Kong. 106.However, before the court makes provision for any such aid or equipment, it must assess whether or not the same is reasonably necessary for the purpose of rehabilitation or to restore function, and also whether or not the cost of the equipment is reasonable having regard to the current standard of living in Hong Kong. 107.In A v Powys Local Health Board [2007] EWHC 2966 Lloyd Jones J. stated:
In Swift v Carpenter [2018] EWHC 2060 Lambert J stated:
108.Although electric wheelchairs have been denied in the past as unwarrantable luxuries, today such awards are regularly made and rarely contested. Items such as expensive prosthetic limbs are also regularly awarded. 109.The plaintiff’s ability to make effective use of the equipment is a critical consideration. In Willett v North Bedfordshire Health Authority [1993] PIQR Q166, Hobhouse J, as he then was, declined to award damages for an electric chair to a severely disabled child stating[127]:
110.In my judgment, the provision of an exoskeleton is reasonably necessary to restore a degree of mobility to the plaintiff who, I find, will make full and effective use of the exoskeleton. An electric wheelchair with stand-up feature cannot restore mobility to the plaintiff. In my judgment, the cost of an exoskeleton, including its replacements, is reasonable having regard to the current standard of living in Hong Kong. The claim for an exoskeleton that is made in the present case does not fall within the category of an unwarrantable luxury. The plaintiff has demonstrated that he is well able to make effective use of it and that he intends to use it regularly. The cost of an exoskeleton, and its replacements, whilst high, is not within the category of being astronomical and, therefore, still outside our reach given the current standard of living in Hong Kong. 111.However, I agree with the defendants’ submission that the significantly higher cost of the Indego for a marginal improvement in portability is not justifiable. I find that it is reasonable for the plaintiff to be provided with the FREE Walk exoskeleton device together with four replacements, to cover his use of the same over the next 25 years. I assess this head of claim in the total amount of $4,008,493, calculated as follows[128]:
112.I agree with the 2nd defendant’s submissions that that I ought to reduce the award of PSLA as the provision of an exoskeleton would restore, to some extent, the plaintiff’s mobility. As I have provided for the costs of an exoskeleton device, I reduce my assessment of damages for PSLA from the sum of $2,000,000 to the sum of $1,800,000. 113.The plaintiff claims pre-trial loss of earnings in the amount of $3,097,480[129] assessed as follows in item 28 of the plaintiff’s Scott schedule:
114.The parties have agreed his pre-accident income from Sport Aid Grant under the Sports Scholarship programme of the Hong Kong Sports Institute in the monthly amount of $7,000, and prize money from rock climbing competitions in the monthly amount of $1,000. The plaintiff’s case is that he earned $15,000 per month as a rock climbing instructor. The defendants only accept that he earned $3,551 per month as a rock climbing instructor. The plaintiff’s case is that he earned $9,347 per month as a construction site worker. The defendants dispute this; alternatively, they assert that the amount could not have been more than a few thousand dollars per month. The plaintiff’s case is that his average monthly pre-accident income was $32,500. The defendants’ case is that his average monthly pre-accident income was $11,551 (or a few thousand dollars per month more). 115.From these amounts, the notional income at date of trial has been increased to $40,382 (plaintiff’s case) and $15,146 (or a few thousand dollars per month more) (defendants’ case). The parties have increased the plaintiff’s average monthly pre-accident income on account of inflation by taking the inflation rates of the Composite Consumer Price Index from the Annual Report on the Consumer Price Index 2017 for the years in question[132]. The median notional income was $36,441 (plaintiff’s case) and $13,349 (or a few thousand dollars per month more) (defendants’ case). 116.There is a small difference of about $21,000 in the parties’ respective cases regarding the plaintiff’s post-accident income. The plaintiff’s total for this is $796,964; the defendants assert that it was $817,864. The difference is explained by the fact that the plaintiff included only 4 months of earnings of $10,450 per month (for the period from July 2018 to October 2018[133]) from his part-time job of Assistant Technical Manager in the University of Hong Kong / Queen Mary Hospital exoskeleton programme, whilst the defendants have included a full 6 months of earnings from this source up to the end of December 2018, which was the end of the agreed pre-trial period of 85 months from the date of the accident[134]. I find that the plaintiff’s post-accident income up to December 2018 was $817,864. Indeed, the plaintiff continued to work in this position up to 13 November 2019[135]. 117.According to the employer’s tax returns for the plaintiff of Elite Gaining Limited, the plaintiff earned $28,410 in the tax year 2011 to 2012[136]. It is the defendant’s case that since the plaintiff worked as a rock climbing instructor for eight months in the tax year 2011 to 2012 from April to 8 December 2011, his average monthly earnings from this source were $3,551 (28,410/8 months). Under cross-examination, the plaintiff accepted that, apart from the tax return of Elite Gaining Limited, he had no other document to support his estimate that he earned $15,000 a month on average as a rock climbing instructor[137]. His attention was not drawn, either in cross-examination or in re-examination, to certain payment advices issued by City University of Hong Kong to the plaintiff covering the period from November 2009 to March 2010[138] that showed average earnings of $16,240[139] per month during this five-month period. As can be seen from the index to bundles G1-G5, these documents were listed under the documents relating to “Climbing Coach or Instructor”. These documents demonstrate the sporadic and highly variable nature of the plaintiff’s income as a rock climbing instructor. I am unable to accept the plaintiff’s estimate of income as accurate. Doing the best I can on the sparse evidence available, I find that the plaintiff earned no more than $10,000 a month on average as a rock climbing instructor. 118.According to the employer’s tax returns for the plaintiff of Rigging Access Services Limited, the plaintiff earned $74,775 as a construction worker in the tax year 2011 to 2012[140], an average of $9,347 a month. It was the plaintiff’s evidence that he carried some work at height occasionally and that, from April 2011 to November 2011, he worked at height at the airport and earned the amount set out in the employer’s return [141]. Cheung, the director and shareholder of Rigging Access Services Limited gave evidence. He came to know the plaintiff through rock climbing sports. His company began to hire the plaintiff since about 2010, working only 1 or 2 days[142]. The work the plaintiff did for him from April to November 2011 was at the AsiaWorld-Expo at the airport. He earned $74,775 in total. He was paid at the rate of $550 per day[143]. The plaintiff was a top rock climbing athlete but he also wanted to make more money to give his family a better life. If he had not met with his traffic accident, his company would have continued to hire the plaintiff. Under cross examination, he explained that the plaintiff was paid $550 a day as he was helping around most of the time on ground level and that he would have been paid $1,000 per day then if he had to work at height[144]. Cheung was a truthful witness and I accept his evidence. However, the plaintiff had only worked for this company for a short period of time. The company provided a specialist type of service called rope access which enabled workers to work at height and their work was project based[145]. The plaintiff was a professional athlete receiving a Sport Aid Grant. He was also a part-time rock climbing instructor. More importantly, the plaintiff was to become a father within three months of the accident. He accepted, under cross-examination, that he would have taken up a substantial role in providing child care after his wife, who was earning a substantial income[146], returned to work after the completion of her maternity leave[147]. Given this evidence, I have great difficulty finding that the plaintiff would have continued to earn about $9,347 a month as a construction worker if this accident had not occurred. It is improbable that he would have done such work before his child grew older and started kindergarten. From April to November 2011, the plaintiff earned $74,775 working for Rigging Access Services Limited. I find that it is likely that he would have earned a total of about $85,000 performing similar work sporadically during the latter part of the pre-trial period of 85 months after his child became older. I assess an average of $1,000 per month as his income from construction work during the pre-trial period. 119.I find that the plaintiff’s pre-accident income was $19,050 per month ($7,000 (Sport Aid Grant) + $1,000 (prizes from rock climbing competitions) + $10,000 (from being a rock climbing instructor) + $1,000 (as a construction site worker) + $50 (MPF benefit being 5% of $1,000). His notional income at the date of trial in January 2019 was $23,672 ($19,050 x 1.041 x 1.043 x 1.044 x 1.030 x 1.024 x 1.015 x 1.024[148]). His median notional income during the pre-trial period was $21,361 ($19,050 + $23,672/2). 120.The defendants assert that the the award of loss of earnings ought to be an award net of tax and that the basic rate of salaries tax of 15% ought to be applied for this purpose, in the absence of any calculation or proper evidence of what this would have been, taking due account of the earnings of the plaintiff’s wife (of about $34,000 per month in 2016) and assuming joint assessment and allowances for dependants to support a lower %. I agree that the award of loss of earnings ought to be an award net of tax but I do not agree that I should proceed on the assumption that the plaintiff is unable to enjoy any benefits from electing personal assessment. All the material facts were available to the defendants to make proper calculations of what the tax ought to have been on the pre-trial notional income of the plaintiff. They seek a reduction of the award on account of tax but they have not provided me with any proper calculations. The plaintiff’s median notional income of $21,361 per month would produce an annual income of $256,332 ($21,361 x 12). In the year of assessment 2015 to 2016, which is roughly at the midpoint of the pre-trial period, the married person’s allowance was $240,000 and the child allowance was $100,000. The total allowance was greater than the plaintiff’s annual income. Even if husband and wife had elected for joint assessment, I find that the plaintiff’s liability to pay tax on his median notional pre-trial income of $21,361 per month would have been de minimus. 121.I award pre-trial loss of earnings for the agreed pre-trial period of 85 months from the date of the accident up to December 2018 in the amount of $997,821 ($21,361 x 85 months – $817,864 (post-accident income up to December 2018)). 122.The plaintiff claims loss of earnings from the commencement of trial to 13 November 2019 and future loss of earnings in the amount of $4,960,039 assessed as follows in items 32 and 33 of the plaintiff’s Scott schedule:
123.The parties have agreed the plaintiff’s notional future monthly income in the amount of $25,575. They have also agreed future loss of MPF benefits in the sum of $134,723. 124.The parties also agreed that the plaintiff would earn $10,450 per month from the date of trial in January 2019 to 13 November 2019 (a period of 10 months) from his part-time job of Assistant Technical Manager in the University of Hong Kong / Queen Mary Hospital exoskeleton programme. The dispute between the parties centres on:
125.Having found that the plaintiff was likely to earn about $10,000 per month during the pre-trial period as a rock climbing instructor, I have little hesitation in accepting the defendants’ assertions that he could earn at least $2,000 per month as such for the period of 10 months from the commencement of trial to 13 November 2019. However, I am unable to find, on the evidence I have received, that the plaintiff would have earned $655 per month during this period as a speaker giving talks. The evidence regarding his earnings as such was inconclusive[149]. Indeed, the plaintiff has not maintained any claim for pre-trial loss of earnings as a speaker. 126.Whilst I prefer the opinion of Dr Tsoi, that the plaintiff would be able to take up all kinds of sedentary jobs[150], the plaintiff’s lack of mobility would impact on his prospects of securing full-time employment on a long-term basis. It would be difficult for him to travel long distances to and from such work. The prospects of getting such work in Tuen Mun would be less than the prospects of securing such work in the commercial districts of Kowloon and Hong Kong Island. However, my assessment of damages to include the provision of the cost of an exoskeleton device is likely to offer employment benefits to the plaintiff, including more coaching bookings, which was the expert opinion of Mr Graham, which I accept[151]. I find that the plaintiff is likely to earn $10,000 per month performing sedentary work and providing coaching. 127.I assess loss of earnings from the commencement of trial on 10 January 2019 to 13 November 2019 in the total sum of $131,250 ($25,575 – $10,450 – $2,000 x 10 months). 128.I assess future loss of earnings, including future loss of MPF benefits, in the total sum of $3,774,912 ($25,575 – $10,000) x (12 months x 20.31 – 10 months) + $134,723. 129.For the reasons given in §120, I find that the plaintiff’s liability to pay tax on these earnings is de minimus. Cost of alternative accommodation 130.Under item 104 of the plaintiff’s Scott schedule, the plaintiff claims damages for the cost of alternative suitable accommodation on this basis:
The plaintiff currently resides in Tuen Mun in premises which are too small for his needs. There is no dispute that the plaintiff requires alternative accommodation that meet the space requirements determined by the occupational therapists, i.e. 543 sq. ft. or 50.5 sq. m. of usable space[152]. Two issues require determination under this head of claim. Firstly, whether the plaintiff’s family would have moved to larger accommodation in any event; and secondly, if not, should the net monthly additional rent be assessed on the basis of $14,500 as claimed by the plaintiff or $7,000 as pleaded in the defendants’ answer or some other amount between the two. 131.The defendants submit that the inherent probability is that the plaintiff and his wife would have moved to more spacious premises as their family grew. Even so, any extra space that was acquired would have been utilised for the needs of the growing number of children. There would have been no available space to accommodate the needs of a paralysed person. 132.It was submitted by counsel for the plaintiff that the plaintiff is wheelchair-bound. Even if he were provided with a suitable exoskeleton device, his mobility remained severely restricted. The most convenient and disabled-friendly public transport in Tuen Mun was the MTR West Rail Line. The neighbourhood in and near Tuen Mun West Rail station, i.e. the town centre, was where a suitable accommodation could be located. Apart from the usable interior area of the residence, a suitable location with convenient access to transport facilities was essential for a wheelchair-bound plaintiff, to better enable him to pursue normal daily activities such as commuting to work, attending medical follow-up, or for leisure activities. The plaintiff was not seeking a residence at a prime location: Tuen Mun was a suitable working class neighbourhood where social urban facilities were conveniently and adequately available in the town centre. 133.It was the plaintiff’s evidence that he preferred Century Gateway which was situated right next to Tuen Mun MTR West Rail station, with suitable facilities for the disabled passengers[153]. In the course of his cross-examination, it was suggested that The Sherwood[154], Hanford Garden[155], and Chelsea Heights[156], which came with cheaper rents, was suitable for him[157]. The plaintiff responded as follows:
134.I accept the plaintiff’s evidence and the submissions made on his behalf. I award damages for the cost of alternative suitable accommodation in the amount of $4,113,360 as claimed. Other disputed claims for lesser amounts 135.The other disputed items are:
136.The plaintiff does not need a relief helper when his live-in helper is on leave. I decline to make an award under this head of claim. 137.I have no hesitation in awarding $150,000 as damages for loss of congenial employment in this case. I awarded a similar amount in Yeung Lai Ping v Secretary for Justice HCPI 833/2002 [2019] 4 HKC 1, 1 April 2019, in which I stated:
The plaintiff was a champion rock climber who can no longer pursue his employment in this field. 138.For reasons peculiar to the facts of Ng Tat Kuen v. Tam Che Fu & Ors, HCPI 896/2013, 3 May 2019[158], I only awarded $15,000 under this head of claim. In this case, however, I have no hesitation in awarding $150,000 as damages for loss of society under section 20C(2)(a) of the Law Amendment and Reform (Consolidation) Ordinance, Cap 23. 139.I have already dealt with the claim for damages for loss of MPF as casual construction worker working at heights when I dealt with the plaintiff’s claim for loss of earnings above. 140.I assess $680,000 as the value of the services provided by the plaintiff’s wife. Before the accident occurred, the plaintiff’s wife used to work at a bank: her earnings in August 2016 were $34,000 per month[159]. I assess the value of her services at $8,000 per month which, multiplied by the agreed pre-trial period of 85 months, produces this award. I decline to assess the value of her services at $4,000 per month by reference to the wages of domestic helper. The value of the services of a devoted wife ought to be assessed by reference to our own earning capacity. 141.I assess the pre-trial loss of gratuitous services in the sum of $17,000 ($2,400 per year for 85 months: $2,400/12 x 85) 142.I assess the total sum of $997,000 as damages under these heads of claim. 143.A summary of my assessment of damages set out in the table below:
144.Taking into account the contributory negligence of the plaintiff, I award damages to the plaintiff against the 1st and 2nd defendants in the total sum of $16,323,809, and interest to be calculated, being 75% of my assessment of damages in the present case. I grant leave to the parties to apply by letter within 28 days from today to vary my assessment in the event that they detect any calculation errors in my assessment or any errors in recording the agreement reached between the parties. 145.I make a costs order nisi that the 1st and 2nd defendants pay the costs of the action to the plaintiff with certificate for two counsel and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations. I extend the time for parties to apply to vary my costs order nisi to 28 days from today. 146.I cannot conclude without expressing my gratitude to counsel for the assistance they have rendered to me.
Mr Neville Sarony QC SC, Mr Cheung Yiu Leung and Mr C C Ho, instructed by ONC Lawyers, assigned by Director of Legal Aid, for the plaintiff Mr Robin McLeish, instructed by Massie & Clement, for the 1st defendant Mr Ashok K Sakhrani, instructed by Anthony Siu & Co, for the 2nd defendant [1] He was born on 25 December 1982. [2] 1st defendant’s opening submissions at §7; 2nd defendant’s opening submissions at §12; [T/Day1/2J,23P]; letter from 2nd defendant’s solicitors dated 9 October 2019 [3] Ord 38, r.2A(6) of the Rules of the High Court. No hearsay notice has been served by any party in respect of the 2nd defendant’s witness statements as required by Ord 38, r.2A(9) before their contents can be adduced as hearsay evidence. [4] A - Bundle of pleadings and Orders; B - Bundle of Witness Statements; CD - Bundle of expert reports and medical reports; EF - Bundle of documents on liability and magistrate court transcripts; G1 - G5 – 5 Bundles of documents on quantum; I - Bundle of photographs. [5] [I/4855-4858] [6] §2 of the Statement of Claim (“SoC”) [A/2/2] [7] §3 of the SoC [A/2/2-3]. [8] §4 of D1’s Defence [A/4/29-30]. [9] [F/655] [10] The police photographs taken in the daytime after the occurrence of the accident shows this section of road very clearly [I/4864-4867]. [11] [I/4863] The Police took 17 photos of the scene of the accident on the night it occurred [I/4855-4863] and another 7 photos of the scene on 8 February 2012 in daylight [I/4864-4867]. [12] [I/4859-4860] [13] [E/617§4] [14] [E/545] [15] [E/624-625] [16] [E/622]. The translation of the sketch appears on [E/626]. [17] [E/589-573]. The sketch drawn on Chau's behalf is on [E/588] with translation at [E/593-1]. [18] i.e. Chau [19] [E/647] [20] [E/652-9] [21] Anti-lock braking system [22] These defects were also noted in the caution administered to the 1st defendant when his statement was taken by the police on 18 January 2012 [E/572]. [23] [E/652-9] [24] [E/562-568]. The sketch drawn on the 1st defendant's behalf is on E/561 with translation at 568. [25] [E/571-573] [26] [E/606-610]. The sketch drawn on the 1st defendant's behalf is on E/605 with translation at 611. [27] [E/649] [28] [F/799-801] [29] [E/535-541]. The sketch drawn on the 2nd defendant's behalf is on E/534 with translation at 542. [30] [E/575-583] [31] [B/201/§9] [32] [E/597-1-598] [33] [F/786] [34] He confirmed this by reference to the registration certificate of the motorcycle [E/652-1] [35] [T/Day2/84A-Q] [36] [B/287-296] [B/314-316] [T/Day 2/104A-Q] [37] [B/315/§4] [38] [T/Day2/105Q] [39] [T/Day2/107B-I] [40] [T/Day2/109C] [41] [T/Day2/112J] [42] [T/Day2/112L-N] [43] [T/Day2/113R] [44] [B/326-332] [T/Day3/132B] [45] In his evidence in chief, he confirmed that his driving experience was in a professional capacity mainly driving heavy goods vehicles [T/Day3/130D-L] [46] [T/Day3/131T] [47] Referred to in §11 above. [48] [T/Day3/132T] [49] [T/Day3/134D-J] [50] [T/Day3/135A-136F] [51] [T/Day3/136G, I-N] [52] [T/Day3/138L-Q] [53] [T/Day3/139L-Q] [54][T/Day3/140A-141P] [55] MVE Report on 1st defendant’s vehicle: see §15 above. [56] MVE Report on motorcycle: see §22 above. [57] [F/747] [58] [F/768] [59] [F/768-770] [60] [T/Day3/143P-145F] [F/768-770] [61] [T/Day3/143G-O] [62] [F/773] [63] [T/Day3/145P-146P] [64] [T/Day4/154B-D] [65] [E/604] with translation on [E/611] [66] [T/Day3/151K-M] [67] [T/Day4/155N, 156-A-E] [68] [T/Day4/157N] [69] [F/750-751] [70] [F/655] [71] [E/622,626] [72] [T/Day4/158K-Q] [73] [T/Day4/167N-U] [74] Referred to in §18 above. [75] [T/Day3/170L-171E] [76] [T/Day3/171J-M] [77] [E/624-625] [78] [E/622,626] [79] [A/8] [80] [E/652-9] [81] Clerk & Lindsell on Torts, 22nd Ed., §4-07; Performance Cars Ltd. v. Abraham [1962] 1 QB 33; Holtby v. Brigham & Cowan (Hull) Ltd. [2000] 3 All E.R. 421. Such cases are classified as several torts causing different damage. If two or more tortfeasors caused different damage to the same plaintiff, the causes of action against each tortfeasor are entirely distinct from one another and the claimant can recover from each tortfeasor only that part of its damage for which the particular tortfeasor is responsible. In the absence of evidence to apportion the damages, they will be apportioned equally between the tortfeasors: Bank View Mill v. Nelson Corp [1942] 2 All E.R, 477 at p. 483, reversed on other grounds [1943] 1 K.B. 337. [82] As was the case in Fitzgerald v. Lane [1989] A.C. 328. [83] [B/198-221] [B/257-275] [B/317-12-317-22] [T/Day1/33K-53P] [T/Day2/60J-103L] [84] [B/230-236] Her evidence was very short as she was not cross examined: [T/Day3/121H-U] [85] [B/304-307] [T/Day3/122F-128G] [86] [B/317-24 to 317-34][D/527-6][T/Day5/2O-14N] [87] [C/367-401] [88] [C/402-414] [89] [C/514-515] [90] [C/516] [91] [C/415-513] [92] [C/516-1-516-2]] [93] [C/516-3-516-17] [94] [C/516-18-516-64] [95] [C/377] [96] [C/371-372] [97] [C/372] [98] [C/373] [99] [C/377] [100] [C/378-379] [101] [C/379-382] [102] [C/382] [103] [C/409] [104] [C/406-7, 409] [105] [B/317-13-317-14 §§4-5] [D/527-3] [106] [B/317-14 §7] [D/527-5] [107] [B/317-15 §8] [108] [T/Day1/44I-45T] [109] I have not seen the film. My duty is to judge this case on the evidence, and only on the evidence, that has been adduced in court. [110] At p.45 [111] The time of my decision in David John Slater v Commissioner of Police HCPI 646 of 2012, 7 July 2017, when I had last adjusted the level of awards for PSLA on account of inflation. [112] [B/205] [113] The report of the single joint expert was only ready at the end of August 2019. [114] As reflected in the agreed amounts for the future cost of aids and other consumables set out on p.50 below. [115] Vol. 1, Chap.18, Kemp R. 145: October 2017 [116] [T/Day5/19K-21D] [117] The item numbers correspond to the original Scott schedule [118] The item numbers correspond to the original Scott schedule [119] [B/317-25] [120] [C/516-22] [121] [B/263, 317-16] [122] [T/Day1/37H-38A] [123] [B/317-24 - 317-34] [T/Day5/2O-14N] [124] [C/516-18-60] [125] [T/Day5/13P-14H] [126] [C/516-25§4.10] While the plaintiff’s injuries to the thoracic spine were at the T11/T12 level, he suffered a “fracture spinous process C7 vertebrae” in the accident: [C/377§49]. [127] At Q172 [128] See §87(4) above. [129] The correct amount to be claimed should be $2,300,516: see the next footnote. [130] There has been a calculation error: $36,440.94 x 85 months – $796,963.50 = $2,300,516.40. [131] There has been a calculation error: $13,349 x 85 months – $817,864 = $316,801. [132] [G5/1207-1208] Plaintiff’s pre-accident income in December 2011 x 1.041 x 1.043 x 1.044 x 1.030 x 1.024 x 1.015 = plaintiff’s notional income. [133] [A/68§40] [134] See §86 above. [135] [G5/1035-1037] [B/317-16§13] [B/317-29§17] [136] [G1/2-3] [137] [B/206§23] [T/Day2/89O-91B] [138] [G2/288-298] [139] $14,000 + $4,200 + $48,300 + $12,600 + $2,100 = $81,200/5 = $16,240. [140] [G4/923-924] [141] [B/206§24] [142] [T/Day3/128C] [143] Working about 17 days a month: $550 x 17 x 8 months = $74,800. [144] [B/3054-306] [T/Day3/125S-U] [145] [T/Day3/123Q, 128E] [146] In 2016, her earnings were about $34,000 per month from a position as a bank wealth manager: [C/420]. [147] [T/Day2/67K-68E] [148] Annual Report on the Consumer Price Index 2019, p.7: in 2018 the Composite Consumer Price Index rose by +2.4. [149] [B/209] [T/Day2/90B-G] [150] [C/382] [151] [C/516-56§11.21] [152] [C/456] [153] [B/21/264/§8(c)] [154] [G5/1013-1014] [155] [G5/1015-1018] [156] [G5/1020] [157] [T/Day2/79R-80N, 98U-100P] [158] At pp.46-48. [159] [B/232] [C/420§7.4] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCPI 1235/2014