Wong Kin Man v. Ma Tsz Wai
Read the full judgment text of HCPI 1339/2016 on BabelCite. This High Court CFI judgment was delivered on 17 June 2022.
1. The plaintiff (“ P ”) was formerly a banker, and the defendant (“ D ”) was a student. P was born on 9 June 1953, and was 52 years old at the time of the Accident referred to in paragraph 4 below.
Cited by 1 case · Cites 10 cases
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HCPI 1339/2016 [2022] HKCFI 1826 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 1339 OF 2016 ________________________ BETWEEN
________________________ Before: Hon Marlene Ng J in Court Dates of Hearing: 30-31 July 2020 Date of Handing Down Judgment: 17 June 2022 ________________________ J U D G M E N T ________________________ I. INTRODUCTION 1.The plaintiff (“P”) was formerly a banker, and the defendant (“D”) was a student. P was born on 9 June 1953, and was 52 years old at the time of the Accident referred to in paragraph 4 below. 2.At/about 3:48pm on 5 September 2015, both P and D were riding their bicycles along the cycling track (“Cycling Track”) adjacent and parallel to Ting Kok Road (“Road”), New Territories near lamppost AT0660 (“Lamppost”) (“Site”). For convenience, I shall refer to P’s bicycle as “P’s Bike” and D’s bicycle as “D’s Bike”. 3.There was little dispute as to the layout of the Cycling Track and the Site as evident from the photographs taken by and the sketch drawn by SPC49592 Lau Hau-ling (“SPC”) (“Photos” and “SPC’s Sketch”), and the sketches made by P (“P’s Sketch”) and by a cyclist Luk Tsing Yau (“Luk”):
4.P claimed that at about 3:48pm on 5 September 2015 P and D were respectively riding P’s Bike and D’s Bike on the Lane at the Site when (a) D overtook P on the offside and immediately swerved D’s Bike towards the nearside into the path of P’s Bike (“1st Blockage”), (b) P swerved P’s Bike to the Opposite Lane which had no other cyclists at that moment, (c) D followed P onto the Opposite Lane by swerving D’s Bike to the nearside front of P’s Bike, (d) shortly thereafter D suddenly swerved ahead towards the offside in close proximity to the front of P’s Bike (“2nd Blockage”), and (e) as a result the front of P’s Bike had a collision with the rear of D’s Bike, so P lost his balance and fell down (“Accident”).[1] P further claimed that as a result of the Accident, P’s Bike was damaged and he suffered personal injuries (including fracture of right humerus), loss and damages. 5.On 5 December 2016, P commenced the present action against D for personal injuries, loss and damages as a result of the Accident. According to the Statement of Claim filed on the same day (“SoC”), P claimed the Accident was solely caused by D’s negligence in that he failed to (a) keep a proper lookout, (b) keep a proper distance with the bicycle in front, (c) have any or any sufficient regard for traffic that was or might reasonably be expected, and (d) drive and control D’s Bike properly in such a way so as to avoid the Accident. Insofar as might be necessary, P would also rely on the doctrine of res ipsa loquitur to establish that the Accident was caused by D’s negligence. 6.On 23 January 2017, D filed his Defence (“Defence”) to deny liability. D claimed (i) P was all along cycling together with a male friend in his mid-forties (“P’s Friend”), and (ii) P and P’s Friend were cycling in the Opposite Lane “of the Cycling Track and/or pavement” (ie the Outside Pavement) in the same direction as D who was cycling on the Lane towards Tai Mei Tuk, New Territories. In the Defence, D denied he was behind P and/or he overtook P, and claimed a collision occurred between P’s Bike and D’s Bike in the following manner:
7.D pleaded that P was contributorily negligent, and that the collision between P’s Bike and D’s Bike was due to P’s negligence in that (a) P and P’s Friend misused and raced at the Cycling Track, (b) P failed to keep a proper distance from D’s Bike, (c) P rode too fast without keeping a proper lookout, and (d) P failed to properly ride and control P’s Bike. 8.In his Revised Statement of Damages filed on 20 June 2018 (“RSoD”), P claimed for loss and damages under the following heads of claim together with interests and costs:
9.At the commencement of the trial on 30 July 2020, Mr Cheung, counsel for P, informed this court that P would abandon the heads of claim in paragraph 8(c)-(d) above, thus confining P’s claim for loss of earnings to past loss of earnings during his sick leave period in paragraph 8(b) above. As a result, P’s overall claim for loss and damages was reduced to $400,000 + $493,263 + $20,000 + $10,000 + $1,999 = $925,262 (see paragraph 8(a), (b), (e) and (f)(i)-(ii) above), which was less than the monetary limit for civil jurisdiction of the District Court. In his closing submissions, Mr Cheung conceded further reduction of the claims in paragraph 8(b) and (f)(i) above, but more of that below. I will also return to this when dealing with the issue of costs below. 10.D was legally represented until 18 May 2017 when he filed Notice to Act in Person. He then applied for legal aid,[2] but was refused legal aid by the Director of Legal Aid.[3] Thus, D was self-represented at the trial on 30-31 July 2020. 11.At the trial, P and D were the only factual witnesses. According to the order of Master Leong dated 17 August 2017, P’s witness statement dated 17 October 2017 (“P WStmt”) and D’s witness statement dated 17 October 2017 (“D WStmt”) shall stand as their respective examination-in- chief. P’s orthopaedic expert on quantum was Dr Johnson Lam (“Dr Lam”), and according to the order of Master M Lam dated 25 October 2018, Dr Lam’s orthoapedic expert report dated 3 May 2018 (“Lam Report”) was to be adduced at trial without calling Dr Lam to give oral evidence. D elected not to adduce orthopaedic expert evidence.[4] 12.This case fell to be decided essentially on the facts, so questions of credibility/reliability loomed large. In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the pleadings, chronology of events, documentary evidence and inferences based on inherent probabilities and/or undisputed facts.[5] 13.Cross-examination was a revealing process. On balance, I do not find D’s evidence credible/reliable, especially when viewed against the information/materials provided by the police, including the police statement by the independent eye-witness Luk given on 16 September 2015 (“Luk PStmt”), the record of police investigation and the oral responses by P, D and Luk to PC58898 To Kin-sing (“PC”) and/or the SPC set out in their police statements given on 9 October and 28 December 2015 respectively (“PC PStmt” and “SPC PStmt”). I also find on balance that D had tailored/embroidered his evidence in material respects, and I am not persuaded the weaknesses in his testimony were due to faded recollection. In my view, he had not been truthful over some important matters, and his overall evidence was unsatisfactory. Except for matters that I accept in the discussion below, I reject D’s evidence on the core matters. As for P, he struck me as a relatively straightforward and reliable witness. Even though there are certain aspects of his evidence that I do not accept, taken into account all the evidence and Mr Cheung’s / D’s submissions, I find on balance that P was not shaken under cross-examination, especially on the question of liability, and I accept his evidence on the core matters. II. LIABILITY (a) Issues 14.Given the different allegations by P and D as to how the Accident happened (save for the consensus that both of them had been riding their bicycles on the Cycling Track towards the direction of Tai Mei Tuk, New Territories), Mr Cheung’s written opening submissions (“P’s Submissions”) put forward the following factual questions on the issue of liability:
15.D’s Submissions added further factual questions on the issue of liability, ie at the time of the Accident (a) P and D were cycling on which lane of the Cycling Track, (b) whether P’s pleaded case was feasible (“可行”) and true, (c) whether P’s cycling skill (“駕駛技術”) was at fault, and (d) whether D’s cycling attitude (“駕駛態度”) was at fault. (b) Legal principles: negligence 16.Broadly, the essential elements of a successful claim in the tort of negligence are (a) a duty of care owed by the defendant to the plaintiff, (b) breach of that duty, (c) damage suffered by the plaintiff as a result, and (d) such damage not being too remote.[6] 17.The common law duty of care, which in essence is a duty not to inflict damage carelessly,[7] is to be determined by reference to the test set out in the leading local authority of Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming,[8] which essentially adopted the approach by the House of Lords in Caparo Industries Plc v Dickman & ors,[9] which in turn adopted the approach as explained by Sir Donald Nicholls VC in the English Court of Appeal in White & anor v Jones & anor.[10] Such approach highlights the criteria of (a) reasonable foreseeability of the loss, (b) proximate relationship between the parties, and (c) fairness, justice and reasonableness in imposing a duty. I have set out the relevant general principles in paragraphs 48-71 of my judgment in Hon Kwan v Zara Asia Limited,[11] which I adopt but do not repeat here. But it is useful to highlight Bokhary PJ’s observations on the relevant elements of the duty of care under the tort of negligence in Luen Hing Fat Coating & Finishing Factory Ltd (pages 32 and 36) as follows:
18.In applying the above principles, I am of the view that in the case of a driver (or a cyclist such as D here), a duty is owed to all other road users, including other drivers (or other cyclists such as P here) on the road (or the Cycling Track here). 19.As for the standard of care demanded by the duty of care that the defendant owes to the plaintiff, “[what] constitutes that standard of care can be said to be the degree of care, competence and skill to be expected from a person engaging in the activity or function undertaken by the defendant”. “…… What is reasonable is construed in the context in which the defendant acted”, ie what would be reasonable in the circumstances.[12] 20.The standard of care applied in the tort of negligence is objective, and does not depend on the defendant’s subjective state of mind.[13] Such objective standard relates to the type of activity in which the defendant is engaged rather than to the category of actor to which the defendant belongs.[14] Thus, in relation to road users, the standard of care required is the care and skill of an ordinary driver (or ordinary cyclist here) and no allowance is made for the inexperienced/learner driver (or inexperienced/learner cyclist here).[15] To put it in another way, the standard of care for an inexperienced/learner driver or cyclist should be the usual standard which is applied to competent and reasonable drivers or cyclists. 21.From the above discussion, it is plain that “[both] duty and standard turn on reasonableness but in the case of duty, the question is whether the nature of the relationship reasonably requires that care be taken; whilst in the case of standard, the question is what conduct is reasonably required in the particular circumstances” (my emphasis).[16] 22.As regards the criterion of breach of duty, a defendant will be regarded as in breach of a duty of care if his conduct falls below the standard required by the law.[17] In the present context, it is obvious that if a cyclist’s manner of riding a bicycle falls below the standard required by law, there is risk he will cause personal injury and/or other loss and damage to himself and/or other road users (eg other cyclists). 23.On the issue of causation, the plaintiff must show as a matter of fact and law that the defendant’s wrongdoing caused him actual damage. Factual causation is concerned with establishing the physical connection between the defendant’s wrong and the plaintiff’s damage, ie what evidence exists to link the defendant’s wrongdoing to the damage, and is that sufficient to persuade the court that causation is established?[18] In ascertaining the effective cause of the resulting damage in order to assign responsibility for that damage, the court usually applies the “but for” test, ie would the damage of which the plaintiff complains have occurred “but for” the negligence of the defendant? Or to put it in another way, can the plaintiff adduce evidence to show it is more likely than not that “but for” the defendant’s wrongdoing the relevant damage would not have occurred.[19] 24.Turning to the remoteness of damage, fault liability is based on the premise that it is fair and reasonable to require a defendant to compensate for damage that he can reasonably foresee is likely to arise as a consequence of his failure to heed, and take precautions against, an unreasonable risk.[20] But since a defendant found to be in breach of a duty of care must be taken to have foreseen some form of damage to the plaintiff, the concept of remoteness of damage is essentially concerned with the outer limits of damage for which the defendant will be held responsible.[21] 25.In the context of a road traffic accident in which a collision has occurred, the causal inquiry and the issue of remoteness of damage are relatively straightforward. After all, “[it] is usually self-evident that the impact caused injury to the claimant, though there may be some dispute as to the extent of that injury, or whether particular injuries or disabilities are attributable to the defendant’s breach of duty, or were, for example, pre-existing”.[22] 26.D’s Submissions cited 2 cases, ie (a) 香港特別行政區訴曾瑞生 (“Tsang Case”),[23] and (b) 香港特別行政區訴鄭洲(“Cheng Case”).[24] 27.The Tsang Case was an appeal by the defendant driver of a light goods vehicle against his conviction for careless driving. There was no dispute that the defendant’s light goods vehicle failed to stop/brake in time and ran into the rear of the private car in front. But the defendant complained that it was (a) the sudden braking by the private car for no reason and (b) the wet and slippery road condition that caused his failure to stop in time and hence the collision, and he suggested that the fault lied squarely with the driver of the private car in front. The learned magistrate did not accept the evidence of the driver of the private car, but found the defendant’s own evidence sufficiently established he drove carelessly. The learned magistrate was of the view that had the defendant been driving carefully (ie keeping a proper distance from the private car in front especially given the wet road condition), he should have been able to avoid the collision despite any abrupt stop by the private car in front. On appeal, DHCJ J Chan (as he then was) found as follows:
28.D’s Submissions understood P’s stance to be that “在本案中, [P] 一直以 [D] 於2016年2月24日於粉嶺裁判法院不小心駕駛 (案件編號FLS1064/2016) 罪名成立而指控 [D] 當時駕駛過失導致 [Accident] 發生, 負上絕對責任, 從而引證 [P] 是小心駕駛者”. D suggested P’s such stance was incorrect because the Tsang Case demonstrated that “若被告人的駕駛態度是不小心, 其他車輛的司機不小心駕駛並不自動構成被告人的辯護理理由”, and “意外雙方中某一方不心駕駛, 並不等如意外另一方是小心駕駛”. 29.In my view, D misunderstood P’s stance and the Tsang Case. In the Tsang Case, DHCJ J Chan (as he then was) clarified that (a) the learned magistrate did not make any specific finding that the driver of the private car drove carelessly, and (b) in respect of the summons for the offence of careless driving against the defendant, the learned magistrate at trial and the judge on appeal were only concerned with whether the defendant drove carelessly, and was not required to consider/find whether the driver of the private car also drove carelessly. Turning to the present action, insofar as P’s case against D was concerned, (i) P was only required to establish it was D’s negligent cycling that caused the Accident and his injuries, but (ii) P did not have to prove he cycled carefully and/or he was not negligent. In other words, irrespective whether it could be evidentially established that P was cycling carefully at the time of the Accident or not, P did not carry any legal burden to prove this as a fact. For (i) above, P was aided by D’s pleaded admission as to the existence of the Conviction referred to in paragraph 32 below, which by virtue of section 62 of the Evidence Ordinance Cap 8 (“EO”) raised a presumption that D committed the offence of careless cycling (ie using or riding a bicycle on a road carelessly within the meaning of section 46(2) of the Road Traffic Ordinance Cap 374 (“RTO”) – see paragraph 38 below) in connection with the Accident contrary to section 46(1) of the RTO, and the burden fell on D to rebut this presumption (see paragraphs 36-45 below). For (ii) above, it was D’s Defence (and not P’s SoC) that raised the plea of contributory negligence (see paragraph 7 above), so the burden of proving contributory negligence fell on D without need for P to disprove negligence by showing he was a careful cyclist:
30.In the Cheng Case, the defendant was convicted of careless driving. At the trial before the learned magistrate, the prosecution witness testified that the defendant’s light goods vehicle followed and collided into the rear of his private car, but the defendant testified that the private car suddenly cut into his lane and caused the collision. The learned magistrate found “本案屬「一對一」的案件, 本席必須更嚴謹地審視控方證人的指控”, and went on to consider the evidence of the prosecution witness/exhibits and to independently consider the evidence of the defendant before coming to the view that (a) “…… 控方證人的證供貫徹而合理 …… 本席接納控方證人為可信及可靠的證人”, and (b) “由於上訴人的證供明顯不合情理, 本席不能接納他為可信或可靠的證人 …… 本席完全接納控方證人的證供, 並接納事件有如他所述般發生”. The learned magistrate also set out his evaluation of the evidence, and concluded “…… 因此, 本席滿意控方已舉證至毫無合理疑點, 上訴人於案發時不小心駕駛” (my emphasis). DHCJ I Tam did not find any error in the magistrate’s findings/analysis, so he upheld the conviction and dismissed the appeal. 31.Again, it is not easy to see the relevance of this authority to the present context. D’s Submissions claimed “本案的責任判定為根據 [Accident] 發生事實。[D] 罪成並不構成案中責任判定的指標或唯一指標, [P] 及 [D] [Accident] 時行為需作同等考慮”. But it must be remembered that the Cheng Case is an appeal to the Court of First Instance from a conviction entered by a magistrate in the criminal jurisdiction, which is a far cry from the present trial of P’s civil claim against D for monetary compensation. Importantly, the prosecution in the Cheng Case bore the burden of proof to establish careless driving on the part of the defendant (who did not carry any burden to prove his own innocence) up to the criminal standard of “beyond reasonable doubt”, but here:
Thus, in evaluating the evidence on the issue of liability, I have carefully borne in the mind the aforesaid burden / standard of proof in civil proceedings, which are a far cry from those in the Cheng Case. (c) Conviction 32.Conviction There was no dispute that D was charged with and was on 24 February 2016 convicted of careless cycling in connection with the Accident (“Charge”) under FLS1064/2016 (“Summons”) at Fanling Magistrates’ Courts (“FM Cts”) (“Conviction”), and he was fined $1,000 (“Fine”). This was borne out by:
33.Pleadings P claimed that pursuant to section 62 of the EO, the Conviction was relevant for establishing that (a) D was riding D’s Bike at the time of the Accident, and (b) the Accident was caused by Ds’ negligence. D disagreed, and averred that (i) since 2014 D was ordinarily resident in Mainland China as a student at Jinan University in Zhuhai City, Guangdong Province, (ii) D was visiting relatives in Hong Kong on the day of the Accident, and (iii) “[in] the belief that he was charged for the reverse thread runs, [D] made admissions to the charge” (my emphasis),[26] which belief was “affirmed by police constable [ie SPC] under investigation before admission”.[27] D claimed he was absent from the FM Cts on 24 February 2016. 34.In respect of (b)(iii) above, D’s alleged belief that he was charged for careless cycling in connection with “reverse thread runs” was not easy to understand. When one talks about “reverse thread” in relation to a bicycle, the left (usually non-drive side) bicycle pedal usually comes to mind because it is a matter of common knowledge that such pedal is left-hand (ie reverse) threaded to prevent it from becoming loose as a result of precession during pedalling. But the condition of the left side pedal of D’s Bike did not appear to have any bearing on P’s pleaded case or D’s pleaded case on the issue of liability in respect of the Accident. However, by cross-referencing the plea of “reverse thread runs” to paragraph 6(c) of the Defence (see paragraph 6(c) above) that pleaded D swerved D’s Bike to the Opposite Lane, it seemed to me that the plea of “reverse thread runs” might in fact refer to literal English translations of the individual characters of the Chinese phrase “逆線行” (ie cycling in the wrong direction on the Opposite Lane against the direction of the traffic) rather than to any meaningful English translation of that Chinese phrase. I shall assume (as P assumed) for the benefit of D that paragraph 11(c) of the Defence in fact pleaded D’s alleged belief that he was charged for cycling in the wrong direction on the Opposite Lane. 35.Legal principles D’s Submissions alleged that “[P] 多次嚴重扭曲 [D] 的原意, 試圖把 [D] 於 [Summons] 認罪無限放大, [P] 並沒有正確地把 [Accident] 過程放在案情的首要考慮, 相反利用其他因素來掩飾自已的過失” (my emphasis). In my view, such submissions misunderstood the presumption in favour of P under section 62 of the EO, and the burden that fell on D to rebut such presumption. 36.Section 62 of the EO provides as follows:
37.Thus, according to section 62(1) of the EO, if a person is proved to have been convicted of an offence by or before any court in Hong Kong, such conviction is admissible evidence in civil proceedings to prove he has committed such offence irrespective whether such conviction was pursuant to his guilty plea or otherwise. Here, I find D’s admission in the Defence and the FM Cts’ confirmation in the Certificate of Trial to be sufficient proof of the Conviction (see paragraph 32(a)-(b) above and section 62(4) of the EO in the above paragraph). Indeed, section 62(1) of the EO clearly showed it was the Conviction (which D admitted) that mattered, and the effect of the presumption under section 62 of the EO did not turn on whether or not D pleaded guilty to the Charge under the Summons or otherwise. 38.Further, if a person is proved to have been convicted of an offence by or before any court in Hong Kong as explained in the paragraphs 32 and 37 above (and here the Conviction itself was admitted in the Defence and/or proved by the Certificate of Trial), section 62(2) of the EO provides (in effect) that the conviction (and here the Conviction) establishes a presumption that the convicted person (and here D) committed the offence (and here D was presumed to have committed the offence of using or riding a bicycle on a road carelessly under section 46(1) of the RTO), which presumption operates until it is rebutted by being proved otherwise on the balance of probabilities.[28] I also take note of the effect of the Conviction pursuant to the Charge under the Summons as set out in section 46(2) of the RTO, ie “[a] person uses or rides carelessly within the meaning of this section if on a road he uses or rides a bicycle …… without due care and attention, or without reasonable consideration for other persons using the road”. 39.As explained in the above paragraph, the proviso “unless the contrary is proved” in section 62(2)(a) of the EO gives clear mandate for D to attack the Conviction provided there was good reason for doing so, but D bore the burden of proving to the civil standard that the Conviction was erroneous and that he was not careless or negligent.[29] 40.Importantly, it must be remembered that a conviction does not merely trigger a presumption but of itself has weight as evidence. This means the civil court will have to weigh the evidential effect of the particular conviction.[30] In Stupple v Royal Insurance Co Ltd,[31] Lord Denning at pages 72-73 said “the weight to be given to a previous conviction is essentially for the judge at the civil trial. Just as he has to evaluate the oral evidence of a witness, so he should evaluate the probative force of a conviction”.[32] The Court of Appeal in China Everbright – IHD Pacific Ltd v Ch’ng Poh & ors and Low Chang Hian (third party) also explained that “…… there is significant support for the proposition that, quite apart from shifting the burden of proof [from the plaintiff to the defendant], [the conviction] is also probative evidence of some weight. …… Once it is recognised there is some probative weight in a conviction ……, then the circumstances of that conviction (such as the extent of the evidence led in the trial, and the cases presented by the prosecution and the defendant, and what was argued and what was not), would be relevant in the weighing process of that piece of evidence in the civil case”.[33] 41.In Maryo Development Ltd v Tsang Yau May, the Court of Appeal summarised the relevant principles as follows:[34]
42.Also, DHCJ Paul Lam SC in Lee Yam Kan v Ng Pui Kuen trading as Wing Sing Scaffolding Engineering & anor[35] cited with approval Rhind J’s observations in Lam Min Yee v Lau Wan & ors,[36] that “…… Lord Diplock has remarked in Hunter v Chief Constable of West Midlands [1981] 3 All ER 727 at 735H-736A the uphill struggle in practice faced by those seeking to overcome the presumption raised by a conviction. That uphill struggle is bound to be at its most arduous for those who have unqualifiedly admitted their guilt. …” 43.The above principles are applicable to civil claims in negligence for personal injuries, loss and damage arising from road traffic incidents resulting in criminal convictions:
44.The cases cited in the above paragraph showed that generally speaking for entering convictions of road traffic offences under the RTO on the basis of guilty plea, either (a) evidence is led by the prosecution at the trial hearing (or Newton hearing) attended by the defendant and the defendant pleads guilty to the charge under the summons on the basis of such evidence, and is thereby convicted (see paragraph 43(a) above), (b) the defendant attends the hearing of the summons, admits the “summary of evidence of the criminal prosecution” or the “brief facts of the case” as prepared by the police and as read out to him, and is convicted on such basis (see paragraph 43(b)-(d) above), or (c) the defendant does not attend the hearing of the summons but pleads guilty by letter on the basis of the brief facts of the case prepared by the police (see paragraph 43(e) above). 45.Further, as noted by DHCJ Paul Lam SC in Lee Yam Kan (paragraph 42 above), Cheung J (as he then was) in Lau Ka Po (a minor) by his mother and next friend Wong Siu Mui admonished litigants to take heed of the effect of a conviction of careless driving as follows:
46.I turn next to D’s Submissions that cited 香港特別行政區訴陳學坤 (“Chan Case”),[42] which case concerned a magistracy appeal to the Court of First Instance in the criminal jurisdiction against sentence imposed by the learned magistrate in relation to an offence of careless cycling under section 46(1) of the RTO. Thus, the Chan Case was not concerned with a future civil court’s assessment of the weight/rebuttal of a conviction relied upon in a subsequent civil action. 47.In the Chan Case, the defendant was charged with careless cycling contrary to section 46(1) of the RTO, and he was fined $1,000. At the hearing of the appeal, the defendant abandoned his appeal against conviction, and only pursued his appeal against sentence by seeking to reduce the amount of the fine. The version of section 46(1) of the RTO applicable at the time of the Chan Case (and at the time of the Accident here) provides as follows: “A person who uses or rides a bicycle …… on a road carelessly commits an offence and is liable to a fine of $500”. Given such statutory provision, Wong J held there was no basis for the learned magistrate to rely on section 111C of the Criminal Procedure Ordinance Cap 221 (“CPO”) to impose a fine of $1,000, so he allowed the appeal against sentence and substituted a fine of $500. 48.D submitted that likewise for the Accident/Conviction in the present context, the learned magistrate at the FM Cts fell into the same error by imposing the Fine of $1,000 when on 24 February 2016 he convicted D of the Charge under the Summons contrary to section 46(1) of the RTO. D suggested the learned magistrate incorrectly relied on the CPO and caused him to “負上不必要的責任”. 49.I am not persuaded the Chan Case and/or D’s submissions in the above paragraph had any relevance to the present civil action. D’s proper recourse for his alleged grievance in relation to the Fine was to appeal against the sentence imposed by the learned magistrate (as the appellant did in the Chan Case), but D did not do so and instead he arranged to pay the Fine. As explained in paragraphs 36-45 above, the admissibility, relevance and weight of a conviction (eg the Conviction) to any party’s (eg P’s) case would turn on inter alia proof of the Conviction (whether as a result of the defendant’s guilty plea or otherwise) and not on proof of the sentence imposed. Since D in his Defence admitted the Conviction (see paragraphs 32 and 37 above), the sentence of the Fine imposed by the learned magistrate upon the Conviction (even if such sentence were erroneous as D alleged) would not have detracted from the weight of the Conviction for the present purpose. 50.Discussion It is useful to start by referring to the following documents supplied by the police in relation to the Charge, the Summons and the Conviction so as to put D’s evidence in context:
51.By a letter dated 25 March 2016 (“Police Letter”), the police wrote to inform P that in respect of the “Traffic Accident at 15:48 hours on 2015-09-05” at “Near Lamppost AE0660, Ting Kok Road, Tai Po, New Territories, At the cycling track adjacent and parallel to Ting Kok Road, in Hong Kong” involving 2 bicycles, “法庭訴訟程序已完結。法庭判罰如下:
52.The PC gave the PC PStmt on 9 October 2015, the contents of which are summarised as follows:
53.The SPC gave the SPC PStmt on 28 December 2015, the contents of which are summarised as follows:
54.According to the D WStmt, P was a student of Jinan University since September 2014 reading international economy and trade, so he was ordinarily resident in Mainland China. D explained under cross-examination that he was in Hong Kong on the day of the Accident because “…… [D] 係返香港享受一個兩日嘅週末假期”, but he returned to Mainland China on the same day after the Accident. 55.As a start, I note that under cross-examination D confirmed the correctness of the averment in paragraph 11 of the Defence, ie D was charged with careless cycling under the RTO (ie the Charge under the Summons) and was convicted of such offence (ie the Conviction). His explanation for the Charge, the Summons and the Conviction was his alleged belief that they all concerned his “reverse thread runs” (ie D rode D’s Bike in the wrong direction on the Opposite Lane), which conduct, D claimed, was not causative of the Accident. 56.The D WStmt went on to claim that after the Accident D was busy in his studies, and was unable to find time to return to Hong Kong to give a police statement or to attend the hearing of the Summons. But in paragraph 1 of the D WStmt, D admitted “[D] 承認罪行及罰款” (my emphasis), and emphasised it was because he could not return to Hong Kong to deal with the matter, “而不是因為 [D] 在案件上存在任何過失而認罪” (my emphasis). Although D denied any “民事疏忽” on his part that was causative of the Accident, 2 matters are of note from the D WStmt:
57.D agreed he had the 1st/2nd Tel Cons with the SPC: (a) some days after the Accident, ie on 2 November 2015, the SPC called his mobile telephone[45] to ask him whether he could return to Hong Kong to give a police statement, and he replied he could not, and (b) on 28 December 2015 the SPC again called his mobile telephone, and he refused to give a police statement. D further agreed he told the SPC the matters as recorded by the SPC in the SPC PStmt in relation to the 1st/2nd Tel Cons (see paragraph 53(h)-(i) above). But apart from the 1st/2nd Tel Cons, D had no other contact with the police after the Accident. 58.Interestingly, notwithstanding the silence in the D WStmt about the 1st/2nd Tel Cons, D claimed under cross-examination that the SPC failed to record the entirety of what passed between him and the SPC during the 1st/2nd Tel Cons in the SPC PStmt. For the 1st Tel Con, D testified under cross-examination that “因為 [D] 唔係太熟悉法律, 所以 [D] 曾經喺電話度問 [SPC] 呢一單案嘅案情, 而當時候負責呢一單案嘅警員 [ie SPC] 同 [D] 解釋, 就話因為 [D] 逆行, 所以 [D] 有機會會被告不小心駕駛, ...... 咁當時候因為 [D] 唔係太熟悉法律, [D]亦都追問 [SPC] 好多次, [D] 問 [SPC]「如果我真係冇時間返香港處理, 冇時間出庭嘅話會有啲咩嘢結果呢?」, 而當時候 [SPC] 回答 [D] 就係話「其實呢一樣嘢係一件好小好小嘅案件, 就算你唔出庭、你唔落口供, 其實只係法庭會要你交一個罰款, 之後就可以去處理到㗎喇，就唔需要話坐監或者唔需要留案底」, 所以 [D] 認為喺 [D] 嗰一個處境下面, 呢一個係 …… 最合乎 [D] 嘅處境嘅做法, 所以 [D] 亦都選擇咗以上嘅做法”. 59.The SPC PStmt stated that on 3 November 2015, ie the day after the 1st Tel Con, the SPC issued the Police Notice requiring D to reply within 10 days as to whether he would give a police statement or not (see paragraph 53(i) above), but D testified under cross-examination that neither he nor his family members received such notice. 60.As for the 2nd Tel Con, the SPC PStmt stated that the SPC again contacted D by telephone, but D refused to give a police statement. When pressed under cross-examination was to why he “refused” to give a police statement when his D WStmt merely asserted he could not find time from his busy studies to return to Hong Kong to give a police statement (see paragraphs 53(i) and 56(b) above), D claimed that during the 2nd Tel Con “…… [D] 就同 [SPC] 亦都重新再問多一次呢一個案情所帶嚟嘅影響, 當如 [D] 畀人判罪嘅時候 [D] 所帶嚟嘅影響, 咁 [SPC] 同 [D] 解釋完, [SPC] 話「呢啲好小嘅, 唔需要坐監嘅、…… 唔會留案底嘅」, 然之後 [D] 就話「咁既然係你告我逆行嘅話, 咁我就唔落口供喇, 咁我係咪我唔出庭, 交完罰款, 我就可以即係回復番正常呢？」, 咁當時候 [SPC] 畀 [D] 嘅回答係一個肯定嘅答案嚟嘅, 咁所以 …… 當時 [D] 就同 [SPC] 講, [D] 表示會拒絕落口供喇, [D] 就由得呢一個流程咁樣行落去喇”. D insisted that the Accident was not his fault, and “…… [D] 只係希望可以盡快回復番正常嘅生活囉”. 61.As seen from paragraphs 58 and 60 above, D claimed under cross-examination that the SPC told him he would be summonsed for “reverse thread runs” or “逆線行” before a magistrate during the 1st/2nd Tel Cons: “…… 即係11月2號 [D] 有問、12月28號 [D] 都有問過有關於不小心駕駛, 點解要告 [D] 不小心駕駛, 同埋不小心駕駛嘅罰則係點樣樣, [D] 都多次去同 [SPC] 去了解呢一樣嘢”, and was told by the SPC “…… 警方係會向 [D] 提出有關呢一個係逆線行車嘅控罪吖嘛 …… 喺兩個電話都有講呢樣嘢”. D also claimed to have no idea why the SPC did not set out these matters in the SPC PStmt as part of the contents of the 1st/2nd Tel Cons (see paragraph 53(h)-(i) above). 62.D’s aforesaid testimony was essentially a serious accusation against the SPC for having knowingly misled him about the nature of the charge in the summons to be issued against him by allegedly telling him that:
63.On balance, I am not persuaded D’s aforesaid account of the 1st/2nd Tel Cons was credible and/or truthful:
64.In my view, there were other weaknesses in D’s evidence concerning the Summons and the Conviction. For the Summons, although D’s evidence was uncertain at first over whether his family members in Hong Kong received the Summons, on balance I find/infer D’s parents did receive the same, and D knew from them that he was charged for careless cycling (ie the Charge) under the Summons for failing to have proper control over D’s Bike thereby bringing about the Accident rather than for “reverse thread runs” (ie that he was riding D’s Bike in the wrong direction on the Opposite Lane). 65.D testified that he relied on his parents in Hong Kong to inform him about letters addressed to him but were received in Hong Kong because as a student of Jinan University he was ordinarily resident in Mainland China, and that his parents might show him photographs of such letters via social media. Although D at first claimed his impression was that his parents did not show him any photograph of the Summons, he was at pains to emphasise he could not really remember whether they actually did or did not. But further probing under cross-examination elicited D’s distinct recollection that his parents forwarded to him a photographed document showing the date/time for attending court, and that his parents asked him what it was all about. D agreed “…… 嗰個係傳票, 但係就係控罪書 …… 傳票係影過畀我睇, 係 …… 以 [D] 印象中, 傳票上面只有罪行, 而冇講緊 …… 究竟你嗰個過程係點樣發生個喎”. Upon further cross-examination, D accepted the photographed Summons stated the date/time when and the place where the alleged careless cycling occurred, but when pressed on whether the Summons mentioned anything about “reverse thread runs”, ie that D was riding D’s Bike in the wrong direction on the Opposite Lane, D claimed he could not remember. D also claimed the photographed Summons did not describe how the Accident happened. 66.In my view, given the contents of Brief Facts (which were the “brief facts of the case” or a “summary of evidence of the criminal prosecution” for the Summons) which did not criticise D’s “reverse thread runs”, ie D riding D’s Bike in the wrong direction on the Opposite Lane, the Summons would not have mentioned “reverse thread runs”. I also do not accept D’s allegation that the Summons set out the date/time and place of the alleged careless cycling without reference at all to the nature of the alleged careless cycling:
67.Given the contents of the Brief Facts that supported the Charge/Summons (laid by the police/prosecution) and given the above analysis, I find on balance that D was unconvincingly reticent as to the nature of the Charge under the Summons, and that he knew he was charged for careless cycling under the Summons for his failing to have proper control over D’s Bike thereby bringing brought about the Accident. 68.When asked under cross-examination whether he retained the Summons or its photographed version, D testified “…… 諗 [D] 要返去要搵下” because he never thought of making discovery of such document in the present action. On balance, I do not accept his evidence in this respect. In his List of Documents filed on 20 June 2017, D disclosed the P, Luk, PC and SPC PStmts that were in D’s possession/ custody, which police statements by such prosecution witnesses (as listed in the Brief Facts) had to be disclosed by the police/prosecution to D as the accused under the Summons in order to discharge the prosecutor’s duty of disclosure.[47] In my view, D obviously knew the Accident as a whole was relevant to the police investigation. He could not have failed to realise that the Charge/Summons were the culmination that such police investigation. In any event, the Summons was directly relevant to his present challenge against the statutory effect of the Conviction under section 62 of the EO. Bearing in mind also the discussion in paragraph 64-66 above, I do not believe D when he claimed he had never thought of searching for and making discovery of the Summons. 69.I next note that in both the Defence (see paragraph 33(c) above) and the D WStmt (see paragraph 56 above) D claimed he was in Mainland China and did not attend the FM Cts for the hearing of the Summons on 24 February 2016. D also testified under cross-examination that he did not (a) engage any legal representatives to appear on his behalf at such hearing at the FM Cts (as he could not afford legal representation), and/or (b) admit and/or plead guilty in writing to the Charge/Summons. In short, D testified that none of the usual methods for pleading guilty was adopted for D’s Conviction of the Charge/Summons (see paragraph 44 above). Thus, D disagreed under cross- examination he was convicted of the Charge/ Summons (ie the Conviction) by his own guilty plea whether by himself or his legal representatives present at the hearing on 24 February 2016 at the FM Cts, or by letter to the FM Cts. Yet there was no dispute that the Conviction was not made after trial upon plea of not guilty[48] because D himself never referred to any trial of the Summons, and P (who was listed in the Brief Facts as a prosecution witness) confirmed (and on balance I accept) he did not attend court to give evidence in relation to the Accident, the Charge and/or the Summons at the FM Cts on 24 February 2016. But D gave no explanation under what criminal court procedure he was so convicted given his admission of the very existence of the Charge/Conviction in the Defence (see paragraph 33-34 above). Thus, on D’s case, it was quite a mystery as to how he came to be convicted by the learned magistrate on 24 February 2016 (ie the Conviction) when D allegedly did not plead guilty to the Charge/Summons (with agreement to the Brief Facts) and there was no trial of the Charge/Summons. 70.But notwithstanding D’s claim under cross-examination that there was no guilty plea to the Charge/Summons, paragraph 1 of the D WStmt stated “[D] 承認罪行及罰款1000元 ……” (my emphasis), (a) which D verified by his own statement of truth, but (b) which D attempted to explain away by testifying under cross-examination that “[D] 認為 [D] 呢一度所講嘅承認罪行係因為 [D] 的而且確存在逆行呢個動作, 所以 [D] 承認 [D] 有逆行, 所以 [D] 願意去交呢個罰款, 但係 [D]唔同意不小心駕駛就等於係因為 [D], 所以導致呢一單意外嘅發生” (my emphasis), but such belated “explanation” was not mentioned at all in the D WStmt. In the end, D was constrained to accept he had no idea why the D WStmt stated he pleaded guilty (when it was his very own witness statement), and to claim what was stated in the D WStmt was “……比較有缺陷嘅一個言論” in that “…… 裡面寫嘅嘢係正確, 但係並唔齊全”. On balance, I reject D’s “explanation” in (b) above on the analysis above and for further reasons set out below, I am not convinced D did not plead guilty to the Charge under the Summons as he alleged. Indeed, further support for this could be found in the Police Letter issued by the police (who laid the information and/or brought the prosecution of the Charge/Summons against D in the FM Cts) that confirmed D pleaded guilty to the Charge/Summons (see paragraph 51 above and paragraph 73 below). Further, D also gave evidence that the FM Cts did write to state he had pleaded guilty to the Charge/Summons at the FM Cts and to inform him to pay the Fine (see paragraph 74 below). 71.When D was pressed on why (on D’s case) he did not attend the FM Cts on 24 February 2016 to defend the Charge/Summons on the basis that the Accident was due to P’s fault (especially when he did attend the present trial to defend P’s claim in the present action) given (as D agreed) his situation in February 2016 and at the time of the trial herein were not dissimilar (ie he was a student studying at Jinan University in Mainland China throughout such period), D merely reiterated that “就係因為當時候, [D] 會覺得 [D] 逆行唔係導致呢一宗意外嘅發生, 所以 [D] 一直就覺得 …… 因為 [D] 逆行, [D]要負上呢個責任, 所以 [D] 願意去畀呢個罰款囉”. But in my view, if D was willing to admit the Charge under the Summons, which he allegedly believed was premised on his cycling in the wrong direction on the Opposite Lane, he would have pleaded guilty (see paragraphs 44 and 69-70 above and paragraphs 72-76 below), which sat well with his verified statement in the D WStmt, the Police Letter and his own evidence in relation to payment of the Fine, and which undermined his denial under cross-examination of having pleaded guilty to the Charge/Summons. 72.D also claimed that he had not seen the Brief Facts, and that he had no idea he would have to agree to the Brief Facts before the learned magistrate would convict him of the Charge/Summons. On careful consideration, I reject D’s evidence in this respect. As explained in paragraphs 69-71 above, it was common ground that the Conviction was not the result of trial before the learned magistrate at the FM Cts consequent upon D’s plea of not guilty, so the Conviction could only have been pursuant to D’s guilty plea by any of the methods discussed in paragraph 44 above, which methods would have required D to agree to the Brief Facts as the factual foundation for the learned magistrate to accept his guilty plea. I find on balance that D knew from the Summons and/or from the Brief Facts that the Charge/Summons against him was for careless cycling on 5 September 2015 in relation to his failing to have proper control over D’s Bike thus bringing about the Accident. In any event, on D’s own case, if the police prosecuted D and the learned magistrate convicted him of careless cycling under the Charge/Summons on such basis and not for cycling in wrong direction on the Opposite Lane, one would have expected D to complain to the police and/or the FM Cts when he later found out that the Conviction was not in line with SPC’s representations to him during the 1st/2nd Tel Cons. But there were no such complaints. 73.It was also telling that the Police Letter recorded that D pleaded guilty to the Summons, especially as the police was the prosecutor of the Charge/Summons. When this was pointed out to D during cross-examination, he was constrained to say the police made an error. But strangely on D’s case (ie that D all along (a) knew he did not plead guilty to the Charge/Summons, (b) thought the Charge/Summons targeted his cycling in the wrong direction on the Opposite Lane, and (c) knew P relied on the Conviction and/or his guilty plea to support P’s case on the issue of liability in the present action), D never (i) contacted the SPC for clarification despite his representations during in the 1st/2nd Tel Cons turned out to be false, (ii) wrote to tell the SPC/police they made a mistake in the Police Letter as he never pleaded guilty to the Charge/Summons, (iii) subpoenaed the SPC to give evidence at the present trial to support his contentions concerning their alleged interactions (eg the SPC allegedly told D “今次個控罪就關於逆線行車”, and/or the Police Letter was erroneous as D did not plead guilty to the Charge/Summons) even though D knew the SPC’s name and police number, and/or (iv) give full explanation as to his “true” case in the D WStmt. 74.D agreed the Fine was paid even though (on D’s case) neither he nor any legal representative on his behalf attended the hearing of the Summons on 24 February 2016 because, according to D under cross-examination, “…… 當時候法庭寄咗一封信過嚟, 然之後就話 [D] 已經喺粉嶺裁判法院認咗罪, 然之後就而家要罰款1,000鈫” (my emphasis). According to D’s recollection, such letter (shown to him by his parents) did not say the Conviction concerned his cycling in the wrong direction on the Opposite Lane, but his mother paid the Fine on his behalf. D said that despite effort he could not find such letter up to the time of the trial. There was no evidence that D liaised with the FM Cts for clarification as to why they would record that he pleaded guilty to the Charge/Summons when on D’s case it was not true. More importantly, even when D was allegedly aware of such matter, he did not attempt to raise and/or correct it at all in the D WStmt. 75.D tried to suggest it was not strange for the letter from the FM Cts to state he pleaded guilty to the Charge/Summons for which the learned magistrate imposed the Fine because “…… 喺之前負責嘅警員 [ie the SPC] 有同 [D] 講咗話「因為你可能逆行, 所以我可能會告你不小心駕駛」, 所以 [D]就將呢兩個因由 ……將佢聯繫咗佢, [D] 就認為粉嶺裁判法院判 [D] 罰款1,000鈫係因為 [D]逆行”. On balance, I find D’s explanation specious. Quite simply, whatever D might have thought, it did not follow from his allegations (ie (a) the SPC assured him he would be summonsed for cycling in the wrong direction on the Opposite Lane and (b) he was prepared to admit such charge) that he would be convicted at the FM Cts without a trial absent (i) his own guilty plea and (ii) his agreement to the Brief Facts (see paragraph 44 above). D’s denial that he pleaded guilty to the Charge/Summons and that he never saw (and hence never agreed) to the Brief Facts did not sit well with the admitted existence of the Charge and the Conviction, and/or with the common ground that there was no trial of the Charge/Summons. 76.On balance, I reject D’s account of how the Charge, Summons and Conviction came about, which account I find to have been subsequently embroidered by shifting blame onto the SPC with a view to overcome or diminish the effect of the Conviction under section 62 of the EO. I find D knew the Charge, the Summons and the Conviction targeted D’s careless cycling on 5 September 2015 for failing to have proper control over D’s Bike thus bringing about the Accident (as evident from the Brief Facts). Given D’s admission of the very existence of the Conviction in the absence of trial of the Charge/Summons, the only logical and necessary conclusion must be that D pleaded guilty to the Charge/Summons and agreed to the Brief Facts. In all the circumstances, D failed to rebut the presumption under section 62 of the EO. (d) Negligence and/or contributory negligence (if any) 77.There was no dispute that:
78.On balance, I accept P’s evidence under cross-examination that (a) he had ridden bicycles for over 30 years and had cycled around Tai Mei Tuk, New Territories for over 100 times, so he was quite familiar with the Cycling Track and its surroundings, and (b) he checked/ confirmed from the speedometer of P’s Bike that his usual speed in riding P’s Bike on cycling tracks was about 15kph. I also find that on 5 September 2015, P / P’s Friend (who wore cyclist helmets/sportswear) rode their bicycles[49] on the Cycling Track towards Tai Mei Tuk, New Territories, and that before they started off that day P checked P’s Bike was in normal working order. 79.On balance, I also accept (a) D was a “自行車的初學者”, (b) on 5 September 2015 he rented D’s Bike from a bicycle rental shop for leisure cycling with 6 male/female friends (“D’s Group”) on the Cycling Track towards Tai Mei Tuk, New Territories, and (c) among D’s Group “……有啲係比較初學者、亦都有啲比較有經驗嘅”. 80.Incident According to D, at/about 3:00pm (D WStmt) or 1:00-2:00pm (D’s evidence under cross-examination) on 5 September 2015, D’s Group started cycling at the Cycling Track. Irrespective of the precise time when D’s Group started cycling that day, D gave evidence that by/about the time of the Incident, some female members of D’s Group felt tired after having cycled for some time and wanted to take a rest. 81.The D WStmt claimed that “在行駛途中, [P] 與 [P’s Friend] 從 [D] 右後方超車並駛上 [Outside Pavement]”, which was the 1st time D met P / P’s Friend. When cross-examined on whether P / P’s Friend were “racing” at the time (as D pleaded in the Defence but did not mention at all in the D WStmt), D gave evidence that he felt “…… [P / P’s Friend] 兩個嘅速度係比正常嘅駕駛者要快”, and he tried to explain away his plea of “racing” by saying that (a) “…… [D] 見到 [P / P’s Friend] …… 全副裝備喇, [P] 望上好專業” and (b) “…… [P / P’s Friend] 喺條 [Outside Pavement] 上邊一直喺度踩嘅時候, [D]就會覺得 [P / P’s Friend] 係有賽車嫌疑”, but claimed he was not “racing” with them. In my view, the was no common sense logic in saying cyclists wearing cyclist sportswear and being present on pavement must have been “racing” each other, and I am not persuaded one could reasonably infer from (a)-(b) above that P / P’s Friend were “racing”. In my view, such “racing” allegation was nothing more than a poor attempt to support D’s assertion that P / P’s Friend were on the Outside Pavement. D also had no or no plausible reason why, if P / P’s Friend were “racing” as alleged in the Defence (which I disagree), he did not state/verify so in the D WStmt. The silence in the D WStmt was loud, and in the end D was constrained to admit under cross-examination that “…… [D] 唔知道 [P / P’s Friend] 嘅性質係咪賽車, 所以 [D] 最屘 [ie in the D WStmt] [D] 就只係話 [P and P’s Friend] 係「高速行駛」”. In my view, this uncertain wavering between “賽車” and “高速行駛”, which were patently distinct concepts, suggested neither was the truth, and on balance I reject them. D then went on to say under cross-examination that “當時候 [P / P’s Friend] 喺我哋 [ie D’s Group] 後面超車之後”, “…… [P / P’s Friend] 以差唔多嘅速度離開咗 [D] 嘅視線, [D] 唔知道 [P / P’s Friend] 有冇收慢到”, “…… 咁 [D] 就冇見到 [P’s / P’s Friend’s] 嘅蹤影”. D also said some female members of D’s Goup were tired and took a rest, but he felt he had the strength to go on so he continued to cycle on the Cycling Track. 82.On the other hand, P explained under cross-examination that about 1km before reaching the Site on the Approach Side:
83.In his closing submissions, D claimed that “由於 [P] 對自己嘅駕駛態度、技術過於自大, [P] 使用最唔穩妥嘅方法去處理所謂嘅危險, 亦即係踩上去 …… [Outside Pavement]”, and suggested that P exaggerated and/or made up his account of the Incident to bolster his contention that D was “…… 一位駕駛極唔正常嘅駕駛者 ……” I disagree, and apart from the weaknesses in D’s account of the Incident already canvassed above, I find on balance D’s account was unreliable/unconvincing also for the following reasons:
84.Accident According to the D WStmt, about 1km later, D riding D’s Bike on the Cycling Track overtook P and P’s Friend. D gave evidence under cross-examination that (a) “當時 [P / P’s Friend] 亦在 [Outside Pavement] 行駛” (but D’s Defence alleged P / P’s Friend were cycling in the wrong direction on the Opposite Lane and/or the Outside Pavement), which was the 2nd time D met P / P’s Friend, and (b) when D overtook P / P’s Friend, “…… [D] 啲朋友有喺前邊、有喺後邊”, so some in D’s Group were faster and some were slower than D, which situation was maintained up to the time of the Accident. D disagreed he (and some in D’s Group) were cycling at high speed. 85.D claimed he did not know what P / P’s Friend were doing (a) after they overtook him at high speed (ie the Incident as D described in paragraph 81 above), and (b) before he subsequently overtook P / P’s Friend (see above paragraph). D speculated under cross-examination that P / P’s Friend might have stopped for a rest or for a drink of water, “…… 咁就唔等於 [D] 一定要比 [P / P’s Friend] 速度快, 所以 [D] 就會超到 [P / P’s Friend] 車”, but was constrained to agree (i) “…… [D] 睇唔到 [P / P’s Friend] 有停車嘅動作”, and (ii) P / P’s Friend were still cycling when they disappeared from his field of vision and when he regained sight of them. D testified that when he regained sight of P / P’s Friend, “…… 當時候 [P / P’s Friend] 已經係比之前超越我哋 [ie D’s Group] 嗰個車速要慢好多喇 …… [D] 見 [P / P’s Friend] 收慢咗, 所以 [D] 先可以超越 [P / P’s Friend]”. 86.On balance, I find D’s aforesaid allegations not credible or reliable:
87.According to the D WSmt, after D cycled for another 500m, ie about 15m from the Gate of the Estate, D (a) saw the Divider Fence at the centre of the Cycling Track ahead (which D described under cross- examination as an “obstacle”), (b) noticed the Gate was half closed, and (c) “發覺隱約有人影走出”. D turned his head to check the road condition behind him, and noticed P / P’s Friend were still behind him cycling on the Outside Pavement at a safe distance away (which D described to be about twice the length of the courtroom). The D WStmt stated D “……向右靠邊並在 [Cycling Track] 上繼續行駛”, but D gave oral evidence that he cut into the Opposite Lane when safe to do so after considering, say, P’s Bike and P’s Friend’s bicycle were going faster than D’s Bike, ie “…… 應該就都算正常, 可能正常, 唯一比正常高少少”. The D WStmt went on to say that about 10m from the Site where the Accident took place D started to slow down, and when he reached the Site the rear wheel of D’s Bike was suddenly hit by the front wheel of P’s Bike. 88.Again, I do not accept D’s account in the above paragraph, which I find to be inherently tailored and unpersuasive:
89.On balance, I prefer P’s case/evidence in relation to the Accident. According to the P PStmt / WStmt, P rode P’s Bike to a spot close to the Site when he suddenly heard someone shouting loudly behind him, and P felt another bicycle (later known to be D’s Bike) to his right drawing close to P’s Bike at fast speed. P thought D’s Bike would overtake him on the right side, and P instinctively moved closer to the Inside Pavement and continued forward. P said under cross-examination that he did not know who was shouting behind him, but he felt D’s Bike “…… 已經好近 [P] 囉 …… 即係 [P] 睇到 [D’s Bike] 喺隔離嚟喇, 已經, 嚟到喇”. At that time P’s Friend was riding in front of him. 90.According to the P PStmt / P WStmt, D’s Bike suddenly overtook P’s Bike, and D then angled D’s Bike towards the left to block the path of P’s Bike without stopping (ie the 1st Blockage). P claimed he did not know what was happening, but as there was no other road user on the Opposite Lane to his right, he rode P’s Bike onto the Opposite Lane and continued forward. Under cross-examination, P also said that upon “[D] 第一次閘完 [P] [ie 1st Blockage] 之後, [P] 即刻 …… 避咗 [D] 之後, [P] 即刻就駛過去 [Opposite Lane]”. According to the P PStmt, when the SPC queried why P did not stop when D’s Bike overtook him for the 1st time, P replied he heard shouting but did not know what was happening, so when he saw there was empty space to his right, he thought it would be safe to move into the Opposite Lane. When it was suggested to P under cross-examination that it would not be difficult for him to stop P’s Bike if he were travelling at a very low speed, P reiterated “[P] 見到有空位走, [P] 點解要停車呢? 走得咪走囉。…… 當時 [P] 都唔知發生緊咩嘢事 ……”, and “第一次, [P] 知道, [P] 可以避到 [D]。咁 [P]已經駛過 [Opposite Lane] ……” When further queried whether he tried to reduce speed, P said “[P] 當時嘅速度係好慢㗎喇 …… 喀, 當時 [P] 就係減速, 所以避咗 [D] 第一次閘 [P]”. P agreed he had slowed down from his usual 15kph to a very low speed, but he could still maintain balance and had enough power to move onto the Opposite Lane. When P moved onto the Opposite Lane, he did not see anyone on the Outside Pavement. 91.In my view, it made sense that when P and D were close to the Site P was travelling in front of D when P / P’s Friend overtook D’s Group after the Incident. P / P’s Friend were experienced cyclists familiar with the Cycling Track, and I find they stayed ahead of D. I also find D tried to catch up with P / P’s Friend because more likely than not he was still annoyed with P for his observation to P’s Friend about the behaviour of the female cyclist from D’s Group that caused the Incident, and to express his annoyance to P, which eventually manifested in the 1st Blockage. On balance, I find it was the sudden, unexpected and aggressive 1st Blockage by D that gave little time for P to react except to swerve onto the Opposite Lane. 92.P said very soon thereafter “…… [D] 第二次閘 [P]” (ie the 2nd Blockage). According to the P PStmt / P WStmt, as P moved into the Opposite Lane, D’s Bike again came close to the left front of P’s Bike, and continued to the right towards P at an angle. Ultimately, D’s Bike collided with the front wheel of P’s Bike. When queried under cross-examination that it would not be difficult to stop P’s Bike if P were travelling at a very low speed especially when “…… [D] 兩次閘 [P] 嘅時候”, P explained that “…… 第二次閘 [P] [ie 2nd Blockage] 時, 實在太快喇, …… 因為 [P’s Bike] 係有lock踏嘅 …… [P] 其實想停, …… [P] 都嘗試 …… 想避 [D], 但 [P] 都唔夠時間, [D] 已經撞埋嚟喇”. As a result of the collision, P lost his balance, fell down to the right and injured his right arm. Only P’s Bike and D’s Bike were involved in the Accident, and P had no opportunity to tell P’s Friend who was cycling about 3-4m in front of him. 93.On balance, I prefer and accept P’s account of the 1st and 2nd Blockages and how the Accident occurred. Again, it was the sudden, unexpected and aggressive 2nd Blockage by D that gave no time for P to react to take any avoidance action, which resulted in the collision/ Accident. 94.D claimed the Accident was a “追尾” collision between the front wheel of P’s Bike and the rear wheel of D’s Bike. Whilst I agree the collision was between the front wheel of P’s Bike and the rear wheel of D’s Bike, the Accident was not a direct “追尾” incident in which D’s Bike received a direct hit from P’s Bike behind. According to the PC PStmt and the SPC PStmt, P told the PC that “…… 白衫嗰個 [ie D] 就喺前面左d, 白衫嗰個人 [ie D] 突然cut出去，後面就撞埋一齊”, and told the SPC that “…… [D’s Bike] 靠右踩時撞到後方踩上之 [P’s Bike] ……”, which was consistent with P’s description of the 2nd Blockage, ie as P moved into the Opposite Lane, D’s Bike again came close to the left front of P’s Bike, and continued to the right towards P at an angle. 95.But at the time when he gave the P PStmt, P thought the front wheel of D’s Bike hit the left part of the front wheel of P’s Bike, P claimed he later realised it was the rear wheel of D’s Bike that collided with the front wheel of P’s Bike, so he made such clarification in the P WStmt. Under cross-examination, P explained that at the time of collision, “…… [D] 係成架車 …… 剷埋嚟, 根本 [P] 都分唔到 [D] 係前碌定後碌撞 [P] 喇, …… [P] 最初以為係前碌撞 [P] ……”, “…… 因為當時嘅情形 …… 太快喇, 電光火石, [P]係冇辦法分到 [D] 點樣撞 [P] 喇 ……”, but later “ …… [P] 諗清諗楚, 應該係後碌 [P] 先, 撞到 [P], …… 正確嚟講”, “…… [P] 想 …… 話番畀所有人知, 其實應該係 [P] 諗清諗楚, …… touch point應該係後碌嚟嘅。…… [P’s Bike] 嘅前碌畀 [D’s Bike] 嘅後碌撞到。…… touch point就係講緊兩架接觸, 即係碰撞個位置”. P said he gave the matter some thought after he gave the P PStmt, “…… 就 [P] 覺得 …… 正式touch point應該後碌嚟嘅, …… 因為 [P] …… 睇番啲紀錄囉 …… 睇番各方面嘅 …… 包括 [P] 諗番當時 …… [ie revisiting P’s impression and the available police statements]”, and discovered such mistake before he made the P WStmt, so he corrected the error in the P WStmt so at to “……呈 …… 上一份正確嘅法律文件, [P]覺得 …… 如果係錯誤嘅, 就應該要更正番佢, 唔好畀佢錯落去”, and said “…… [P] 知道要改嘅時候, [P] 即刻 …… 即係第一時間已經改番喇”. P had not thought of returning to the police station to ask to correct the error in the P PStmt which stated it was the front wheel of D’s Bike that collided with P’s Bike, “…… 但係 …… 其他 …… 跟住嚟嘅文件喇, …… 即係所有 [P] best knowledge …… 知道嘅嚟緊嘅所有文件, …… 包括呢個訴訟嘅文件喇 …… , 第時有 …… 相關嘅文件喇, 如果有嘅話, if any”, “[P]就認為應該係修正番佢嘅”. On further reflection, P “[P] 覺得可能警方嗰個文件要需要修改, …… 但 [P PStmt] 就冇修改到, …… [P] 唔記得咗要去修改”. P disagreed “…... [P] 要依靠其他人嘅證供去幫 [P] 重組 [P] 嘅案情”. 96.I find on balance that P’s correction of his error in the P PStmt was not any deliberate cover up of false evidence, and that P was genuinely mistaken when he gave the P PStmt. I accept and find that the collision between P’s Bike and D’s Bike happened so suddenly that it caught P by surprise, and the way in which D’s Bike angled over P’s Bike at the time of the 2nd Blockage rendered it difficult for P to judge at that instant whether it was the front wheel or the rear wheel of D’s Bike that hit P’s Bike. Bearing in mind also that P suffered personal injuries as a result of the Accident, that he underwent operation on 9 September 2015, and that he was discharged from hospital for only a few days before he gave the P PStmt to the police, I find it unsurprising that he still had not had time to mull over the details of the Accident. Consequently, P was genuinely mistaken when he stated in the P PStmt that the front wheel of D’s Bike was the impact point for the collision. I further find on balance that afterwards P had time to review his impression of the Accident against the objective evidence, such as Luk’s account of the Accident in the Luk PStmt, so P realised it was actually the rear wheel of D’s Bike that was involved in the collision, and he took proactive step to correct his genuine mistake in the P PStmt by setting out the correct position in the P WStmt. Although the Charge, Summons and Conviction had already occurred by that time, P after realising his error was at least responsible enough to ensure the P WStmt (then yet to be adduced in the present litigation) stated the correct position, which was more than D’s failure to set out his case in relation to the Conviction as perceived by him as correct in the D WStmt. I am not persuaded P’s genuine error in the P PStmt detracted from the veracity of his evidence. 97.It is also interesting to note what Luk as independent eye-witness had to say to the PC and the SPC (as recorded in the PC PStmt and SPC PStmt) and in the Luk PStmt. According to the PC PStmt, Luk told the PC “[Luk] 當時喺佢哋 [ie P and D] 後面, 佢哋兩個 [ie P and D] 都 [Opposite Lane] 踩, 咁受傷嗰個 [ie P] 就喺後面、白衫嗰個 [ie D] 就喺前面左d, 白衫嗰個人 [ie D] 突然cut出去，後面就撞埋一齊”. According to the SPC PStmt, Luk told the SPC “其於 [D’s Bike] 及 [P’s Bike] 後方, 見 [D’s Bike] 及 [P’s Bike] 皆於反方向單車徑 [ie Opposite Lane of Cycling Track], 當時 [D’s Bike] 係 [P’s Bike] 前方, 係 [D’s Bike] 踩到意外地點 [ie Site] 時, [D’s Bike] 靠右踩時撞到後方踩上之 [P’s Bike], [D] 及 [P] 跌下受傷”. According to the Luk PStmt, at about 3:48pm on 5 September 2015 he was riding his bicycle on the Cycling Track towards the direction of Tai Mei Tuk, New Territories. As he turned a right bend of the Cycling Track, he looked in the direction of the Estate, and saw at about 15-16m in front of him there were 2 cyclists riding bicycles on the Opposite Lane, one on the right and the other on the left, “兩車距離當頭尾轆平排, 兩車相隔約2-3呎闊, 當時兩車車速好慢”. Then “[Luk] 見兩架單車頭尾轆突然相撞, 當時兩車單車向前行緊, [Luk] 見右邊架單車 [ie P’s Bike] 向右跌低, 踏單車個男人 [ie P] 向右跌咗落地, 個男人右邊膊頭撞咗落地面石壆受傷, 而左邊架單車 [ie D’s Bike] 並無跌低繼續向前踩。跟住跌低個男人 [ie P] 大叫, 前面架單車 [ie D’s Bike]就停低” (my emphasis). 98.In my view, what Luk said as recorded in the PC/SPC/Luk PStmts was plainly inconsistent with D’s case that asserted P on P’s Bike “bumped” down from the Outside Pavement from the offside behind D’s Bike and then collided into D’s Bike from behind. In my view, the PC/SPC PStmts showed Luk was only able to see the 2nd Blockage and the subsequent collision, ie P was at the back and D “…… 就喺前面左d ……” and D “…… 突然cut出去, 後面就撞埋一齊” and “…… [D’s Bike] 靠右踩時撞到後方踩上之 [P’s Bike]”, and Luk himself stated in the Luk PStmt that “…… [Luk] 睇唔到兩架車撞車前情況及發生乜野事。[Luk] 見到兩架車時, 雙方差不多撞車 ……” Luk’s description also showed that D’s Bike was about 2-3 feet to left of P’s Bike, and when their front and rear wheels were almost parallel D suddenly manoeuvred D’s Bike to the right into P’s Bike, which reflected the 2nd Blockage, and it was D’s Bike continuing the 2nd Blockage manoeuver that led to the collision with P toppling over to the right side as force from D’s Bike came over from the left as it angled over P’s Bike. 99.Turning to the aftermath of the Accident, according to the D WStmt, D lost balance after proceeding on for about 2m after the collision, and he fell to the ground causing injury to his right arm. He claimed it was light injury and felt he could deal it, so he did not go to the hospital for medical consultation. In the P Wstmt, P stated that after the collision he did not pay attention to where D’s Bike went, which in view was not surprising since he was injured. D claimed the italicised part in the Luk PStmt concerning D and D’s Bike in paragraph 97 above was not correct. But I see no reason for Luk to lie about how D’s Bike came to a stop when the Luk PStmt was given only 11 days after the Accident and he had no incentive to give a false account. This served to undermine D’s overall veracity, and lent weight to P’s case. 100.D confirmed under cross-examination that just after the Accident he saw at the Site (a) P’s Friend and (b) another cyclist (who was not known to P and D but who later spoke to the PC and the SPC) at the Site. In my view, the other cyclist in (b) above was Luk even though D did not know then he was Luk. The Luk PStmt stated that “…… [Luk] 慢慢踩個時, [Luk] 聽到跌低個男人 [ie P] 話左邊架單車 [ie D’s Bike] 專登鐘佢 [ie P], 同理撞咗佢 [ie P] 幾次。 另外個男仔 [ie D] 無講點解撞車, 之後 [Luk] 向大美督踩去 ……” D claimed under cross-examination that (i) he did not speak with Luk or overhear Luk saying the above as he was busy tending to his own injuries after the Accident, and (ii) he had properly considered the safety of other road users in all the circumstances and did not deliberately manoeuvre D’s Bike to collide with P’s Bike. 101.But on balance, I accept Luk’s account that P’s instinctive reaction right after the Accident was suspicion that D deliberately caused the Accident, which was unsurprising given that any reasonable and competent cyclist would not have manoeuvred his bicycle to perform the 1st and 2nd Blockages against another cyclist on a cycling track. I note the P PStmt / P WStmt stated “[P] 唔識撞到 [P’s Bike] 個男人 [ie D], 亦唔知 [D] 點解會閘 [P] 同撞 [P]”. P explained under cross-examination “…… [P] 唔知道閘嗰個男人 [ie D] 係唔係就係之前嗰班人”, ie D’s Group that was involved in the Incident, so he prudently stated in the P PStmt and P WStmt that he did not know why D (whom he did not know) would perform the 1st and 2nd Blockages. As far as P was concerned, he did not cause disturbance to other road users that day by his manner of cycling that would invite the 1st/2nd Blockages and the subsequent collision. There is no need for me to making any finding as to D’s motive to manoeuvring D’s Bike for the 1st/2nd Blockages to collide into P’s Bike, but D’s annoyance with P’s observation to P’s Friend criticising the cycling behaviour of the female cyclist from D’s Group in respect of the Incident provided fertile basis for D’s aggressive efforts to catch up with P and to perform the 1st / 2nd Blockages despite P’s avoidance efforts. Further, the fact the Luk PStmt stated that “[Luk] 睇唔到左手邊架單車 [ie D’s Bike] 有專登撞右邊架單車 [P’s Bike], 而兩架單車係踩緊時相撞” was neither here nor there as Luk did not observe the Incident nor the 1st Blockage. 102.D then said under cross-examination that about 1-2 minutes after the Accident those of his friends who were cycling behind him arrived at the Site and asked him what happened. D was not sure whether they had seen how the Accident happened (but felt they had not), and none of them said he/she saw the Accident. D also said the police officers did not tell him Luk was an independent eye-witness. D also gave evidence that when the police officers arrived at the Site, they did not ask him whether he knew there were any eye-witnesses, and even during the 1st/2nd Tel Cons the SPC did not ask and D did not say whether there were any eye-witnesses. 103.On balance, I do not accept D’s evidence in the above paragraph. D could not have been unaware that the PC and the SPC attended the Site to investigate the Accident in which P suffered personal injuries that required medical attention. On D’s case (but contrary to P’s case), P’s Friend who was cycling with P on the Outside Pavement was also an eye-witnesses present at the time of the Accident. Even if D was not aware that Luk was an independent eye-witness, I find it strange and unconvincing that he did not tell the police at the Site or during the 1st/2nd Tel Cons that P’s Friend was present and could tell what happened. 104.D agreed that (as recorded in the PC PStmt) he told the PC his “…… 左手擦損, 唔睇醫生。其稱: 『我責住中間條線 [ie the Middle Line] 踩, 後面有架車 [ie P’s Bike] 好快咁上, 我前面又鐵欄 [ie the Divider Fence], 我咪cut出去右邊點知我哋兩個轆疊埋, 咁就炒!”. The SPC PStmt also recorded that D told the SPC at the Site that “其踩住 [D’s Bike] 沿 [Cycling Track] 去緊大尾督方向, 當時靠近路中間分隔線 [ie Middle Line], 係踩至 [Site], [D] 見前方有路中分隔欄 [ie Divider Fence], [D] 見左後方有單車高速接近, [D] 踩過對面線 [ie Opposite Lane], [D] 見前方路面收窄, [D] 慢慢靠向右邊踩, 係靠右時 [P’s Bike] 踩到至 [D’s Bike] 尾轆位置, [D’s Bike] 尾轆與 [P’s Bike] 頭轆相撞, [D] 向左跌底擦傷左手, 而 [P] 向右邊跌低受傷。[D] 表示輕微擦傷, 無需睇醫生, [D’s Bike] 開車前檢查過機件正常”. 105.I am not persuaded by D’s such explanations at the Site which I find to be poor attempts to exonerate himself when he realised P had a fall and suffered personal injuries as a result of the Accident. What D told the PC at the Site did not sit well with his account of the Accident. In the D WStmt and/or in his oral evidence, (a) D did not say he was straddling the Middle Line before he turned his head to check the road condition behind him, and (b) D claimed he overtook P’s Bike which had slowed down a lot, and even though the speed of P’s Bike was faster than that of D’s Bike when he turned his head to check the road condition behind him he did not say it was high speed. 106.On the other hand, the PC PStmt noted that upon the PC’s arrival at the Site P was being taken cared by ambulancemen for suspected fracture of his right arm, and P agreed he told the PC (as recorded in the P PStmt) “……跟住佢 [ie D] 就閘 [P’s Bike], [P] 避開佢 [ie D] 兩次, 最尾佢 [ie D] 成架車撞過黎!”. P was later sent to AHMLNH for medical treatment, and there he told the SPC “…… [P] 見 [D’s Bike] 突然靠近 [P’s Bike], [P] 恐相撞, 於是踩過對面線 [ie Opposite Lane] 行, 當時對面線 [ie Opposite Lane] 無車, 係 [P’s Bike] 靠近右邊路旁時, [D’s Bike] 再踩近 [P’s Bike] 左邊, 跟住 [D’s Bike] 撞到 [P’s Bike] 左邊車身, [P] 向右跌下撞傷右膊……” In my view, these accounts made immediately after the Accident were consistent with P’s case, and served to bolster P’s veracity. Indeed, P also gave a consistent account of the Accident to Dr Lam.[51] 107.In my view, P was correct in saying the Accident was solely caused by D’s negligence in riding D’s Bike as he did not (a) give appropriate attention to road safety, (b) keep safe distance away from P’s Bike in front, (c) keep proper lookout and/or (d) properly control D’s Bike to avoid collision with P’s Bike, and P was not in any way contributorily negligent. I find on balance that D failed to disprove negligence and to rebut the presumption arising from the Conviction under section 62 of the EO. But even without such presumption (which I disagree), had the burden of proving negligence fallen on P, I find on balance that P plainly established liability for negligence against D on the balance of probabilities. III. QUANTUM 108.P was born on 9 June 1963, and was 52 years old at the time of the Accident and 57 years old at the time of the trial. P received tertiary education and had 2 master’s degrees (one in finance and the other in financial engineering), and according to the Lam Report, “[he] held the qualification of FRM (financial risk management)”. P was not sure he could read/understand all Chinese characters, and he had better command of the English rather than the Chinese language. P was a non-smoker and non-drinker. He was right-handed, and his right upper limb had no previous injury or pre-existing pain before the Accident. 109.The Lam Report noted that P was divorced in 2007. According to information supplied by P and set out in the “Patient Assessment (Patient Information)” form completed by a nurse at 6:50pm on 5 September 2015 during triage assessment at AHMLNH’s accident and emergency department (“AED”) (“Patient Assessment Form”) and the Lam Report, P lived alone in a private flat, and was financially self-sufficient. (a) Past medical history 110.The Lam Report noted the Accident was P’s 2nd major accident. P reported that in April 2003 he had a fall on his left wrist which resulted in fracture that was treated conservatively. There was satisfactory recovery after treatment, but P still had occasional left wrist pain. P consulted Dr Lam 5 times between 19 June and 25 July 2003 for opinion/ treatment in relation to his left wrist injury, but not after such period. 111.P informed Dr Lam he had history of thyroid disease over 10 years ago and received treatment by taking radioactive iodine,[52] after which he took thyroxine replacement daily. In 2013 P discovered he had adrenal tumor (Conn’s syndrome) for which he received surgery (ie left adrenectomy) on 17 October 2013,[53] and he quitted his job. P also told Dr Lam he had hypertension for which he took medicine before his surgery for his adrenal tumor, but his blood pressure returned to normal after the surgery. (b) Injuries and treatment 112.According to P’s RSoD, P fell to the ground upon the collision between P’s Bike and D’s Bike, and injured his right arm in the Accident. According to AHMLNH’s Integrated Progress Sheet, “[P] was bumped by another bicycle player and fell down from his bike (on helmet) ……” (5 September 2015), and P “[fell] off his bicycle, hit ® upper arm against curb then ® arm pain” (7 September 2015). According to a medical report dated 26 October 2016 by AHMLNH’s department of orthopaedics and traumatology (“DOT”), P sustained right arm injury on 5 September 2015 when P’s Bike was hit by another bicycle, and P fell out of P’s Bike and hit his right arm by the side of the curb. The Lam Report recorded that upon the collision between P’s Bike and D’s Bike, P fell down and his right arm hit the curb, and he had severe pain in his right arm. 113.P’s Friend dialed 999, and P was sent by ambulance to AHNLNH’s AED for medical attention. According to P’s RSoD and the P WStmt, “於 [Accident] 發生當日, [P] 因右手手臂側面及手肘受傷被救護車送到 [AHMLNH’s AED] 接受治療。醫生即時為 [P] 作出適當的檢驗及診治，檢查顯示 [P] 右手手臂側面有腫脹和擦傷，手肘靈活度受限並伴有疼痛”. The Patient Assessment Form noted P attended hospital for “# [fracture] right shaft of humerus”. 114.According to a medical report dated 26 October 2016 by AHMLNH’s DOT (“DOT Report”), P was admitted to AHMLNH’s orthopaedic ward for treatment. X-ray showed right humerus mid-shaft transverse fracture,[54] but distal neurology was intact. Open reduction and internal fixation (plate and screws) surgery under general anaesthesia was performed on 9 September 2015. X-ray showed satisfactory alignment, and distal neurology remained intact after the operation. P was discharged on 11 September 2015. 115.After discharge from hospital, P continued to attend AHMLNH’s orthopaedic clinic for follow-up.[55] At subsequent follow-up, his wound and fracture healed, and he was referred to physiotherapist for mobilisation and occupational therapist for work hardening. According to the physiotherapy report dated 24 October 2016 by the physiotherapy department (“PD”) of United Christian Hospital (“UCH”) (“PD Report”), P was referred for physiotherapy by AHMLNH’s DOT on 11 September 2015 (ie the date of discharge from hospital). P started to attend physiotherapy session on 22 September 2015, and was given treatment in form of heat therapy, manual therapy, shoulder mobilising exercises, and strengthening exercises with home exercise regime. After receiving a total of 17 sessions of physiotherapy for about 3-4 months, P reported 70% subjective improvement, and was discharged by UCH’s PD on 12 January 2016 as progress was satisfactory. 116.According to the PD Report, the physical condition of P’s right shoulder at the initial examination on 22 September 2015, at the interim assessment on 10 November 2015, and at the last attendance on 12 January 2016 were as follows:
117.At the orthopaedic follow-up on 17 December 2015, P reported shooting numbness along distribution of lateral forearm cutaneous nerve when touching fracture site and when flexing elbow, but sensation was intact. 118.P explained under cross-examination that at the assessment upon the last physiotherapy attendance on 12 January 2016, the pain scale was 0/10 “因為當時係做緊物理治療嘅, [P] 好多熱敷, 好多動作去幫 [P] 做嘅。當 …… 停止咗呢一個物理治療之後, 因為已經冇再做其他物理治療, 變咗個病況開始恢復番囉”. P said “其實醫生都同 [P] 講過, 你唔會完全唔會唔痛嘅, 你會喺幾年之內你都會麻麻痺痺, 麻麻痛嘅, 只不過可能你唔會話痛到嗌救命嗰隻嚟嘅啫”. P was suggested to have another course of physiotherapy, but at that time “…… 因為 [P] 想返工先 ……”, “…… 就要同老闆講話你要返工, 你要去做物理治療, 冇可能㗎嘛”. As seen in paragraph 161 below, P started work with Reorient Global Limited (“RGL”) on 18 January 2016, less than a week after the last physiotherapy session on 12 January 2016. 119.Sick leave was granted by AHMLNH’s DOT from 5 September 2015 to 17 January 2016 (135 days). P testified that he had asked the treatment doctor about sick leave, “…… 佢 [ie treatment doctor] 話呢個 …… 已經係最大可以畀一般呢啲咁嘅病人嘅病假嚟㗎喇。…… 咁 [P] 都想話盡快resume番 [P] 嘅工作, [P] 都唔再問佢攞病假喇, 因為如果問咗佢攞病假嘅話, [P] 就唔可以繼續工作”. As seen in the above paragraph and also in paragraph 161 below, P started to work for RGL on 18 January 2016, the day following expiry of sick leave on 17 January 2016. P explained that “…… 個醫生講咗 [P] 唔可以喺1月17號之前返工, 如果唔係佢就要revise晒所有呢啲sick leave 㗎喇。…… 佢要寫過張紙畀 [P]”. 120.Subsequently, P’s shooting numbness along the lateral subcutaneous nerve gradually improved with treatment and medication. According to the DOT Report, P was last seen at AHMLNH’s orthopaedic clinic on 10 March 2016 with numbness resolved, and P was asymptomatic with full range of motion at shoulder and elbow. No further follow-up was required, but the implants were still in-situ. 121.According to the Lam Report, P told Dr Lam he attended natural therapy for about 5 times. (c) Lam Report 122.According to the Lam Report, P told Dr Lam at the time of assessment on 19 March 2018 that occasionally he still had right arm pain (eg with cold weather), but had no further need for painkillers. Even though P previously had radiating numbness down from the arm to forearm, the condition improved after taking neurotrophic vitamin Methycobal (ie vitamin for nerves), so P continued to purchase Methycobal and to take such drug about twice daily when there was numbness, which on average would occur on average about 7 days in 2 months’ time. P said he felt some relief for numbness after taking such medication. 123.Dr Lam physically examined P, who sat normally and walked with normal gait. For the neck, there was numbness feeling on palpation, but no spasm over the right upper trapezius muscle. Examination of the range of motion of the neck revealed the following:
For the upper limbs, there was a 16cm scar (well healed with some widening – 1-2cm in width) over the volar aspect of the right arm, and there was pain when pinching the scar. Examination of the upper limbs revealed the following:
124.X-rays taken revealed (a) previous fracture of right humerus united in satisfactory alignment with no significant displacement and implants still in-situ, and (b) previous fracture in left wrist / left distal radius united with mild displacement. 125.Dr Lam opined that P suffered from fracture right humerus, and the available evidence did not show any pre-existing condition in the right arm. Dr Lam considered the treatment P received was appropriate. At the time of Dr Lam’s assessment on 19 March 2018, the implants (plate and screws) were still in-situ, and as they were deep-seated, covered by muscles and not palpable, they were likely to be asymptomatic and would not require routine removal. Dr Lam considered further surgery was not required, and by then P’s right arm injury (fracture humerus) had reached maximal medical improvement. 126.In assessing P’s impairment, Dr Lam noted P suffered fracture of right arm and received open reduction internal fixation in September 2015. The fracture united uneventfully, and P improved further with a course of physiotherapy. P attended AHNLNH’s orthopaedic clinic, and on 17 December 2015 reported shooting numbness along distribution of lateral forearm cutaneous nerve when touching fracture site and when flexing elbow, but such numbness resolved when P last attended the orthopaedic clinic on 10 March 2016. By the time of Dr Lam’s assessment on 19 March 2018, there was no longer complaint/problem relating to lateral forearm cutaneous nerve irritation. 127.Dr Lam noted at the time of assessment on 19 March 2018, P still complained of right arm discomfort (like a band around the arm) when wearing too many clothes, pain over the medial aspect of elbow/distal arm provoked by lifting, and right arm pain worse with cold weather. Physical examination revealed a long scar over the arm, mild stiffness of the right elbow, and slight decrease in hand-behind-back motion. There was mild weakness in elbow flexion and extension, but no significant muscle wasting. X-ray examination revealed previous fracture of right humerus had united in satisfactory alignment with no significant displacement noted and implants were still in-situ. Upon considering the severity of injury with humeral shaft fracture, the need for open reduction internal fixation surgery, the progress of treatment, and the findings at the assessment on 19 March 2018, Dr Lam opined that some residue pain and impairment (related to mild stiffness, weakness and scarring) was probable, but the degree thereof was estimated to be mild. 128.For assessment of permanent impairment/disability in practical terms, Dr Lam opined that activities that would cause increased stress to right arm (eg prolonged exertion in carrying heavy objects or heavy lifting) could cause discomfort or even pain in the right arm, but P was independent in activities of daily living. By referring to the “Guides to the Evaluation of Permanent Impairment, 5th/6th Edition, American Medical Association”, upon reviewing the evidence/findings at the assessment, and considering the residue pain, scarring, stiffness and/or weakness, Dr Lam estimated P’s right arm fracture with surgery done should carry 2% whole person impairment. (d) P’s complaints 129.Dr Lam noted P’s complaints at the time of his assessment on 19 March 2018 were: (a) right arm pain/discomfort (ie P complained of right arm discomfort (like a band around the arm) when wearing too many clothes, and pain over the medial aspect of elbow/distal arm provoked by, say, lifting a 3-litre kettle or carrying heavy grocery products, which would be worse with cold weather), and (b) right trapezius pain upon a lot of movement. But P’s activities of daily living were independent. Although P used to cycle and swim, he stopped cycling after the Accident but continued to swim less frequently. 130.In the RSoD, P pleaded that although 2 years had elapsed since the Accident, he still suffered from disabilities as a result of the Accident, which to a certain degree affected his daily activities. P’s pleaded complaints included: “(1) 右肩、右手肘仍會感到疼痛, 麻痺及不適, 特別是在寒冷的季節; (2) 劇烈的動作會加劇疼痛; (3) 提起或搬運物件時, 右肩與右手肘的靈活度會受到限制; (4) 需使用止痛藥、葯膏以舒緩疼痛; (5) 手肘骨折處現有一條長約16釐米, 寬約1釐米的明顯疤痕; 及 (6) 懼怕單車運動”. P further claimed that even though he had reached maximum medical recovery for his injuries/ disabilities as a result of the Accident, he still had to “忍受右肩及右手肘一定程度的痛楚及不適” in his daily life. 131.The P WStmt went on to state that after the Accident, “…… [P] 的身體健康大不如前, 直至現在, [P] 的右肩、右手肘仍會感到疼痛, 麻痺及不適, 特別是在寒冷的季節。…… [P] 現在仍需經常使用止痛藥, 葯膏以舒緩右肩和右手肘給我帶來的痛楚。[P] 的手肘骨折處現在有一條長約16釐米, 寬約1釐米的明顯疤痕 ……” P explained under cross-examination that there was some improvement by the time of trial (ie “…… 有少--有改善。…… [P] 講真, 每日都可能好少少”), but it did not mean such symptoms had all disappeared. (e) PSLA 132.In the RSoD P claimed a sum of $400,000 for PSLA, but D’s Answer suggested P would only be entitled to an award of $150,000. Further, in D’s Submissions and in the course of D’s closing submissions, D contended P should only be entitled to an award of $60,000 for PSLA. 133.D submitted that P was 57 years old by the time of trial, and he had hyperthyroidism for over 10 years (for which he required radioactive iodine treatment and daily thyroxine replacement thereafter), had hypertension (which he controlled by regular medication), had adrenal tumor surgery in 2013 for which he resigned from his previous employment, and was unemployed since. D contended P’s PSLA was caused by advancing age, chronic conditions and pressure from unemployment, and not from fracture of his right humerus which “得到完美的治療” and “完美的康復、疼痛消失”.[57] 134.D argued that P’s injuries as a result of the Accident had little if any impact on him. D’s Answer and closing submissions noted (a) X-rays taken revealed the previous fracture of right humerus had united in satisfactory alignment with no significant displacement noted, (b) distal neurology and sensation were intact, (c) right arm injury had reached maximum medical improvement, (d) the degree of residue pain and impairment was estimated to be mild, (e) P’s numbness was resolved by the time of his orthopaedic follow-upon 10 March 2016, (f) at the time of Dr Lam’s assessment on 19 March 2018 there was no longer complaint/problem related to lateral forearm cutaneous nerve irritation, (g) no further surgery was required, and (h) P reported 70% subjective improvement by 12 January 2016 after attending 17 physiotherapy treatment sessions. 135.D further submitted that P could return to sports. D argued that if P’s allegations of discomfort, pain and numbness were true, it was not understood why P told Dr Lam he could still swim, which sport required whole body movements. D submitted the treatment doctors would not have agreed to P pursuing such sport as “[P] 游水係會有生命危險 …..” On such basis, D submitted P exaggerated his claim of pain/ numbness. As regards riding bicycle, D was unconvinced by P’s evidence that in “2018年開始踩番單車, 頻率大概三個月一次, [P] 話比 [Accident] 發生之前減少頻率嘅 ……” because he was afraid another accident would befall him and render him unable to care for his mother. D submitted “[P] 已經超過踩過十次單車, [D] 睇唔到有咩嘢原因 [P] 會害怕踩單車, 因為 [P]已經持續並且主動咁樣去踩, [P] 並攞唔出任何實質嘅證據去證明 [P] 右臂受傷對 [P] 照顧媽媽有啲咩嘢影響”. 136.D’s closing submissions contended that “[P] 喺盤問度指出, [P]嘅物理治療師曾經希望 [P] 可以再接受多一組物理治療, 但係 [P] 並冇聽從物理治療師嘅建議, 而自行終止咗物理治療, [D] 相信 [P] 係因為自我評估後認為疼痛解決, 可以正常生活, 所以先至會有咁樣嘅決定, 但係事實證明 [P] 自我評估錯誤, 反而去做運動, 打羽毛球去加重身體嘅負擔, 然後抱怨身體大不如前 …… [P] 應該為 [P] 嘅不負責任而去負擔相對嘅責任……” In the circumstances, D believed P’s “疼痛、麻痺問題亦都係非常之輕微, 並唔會猶如 [P] 所講全身不適嘅存在”, P “不會面受到受傷帶來的疼痛和困擾”. 137.D referred to HHJ K C Chan’s following observations in Law Sze Chun v Li Mie Chun[58] in respect of the plaintiff in that case who was 73 years old at the time of the subject accident and almost 78 years old at the time of trial:
138.In my view, how P’s injuries and disabilities as a result of the Accident would impact on his PSLA was plainly a fact/case specific matter. Here, P was not as elderly as the plaintiff in Law Sze Chun, and P’s pre-existing conditions were dissimilar to those of the plaintiff in Law Sze Chun. The plaintiff in Law Sze Chun suffered soft tissue injury to her left knee and was treated conservatively with physiotherapy. She was on wheelchair for 6 months after the accident and afterwards she could only walk slowly with foot dragging and not for long. Range of movement and muscle power of the left knee were reduced. HHJ K C Chan took into account “the pain [the plaintiff] suffered upon exertion when she has to climb up and down 5 floors of steps on each of the 36 occasions she went out for follow-ups and treatments” in assessing the award for PSLA. The particular circumstances of the plaintiff in Law Sze Chun plainly triggered the observations by Sachs LJ in Frank as she was clearly “a person in advancing years” with “impairment of movement” such that her mobility problem exacerbated the limitation in pleasures and activities. But since she had bilateral knee degeneration, discount for future loss (including PSLA) had to be given for the pre-existing “crumbling skull” of her left knee. 139.Here, P was substantially younger than the plaintiff in Law Sze Chun, and D was unable to identify any pre-existing impairment due to P’s age. P did not appear to have mobility issue. Although P’s right arm range of movement was satisfactory, he had to undergo a surgery (which the plaintiff in Law Sze Chun did not require), and he complained of inter alia on and off discomfort (eg residual pain/numbness) and weakened tolerance (ie exerting his right arm for extended time). Further, unlike the plaintiff in Law Sze Chun, P’s chronic illnesses/conditions did not concern his right arm, so there was no question of any “crumbling skull” discount. In any event, P’s hyperthyroidism and hypertension were well-controlled by medication (and P confirmed he had no side effects from such underlying conditions even up to the time of the trial), and there was little evidence (apart from the point about general anaesthesia for the adrenal tumor surgery which I will return to below) of any delibitating sequelae from his adrenal tumor and its treatment. He rested for half a year after the adrenal tumor surgery for rehabilitation and recovery of physical strength, and was able to swim, ride bicycle and/or play badminton prior to the Accident. 140.I am not persuaded by D’s suggestion that P’s PSLA was driven by P’s advancing age, chronic conditions and/or pressure from unemployment. D was unable to point to any evidence that P suffered financial pressure from unemployment. According to the Patient Assessment Form, P informed AHMLNH that he was financially self-sufficient even though he had not worked since 2013 (see paragraph 109 above). Thereafter, P was able to support himself and continue to care for his mother even though he only worked for 12 days for RGL after the Accident, and thereafter he occasionally gave lectures/ talks and/or worked as private tutor for children. 141.On balance, I accept D’s observations in paragraph 134(a), (b), (c) and (g) above, which were borne out by the DOT, PD and Lam Reports. But I cannot ignore the fact that P had to be hospitalised, had to receive surgical treatment (leaving a scar as described in paragraphs 130-131 above and implants in-situ), and had to undergo rehabilitation by physiotherapy. Further, the fact P reached maximum medical improvement did not necessarily mean he achieved full and perfect recovery as D suggested. 142.I find on balance that even though P was independent in his activities of daily living, P still had some mild residual discomfort, pain, scaring, stiffness and/or weakness, especially after activities that would cause increased stress to his right arm (see paragraph 128 above). I accept P’s evidence that he had occasional pain in his right elbow and right shoulder near to the neck. But even though P complained he also had pain at “右手嘅內側嘅肌肉嘅位置”, especially in winter and when he pressed his right arm, I find on balance that his pain/numbness at the right arm had largely resolved (as noted in the DOT Report), but as noted in the Lam Report, pain might be provoked by lifting, and right arm pain would occasionally occur/worsen in cold weather and/or after increased exertion. P testified “譬如今朝起身, 因為 [P] 琴晚黑瞓覺嘅時候係砸住咗個--呢個手臂, [P] 起身嘅時候係需要十零分鐘先至會將嗰個痺嗰個感覺消失”, but in my view, pain/numbness caused by P’s inappropriate positioning of his right arm during sleep could not be laid at the door of the Accident. Further, as regards P’s complaint that his right thumb “間中有時會跳動, 有感覺痛嘅, 呢個位置”, I find on balance this would only occur occasionally when P carried out activities that would cause stress to his right upper limb, eg typing on computer and/or carry weight for extended time. 143.P suffered shooting numbness due to right forearm lateral cutaneous nerve irritation until it was largely resolved by 10 March 2016. But P claimed (and on balance I accept) he was not entirely rid of right forearm numbness, and P’s treatment doctors and Dr Lam told him “…… [P] 會呢種咁嘅現象係會維持一段時間 …… 「呢個係正常嘅, 你一定會有一段時間係唔舒服, 麻麻痺痺㗎喇」”. It was borne out by the Lam Report which noted P continued with neurotrophic medication Methycobal previously prescribed by AHMLNH, and P felt some relief after taking such medication as needed. In my view, P was unable to handle prolonged use of his right arm when he worked for RGL in January 2016 (see Part III(f) below), and he still had occasional numbness at the time of assessment by Dr Lam on 19 March 2018 (ie for about 7 days in 2 months’ time), but P fairly accepted his condition had improved by the time of the present trial so much so that he considered he could perform desktop work. 144.The P WStmt stated that “…… [P] 在提起或搬運重物的時候, 右肩與右手肘的靈活度也會受到限制 ……” Whilst P could lift a 3-litre kettle filled with boiled water, his right arm could not manhandle such kettle to pour the boiled water into a vacuum bottle in one go and had to do so by stages, so he bought a 2-litre kettle for use. P also said (and on balance I accept) he found it difficult to carry pack of rice or bag of groceries for prolonged time, so he would not buy 8kg pack of rice which he could not lift/carry, but would buy 5kg pack of rice which he could lift but not carry for prolonged time. Given P’s injuries/disabilities and the fact he lived alone without helper, I find heavy duty housework, lifting weight and/or exertion for extended period would provoke some pain/discomfort in P’s right arm, but it would be mild and would resolve upon some rest. 145.P claimed he could not participate in strenuous sports, eg he could not play badminton as he would feel uncomfortable and would need to rest for a few days after playing. According to the Lam Report, P told Dr Lam at the assessment on 19 March 2018 that he used to swim before the Accident, but he swam less frequently after the Accident. D found it unbelievable P could still swim after the Accident if he had pain/numbness in his right arm, and argued P must have exaggerated his condition given that he could still swim albeit less frequently. I do not accept such submissions. I find no or no sufficient basis for D’s assertion that swimming when P had occasional pain and discomfort in his right forearm “…… 係會有生命危險 ……” In my view, P’s reduction of his swimming frequency after the Accident was testament to the need to avoid too much exercise when P had occasional pain/discomfort upon increased stress on his right arm (eg prolonged exertion in lifting and/or carrying heavy objects), but he still quite reasonably maintained some swimming after the Accident as one would have thought exercising in weightlessness the water provides would help to relieve pain and discomfort. 146.P claimed he used to enjoy bicycle riding before the Accident, but the P WStmt stated “…… [P] 現在非常懼怕單車運動”. The Lam Report noted that P “[stopped] cycling now”. It was unsurprising that P told Dr Lam at the assessment on 19 March 2018 that he stopped cycling then because he first returned to riding a bicycle after the Accident only in 2018 (possibly after 19 March 2018), which was the only time that year when he cycled at a cycling track at Science Park. Then in 2018-2019 P cycled once in 3-4 months at the same cycling track, but in 2020 he did not cycle at all. This explained why P said under cross- examination that he “踩少咗好多喇” and not “…… 冇再踩單車喎”. However, there was, quite simply, no or no reliable evidence that P had consistently cycled for over 10 times by the time of trial as D alleged (see paragraph 135 above). 147.P claimed (and on balance I accept) his post-Accident cycling frequency was reduced partly due to pain, and partly due to worry he might not be able to hold the bicycle handle securely. He said in re-examination that after the Accident his control of the bicycle during cycling “係有麻煩嘅, 因為 [P] 隻手其實揸起上嚟冇以前咁穩定嘅”. P also feared having another cycling incident (eg “…… 驚踩單車再次有啲人 …… 無端端走嚟閘我嘅, 令到我再次受傷 ……”) that might prevent him (being his mother’s only carer) from caring for his mother who had suffered a stroke. P gave evidence in re-examination that it felt different when he tried to pick up cycling again after the Accident as “[P] 基本上係步步驚心, 嗰啲壓力, [P] 驚再次發生呢個交通意外”. D complained there was no psychiatric or psychological expert evidence. I am not persuaded such expert evidence was necessary given that P did not claim he suffered from any recognisable psychiatric illness, but only asked me to take into account his wariness and concern in undertaking a sport that used to give him pleasure such that he had to reduce his cycling frequency. 148.I have reviewed the cases cited by Mr Cheung[59] and D,[60] which cases give some reference although the factual circumstances of each case would be different. I also take note that in Ng Tat Kuen v Tam Che Fu & anor,[61] Bharwaney J held that as at/about July 2017 the range of award for serious injury category should be from $530,000 to $715,000 (ie a 15.2% inflationary increase by comparing the award granted in Lawati Bhawani Bikram v Ting Kau Contractors Joint Venture[62] on 25 September 2002 and the award in David John Slater v Commissioner of Police[63] on 7 July 2017). P’s injuries and disabilities as discussed above fell below the serious category. 149.Taking into account (a) P’s moderate injuries as a result of the Accident, (b) some moderate sequelae from the Accident, (c) P’s treatment history, (d) Dr Lam’s opinion and (e) P’s circumstances, and my finding that P’s pre-existing condition had no direct impact on P’ disabilities resulting from injury to his right arm, I find the appropriate award to be $340,000. (f) P’s loss of earnings during sick leave 150.On balance, I accept “在 [Accident] 發生前，[P] 是一名銀行家 ……” (P WStmt), and he had worked for bank(s) (in the area of risk management) and stockbroker(s) in the banking/financial industry for over 20 years (P’s testimony under cross-examination). The Lam Report noted P used to be head of a department within the security branch of a bank before discovery of adrenal tumor in 2013. According to P’s tax assessment for year 2012/2013 issued by the Inland Revenue Department, P’s annual income for such tax year was $1,763,153 or about $1,763,153 ÷ 12 months = $146,929.42 per month. P agreed that all along his pre-Accident employment did not require physical/manual labour, but he had to use the computer and/or had to do a lot of typing (eg drafting policies). P confirmed under cross-examination that he resigned from his job in 2013 for operation treatment of his adrenal tumor. 151.P was granted 135 days of sick leave from the date of the Accident to 17 January 2016. D submitted that P “…… 唔再攞病假嘅原因係因為醫生唔批准, 已經超過合理嘅水平, [D] 唔明白 [P] 喺退休期間點解要向醫生度索取病假”. In any event, P did not wish for further sick leave as he wanted to start work. As seen in paragraph 162 below, he had signed the Agreement with RGL on 11 January 2016 to commence work on 18 January 2016, and it was not feasible to commence work whilst on sick leave (see paragraph 118 above). In my view, the fact that P did not seek sick leave after 17 January 2016 was testament to his intention to return to active employment. 152.The starting point is Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd[64] in which Le Pichon JA said medical certificates were no more than a piece of evidence to be evaluated in the light of all available evidence including medical evidence, and the judge should not be bound by the mere issue of medical certificates since the issuance of such certificates would be primarily because of subjective symptoms reported to the doctors by the plaintiff. But here, P’s course of physiotherapy only ended on 12 January 2016 (ie 5 days before cessation of sick leave), and P still had orthopaedic follow up on 10 March 2016. I also note that upon considering the severity of P’s injury, the fracture of right humerus, the need for surgery/rehabilitation, and the demands of P’s pre-Accident job, Dr Lam opined that the duration of sick leave granted by P’s treating doctors who assessed P from time to time was appropriate and should be endorsed. In the circumstances, and taking into account Dr Lam’s opinion, I find P’s sick leave period up to 17 January 2016 fully justified. 153.In the RSoD, P claimed that after his rehabilitation from adrenal tumor surgery in 2014 he looked for a job, and on 18 January 2016 (ie upon cessation of sick leave) he commenced work as risk management consultant for RGL at monthly income of $95,000. P further claimed that but for the Accident he could have started to work for RGL earlier, so his notional income during the 135 days of sick leave would be $3,653.80/day x 135 days = $493,263. But P gave evidence under cross-examination that but for the Accident “[P] 返嗰份新工就係2015年嘅10月” (see paragraph 160 below) so Mr Cheung in his closing submissions accepted P’s claim for loss of earnings should not cover the full sick leave period but should be limited to the period of about 90 days from mid-October 2015 to 17 January 2016, ie $3,653.80/day x 90 days = $328,842. 154.In D’s Answer of the RSoD, he denied this head of claim, and averred that (a) P received higher education and his pre-Accident work did not require heavy physical labour so he should have been able to return his pre-accident work despite residual pain/impairment, (b) P was not required to participate in any professional examination, (c) the Lam Report noted P told Dr Lam he was unemployed at the time of the Accident, and (d) in fact P had not worked since his resignation from his previous job in 2013 for treatment for adrenal tumor and he was still unemployed at the time of the Accident, so D claimed P did not suffer any loss of earnings and was not entitled to claim for such alleged loss. 155.I am unable to see how P not having to undergo professional examination in (b) above had any relevance to P’s clam for loss of earnings during his sick leave period. 156.D referred me to Wong Ka Lai v Lau Wai Lam & anor.[65] In that case, DDJ K C Chan (as he then was) held that the plaintiff’s sick leave period of 89 days was appropriate and reasonable. He went on to say as follows:
In that case, the learned judge did not accept that the plaintiff had succeeded in getting a job offer, and that her supposedly new job was due to commence shortly after the date of the accident. In coming to this conclusion, the learned judge also took into account it had not pleaded in the plaintiff’s quantum pleadings that she had secured a new job that was due to commence (paragraph 85), and in any even the plaintiff failed to adduce evidence of the salary of her supposed new job (paragraph 86). But as seen below, P’s circumstances were far different. 157.P resigned in 2013 and had adrenal tumor surgery in October 2013. He had to rest for about half year to a year for rehabilitation to regain physical strength. P did not work in 2013-2014 because he was still under rehabilitation. After physical rehabilitation, he started looking for work in early 2015. As P was not searching for any junior position, time was needed to find a job with suitable nature and salary. P claimed that pursuant to such job search, he began to have job interviews in the summer of 2015. The above was echoed in the P WStmt which stated that “在 [Accident] 發生前, [P] …… 在腎上腺腺瘤康復后找尋工作的階段, 已經有面試機會 ……” 158.P gave evidence that “…… 啲head of HR都見咗 [P] 㗎喇, 就等緊大老闆批唔批嘅啫, 但係因為 [Accident] 之後, 佢哋都知道呢件事, 咁佢哋都停止咗再繼續同 [P] proceed”. P also said he could not attend further job interviews as a result of the Accident. This was echoed in the Lam Report which noted that P told Dr Lam that after full recovery from his adrenal tumor operation, he started looking for a new job, so he was in the process of looking for work when the Accident happened in September 2015, but had to stop as a result of the Accident. 159.P testified under cross-examination that a friend introduced him to RGL, “因為 [P’s friend] 唔知 [P] …… 有呢個 [Accident] 嘅, [P] 亦都冇話畀 [P’s friend] 知, 咁 [P’s friend] …… 想話叫 [P] 去見工, 但係因為 [P] 遇到呢個 [Accident], [P] 就無法去見工, [P] 要等到 …… 去到 ……差唔多12月初, [P] 先至去--開始去見工, [P] 一見工, [RGL] 差唔多已經請 [P] 喇”. P gave evidence under re-examination when he told RGL about his work experience, “……[P] 係做過唔同嘅國際大銀行同埋證券行, [RGL] 覺得 [P] 答 [RGL] 嘅問題係答得好好, interview嘅時候, [RGL] 覺得 [P] 係絕對係可以勝任個職位嘅”. During the job interview, P did not tell RGL he suffered injuries as a result of the Accident and/or he was on his sick leave. His experience was that if he mentioned the Accident and his injuries to any prospective employer, “…… 基本上係冇得interview”. 160.P said after his job interview in December 2015, RGL “…… 差唔多第二日就 …… 畀個offer [P] 囉 ……”, “…… [RGL] 想 [P] 即刻返工 ……” But P’s sick leave was up to 17 January 2016, “…… 所以要延遲到1月 …… 18號先至返得工囉, …… 個醫生講咗 [P] 唔可以喺1月17號之前返工, 如果唔係佢 [ie treatment doctor] 就要revise晒所有呢啲sick leave㗎喇。…… 佢 [ie treatment doctor] 要寫過張紙畀 [P]”. P claimed that but for the Accident he could have returned to work earlier than 18 January 2016 (ie after cessation of sick leave), ie in the autumn of 2015, “[P] 返嗰份新工就係2015年嘅10月”. 161.As it were, as result of the Accident, P signed the consultancy agreement to work for RGL as senior risk consultant[66] on 11 January 2016 (“Agreement”) and commenced work on 18 January 2016 providing the following services: (a) provide risk management consultancy services to RGL, (b) act as RGL’s risk manager in relation to its businesses, and (c) provide other services to be agreed between P and RGL from time to time (see clause 3.1 of the Agreement). According to the Agreement, the employment would “commence on 18 January 2016 and will continue for a period of 6 months until 17 July 2016 (the “Term”) unless terminated before that date by either party in accordance with Clause 13”, but “[the] parties may agree in writing to extend the Term ……” (see clause 2.1 and 2.2 of the Agreement), and RGL would pay P a monthly fee of $95,000 as remuneration for the services provided by P during the Term (see clause 6.1 of the Agreement). Thus, the P WStmt stated that “當時 [P] 已經可以保證 [P] 在病假結束, 即2016年1月17日後, 可以開始作為風險管理顧問的工作, 該工作的收入為每月港幣95,000.00元”. 162.D submitted that like the plaintiff in Wong Ka Lai, P had been unemployed for about 2 years by the time of the Accident, “…… [P] 工作存在缺口, [P]根本就冇任何證據證明, …… 假若冇發生 [Accident], [P] 會獲得或者提早獲得工作”. But in my view, the objective reality was that (a) P was an experienced banker having worked in the financial industry for over 20 years, (b) his pre-resignation earnings (resignation due to medical treatment for adrenal tumor) were in excess of $140,000/month, and (c) he was interviewed by RGL in December 2015, secured an offer from RGL very shortly thereafter and signed the Agreement with RGL on 11 January 2016. On balance, I accept and find that P’s friend introduced this opening at RGL to P before the Accident, but as a result of the Accident P was unable to go for job interview by RGL, which job interview could have taken place before October 2015 but had to be deferred to December 2015. In my view, P was proactive in looking for work even though he was then still undergoing physiotherapy and was under sick leave. Given P’s work history and experience, and his sensible approach in taking up employment for short-term work of 6 months upon reasonable reduction from the level of his past income, I accept on balance that RGL was pleased to take on P as risk management consultant as soon as possible after interview. In my view, P has proved on the balance of probabilities that but for the Accident, he would have been able to attend job interview and secure offer of employment from RGL to commence in October 2015. 163.According to information supplied by P in the Patient Assessment Form,[67] it was said P had tertiary education and his occupation was “Retired ([illegible])”. P recalled he was asked and he told the nurse at AHMLNH’s AED on the day of the Accident that he was “retired”. Bearing in mind that by the time of the Accident (a) P’s friend had introduced the RGL opening to him, (b) P had not attended job interview with RGL as yet, and (c) the Patient Assessment Form did record that “retired” was qualified by description in brackets, on balance I accept P’s explanation under cross-examination that “如果 [P] 冇記錯, [P] 當時雖然話係retired, 但係如果有機會嘅話, [P] 都會做番嘢” (even though he could not remember what word the nurse wrote in brackets after the word “retired” on the Patient Assessment Form). P further explained and on balance I accept he told the nurse he was retired (even though he started looking for work in early 2015 and had job interviews in mid-2015) “因為 [P] 驚個護士睇唔起 [P] 囉, 如果 [P] 話畀佢知 [P]冇嘢做”. I accept P was sensitive at that time because his efforts to find work was compromised by the Accident, and he did qualify his reference to retirement to the nurse that “但係如果有機會嘅話, [P] 都會做番嘢”, and the nurse made an illegible qualification on the Patient Assessment Form. 164.D submitted that, according to the Patient Assessment Form, “[D]認為退休係 [P] 真實嘅職業, 並且聲稱有公司給予工作機會, 但事實上, [P] 到現時為止都未有任何實質嘅證據去證明已經有公司喺病假期間度請 [P], 所以[P]冇獲得任何實質嘅工作機會”. D further submitted that “[P] 話[P] 搵到工作, 其實 [Accident]發生之後, [P] 根本上就唔需要再工作”. 165.But in my view, given the above findings, P had established sufficient factual basis for his claim that he could have commenced work with RGL in October 2015 but for the Accident. After all, there was clear objective evidence in the shape of the Agreement as to the availability of work as risk management consultant with RGL for 6 months for monthly income of $95,000. P claimed loss of income from October 2015 to 17 January 2016, which Mr Cheung was prepared to round down to 90 days (which I accept). However, I do not accept P’s pleaded calculation of loss of earnings on the basis of a daily rate of $3,653.80, which was premised on 26 working days per month on the basis of monthly income of $95,000. Since P was remunerated on the basis of monthly salary instead of on a daily rate for days worked, it is more appropriate to adopt $95,000/month for calculation of loss of income. Taking all the circumstances into account, I award loss of earnings during sick leave period in the sum of $95,000 x 3 months = $285,000. 166.D tried to deflect such conclusion by referring to the observation by DDJ K C Chan (as he then was) in Law Sze Chun that “[as] the plaintiff was not gainfully employed, there is no claim for loss of income” (paragraph 62). In that case, the plaintiff was a 73-year old lady at the time of accident, and she was a widow supported by her son without need for public assistance (paragraph 7(5)). Such background had no bearing on P’s circumstances, when he previously worked as a banker and he did return to work as risk management consultant, in both cases earning substantial income. 167.As P limited his claim for loss of earnings to the sick leave period, it is unnecessary for me to making findings as to why P ceased to work for RGL on 29 January 2016, which was after the cessation of his sick leave. But I shall make brief findings for the sake of completeness. 168.P said he quitted his job at RGL after 12 days (ie on 29 January 2016). According to the P WStmt, “雖然在病假完結後, [P] 已經於2016年1月18日立即開始了工作，但由於 [Accident] 導致的傷病所產生的疼痛與不適, [P] 無法適應長時間的工作, 並且十分容易感到倦怠。由於 [P] 因為使用電腦時伴隨的右手肘與右肩的疼痛和麻痺, [P] 無法正常工作, 因此 [P] 僅在開始工作的兩周後, 便不得不離職。在該意外發生前, [P] 的身體健康。但因 [Accident] 而引起右肩及右手肘傷病, 久久不愈, 令 [P] 不能應付長時間的工作而離職, 也令 [P] 今後的工作發展、生活質素及身體健康大受影響”. 169.Under cross-examination, P testified that after he started to work, RGL found he could not properly complete his work on time, “…… 咁大家傾過之後, 其實 [P] 都想離開, [RGL] 亦都覺得 [P] 交唔齊啲嘢, 不如大家離開喇。因為呢個合約係需要一個月通知 [see clause 13 of the Agreement], [P] 話咗 …… [P] 唔會 …… 賠錢走, …… 咁 [RGL] 決定就話, …… [RGL] 方面terminate咗個contract囉”. This was borne out by the Notification by an Employer of an Employee who is About to Cease to be Employed submitted by RGL to the IRD on 14 April 2016 stating the reason for P’s cessation employment was “termination” (ie termination by employer) (item 12), and confirming P worked from 18 to 29 January 2016 (item 9) earning $131,775 (ie salary of $36,775 and payment in lieu of notice of $95,000) (item 13). 170.According to the Lam Report, P told Dr Lam he quitted working for RGL because he could not work when the weather was very cold and when he experienced severe pain in his right arm. P explained under cross-examination that he wanted to stop working for RGL because “除咗痛之外, 因為當時嘅天氣實在太凍喇, 當時係香港天氣五十年嚟最凍嘅兩個禮拜, [P] 身體實在頂唔住喇, [P] 著咗兩件大褸, …… 兩件大冷衫, [P] 都覺得喺度震緊, [P] 相信最主要原因就係, [P] 做完 …… 呢一個手術, [P] 意思係手臂呢個手術, 對 [P] 嘅身體影響實在係太大喇, [P]都冇辦法即時可以適應即時返工”. P claimed he was put under general anaesthesia for his right arm operation, “…… 對 [P] 身體都幾大影響” as “…… [P] 係冇辦法 …… 做到其他運動, [P] …… 只係可以做物理治療呢個運動啫, 唔可以再跑步, 呢啲其他運動 [P] 都做唔到嘅, 根本 [P] 身體係好弱”. 171.P claimed under cross-examination that he could not lift his arm beyond certain elevation and that he felt painful when carrying heavy object. He agreed his work as RGL’s senior risk consultant was similar to his previous work as banker (eg meeting clients, using the computer etc), so although his work did not require physical labour, he had to use the computer for extended period up to several hours at a time, “咁 [P] 用用下隻手已經痺咗喇。…… 當時嘅天氣, 身體實在太弱喇, [P] 工作檯度 ……一路打字, 一路打冷震, 根本就冇辦法完成到啲工作”. P felt he could not manage the job with RGL because “手痛加埋身體嘅唔舒服 …… 身體嘅唔舒服, 就係主要就係因為做咗一個大手術, 呢個手術就係個手臂呢個手術”. 172.On the other hand, D submitted that the PD Report showed that on 12 January 2016 “…… 疼痛已經消失, 右臂靈活度正常, 即係話當其時候, 原告人嘅手臂已經唔痛”, and P started to work for RGL 6 days later. D submitted that “…… 如果 [P]有心想返工, [P] 唔會喺 [Accident]發生之前報稱自己有一份工作, 工作返咗十二日之後, [P] 就話身體唔舒服、全身不適, 又遇上百年難得一遇嘅寒冷天氣, 著兩件褸都好凍, 而呢個凍影響到工作能力。但係其後3月10號覆診, 又冇任何手痛、寒冷、長時間工作導致身體麻痺嘅投訴, 反而喺覆診度表示麻痺已經消失, 冇任何前臂外側皮神經有關嘅問題。[P] 亦都曾經指出, [P] 嘅手痛係因為抬高嘢或者抬重嘢嘅時候先至會痛, 但係 [D] 相信一個風險管理顧問嘅工作根本就唔需要擔抬, 或者係要將手放喺一個好高嘅高度, 所以 [D] 認為 [P] 只係求其搵一份工去見, 然後見完面就自己辭職, 甚至乎畀人解僱, 只係單純地為咗想提高 [P] 喺呢一個 [Accident] 後人工嘅損失, 其實實際上同 [Accident] 受傷係並冇任何嘅關係. [P]嘅索償完全出於虛構 ……所以, 綜合而言, [D] 認為 [P] 並冇任何索償損失病假收入嘅權利”. 173.I find on balance that P was unable to cope with the work assigned to him as risk management consultant at RGL, and that RGL felt he was unable to complete his work in sufficiently timely manner. I also find that there was mutual understanding between P and RGL that they should part ways, and RGL found it was expedient to make payment in lieu of notice to bring about early termination of the Agreement. In my view, P was unable to cope with his work at RGL partly because of residual pain and discomfort on prolonged use of his right upper limb (eg in typing and using the computer). As regards P’s complaint as to his weakness in withstanding the cold weather which he attributed to the impact of general anaesthesia, on balance I accept the severe cold weather in January 2016 would exacerbate the pain/discomfort of his right upper limb upon continuous exertion during work, but there was little medical evidence to suggest it was a sequelae of general anaesthesia, and even if there was, it would be attributable to both the adrenal tumor surgery as well as the operation on his right arm (see footnote 53 above). 174.That said, even P himself acknowledged his condition had improved since January 2016, and he expected he would be able to manage desktop work by the time of trial. Dr Lam also opined that as P was highly educated and his pre-accident jobs did not require heavy manual labour, he should be able to resume his previous duties with minimal problem related to residue pain. P would not claim for loss of earnings after 18 January 2016, and the above findings would not affect P’s claim for loss of earnings during the sick leave period. But I have borne in mind the above matters when assessing the award for PSLA. I also note that according to the Lam Report, when P was assessed by Dr Lam on 19 March 2018, he worked as a private tutor providing private tuition for children, and he occasionally also gave lectures/talks. (g) Future medical expenses 175.In the RSoD, P averred that in light of his injuries and disabilities he would require future rehabilitative and physiotherapy treatment for which he claimed a sum of $20,000. In the Answer, D denied such claim. 176.According to the P WStmt, P claimed that “由於 [Accident] 後, [P] 仍不時感到右肩、右手肘伴有疼痛、麻痺及不適，在寒冷季節、長時間工作或劇烈動作時尤其嚴重, [P] 現在仍不時要購買止痛藥或藥膏等來舒緩痛楚, 此外, [P] 亦希望能繼續接受物理治療來舒緩 [P] 右肩及右手肘的痛症, 此部分的費用約計港幣20,000.00元”. 177.Dr Lam opined that no further surgery was required. There was also no evidence that P had any further physiotherapy from 30 January 2016 up to the time of trial even though P no longer have to be concerned about taking time off from work for physiotherapy. There was no suggestion in the PD Report and/or the Lam Report that P required further physiotherapy. I do not accept P would require further physiotherapy. But the fact P achieved maximum medical improvement did not mean he made full recovery. On balance, I accept Dr Lam’s opinion that prolonged exertion in carrying heavy objects and/or heavy lifting would cause discomfort/pain in the right arm, and there would be occasional pain, stiffness and/or weakness. As noted by Dr Lam and confirmed by P under cross-examination, P continued to take neurotropic vitamins. I find on balance P took such vitamins on need basis and they gave relief from discomfort/pain/numbness upon prolonged exertion. I find a reasonable award under this head of claim to be $2,000. (h) Special damages 178.P in the RSoD and in the P WStmt claimed (and D in his Answer put P to strict proof) “由於 [Accident] 所遭受的傷患, [P] 需要支付各項醫療開支。此外, [P] 亦花費了金錢購買營養補品進食，以增進受傷後復原的速度。[P] 在這方面蒙受的損失和支出如下: 醫療費、藥物、葯膏及營養補品費用HK$10,000.00, 單車及衣物損壞HK$ 1,999.00, 合共: HK$11,999.00。[P] 已將保留的有關支出單據, 提供了給 [P] 的律師代為處理”. 179.In relation to the schedule of medical expenses[68] and supporting documents, Mr Cheung conceded that items 30-31 of the schedule in the sum of $695 each should be excluded as they were items of costs rather than damages, so P’s net claim for medical expenses was $3,688.10. In my view, the sum should be allowed as they involved hospital expenses as well as ointment for surgical scar. 180.P said under cross-examination that after May 2018 he bought and took pain relief medication and neurotropic vitamins previously prescribed by AHMLNH and recommended by Dr Lam on need basis. Such medications were not set out in the schedule, but were supported by the Lam Report and by the fact that P had occasional pain/discomfort upon prolonged exertion for which relief would be required. That being the case, I allow $2,000 for the same for past expenses. 181.As for tonic food, only a reasonable sum will be awarded where there is no evidence as to the advisability or suitability of tonic food from any doctor or herbalist or person with medical knowledge. But here, there was no evidence as what tonic food was bought let alone consumed by P, and there were no supporting documents. I do not allow this claim. 182.I therefore allow $3,688.10 + $2,000 = $5,688.10 for medical and medicine expenses. 183.As for damage to P’s Bike, the Photos showed that P’s Bike was a branded bicycle, but there was no evidence at all of its value. No significant damage was evident in the Photos, and the Brief Facts only referred to slight damage with minor scruff marks (see paragraph 50(b) above). Further, whilst there was no direct evidence as to how P’s clothing was damaged, there was clear evidence that P fell and hit his right shoulder against the Outside Curb, so damage to clothing at the point of impact was to be expected. Given the evidence/inference of damage to P’s Bike and P’s clothing, but little evidence of the cost of repairs (if any) and/or price of the articles, I grant a reasonable award in the sum of $500. IV. CONCLUSION 184.I summarise the above awards as follows:
185.I therefore grant judgment in favour of P against D in the sum of $633,188.10. Interest is payable on the award for PSLA at 2%pa from the date of the writ of summons to the date of judgment herein, and on special damages from the date of the Accident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment. 186.There is no reason why costs should not follow event. I drew Mr Cheung’s attention to paragraphs 50 and 97 of Practice Direction 18.1. Had P (upon legal advice) given proper consideration to the proper scope of his claim in a timely fashion, the present action and certainly this trial should have been transferred to the District Court at a much earlier stage with savings of costs for all concerned. Mr Cheung conceded D would only be entitled costs on District Court scale. In the circumstances, I grant a costs order nisi that D shall pay P’s costs of the action (including all costs reserved if any) on District Court scale to be taxed if not agreed, but there shall be no order as to costs of and occasioned by P’s claim for loss of earnings after the sick leave period and for loss of earning capacity. For the avoidance of doubt, there shall be certificate for counsel. 187.Should D require translation of this judgment into punti language, he can contact my clerk to arrange an appointment for a court interpreter to verbally translate this judgment to him at the High Court Building at a mutually convenient time.
Mr Lawrence Cheung, instructed by LCP, solicitors for the plaintiff The defendant, acting in person and present [1] the movements of P’s Bike and D’s Bike as described by P were illustrated in P’s Sketch [2] see Memorandum of Notification of an Application for Legal Aid filed on 15 February 2017 [3] see Memorandum of Notification that a Party Has Been Refused Legal Aid filed on 8 May 2017 [4] see the order of Master Leong dated 1 December 2017 [5] see Star Glory Investment Ltd v Kai Tuo (HK) Technology Ltd & ors HCA3523/2002, Chung J (unreported, 13 August 2005) para 12 (see also Four Seas Fishballs Co Ltd v Yeung Hung Sin & anor HCA4159/2003, Chung J (unreported, 25 August 2006) para 20, Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, 494, Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513, 524, and Hui Cheung Fai & anor v Daiwa Development Limited & ors HCA1734/2009, DHCJ Eugene Fung J (unreported, 8 April 2014) paras 76-83) [6] see Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14, 29 and Clerk & Lindsell on Torts 23rd ed para 7-04 at p 425 [7] see Clerk & Lindsell on Torts 23rd ed para 7-07 at p 426 [8] (2011) 14 HKCFAR 14 [9] [1990] 2 AC 605, 617-618 [10] [1995] 2 AC 207 [11] HCPI338/2017 (unreported, 31 August 2021) [12] see Clerk & Lindsell on Torts 23rd ed paras 1-66 and 7-158 at pp 41 and 539 [13] see Clerk & Lindsell on Torts 23rd ed para 1-66 at p 41 [14] see Clerk & Lindsell on Torts 23rd ed para 7-160 at p 540 [15] see Nettleship v Weston [1971] 2 QB 691 and Clerk & Lindsell on Torts 23rd ed at paras 7-161 – 7-162 at p 541 [16] see Clerk & Lindsell on Torts 23rd ed para 7-158 at p 539 [17] see Clerk & Lindsell on Torts 23rd ed para 7-157 at p 538 [18] see Clerk & Lindsell on Torts 23rd ed para 2-03 at p 57 [19] see Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 and Clerk & Lindsell on Torts 23rd ed para 2-09 at p 61 [20] see Clerk & Lindsell on Torts 23rd ed para 2-153 at p 161 [21] see Clerk & Lindsell on Torts 23rd ed paras 2-144 and 2-153 at pp 157 and 161 [22] see Clerk & Lindsell on Torts 23rd ed para 2-12 at p 63 [23] HCMA46/2018, DHCJ J Chan (as he then was) (unreported, 19 April 2018) [24] HCMA390/2019, DHCJ I Tam (unreported, 8 April 2020) [25] see Charlesworth & Percy on Negligence 14th ed para 4-13 at p 203 [26] see para 11(b) of the Defence [27] see para 11(c) of the Defence [28] see Phipson on Evidence 20th ed para 43-87 at p 1695 [29] see McCauley v Vine [1999] 1 WLR 1977, 1981 and Lau Ka Po (a minor) by his mother and next friend Wong Siu Mui v Man Cheuk Ming & anor HCPI584/1996, Cheung J (as he then was) (unreported, 10 March 1997) para 9 (see also section 62(2)(b) of the EO) [30] see Phipson on Evidence 20th ed para 43-88 at p 1696 [31] [1971] 1 QB 50, a case that considered section 11 of the Civil Evidence Act (which is the equivalent of section 62 of the EO) [32] as approved in Lau Ka Po (a minor) by his mother and next friend Wong Siu Mui at para 9 [33] [1999] 2 HKLRD 555, 560 [34] [2020] 5 HKLRD 616, 625 (see also Lau Ka Po (a minor) by his mother and next friend Wong Siu Mui at para 9, Tamang, Tikaram v Tong Kee Company Limited & ors HCPI19/2013, DHCJ Paul Lam SC (unreported, 1 April 2015) para 17, Tsang Chiu Yip v Ho Kwok Leung HCPI305/2013 (unreported, 29 February 2016) para 18, and Lee Yam Kan v Ng Pui Kuen trading as Wing Sing Scaffolding Engineering & anor HCPI196/2014, DHCJ Paul Lam SC (unreported, 15 March 2016) para 13) [35] HCPI196/2014, DHCJ Paul Lam SC (unreported, 15 March 2016) para 14 [36] [1985] 2 HKC 437, 440-441 [37] [1985] 2 HKC 437, 440 [38] HCPI584/1996, Cheung J (as he then was) (unreported, 10 March 1997) para 9 [39] [2005] 4 HKLRD 16 [40] DCPI203/2001, DDJ Roy Yu (as he then was) (unreported, 11 April 2002) [41] DCPI2647/2007, DDJ Frederick HF Chan (unreported, 6 October 2008) [42] HCMA61/2002, Wong J (unreported, 19 March 2002) [43] ie the PC had been a police officer for over 17 years [44] ie the SPC had been a police officer for over 27 years [45] D claimed that on the day of the Accident he left his mobile telephone numbers in Hong Kong and Mainland China with the SPC as he was often not in Hong Kong, and he told the SPC “「如果有啲咩嘢需要嘅，你就可以聯絡我囉」” [46] eg day following Mid-Autumn Festival, Double Ninth Festival, Christmas/Boxing Days and New Year’s Day [47] see the Melvin categories of documents referred to in HKSAR v Lee Ming Tee and Securities and Futures Commission (2003) 6 HKCFAR 336, 383-384, 388-389 and 391 [48] if D pleaded not guilty to the Charge/Summons, the learned magistrate would only have made the Conviction after the prosecution had led witness evidence and documentary exhibits to prove the Charge under the Summons beyond reasonable doubt [49] P’s Bike was self-owned by P [50] P gave evidence under cross-examination that “你哋 [ie D’s Group] 有六、七個人喺去大美督, 突然之間全部停晒喺度, [P] 跟住佢哋 [ie D’s Group] 踩, 咁 [P] 唯有踩過去 [Opposite Lane] ……” [51] according to the Lam Report, P told Dr Lam that at the time of the Accident on 5 September 2015 (a) he was cycling at the Cycling Track when D’s Bike cut into his path from his right, (b) he managed to stop P’s Bike and avoided collision, (c) he then rode P’s Bike more towards the right side of the Lane and eventually overtook D’s Bike that had cut into his lane before, but (d) D’s Bike moved on and hit the left side of P’s Bike, so (e) he fell down, and during the fall his right arm hit a curb [52] see AHMLNH’s clinical summary noted “Hx [History] : HT Hyperthyrodism [with] OT done” (see page F/39 of the trial bundle), AHMLNH’s anaesthetic record noted “? Thyroid problem FU private ……” (p F/19 of the trial bundle), and AHMLNH’s integrated progress sheet noted for 5, 7 and 8 September 2015 noted “Pt [patient] reported taking thyroid replacement 10 mcg x 3 tabs [tablets] per day ……” (p F/45 of the trial bundle), P had Grave’s disease (p F/48 of the trial bundle) and P had “Hx [history] of hyperthyroidism, Grave’s Disease RAI 2011” (p F/49 of the trial bundle) [53] see AHMLNH’s integrated progress sheet for 8 September 2015 (p F/49 of the trial bundle) and AHMLNH’s anaesthetic record which noted “Adrenema GA [general anaesthesia] → in private” (p F19 of the trial bundle) [54] see AHMLNH’s operation record dated 9 September 2015 (p F/7 of the trial bundle) [55] on 24 September 2015 (“Wound healed, Elbow and shoulder good ROM [range of movement], XR [x-ray] good alignment …… Physio [physiotherapy] X active passive mob [mobolisation], Off stitches today ……”), 5 November 2015 (“XR [x-ray] # [fracture] healed, Shoulder and elbow good ROM [range of movement] …… Physio [physiotherapy] X strengthening, Occu [occupational therapy] X work hardening ……” and 17 December 2015 (“XR [x-ray] # [fracture] healed, Shoulder and elbow full ROM [range of movement], report shooting numbness along LCN [lateral cutaneous nerve] distribution when touching mid shaft lateral region with elbow flexed, Normal sensation, …… SL [sick leave] X 4/52 [4 weeks] then resume duty ……” and 10 March 2016 (“XR [x-ray] # [fracture] healed, Shoulder and elbow full ROM [range of movement], No numbness, Normal sensation, Case closed ……” (pp F/3-6 of the trial bundle) [56] complained of pain in the shoulder [57] D noted that according to the PD Report, P’s pain scale was 0/10, his right shoulder muscle power was Grade 5 for flexor, abductor and external rotator and Grade 5- for internal rotator, his right hand grip was 36kgf at the assessment on the last physiotherapy session on 12 January 2016 (see para 116 above) [58] DCPI1700/2016, HHJ K C Chan (unreported, 21 September 2018) [59] in (a) Lau Tsz Ha v Chui Sang Choy HCPI489/2006, Registrar Queeny Au-Yeung (as she then was) (unreported, 9 March 2010), the plaintiff suffered fracture with displacement of upper end of humerus at right shoulder and abrasions to nose bridge and right knee for which she received physiotherapy treatment without surgery but healing of fracture with acceptable displacement as well as recovery of muscle power and range of movement, yet despite maximum medical recovery and 6 months’ sick leave, there was still pain and weakness over right shoulder and upper arm which would (i) worsen with changing weather, (ii) cause difficulty in coping with her job and activities, (iii) affect her sleep such that she needed sleeping pills, (iv) require increased dosage of painkillers, (iv) cause her to stop swimming, playing hula-hoop and badminton, (v) require rest after prolonged use of computer and playing piano, (vi) cause her to be unable to handle heavy duty household chores, and the learned registrar (as she then was) awarded $250,000 for PSLA, and in (b) Lam Kit Hong v Paramatta Estate Management Limited DCPI2165/2007, HHJ Mimmie Chan (as she then was) (unreported, 23 July 2009), the plaintiff had a slip and fall as a result of which he suffered shaft fracture of the right humerus such that his right arm was deformed and necessitated open reduction and internal fixation operation followed by 7 months of physiotherapy, yet despite 68 days of sick leave the plaintiff (i) suffered occasional pain and discomfort in his right arm (about 2-3 times per week lasting several minutes on each occasion but no medication was required), (ii) was embarrassed by his unsightly surgical scar, (iii) felt his right arm was weaker, tired easily when lifting heavy weight, writing and/or using the computer such that he required rest after 30 minutes of continuous work, and (iv) was painful upon exertion, but he had good shoulder/elbow movement, he did not have muscle wasting, his reduced frequency in playing sports was not all due to the accident, and he returned to work although he claimed he could not carry document case or laptop computer, and the plaintiff was awarded $230,000 for PSLA [60] in Lai Wing Sun v High Link Technology Limited & ors DCPI78/2006, HHJ Mimmie Chan (unreported, 13 November 2008), the plaintiff had a fall and fractured his right arm for which he received physiotherapy treatment and 123 days’ sick leave; his recovery was satisfactory with palpable bony deformity along the humerus, no muscle wasting / tender spot, right shoulder/elbow strength was normal, no neurovascular deficit over right upper limb, full range of movement for right elbow, stiffness of right shoulder was minimal; the plaintiff claimed there was residual pain and difficulty in carrying heavy objects, but the medical expert opined that he could return to his pre-injury job upon expiry of sick leave; so $110,000 was awarded for PSLA [61] HCPI896/2013, Bharwaney J (unreported, 3 May 2019) para 95 [62] CACV3/2002 (unreported, 25 September 2002) [63] HCPI646/2012, Bharwaney J (unreported, 7 July 2017) [64] [2008] 5 HKLRD 210, 214-215 [65] DCPI1218/2016 & DCPI25908/2016, DDJ K C Chan (as he then was) (unreported, 17 April 2019) [66] see the Notification by an Employer of an Employee who is About to Cease to be Employed submitted by RGL to Inland Revenue Department on 14 April 2016 [67] see p F/38 of the trial bundle (AHMLNH’s Physiotherapy Peripheral Joint Assessment Form (1) dated 10 September 2015 also noted P’s occupation was “Retired” - see p F/75 of the trial bundle) [68] see p F801 of the trial bundle | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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